SafeWork NSW v Harris Holdings NSW Pty Ltd; SafeWork NSW v Harry Zizikas

BACKGROUND

1. In both matters an Agreed Statement of Facts was tendered. An Agreed Sentence Tender Bundle was tendered. The findings of fact now set out are based upon that material.
2. At all material times Harris Holdings was a registered corporation with its registered address at 26 Queen Street, Croydon, New South Wales.
3. At all material times Harris Holdings conducted a business or undertaking in the processing of domestic and commercial waste. The business services the greater Sydney area in waste disposal and recycling of domestic, industrial and commercial waste products, in particular demolition and building site waste.
4. At the time of the incident Harris Holdings employed 26 workers, and four of those worked at 160 Arthur Street, Lidcombe (Homebush West) in the State of New South Wales (the site).
5. At the time of the incident Mr Zizikas was the sole director of Harris Holdings.
6. At the time of the incident Mr Zizikas was involved in overseeing the management and business operations of the company.
7. Mr Zizikas was responsible for all of Harris Holdings' training and the development of systems associated with the site operations.
8. Mr Mohammad Ibrahim Pakeer Mohammad commenced full time employment as a labourer with Harris Holdings on 1 October 2014, doing sorting work.
9. Mr Mohammad worked 5.5 to 6 days a week processing commercial and domestic waste at the site.
10. At all material times Mr Perinparasha Nadarasa, leading hand and operator, was supervisor for the site. Mr Nadarasa's role included organising the workers on a daily basis, choosing which material to sort and how that material was to be sorted. Mr Nadarasa reported to Mr Zizikas.
11. The four workers who usually undertook work at the site at the relevant time were Mr Mohammad, Mr Nadarasa, Mr Rajenthiram Namsivayam and Mr Raymond Francis Xaviour Salvaraja. Mr Namsivayam and Mr Salvaraja undertook similar duties to Mr Mohammad. The four workers are all Sri Lankans, who spoke fluent Tamil. The workers had a very poor understanding of spoken English and could not read or write English other than the odd word. Three of the workers including Mr Mohammad resided together in a share house.
12. At all material times Harris Holdings was the owner of Komatsu Excavator Serial Number 30098 (the excavator). The excavator was purchased in 2012; it was manufactured in approximately 2004.
13. The excavator was used on a daily basis at the site to sort through items which were too heavy for the workers to pick up. The excavator moved around the sorting yard while the sorters worked in the perimeter of the yard using their hands to sort through items. The excavator regularly slewed on its tracks and its main structure during operation when moving rubbish.
14. The sorting yard of the site is split into various sections - one section for steel and concrete, another with top soil, another for garbage. Trucks arrived on site and dropped off material to one section of the yard. Workers and the excavator then sorted the materials into the piles in the section relevant to the specific material.

