SafeWork NSW v Greater Civil Pty Ltd

The Incident

1. On 21 August 2019, Jimmy operated the excavator with the excavator bucket fitted upside-down to lift workers into position at height to work, and to provide access to and egress from working positions at height. The bucket was not designed to transport and/or lift men to work at height, or for use as a safe working platform.
2. Mr Mohamad instructed Mr Thiruchelvamaran and Mr Arumugam to get into the excavator bucket to work at a height of approximately four metres. Neither worker was provided with fall protection. Whist they were working aloft from the excavator bucket, the bucket detached from the quick hitch attachment. The bucket fell onto the concrete below. Mr Arumugam and Mr Thiruchelvamaran also fell onto the concrete slab.
3. Mr Arumugam was taken to the Emergency Department at Westmead hospital and was found to have sustained multiple injuries: a fracture in the right anterior mandible; posterior fractures of the left 4th, 5th and 6th ribs; a fracture through the neck of the left scapula and a fracture of the left humerus requiring open reduction and internal fixation. Mr Arumugam required immediate treatment.
4. Per Part 3 of the Act, the incident was a 'notifiable incident'. The defendant did not provide written notification of the incident to SafeWork NSW, nor did it notify Apex. It also failed to take steps to preserve the site. When Mr Manlapid asked the defendant's site supervisor, Jimmy, about the incident, Jimmy denied knowing about any incident that occurred on 21 August 2019.
5. On 23 August 2019, Thomi Coutas ('Ms Coutas'), a Westmead Hospital counsellor who had been assisting Mr Arumugam, notified SafeWork NSW of the incident. When SafeWork NSW was notified, the excavator had been removed from the site and was not located until 23 October 2019.
6. SafeWork NSW engaged an independent assessor, Warren Lane ('Mr Lane'), to mechanically inspect the excavator on 7 November 2019. He identified the following: 1. The machine has a number of major faults that require attention. 2. The last known service was on 22/09/16 at 5744 Hours (8082 hours at time of inspection) 3. The bucket cylinder hydraulic tube clamp is broken and the tube is rubbing on the stick. The clamp will require replacement as the wearing may lead to a failure of the hydraulic tube under pressure. 4. The Quick Hitch to H link mounting bolt 236-6366 is missing and is secured with wire. Without the correct 236-6366 mounting bolt in place the pin could walk out of position and the quick hitch and bucket would detach.
7. SafeWork NSW issued the defendant with a Prohibition Notice on the excavator.

Relevant Guidance Materials & Statutory Obligations

1. Clause 78 of the Work Health and Safety Regulation 2017 (NSW) ('the Regulation') requires duty holders to manage health and safety risks associated with a fall that is likely to cause injury. Where is it not possible to eliminate the risk to which cl 78 applies, cl 79(3) of the Regulation states that duty holders adequately protect against the risk if they provide and maintain a safe system of work, including by: 1. providing a fall prevention device if it is reasonably practicable to do so; or 2. if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system; or 3. if it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable.
2. Clause 79(5) of the Regulation defines 'fall prevention device' to include covers, edge protection, working platforms, and a secure fence. Clause 291(a) defines 'high risk construction work' as construction work involving a risk of a person falling more than two metres. Clauses 299-303 require duty holders to prepare a SWMS for the work before it commences, which is to be regularly reviewed and complied with.
3. Pursuant to cl 292 of the Regulation, the work being conducted at the site was a 'construction project'. Clause 309 obliges principal contractors to prepare a written WHS management plan, and cl 314 requires them to set up arrangements to ensure workplace compliance with several provisions in the Regulation.
4. At the time of the incident, the following guidance material was available to the defendant:

• The SafeWork NSW publication Code of Practice - Construction Work, May 2018 ('the Construction COP'), which provides guidance on protecting persons working on construction projects and reinforces the relevant clauses in the Regulation.
• The SafeWork NSW Code of Practice - Managing the Risk of Falls at Workplaces, August 2019 ('the Falls COP'), which recommends using a scissor lift or work platform when work cannot be performed on the ground, if reasonably practicable. When work cannot be performed on the ground or from a solid construction, it requires duty holders to provide fall prevention devices if reasonably practicable.

