SafeWork NSW v Kayrouz Constructions Pty Limited

rce [2020] NSWCCA 61 R v Wang [2020] NSWSC 1335 R v Wilkinson (No. 5) [2009] NSWSC 432 SafeWork NSW v Kayrouz Constructions Pty Ltd [2020] NSWDC 77 SafeWork NSW v Spectra Plumbing Pty Ltd [2019] NSWDC 415 Strbak v The Queen [2020] HCA 10 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 Texts Cited: Australian/New Zealand Standard 4576:1995, Guidelines for scaffolding, June 1995 WorkCover NSW, Code of Practice: Work Near Overhead Power Lines, July 2006 Category: Sentence Parties: SafeWork NSW (Prosecutor) Kayrouz Constructions Pty Limited (Defendant) Representation: Counsel: M Scott (Prosecutor) M Gerace (Defendant)

Solicitors: SafeWork NSW (Prosecutor) Sachs Gerace Lawyers (Defendant) File Number(s): 2018/294050

Judgment

1. On 21 November 2016 Mr Christopher Ilioglou was working as a plumber on a construction site in Kogarah. Kayrouz Constructions Pty Limited ("Kayrouz") was the principal contractor. In the course of lifting six metre lengths of copper pipe up to Level 4 of the residential building construction site, Mr Ilioglou suffered serious injuries when the pipes came into contact with energised high voltage overhead power lines.
2. Kayrouz has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) ("the Act") it failed to comply with that duty and thereby exposed Mr Ilioglou to a risk of death or serious injury contrary to s 32 of the Act.
3. The maximum penalty for the offence is a fine of $1,500,000.

Procedural History

1. SafeWork NSW charged Kayrouz by a Summons filed on 24 September 2018 that being a person conducting a business or undertaking who had a work health and safety duty under s 19(1) of the Act to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, it did fail to comply with that duty and the failure to comply with that duty exposed workers to a risk of death or serious injury contrary to s 32 of the Act.
2. The matter came before this court nine times for directions before Kayrouz pleaded guilty on 11 November 2019. The matter had been stood over several times to allow for the parties to engage in negotiations concerning a possible Enforceable Undertaking.
3. On 19 February 2020 the matter was listed for a sentence hearing before me. Counsel for the prosecutor informed the court that the parties had not been able to produce an Agreed Statement of Facts. He submitted that the defendant had served affidavit evidence which traversed some of the particulars of reasonably practicable measures pleaded in the Summons. Counsel for the prosecutor wanted the dispute between the parties brought to a head and submitted that the defendant had entered an "unconditional plea" and could now not dispute any of the reasonably practicable measures particularised in the Summons. The position of the prosecutor was that the defendant's affidavit evidence should not be admitted when it "traverses most, if not all, of the particulars of reasonably practicable measures that are enumerated in paragraph 10 of Annexure A of the Summons". He also indicated that the prosecutor was not in a position, so close to the sentence hearing, to call evidence on disputed factual matters, if the defendant was permitted to rely on the affidavit evidence.
4. To resolve the issue I vacated the sentence hearing fixed for 24 February 2020 and stood the matter over to 20 March 2020 for submissions on the status and effect of the defendant's plea of guilty entered on 11 November 2019.
5. By a judgment delivered on 3 April 2020, I permitted the defendant to rely upon the affidavit evidence already filed and directed the prosecutor and the defendant to file a Joint Schedule of Agreed and Contested Facts (Joint Schedule) by 4 May 2020: SafeWork NSW v Kayrouz Constructions Pty Ltd [2020] NSWDC 77.