THE INCIDENT

1. On 26 November 2015 Mr Nadarasa was operating the excavator, with a sieve bucket fitted, collecting refuse building material and sieving it through the bucket. That refuse was then sorted into categories such as scrap metal, sand and rocks, and either discarded or recycled.
2. In the morning Mr Nadarasa started by sorting sand. He picked up sand with the bucket and sifted through it. While he was doing this Mr Mohammad, Mr Salvaraja and Mr Namsivayam came to the bucket and removed weeds and other materials from the sand. The machine did not move while they were sorting from the bucket. When they had finished sorting they then moved away from the excavator and the excavator then moved the sand onto a pile in the far corner of the site.
3. After completing sorting the sand Mr Nadarasa moved on to start sorting wood. The sorters moved to other areas to work while awaiting the next bin to arrive to be sorted.
4. About noon Mr Nadarasa was seated in the driver's seat of the excavator near the wood section of the yard. While he was sitting in the compartment of the excavator Mr Nadarasa was facing forward. He noticed Mr Salvaraja and Mr Namsivayam in front of the excavator to his right looking at a TV. Mr Nadarasa also noticed Mr Mohammad in front of the other two workers six or seven feet away from the excavator. Mr Nadarasa then commenced to turn the lever controlling the bucket to the left. As he turned the bucket to the left his line of sight went in the same direction. As he did this the machine also moved backwards away from where he had last seen the other workers standing.
5. Mr Nadarasa did not give any indication he was about to move the machine. He did not consider there was a need to, as he thought that workers were standing in front of the machine.
6. Mr Namsivayam and Mr Salvaraja were standing at the base of a scrap metal pile in the steel and concrete section of the yard. Mr Namasivayam observed Mr Mohammad working parallel to himself and Mr Salvaraja in the sandpit section.
7. Shortly afterwards Mr Salvaraja saw Mr Mohammad with his foot caught in the tracks of the excavator. Mr Mohammad was then knocked down and his foot became pinned beneath the track of the excavator against the ground. The rotation of the track pulled Mr Mohammad's foot further under the track and caused him to fall forward. The leading edge of the track struck Mr Mohammad on the back and hip, and pushed his upper body clear and to the side of the track. The continued rotation of the track caused the lower limbs to rotate and this caused injury to Mr Mohammad's pelvis.
8. Mr Salvaraja ran to Mr Mohammad and attempted to pull him clear of the track but was unable to, due to Mr Mohammad being pinned.
9. Mr Salvaraja called out to Mr Namsivayam who ran over to assist.
10. Mr Namsivayam, realising Mr Mohammad was unable to be extracted, ran around the excavator and advised Mr Nadarasa, who was unaware of the incident, that Mr Mohammad had been injured. Mr Namsivayam stated that Mr Nadarasa was unable to see or hear what was happening because he was facing the opposite side of the yard and had his back to them. He had to run around the front of the machine and wave and yell at Mr Nadarasa to get his attention.
11. Mr Nadarasa rotated the arm around to the northern side of the excavator and by pushing the bucket down against the ground lifted the track off the ground allowing Mr Mohammad to be pulled free.
12. Mr Mohammad was dragged about 1 metre from the excavator.
13. Once Mr Mohammad was pulled free of the track, Mr Nadarasa lowered the excavator to the ground and shut down the engine before dismounting and going to assist Mr Mohammad. Mr Mohammad was alert and conscious. Mr Nadarasa used his mobile telephone to contact Ms Brooke Zizikas, who was at another site in Lidcombe. She immediately left her location and travelled by car to the site.
14. Ms Zizikas (the wife of Mr Zizikas) arrived about 5 minutes later and when she observed Mr Mohammad she contacted triple zero by mobile telephone.
15. At 12.17pm NSW Police arrived on scene and immediately rendered first aid to Mr Mohammad. Mr Mohammad was conscious but mostly unresponsive. The ambulance arrived at 12.26pm. At 12.27pm Mr Mohammad went into cardiac arrest and CPR was commenced. CPR was continued until 12.50pm when resuscitation efforts were ceased. Mr Mohammad was pronounced deceased at 12.50pm.
16. At the time of the incident Mr Mohammad was wearing a hi-vis yellow work shirt. Toxicology revealed that there was no alcohol in Mr Mohammad's blood, nor any illicit substances.
17. Mr Nadarasa advised that between the time he had last seen Mr Mohammad and the time of the incident was one to two minutes.
18. Mr Salvaraja advised that the last time he had seen Mr Mohammad prior to the incident was seven or eight minutes before when he was standing with Mr Namsivayam as they broke down the TV. Mr Salvaraja stated that the loader was operating backward and forward during the seven or eight minutes.
19. Mr Namsivayam advised he had last seen Mr Mohammad in the vicinity of the sandpit about 8 to 10 minutes before he was hit by the excavator. Mr Namsivayam advised the distance between where he had last seen Mr Mohammad before he was struck by the excavator and where the excavator was working was approximately 25 to 30 feet.