Systems of work prior to the incident

1. The defendant developed a Greater Civil Pty Ltd Demolition Work Plan ('the Work Plan') and two SWMS for demolition works. The SWMS did not provide for risk controls for the job steps in relation to falls from height and were written in English. However, the workers came from non-English speaking backgrounds and Mr Arumugam was not skilled in reading or writing in the English language. The defendant also failed to train the workers in safely performing job tasks at height.
2. The defendant's documented Pre-Start Plant Daily Checklist ('the Checklist') did not provide for inspecting or testing the excavator's quick hitch attachment or warning device. Whilst it serviced the excavator on a quarterly basis between May 2018 to the date of the incident, the defendant did not have a robust service, maintenance and repair program in relation to the excavator.
3. Apex had a Work, Health, Safety and Rehabilitation Policy and a documented Work, Health and Safety Plan for the site ('the Apex WHS Site Plan'). It also had documented systems in relation to conducting risk and hazard assessments, reviewing SWMS submitted by subcontractors, and a site safety induction system. Mr Manlapid inducted the workers onto the site but did not obtain a signed copy of the defendant's SWMS from Mr Al Magar, Mr Bk, Mr Thiruchelvamaran or Mr Arumugam.
4. Astute did not have a work health and safety plan for the site or SWMS for the demolition works being performed at the site.

Systems of work after the incident

1. There is evidence that the defendant has ceased performing demolition work when Harry's licence had expired in October 2021 (Exhibit C at [25]). Harry was not onsite when the accident occurred, and the defendant now only does general civil work such as digging, excavation and trenching for private builders (Exhibit C at [26]).
2. However, these steps taken to otherwise address the contravention of s 19(1) of the Act are limited to the following, contained in Mr Taleb's affidavit (Exhibit C at [28]): "Since the accident what I have done is to be more carful and thorough with the preparation of SWMS' to account for the actual work to be performed at any particular job site."
3. In my view, these steps are of limited efficacy and do not provide me with any great confidence as to the prospects of rehabilitation of the defendant.
4. In Inspector Callaghan v Saunders Constructions (Unreported) CT 1062 of 1993, 26 November 1993 at [7] Maidment J observed as follows: "Commendable though it is to introduce appropriate occupational health and safety measures after the event it needs to be remembered that the legislation is not directed at ex post facto measures, it requires positive preventative steps being taken to ensure that workers are afforded safe working environments irrespective of their own laxities."

The risk with regard to the section 32 offence

1. The risk is described in Annexure "A" to the Summons in the following terms: "The risk was a risk to workers, in particular Messrs Thiruchelvamaran and/or Arumugam, of death or serious injury as a result of a fall from height whilst undertaking demolition work, including work relating to the dismantling and/or removal of the structural steel components from the existing premises undergoing demolition, at the site."
2. The defendant's duty required it to identify risks at the site and to adopt measures to eliminate or minimise them: s 17 of the Act: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [34] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
3. The reasonably practicable measures to control the risk are set out in paragraphs 14 of the Amended Summons, and can be summarised as follows:

• Undertaking and implementing a proper risk assessment or, in the alternative, verifying that a proper risk assessment had been undertaken;
• Providing and maintaining a safe work procedure or work method;
• Providing and maintaining a culturally and linguistically appropriate induction and training;
• Providing and maintaining the use of proper safe plant and equipment required by the workers to obtain safe access to and egress from workplaces located at height and for working at those places - such as safe work platforms, elevated work platforms ('EWP') and scissor lifts;
• Providing proper instructions - noting that it is agreed that Mr Thiruchelvamaran and Mr Arumugam were directed to enter the upturned excavator bucket attached to the defendant's excavator which was being operated by the defendant's site supervisor; and
• Providing and maintaining proper supervision.

The breach with regard to the section 38 offence

1. The breach as described in Annexure "A" to the Summons is in the following terms: "At the time of the incident, the defendant's site supervisor, Mr Jamal Taleb, was operating the excavator and observed the subject incident. The defendant failed to notify the regulator of the incident."
2. It is noted that:

• The incident was a notifiable incident within the meaning of Part 3 of the WHS Act (ASOF at [54]).
• The defendant did not notify the regulator or the principal contractor of the incident (ASOF at [55] and [56]).
• Upon inquiry from the principal contractor's site supervisor, the defendant's site supervisor, Mr Jim Taleb, denied knowing anything about the occurrence of an incident on 21 August 2019 (ASOF at [58]).