The Summons

1. Paragraph 10 of the Summons pleads particulars of the defendant's failure to comply with the duty under s 19(1) of the Act as follows: "10. The defendant failed to ensure so far as is reasonably practicable, the health and safety of workers, in particular Mr Christopher Ilioglou, in that it failed to take one or more of the following reasonably practicable measures to eliminate (or alternatively minimise if not reasonably practicable to eliminate) the risks to health and safety to workers: (a) conduct a risk assessment or ensure that a risk assessment had been conducted of the hazards involved in the task of manually lifting 6-metre lengths of copper pipes from the ground floor to the upper levels of the building (the task), in particular, a risk assessment which identified the risk of the copper pipes coming into contact with high voltage power lines at the site if the task was performed on the Gray Street side of the building and the control measures to eliminate or minimise the risk, in accordance with clause 166 of the Work Health and Safety Regulation 2011 (the Regulation); (b) develop, implement and enforce a safe work procedure for undertaking work in the task that included: i. using an alternative location or access route to transport the copper pipes from the ground floor to the upper levels of the building, such as, access from the Princes Lane side of the building; and/or ii. arranging for the high voltage power lines to be de-energised while the task was being undertaken on the Gray Street side of the building; and/or iii. arranging for a lifting device or equipment (such as a crane) to be made available to deliver the copper pipes to the upper levels of the building on the Princes Lane side of the building. (c) prepare a safe work method statement (SWMS) or ensure that a SWMS was prepared for the task which identified the hazard of the overhead high voltage power lines and control measures to address the hazard in accordance with clause 299 of the Regulation. (d) ensure that information, instruction and training was provided to workers, including Mr Ilioglou, so they knew of the risks associated with working in close proximity to energised overhead power lines, including the high voltage power lines at the construction site; (e) provide adequate supervision to sub-contractors to ensure that: i. they did not handle or carry material, including 6-metre lengths of copper pipe, in close proximity to energised high voltage power lines at the construction site; and/or ii. they used a safe method to handle or transport 6-metre lengths of copper pipes from the ground floor to the upper levels of the building. (f) prohibit workers from handling or carrying material, including 6-metre lengths of copper pipe, that could come into contact with the energised high voltage power lines at the construction site if the high voltage power lines were not de-energised; (g) develop, implement and enforce a work system that ensured: i. the defendant was notified of any building materials, in particular, plumbing supplies, that was to be delivered to the construction site; and ii. the provision of clear instructions to all workers at the construction site as to the steps to be undertaken to transport or carry building materials, including 6-metre lengths of copper pipes, safely throughout the construction site."

Legal approach to resolution of disputed facts upon a sentencing hearing

1. The standard of proof of contested or disputed facts required in a sentencing hearing depends upon which party is seeking to rely on a particular fact. In R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27] the High Court said: "a sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."
2. The High Court has since applied this approach in KMC v Director of Public Prosecutions (SA) [2020] HCA 6 at [33] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ), Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 at [64] - [66] (French CJ, Bell, Keane and Nettle JJ), and Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 at [23] (Gleeson CJ).
3. Any disputed fact that the prosecutor seeks to rely on must be proved beyond reasonable doubt: Strbak v The Queen [2020] HCA 10 at [32] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); R v Pearce [2020] NSWCCA 61 at [69] - [73] (Leeming JA, Rothman J, N Adams J); Alameddine v R [2020] NSWCCA 232 at [46] (Bathurst CJ); Cowling v R [2015] NSWCCA 213 at [13] (Leeming JA); R v AB [2011] NSWCCA 229 at [30] (Johnson J); R v Kirkland [2005] NSWCCA 130 at [13] - [16] (Hunt AJA, Grove and Hall JJ agreeing). By contrast, any disputed fact which the defendant seeks to rely on must be proved on the balance of probabilities: BC v R [2020] NSWCCA 329 (Gleeson JA, Price J, Wright J); Chiang v R [2016] NSWCCA 45 at [13] (Beazley P, Harrison J and R A Hulme J); R v Wang [2020] NSWSC 1335 at [5] (Beech-Jones J).
4. The parties prepared a Joint Schedule on 18 May 2020.