INJURIES AND AFTERMATH

1. Mr Mohammad suffered fatal injuries.

Work Procedures

1. No documented systems of work were in place for the work tasks being undertaken at the site.
2. Harris Holdings provided SafeWork NSW with a Transport Operations Manual, which appears to have been developed for Harris Excavation and Transport Pty Ltd, another company of which Mr Zizikas was a director. The manual had not been provided to the workers at the site, nor did it address the operation of the excavator. The manual's contents are relevant to the operation of a transport company. However the manual included generic forms for completing a pre start inspection checklist, risk assessment and safe work method statement. None of these documents were being used at the site nor had they been completed for the tasks being undertaken at the site.
3. Mr Zizikas was aware of the requirement and need for work health and safety procedures as a Transport Operations Manual had been developed however Mr Zizikas did not ensure that any formal procedures were developed for or put in place at the site.
4. The four workers at the site undertaking sorting were unaware or unclear as to what a risk assessment, safe work method statement and tool box talk were.
5. The WorkCover 'Code of Practice for Managing the Risks of Plant in the Workplace' provides guidance in relation to ensuring safe plant. This document was in force and readily available at the time of the incident. The Code of Practice required persons with management or control of plant in the workplace to identify the hazards of the plant, assess the risks and put control measures in place and provide guidance as to how to assess and control the risks of plant in the workplace. No documented risk assessment had been conducted in relation to the operation of the excavator at the site.
6. Australian Standard AS2359.2-2013 Powered Industrial Trucks was available prior to the incident for purchase via Standards Australia's website. The standard sets out (at clause 3.4) general rules for users and supervisors. These include ensuring all personnel in the vicinity of operating trucks to be made aware of and observe safe working procedures including minimum pedestrian safety requirements and separation distances. No adequate procedures were in place at the site to address separating workers from the moving excavator or other vehicles which accessed the site.
7. The manual for the excavator, Shop Manual Komatsu PC228US-3 PC228USLC-3 which was provided to SafeWork NSW by Harris Holdings included safety rules for changing machine directions which included; "before travelling, check again that there is no one in the surrounding area and that there are no obstacles"; "before travelling sound the horn to warn people in the area"; and "if there is an area to the rear of the machine which cannot be seen, position a signal person. Take special care not to hit other machines or people when turning or swinging the machine". In relation to swinging, the Manual specifies that "the rear of the machine extends outside track width. Check that the surrounding area is safe before swinging the upper structure". The safety procedures recommended by the Manual were not in place at the site at the time of the incident.
8. There was a warning sticker attached to the inside of the driver's cabin which stated: "To prevent SEVERE INJURY or DEATH, do the following before moving machine or its attachments: - Honk horn to alert people nearby. - Be sure no one is on or near machine or in swing area. - Rotate cab for full view of travel path if it can be done safely. - Use spotter if view is obscured. Follow the above even is machine equipped with travel alarm and mirrors." The safety procedures recommended on the safety warning sticker were not in place at the site at the time of the incident.
9. The horn on the excavator was not in proper working order at the time of the incident.

Traffic management

1. There was no traffic management plan in place at the site. No exclusion zones for pedestrian workers had been established and no system using a spotter had been established for working in the vicinity of the excavator. Mr Zizikas as sole director of Harris Holdings had not ensured the company had a traffic management plan in place.
2. Technical Guidance Code of Practice 2001 is a WorkCover NSW approved code of practice which provides a practical guide to achieving the standard of safety required by safety legislation. This approved industry code of practice should be followed unless there is an alternative course of action which achieves the same or a better standard of health or safety in the workplace. Australian Standard AS2359.2 -1985 is incorporated into the Code of Practice. Australian Standard AS2359.2-1985 has been superseded by AS2359.2-2013 which commenced on 13 February 2013.
3. Section 3.4, AS 2359.2-2013 Powered Industrial Trucks Part 2: Operations sets out that the purpose of an effective traffic management plan is as far as reasonably practicable, to achieve 'complete physical separation of trucks and mobile plant from people within the work area'.
4. Section 3.6 AS 2359.2-2013 provides that "a traffic management plan that includes truck operation shall be in place for the site."
5. Appendix A AS 2359.2-2013 Powered Industrial Trucks Part 2: Operations provides that a sketch or blueprint of the workplace layout is essential to identify, address and evaluate hazards. It further provides a list for guidance on areas for consideration and additional information and guidance for partial separation where total separation cannot be achieved. Among the hazards listed in the Standard to be considered in the traffic management plan are: the identification of areas where people (workers) and trucks may interact; loading and unloading areas of delivery road trucks; and areas where pedestrians may cross the travel paths of trucks. The Standard requires exclusion and separation zones as a measure to address hazards and notes that if total separation is not possible, other control measures include: scheduling the work of trucks and mobile plant for times when pedestrians are not present; signage; physical barriers; and devices providing a clear view of other users such as mirrors and cameras.
6. The General Guide for workplace traffic management published by SafeWork Australia and readily available on their website provides guidance to industry in managing and controlling traffic risks. The Guide notes that the best way to protect pedestrians is to make sure people and vehicles cannot interact. This can be achieved by not allowing vehicles in pedestrian spaces or not allowing pedestrians in vehicle operating areas. If this is not possible people and vehicles can be separated by measures such as high impact traffic control barriers or temporary physical barriers.
7. There were no fences, barriers, barricades, bollards, bunting, witches hats or similar equipment placed in the area around where the excavator was sorting materials, to designate an exclusion zone.
8. Harris Holdings did not enforce an exclusion zone around the excavator. Harris Holdings did not designate a person as a supervisor, who was responsible for enforcing the exclusion zone. The supervisor for the site was the worker operating the excavator.
9. Harris Holdings did not provide instruction, information and training to all workers about the need for, and the operation of, an exclusion zone around the excavator.
10. Mr Zizikas did not ensure that Harris Holdings took the appropriate steps.