1. Of concern to me is the fact that there has been no explanation offered by the defendant for the failure to notify the regulator in contravention of s 38 of the Act. In addition, the denial of any knowledge of the subject incident by the defendant's site supervisor to the principal contractor's site supervisor on the day after the incident, to my mind, seems to be both deliberate and dishonest.
2. On 23 August 2019, Ms Coutas, a counsellor at Westmead Hospital where Mr Arumugam was an in-patient, who had been assisting Mr Arumugam, notified SafeWork of the incident (ASOF at [61]).
3. The notification to the regulator is an essential step to allow SafeWork to undertake an investigation to see if there have been any breaches of the Act by duty holders. To do so it is necessary that the investigators observe the site, the site being undisturbed from how it was at the time of the incident, interview witnesses and obtain all relevant documents. Non-compliance with the duty to notify not only frustrates the investigation of the incident, but it also frustrates the purpose of the Act.

Sentencing

1. The penalty to be imposed must be one which will give overall effect to the policy of the Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the Act.
2. The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act') which include: 1. Section 3A which sets out the purpose of sentencing; 2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and 3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.
3. The Court is to approach a sentencing exercise on the basis of it being one of 'instinctive synthesis': Markarian v The Queen (2005) 228 CLR 357.
4. The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way: "The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement."

Objective seriousness of the offence

1. The duty of the defendant requires that it ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the defendant had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.
2. It has been observed that the purpose of creating a strict liability offence of the subject kind is the promotion of the objects of the WHS Act by compelling a duty holder to vigilance, a proactive approach to work health and safety and the taking of preventative measures, including the provision of supervision, inspection, monitoring and the exertion of influence over those whom the duty holder may be expected to influence or control so as to promote observance of the relevant legislative or regulatory provision: Thornloe v Filipowski [2001] NSWCCA 213 per Spigelman CJ at [172] - [174].
3. The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474-5.
4. The gravity of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No. 2) (1988) 164 CLR 465.
5. The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 ('Capral Aluminium') at [81].
6. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117.
7. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31].
8. The Court of Criminal Appeal examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 ('Nash v Silver City'). Justice Basten at [34], under the heading 'Assessment of Risk' said: "The sentencing judge commenced his consideration with the proposition that '[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely.' However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors."
9. His Honour further observed at [42]: "The culpability of the respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent's responsible officers knew or ought to have known."
10. I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272.
11. The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]-[18] (Latham J).
12. The following matters are relevant to determining the culpability of the defendant: 1. It is an agreed fact that the defendant did not train workers in relation to the safe performance of job tasks at height, including but not limited to, the dismantling and removal, at height, of structural elements at the existing premises (ASOF at [85]); 2. It is agreed that Mr Thiruchelvamaran and Mr Arumugam were directed to enter the upturned bucket of the excavator for the purpose of being carried aloft and work at height, and that the defendant's site supervisor operated the excavator for that purpose - raising the upturned bucket containing the workers to height of approximately four metres; 3. The workers were subcontracted labourers; 4. The injured worker was a Tamil refugee and not skilled in reading or writing in the English language; 5. The defendant was aware of the hazard (PTB tab 8 page 11), and was aware of the need to undertake and implement a risk assessment in relation to the performance of work by the defendant's workers at height; 6. The defendant had not conducted a risk assessment which identified and/or addressed the subject hazard (PTB tab 9 and 10); 7. As a matter of common sense, the risk of death or serious injury is exacerbated where works being performed involved workers being directed to get into the upturned bucket of an excavator for the purpose of being carried aloft and perform demolition work therefrom; 8. The hazard was known and readily foreseeable, and carried with it a clearly foreseeable risk of serious injury or death; 9. The defendant failed to take simple, straightforward steps in relation to addressing an obvious hazard, including both a failure to provide a safe system of work, adequate plant and/or equipment, proper training and instruction and adequate supervision; 10. The excavator and its bucket were neither designed nor suitable for use as a temporary work platform. This is set out at [45] of the ASOF as follows; "The excavator bucket attached to the excavator was not designed by the original equipment manufacturer for use in the transportation and/or lifting men to work at height and/or for use as a safe working platform from which work at height was to be performed." 1. Once in the upturned excavator bucket, neither Mr Thiruchelvamaran or Mr Arumugam were provided with fall protection, such as a harness attached to a safety line to the plant (ASOF at [48]); 2. The defendant's site supervisor then operated the excavator raising the bucket and workers to a height of approximately 4 metres (ASOF at [47]); 3. The excavator was relevantly defective, in that the quick hitch warning button was inoperable, and the device was missing a mounting bolt (ASOF at [41] and [63]); 4. The defendant's pre-start daily checklist did not make provision for inspection of these devices (ASOF at [86]); 5. The defendant did not have in place a robust service, maintenance and repair program for the excavator (ASOF at [87]); 6. Given the upturned excavator bucket was used as a work platform to raise the workers aloft and perform work at height in the circumstances, I find that the likelihood of the risk coming home or being realised was extremely high, if not almost inevitable; 7. In my view, the defendant's actions involved a serious dereliction from the health and safety duty imposed by s 19(1) of the Act, and demonstrated a level of disregard by the defendant for proper safe work procedures, which exacerbates significantly the defendant's culpability; 8. Prior to and as at the date of the incident, the defendant had available to it the simple expedient of providing a safe work procedure that required the use of an either an EWP or a scissor lift for the purpose of obtaining access to and egress from the roof structure of the premises to disassemble and/or remove the structural elements of that structure; and 9. There is no explanation as to why the matter was not notified to the regulator. SafeWork were notified by a counsellor assisting Mr Arumugam whilst he was an inpatient in hospital two days after the incident. The happening of the incident was denied by the defendant's site supervisor when he was asked about it. There is no evidence to suggest that the defendant took any steps to preserve the site where the incident occurred until a SafeWork inspector arrived at the site or directed otherwise.
13. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: "It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken."
14. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).
15. The objective seriousness of an offence under s 32 of the Act is considered in the context of the gradation of offences contained in ss 31-32 of the Act: Nash v Silver City at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include:

• The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Ibid [34];
• The availability of steps to eliminate or minimise the risk: Ibid [34];
• Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Ibid [34] and [53];
• Whether the risk was known or ought reasonably have been known to or identified by the defendant;
• Whether the risk was an obvious or clear one; and
• The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ).

1. The general risk is not novel or unique. Falling is a risk of working at height, which is clearly obvious. The potential consequences were serious injury and/or death. Mr Arumugam was lucky to have survived, although he is now significantly disabled.
2. As a consequence of the matters set out above, I am of the view that this is an objectively serious offence. The seriousness of the foreseeable harm to a worker was extreme, and the steps available to avoid the risk were known, or ought to have been known, by the defendant and were straightforward.

Deterrence

1. In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.
2. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the Court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).
3. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.
4. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]-[75] which said: "[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. … [75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable."
5. General deterrence must be a significant feature of the sentence imposed upon the defendant. It can be appropriately used to direct the industry's attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with working at height. It seems that the message is not getting through to employers who require their workers to work at height - inherently dangerous work. The frequency with which this Court deals with SafeWork prosecutions that involve workers falling from height is not decreasing, and the devastation and harm that can be, and is, caused by this dereliction of the duties imposed by the WHS Act is a matter which I find very concerning. The attention of employers in circumstances such as this needs to be focused and heightened, as the risk was so obvious.
6. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors.
7. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend. I believe that the defendant's possibility of rehabilitation is fair, and thus specific deterrence also looms large in sentencing this defendant.

Aggravating factors

1. For an aggravating factor to be established, I must be satisfied beyond a reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing). It is not necessary that an injury occurred for the offence to be established, the creation of a risk is sufficient.
2. Mr Arumugam was taken to the emergency department of Westmead Hospital immediately after the accident. Upon CT examination he was found to have sustained the following injuries:

• a fracture in the right anterior mandible;
• posterior fractures of the left 4th,5th and 6th ribs;
• a fracture through the neck of the left scapula; and
• a fracture of the left humerus requiring open reduction and internal fixation.

1. The injury and emotional harm caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act.
2. Mr Arumugam was vulnerable as a consequence of his lack of training and experience, and his difficulty with the English language.