Communication

1. No system of work was in place at the site which required the sorters to communicate with the excavator driver when there was any change in their location. No procedure was in place at the site requiring the excavator operator to indicate to or communicate with the sorters on the occasions the excavator was to move.

Training

1. Workers at the site, including Mr Mohammad and Mr Nadarasa received onsite verbal training from Mr Zizikas and other workers. Training was not documented.
2. Mr Nadarasa had been operating the excavator for three years at the site. Mr Nadarasa was trained in the operation of the excavator by a previous worker who had operated the machine before him. He was shown some paperwork by the other worker, which he could not remember much about, and was shown how to check the oil and water and use the levers and pedals of the excavator. After that he was shown by Mr Zizikas how to change the bucket and move forward and backward. Mr Nadarasa had no further training on how to operate the machine. Mr Nadarasa was not provided with the manual for the excavator nor were the contents read and explained to him.
3. Mr Zizikas did not ensure that Harris Holdings provided appropriate and clear training to workers at the site.

Maintenance and visibility

1. Mr Nadarasa carried out the pre operational checks on the excavator. Mr Nadarasa advised this involved checking the water and the oil only. He was not provided with a documented checklist to complete. The manual for the excavator specified that prior to operating the machine the checks to be made included: remove all dirt from the window glass to ensure a good view; check mirror adjustment so that the rear of the machine can be seen from the operator's seat; check that there are no persons or obstacles above, below, or in the area around the machine.
2. Following the incident a full mechanical inspection of the excavator was carried out by Komatsu technicians. A total of 93 defects with the excavator were noted. Relevant to the incident these included: 2 side mirrors were missing; a rear mirror was missing; a revolving beacon was not illuminating and windows were dusty. Further the switch for the horn of the excavator was sticking when "on" was pressed and would continuously sound so once activated the horn could not be deactivated.
3. The excavator involved in the incident had limited visibility at the time of the incident. Mr Nadarasa could see in front of the excavator and on the left side. Visibility was severely restricted behind the excavator and to the right (primarily due to the arm of the machine). The missing mirrors and dusty windows increased the poor visibility issues with the excavator.
4. The Code of Practice for excavation work also requires mobile plant operating near ground personnel to be equipped with warning devices such as a reversing alarm and revolving light.
5. Mr Zizikas did not ensure that Harris Holdings provided equipment which was maintained in accordance with its operator's manual and had all required safety features in place.

Systems of work following the incident

1. A number of changes were made to the systems of work at the site by Harris Holdings after the incident.
2. Harris Holdings purchased a new excavator for the sum of $45,000. This was a much smaller machine.
3. The new excavator was fitted with a number of additional safety features. These include a reversing camera and a travel alarm.
4. Harris Holdings introduced formal toolbox talks with the labourers at the site each morning.
5. A number of new safety documents were introduced.
6. A WHSE Hazard Identification Risk Assessment & Control (HIRAC) Worksheet was completed on 20 April 2016 in respect of the tipping and sorting operation at the site.
7. Job Safety Plans have been developed. These comprise of JSAs, Safe Work Method Statement and Safe Work Instructions. These cover the processes for the site operations.
8. Relevantly, these include a SWMS/JSA for the Work Activity of 'Delivery and Retrieval of Skip Bins' - SWMS No.003 Rev No.2 April 2016 and SWMS/JSA for the Work Activity of 'Waste Material Processing' - SWMS No. 004 Rev No.2 September 2016.
9. The SWMS/ JSA for the Work Activity of 'Waste Material Processing' includes Hazard Control measure for material sorting which include:

• Maintain exclusion zone between workers and plant while plant is in operation.
• Ensure plant is secured and switched off before workers enter the exclusion zone.
• Use fencing, barriers, barricades, temporary warning or control signs.
• Ensure hi-vis safety vests and other PPE is worn
• Emergency response procedure
• Take periodic rest breaks
• Follow correct lifting techniques.
• Wear appropriate PPE such as gloves, respiratory apparatus, long pants, long sleeve shirt, steel capped safety boots, and hard hat.