Mitigating factors

1. The defendant has no previous convictions: s 21A(3)(e) of the Sentencing Act.
2. I accept that the defendant has fair prospects of rehabilitation: s21A(3)(h) of the Sentencing Act.
3. Harry's affidavit (Exhibit C) demonstrates the acceptance of responsibility for the defendant's failures and has demonstrated remorse and contrition: s21A(3)(i) of the Sentencing Act.
4. The defendant entered a plea of guilty early, which of itself demonstrates remorse, and the prosecutor submits it is open to me to find that the defendant is entitled to the maximum discount on that basis. Thus, I will allow the deduction of 25% for the utilitarian value of the plea in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383: s21A(3)(k) of the Sentencing Act.
5. The defendant ultimately co-operated with the SafeWork investigation, but not in a timely or appropriate fashion: s 21A(3)(m) of the Sentencing Act.

Victim Impact Statement

1. The prosecutor tendered a Victim Impact Statement ('VIS') from Mr Arumugam which was a lengthy handwritten statement in Tamil that was translated by a qualified NAATI Interpreter into English (Exhibit B). The details of the VIS were heartbreaking.
2. Mr Arumugam came to Australia from his native Sri Lanka on a boat seeking refugee status in 2012. He was held in detention for about 100 days and was then released and assisted to find a job and speak English.
3. In 2014 Mr Arumugam found employment in Wagga Wagga as a cleaner and sent money home to support his family. He was very happy in Wagga Wagga. His refugee status claim was then rejected and he had to move to Sydney for further interviews as to his refugee status, and found work with Astute where he worked for about two years until the date of the accident.
4. His injuries are partly indicated above, but from the VIS it seems that Mr Arumugam also suffered a fractured jaw which did not allow him to eat solid food or brush his teeth. He existed on a liquid diet for three months. For months he had to regularly attend hand physiotherapy, neurology clinics, dental clinics and his GP a couple of times a week. He underwent further surgery and, as a consequence, Mr Arumugam suffered significantly as a result of his injuries sustained in this accident.
5. Mr Arumugam was also unable to work and lived off the charity of his friends and workers compensation benefits, both of which ultimately wore out. He had no money and was unable to support himself let alone send money home to support his family. He ultimately returned home to Sri Lanka on 24 February 2022.
6. Mr Arumugam continues to suffer on a daily basis, with very limited use of his left hand, where he also suffers significant pain. He experiences headaches and numbness in his head and has difficulty biting certain foods. On page 17 of Exhibit B he states as follows: "This is how difficult my life has been in Sri Lanka. My boss from Australia, Ramzi, has never contacted me to see how I am doing from the date of the accident (21/08/2019) to now. This was very disheartening for me. This is the difference between my life before the accident and my life after the accident. Australia is a country that I really like and is also the country that I loved the most. I would like to come back to Australia. I can't work there due to the condition that my hand is in at the moment. Therefore, after I strengthen my left-hand, I will definitely come to Australia if I get the opportunity to do so."
7. Mr Arumugam has suffered greatly as a result of this incident and continues to do so with little hope in sight.