1. In respect to the procedure for 'Excavator Operations' the SWMS/JSA for the Work Activity of 'Waste Material Processing' states:

• Maintain exclusion zone between workers and plant whilst plant is in operation.
• Ensure plant is secured and switched off before workers enter the exclusion zone.
• Use fencing, barriers, barricades, temporary warning or control signs.
• Ensure hi-vis safety vests and other PPE is worn
• Emergency response procedure.

1. The above Harris Holdings safety documents were translated into Tamil for the labourers.
2. The labourers at the Site were inducted and trained in the content of the JSA/SWMS.
3. A Site Safety Management Plan was developed and implemented in July 2016. This plan included details in relation to Health and Safety Planning, Plant Operation, Site Safety Inspections, and WHS audits.
4. The labourers at the Site were inducted and trained in the content of the Site Safety Management Plan.
5. A WHSE Hazard Identification Risk Assessment & Control (HIRAC) Worksheet was also completed on 20 September 2016 at the Harris Holdings Workshop, Office and Yard at the 107 Church Street site.
6. A Traffic Management Plan was developed and implemented in September 2016. In order to determine traffic management related risk, a Traffic Management Risk Assessment Checklist was completed and Risk Assessment Matrix was compiled which detailed specific risks and controls relevant to the workplace.
7. The Traffic Management Plan included matters relating to Pedestrian Safety, Mobile Plant and Equipment, Loading and Unloading Activities, and had attached site safety rules.
8. The Traffic Management Plan included a requirement that reversing of trucks must be controlled by a trained spotter, and audible alarms and flashing lights fitted. There was also a requirement for barriers to be put into place for the separation of people and plant via pedestrian walkways.
9. A site map was also developed which indicated restricted areas for people and plant. This includes a designated 'Loading Zone', a 'Plant Exclusion Zone', a 'Sorting Area' and a 'Pedestrian Exclusion Zone'.
10. The labourers at the Site were trained in the Traffic Management Plan and the various zones at the site. A map was developed to explain the zones. Compliance with zones is enforced by Harris Holding management and supervisors.
11. When loading and unloading tasks are being undertaken at the site the labourers now have to stand in a pedestrian zone. This zone is designated as a 'plant exclusion zone'. Prior to a truck commencing tipping activities the driver is required to sound its horn. Once all labourers have moved to the pedestrian zone, the truck driver commences the tipping operation. The truck driver sounds the horn again when they have concluded tipping operations.
12. Once the truck has ceased its activities, the labourers then move into the area of the tipped material and make a decision on how to process the material.
13. The labourers are then required to move to a location in front of the excavator and out of the zone of operation of the excavator, prior to it commencing operation. The excavator operator then sounds the horn to notify the workers that operations are about to commence. At that point any labourer who is not already in the pedestrian zone must move to the zone. The excavator operator then sounds the horn to notify the workers that operations are about to commence. At that point any labourer who is not already in the pedestrian zone must move to that zone. The excavator operator then picks up a bucket of material and commences to sort it. The excavator operator is also required to sound the horn prior to the excavator swinging around. There is an exclusion zone where no employee is to go when the excavator is in operation.

THE OFFENDER'S EVIDENCE

1. The evidence for both defendants came from the affidavits of Mr Zizikas sworn 19 October 2017 and 25 October 2017. His evidence in relation to the system of work before the incident, and the improvements to that system since the incident, has been recorded above in the Agreed Statement of Facts.
2. Harris Holdings was registered as a company on 28 June 2013. Mr Zizikas was appointed as a director on 4 February 2014. He personally has worked in the excavation, demolition and haulage industries for over 25 years. Mr Zizikas has been the hands-on manager of Harris Holdings, which has up to 25 employees.
3. Neither he nor Harris Holdings has ever been prosecuted or fined or had any investigations conducted by Safework or Workcover. He has owned and operated businesses at the site since 1994.
4. Mr Zizikas expressed contrition and remorse for the incident. He has accepted his responsibility for the failures of the business which resulted in the unfortunate death of Mr Mohammed. I accept that both he and Harris Holdings are genuinely contrite concerning the incident. I also accept that both he and Harris Holdings co-operated with Safework and other regulatory authorities, and entered a guilty plea at the earliest possible opportunity, which is when the prosecution and the defence had agreed on the appropriate Statement of Facts to be put before the court.
5. In his first affidavit Mr Zizikas gave evidence concerning a significant drop in income of Harris Holdings in the 2017 year. He said that he had concerns for the ongoing solvency of the business if the court imposes a significant fine on the company. He said that a significant fine "may be the final nail in the coffin which will mean that I will have to close down the company and put off the employees that are currently employed by the company".
6. In his written Outline of Submissions, counsel for both defendants submitted that both Harris Holdings and Mr Zizikas had limited means to pay any fine, let alone one of some substance. Counsel referred me to s 6 of the Fines Act 1996.
7. Annexed to the first Zizikas affidavit was a document said to be the financial statements for the year ended 30 June 2016 of Harris Holdings. It was unsigned. It was unaudited. One of the current liabilities in the balance sheet as at 30 June 2016 was a tax liability for a "GST payable control account" of $154,925.14. The second Zizikas affidavit attached an itemised account from the Australian Taxation Office for Harris Holdings. That document stated that as at 30 June 2016 the amount owing to the tax office by the company was $406,032.74. No explanation was provided as to why that figure was not reflected in the financial statements for Harris Holdings for the year ended 30 June 2016.
8. Those statements had the usual provisions for a declaration to be made by the director of Harris Holdings that the accounts give a true and fair picture of the company's financial position and that there are reasonable grounds to believe the company would be able to pay its debts as and when they become due and payable. That declaration was not signed, nor were the financial statements signed by the company's accountant. The page for the accountant to sign referred to the statements being "special purpose financial statements" but the meaning of this phrase was not explained. The accountant's page for signature also stated that the purpose for which the statements had been prepared were set out in "Note 1" to the financial statements, but no such note was attached.
9. The 2016 financial statements set out current assets and current liabilities, but did not disclose any non-current assets or non-current liabilities. There is no evidence in that financial statement of the company being indebted to any bank.
10. The matter was first listed for hearing on Monday, 23 October 2017. I raised with counsel for the defendants that: 1. It appeared that there were several companies in the Harris Group and that the financial statements only covered Harris Holdings and not the other companies; 2. In those circumstances it was difficult to know what the true financial position of Harris Holdings was; 3. Further, there was no evidence whatsoever as to the financial position of Mr Zizikas personally.
11. Counsel for the defendant sought, and was granted, an adjournment of the sentence hearing until Friday, 27 October 2017, and was granted leave to file further affidavit material. This was done in the form of the second affidavit, being that sworn on 25 October 2017.
12. The first Zizikas affidavit also attached two pages of a balance sheet for Harris Holdings as at 30 June 2017. The current tax liability was said to be $207,965.84. The itemised account of the Australian Taxation Office showed that as at that date the amount owing to the tax office was $624,611.37. No explanation was provided for the difference between these two figures.
13. Further, the balance sheet dealt only with current assets and current liabilities and said nothing about any non-current assets or non-current liabilities. There was thus no evidence of any borrowings from any bank contained in the balance sheet.
14. The second Zizikas affidavit, sworn 25 October 2017, dealt with and attached financial material relating to the other companies in the Harris Group.
15. The financial material in relation to the various companies had the following features. Firstly, the financial statements for each company for the year ended 30 June 2017 were stamped "draft" on the first page. Secondly, the director's declaration was unsigned. Thirdly, the accountant's signature page was unexecuted. Fourthly, the accounts were said to have been compiled for a special purpose set out in "Note 1", but no such note was attached.
16. The site where the incident occurred at 160 Arthur Street, Homebush West is owned by Brohar Pty Limited as Trustee for the Brohar Unit Trust. Ms Brooke Zizikas, the wife of Mr Zizikas, is the director of Brohar. There was no evidence as to the value of that property.
17. The family home at 26 Queens Street, Croydon is owned solely by Ms Brooke Zizikas. It is valued at $1,400,000. There is a mortgage which secures two loans which total $845,000.
18. Mr Zizikas deposed in relation to his personal financial position as follows: "66. I am supposed to be paid a salary about $150,000 per annum from the Harris Group. 67. Often, I am not paid my salary if there is no money to pay me. Most of the cash that flows into the business predominantly goes back into the business to pay for wages, parts, material and diesel whenever the companies fall behind. Sometimes I am paid from another business if cash flow permits."
19. Mr Zizikas attached copies of his tax return summary and Notice of Assessment for the year ended 30 June 2017. In that year he was paid $150,800, from which PAYG tax credits of $46,728 were deducted. Those PAYG credits were apparently paid by his employers, as the only amount due on the notice was a minor adjustment of $255.30.
20. The tax return summary from the Australian Taxation Office also disclosed that Ms Brooke Zizikas had a taxable income in that year of $102,000. Thus between them husband and wife have a taxable income of $252,800.
21. There was no evidence of the expenses which the couple have, either in relation to their substantial mortgage, or in relation to running the household which consists of themselves and four young children.
22. The company Harris Bulk Haulage Pty Limited has recently entered into a bulk haulage contract with Holcim Australia. This is a five year contract to haul quarry material requiring five trucks and trailers. This contract was made in mid-July 2017. Thus the income does not turn up in the financial statements of that company put before the court. However, in the 2017 financial year that company was profitable enough to transfer $755,950 to Harris Holdings and still make a profit of $82,865.12 on income of $1,308,956.57. That company appears to have no bank borrowings. Mr Zizikas owns the only share in Harris Bulk Haulage Pty Limited. He is also a director of that company.
23. A current ASIC search shows that Mr Zizikas is also a director of: Arthur Street Property Investments Pty Limited, Harris Plant Hire Pty Limited and Harris Trailers Pty Limited. In fact, the only company in the group where he has ceased to be a director is Harris Holdings.
24. The current sole director of Harris Holdings is Roula Zizikas who has the same address as Mr Zizikas at 26 Queen Street, Croydon. Apart from the court being told that Roula Zizikas is a "family member", nothing else was put before the court concerning that person. She was not present during the sentence hearing.