Capacity to pay

1. Section 6 of the Fines Act 1996 (NSW) provides as follows: "6 CONSIDERATION OF ACCUSED'S MEANS TO PAY In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) Such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) Such other matters as, in the opinion of the court, are relevant tp the fixing of that amount."
2. The onus is on the offender to satisfy the Court on the balance of probabilities as to the truth of such evidence and its relevance to the fixing of a penalty: McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310 at [24].
3. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16] (Rothman J, Hoeben CJ at CL agreeing).
4. In Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100, Staff J said at [57]-[58]: "The principles to be applied in respect of an application under s 6 of the Fines Act were discussed by Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 are as follows: '[83] The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons (at par 50): 'It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Ltd (1999) 94 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as (2002) 112 IR 284 at 309 far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200-201.' [84] This approach was subsequently adopted in Manpac Industries where the Full Bench of this Court stated (at pars 81-82): '... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at 339); WorkCover Authority (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333; and Profab Industries (49 NSWLR at 714; 100 IR at 76).' However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209 - 210, Wright J, President observed: '... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. ...... When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence. ...' [85] I would reiterate what the Court stated in WorkCover Authority (NSW) (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 at 476: 'Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged and then reduce the fine to take into account the defendant's means and impecuniosity: see R v Rahme (1989) 43 A Crim R 81 at 86."
5. The defendant asserts that it is a reasonably small family company, with Harry being the sole director and shareholder. The financial accounts for the defendant to 30 June 2021 are annexed to Exhibit C. The Financial Report for the Year Ended 30 June 2022 was tendered and became Exhibit D.
6. No bank account records, list of assets held by the director and his wife, nor any indication of the capacity of the defendant to borrow funds have been provided. However, I do note that the defendant does not say it has no capacity to pay fines, but it does submit that its capacity is limited. It is further submitted on behalf of the defendant that the effect of a large fine is difficult to predict, and that it would be inappropriate for me to impose an oppressively heavy fine. I am prepared to grant the defendant some leniency based on its statement about its capacity to pay a fine.
7. Having said that, the objective seriousness of the offence is such that it must be reflected in a significant fine. I accept that the defendant is reasonably unlikely to reoffend, but the seriousness of the offence is such that a fine must be imposed to send a message to employers that they must take their obligations to protect their workers from a risk of injury very seriously. To reduce the fine significantly would not provide the level of general deterrence that is expected, nor specific deterrence, given the risk that Mr Arumugam and Mr Thiruchelvamaran were exposed to.
8. The Court is entitled to take into account the fact that the defendant will be liable to pay the prosecutor's costs when considering any monetary penalty to be imposed on the defendants, particularly in circumstances where there is evidence of a limited capacity to pay a fine. The costs payable to the prosecutor are an important aspect of the punishment of the defendant. The Court can also have regard to the defendant's own costs that it will have to bear as a consequence of a breach of the Act, and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78].
9. I have no doubt that Mr Taleb and his wife will feel that the punishment is too harsh, given the defendant is a small family company and the family's financial circumstances. However, my hands are tied by the decisions of the NSW Court of Criminal Appeal and the sentencing legislation which provides guidelines as to the appropriate parameters that are applicable for various offences.
10. In Nash v Silver City Drilling the Court addressed the capacity of a defendant to absorb a fine at [59]-[60]: "[59] Two factors would indicate that, objectively speaking, the fine should not be at or above the half-way point of the range available. The factors are related. First, the fine will apply to corporate employers of wide-ranging size and ability to absorb a fine. That which would hardly be noticed in the balance sheet of a large corporation may push a smaller corporation to the verge of insolvency, or over. Secondly, it is possible to be satisfied in the case of a small corporation that changes in management practice may diminish significantly the need for individual deterrence. That may not be so powerful a factor with a large corporation which will rely upon general systems and the quality and diligence of its supervisory officers. [60] The size of the operation of the respondent may perhaps be best indicated, on the evidence available in this Court, by the size of the respondent's wages bill in the year to June 2015, which was in excess of $10 million. The evidence also revealed that the company operated in a number of different regions within Australia."
11. In Attorney General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319, and appeal as to the manifest inadequate fine in a decision of mine, Hoeben CJ at CL (as he then was); Fagan J and Cavanagh J, stated as follows: "[19] All of the company's conduct in maintaining a sound safety record before this incident and afterwards and its appropriate responses to the accident itself are as would be expected of a responsible trading corporation. The learned sentencing judge appropriately took into account the subjective circumstances referred to above and the need for general and specific deterrence. The dominant factor in determining an appropriate level of penalty is the very high order of negligence that made this infringement such an objectively serious offence of its kind. There is no specific fault in her Honour's attention to the relevant sentencing factors, including the objective seriousness of the breach, but the level of the penalty arrived at is, in this Court's view, manifestly inadequate by a factor of four. A starting point of $400,000 would be appropriate, discounted by 25% to $300,000."
12. Having taken all those matters into consideration and exercising some leniency due to the defendant's capacity to pay a fine, the appropriate fine for the s 32 offence is $800,000.00 and for the s 38 offence is $25,000.00. The defendant is entitled to a discount of 25% for each fine for the utility of the plea.

PENALTY

1. I make the following orders: 1. The defendant is convicted. 2. The appropriate fine for the section 32 offence is $800,000.00, and that will be reduced by 25% for the utility of the plea. 3. Accordingly, I order the defendant to pay a fine of $600,000.00 for the section 32 offence. 4. The appropriate fine for the section 38 offence is $25,000.00 and that will be reduced by 25% for the utility of the plea. 5. Accordingly, I order the defendant to pay a fine of $18,750.00 for the section 38 offence. 6. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. 7. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, agreed in the sum of $43,565.74.

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