Consideration

1. I have had regard to the objects of the Act set out in Section 3 of the Crimes (Sentencing Procedure) Act 1999 and the purposes of sentencing set out in Section 3A.

Objective Seriousness of the Offence

1. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v R (No. 2) (1998) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton (2006) 66 NSWLR 566 at [15].
2. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R (1998) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
3. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
4. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively.
5. The Court of Criminal Appeal has recently examined the sentencing process with regard to the Work Health and Safety Act 2011 in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338. His Honour Justice Basten at paragraph 34, under the heading 'Assessment of Risk' said: "The sentencing judge commenced his consideration with the proposition that "greater 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 on assessment of all those factors."
6. Further at paragraph 42 his Honour continued: "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, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
7. My findings about the offenders' level of culpability are based upon the following: 1. It was reasonably practicable for the defendants to ensure the health and safety of the worker by ensuring that an exclusion or "no go" zone was maintained in the vicinity of the excavator. 2. There were no fences, barriers, barricades, bollards, bunting, witches hats or similar equipment placed in the area around where the excavator was sorting materials to designate an exclusion zone. 3. There was no designated person who was responsible for enforcing an exclusion zone. The supervisor for the site was the worker operating the excavator. 4. Harris Holdings did not provide instruction, information and training to any workers about the need for, and the operation of, an exclusion zone around the excavator; 5. The operating manual for the excavator had not been read and/or explained to operators; 6. No steps were taken to ensure that the operators of the excavator understood what pre checks were required to be carried out on the excavator prior to operating it; 7. It was reasonably practicable for the defendant to ensure that the excavator was in working condition. A total of 93 defects with the excavator were noted on inspection. The defects which affected the safety of operations could have been readily repaired; 8. No system of work was in place at the site which required the sorters to communicate with the excavator driver when there was any change in their location. 9. No procedure was in place at the site requiring the excavator operator to indicate or communicate to the sorters when the excavator was about to move. 10. The cost of overcoming the risk would have been negligible as a communication procedure could have been readily developed and used; 11. Mr Mohammad received undocumented on-site verbal training only; 12. The four workers at the site undertaking sorting were unaware or unclear as to what a risk assessment, a safe work method statement and a tool box talk were. 13. Mr Mohammad and the other workers were placed at risk of death or serious injury, being the risk of being struck, crushed, thrown and/ or otherwise injured by the excavator; 14. The existence of the risk was known or should have been known as the risk was identified in: 1. the WorkCover 'Code of Practice for Managing the Risks of Plant in the Workplace' which provides guidance in relation to ensuring safe plant; 2. the Australian Standard AS2359.2-2013 Powered Industrial Trucks; and 3. the manual for the excavator, Shop Manual Komatsu PC228US-3 PC228USLC-3 4. the warning sticker attached to the inside of the driver's cabin; 5. the General Guide for workplace traffic management published by SafeWork Australia; 6. the Transport Operations Manual. This had been developed for Harris Excavation and Transport Pty Ltd but had not been provided to the workers at the site, nor did it address the operation of the excavator. 1. The risk of this accident happening was an obvious risk. 2. The likelihood of the risk coming home was quite high. 3. Simple remedial steps were available which would have completely avoided the risk. 4. The fatal injuries sustained by Mr Mohammad on 26 November 2015 were a manifestation of the risk. 5. I find that the level of culpability of both offenders is in the mid-range.

Deterrence

1. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37 at [180].
2. The penalty must reflect the need for specific deterrence. The offender is still conducting a business. Many of its operations involve the use of potentially dangerous equipment. It still has a number of employees.

Aggravating Factors

1. The injury, caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

MITIGATING FACTORS

1. Neither offender has previous convictions, so they do not have a significant record of previous convictions: Section 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999.
2. Both the offenders were otherwise of good character: Section 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999. The steps which the offenders took after the incident demonstrate this. Harris Holdings has been in operation since 2013. Mr Zizikas has been in business for 25 years.
3. The offenders are unlikely to re-offend: Section 21A(3(g) of the Crimes (Sentencing Procedure) Act 1999.
4. The offenders have good prospects of rehabilitation: Section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offenders have taken positive steps to guard against the risk of an incident such as this ever happening again. Harris Holdings has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this accident occurred.
5. The offenders have shown remorse for the offence: Section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offenders have provided evidence through Mr Zizikas that they have accepted responsibility for their actions and have acknowledged that the injury to Mr Mohammad was caused by their actions.
6. The offenders entered pleas of guilty: Section 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offenders have pleaded guilty, when they pleaded guilty, and the circumstances in which they indicated an intention to plead guilty: Section 22(1) Crimes (Sentencing Procedure) Act 1999. In my view the offenders entered the pleas of guilty at the earliest possible opportunity, as soon as the facts were agreed with the prosecutor. It is appropriate to apply a discount of 25%.
7. The offenders gave assistance to law enforcement authorities: Section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. The offenders co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

1. I am required to have regard to Section 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
2. Both offenders submitted that they had limited means to pay any fine, let alone one of some substance.
3. I find that neither defendant has discharged the evidentiary onus to satisfy me that I should reduce the fines which I would otherwise impose. So far as Mr Zizikas personally is concerned, the only evidence I have about his financial circumstances is that he has an actual income in the financial year ended 30 June 2017 of over $150,000 gross subject to the deductions for PAYG tax instalments. These have been paid by his employers. I have no evidence whatsoever concerning his expenses.
4. So far as Harris Holdings is concerned, I have been presented with incomplete, unsigned and unaudited financial statements. Those statements raise more questions than they answer. However, the financial statements put before me demonstrate that Mr Zizikas has the ability to cause large sums of money to be paid from one company in the Harris Group to another. In relation to the payment of $755,950 from Harris Bulk Haulage to Harris Holdings, he said: "The management fees of $755,950 shown in the profit and loss statements is an accounting entry shown as an expense from Harris Bulk Haulage and shown as income in Harris Holdings so that Harris Holdings can meet its liabilities and debts."
5. Whatever be the accuracy of that statement, it demonstrates that he has the ability to fund one company from the income of another.
6. Further, the incomplete financial statements of Harris Holdings put before the court show that there are no substantial bank borrowings, and in those circumstances it may well be that Harris Holdings, or some other company in the group controlled by Mr Zizikas, can borrow to fund a corporate expense, including any fine imposed.
7. Mr Zizikas in his first affidavit said that any significant fine for the company may result in it being closed down. The loss of over $300,000 shown in the financial statements for Harris Holdings in financial year ended 30 June 2017 has not caused it to be closed down. Nor has the tax debt of over $600,000. Finally, while the accounts are unsigned, Mr Zizikas put them forward attached to his affidavits as accurate documents. I take it from that that he asserts on behalf of each company that the company is not insolvent and can pay its debts as and when they fall due.
8. In the light of those matters I consider that the information regarding the means of both defendants which was made available to the court was not such as to demonstrate that the court should exercise any discretion to reduce the amount of an otherwise appropriate fine.

Costs

1. The parties have agreed to an order that the offenders are to pay the prosecutor's costs as agreed or assessed.

Penalty for harris holdings

1. The offender is convicted.
2. The appropriate fine is $400,000 but that will be reduced by 25% to reflect the plea of guilty.
3. I impose a fine of $300,000.
4. I order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
5. I order the offender to pay the prosecutor's costs as agreed or assessed.

PENALTY FOR MR ZIZIKAS

1. The offender is convicted.
2. The appropriate fine is $80,000 but that will be reduced by 25% to reflect the plea of guilty.
3. I impose a fine of $60,000.
4. I order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
5. I order the offender to pay the prosecutor's costs as agreed or assessed.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2017