Agreed Facts

1. Kayrouz conducted a business or undertaking engaged in the construction of a five storey building located on the corner of 183-187 Princes Highway at 71 Gray Street, Kogarah, New South Wales ("the Site"). Kayrouz was responsible for the overall management and control of the Site. The value of the construction project was $13.5 million.
2. Mr Toufic Kayrouz and his wife are the Directors of Kayrouz. Mr Kayrouz was the Site Builder, Manager and Foreman.
3. Majenttas Pty Ltd ("Majenttas") was the developer of the construction located at the Site and Kayrouz was the principal contractor and builder. Mr Kayrouz was the Sole Director of Majenttas.
4. Ms Natalie Kayrouz was the Project Manager at the Site and her role included safety management, trade co-ordination and dealing with relevant authorities.
5. Spectra Plumbing Pty Limited ("Spectra") provided plumbing services for the project. Mr Michel Ayoub was the Sole Director of Spectra.
6. Mr Christopher Ilioglou commenced employment as a tradesman with Spectra on or about 1 February 2016. He was a licensed plumber, drainer and gas fitter. Mr Ilioglou's responsibilities included general plumbing installations.
7. Mr Mohieddine Derbas had been employed as a tradesman with Spectra since 23 October 2015.
8. Mr Vlasios Zarkos was employed by Spectra as an apprentice plumber in September 2016.
9. In February 2014, Spectra submitted a quote for plumbing works in response to an invitation from Majenttas. Kayrouz accepted the quote. The quote contained no scope of works provided. Spectra was subsequently engaged as a subcontractor to carry out the plumbing works at the Site. While Spectra's invoices were rendered to Majenttas, the invoices were paid by Kayrouz. There was no formal contract in place between Kayrouz and Spectra.
10. The construction was a five storey building consisting of 59 residential units with a basement ("the building").
11. The front façade of the building faced Gray Street. The right side of the building adjoined Princes Lane.
12. The incident occurred on a balcony, approximately 12 metres in height from the Ground Level, located on Level 4 of the building on the Gray Street side.
13. High voltage 11kV overhead power lines were located parallel to the Gray Street façade and were approximately 10.4 metres minimum height from street level and approximately 3.3 metres away from the balconies on the building façade.

The Incident

1. On 21 November 2016, Mr Ilioglou, Mr Derbas and Mr Zarkos commenced work at the Site at approximately 7.00am.
2. Sometime later Mr Ilioglou was asked to assist Mr Derbas and Mr Zarkos to move some copper pipes by manually lifting them from Ground Level and up the Gray Street side of the building to the Level 4 balcony and then into the building ("the task").
3. The copper pipes were tubular, 50mm in diameter and six metres in length. Mr Ilioglou, Mr Derbas and Mr Zarkos commenced manually transporting the six metre lengths of 50mm copper pipe up to Level 4 of the building.
4. Mr Derbas and Mr Zarkos heard a loud explosion and Mr Derbas ran into the building and found Mr Ilioglou conscious inside. Mr Derbas saw that Mr Ilioglou had red eyes and appeared to be in shock.
5. The contact of the copper pipe with the high voltage power lines caused an electrical explosion and caused Mr Ilioglou to be thrown back from the balcony edge towards the building.

Injuries

1. The contact of the copper pipe with the 11Kv overhead electrical conductors caused Mr Ilioglou to sustain electrical shock, arc flash injuries to his eyes and severe burns to his left hand and fingers.
2. Assistance and first aid were provided to Mr Ilioglou by other workers and he was taken to the Site office below. Mr Ilioglou then walked up the road, with the assistance of Ms Kayrouz, Mr Derbas and Mr Zarkos, to the emergency department of the nearby St George Hospital for treatment. He was triaged at 8.25am.
3. At the time of the incident, the contact of the pipe with the 11kV overhead main conductors caused traffic lights at the intersection of Gray Street and Princes Highway to cease working. Police Highway Control took over traffic control until the traffic lights were restored.
4. The incident caused protection to operate at Kogarah Zone Substation which led to an outage of an 11Kv feeder, including distribution stations, for up to 100 minutes.

Guidance Materials

1. Clause 166(1) of the Work Health and Safety Regulation 2011 (NSW) provided that: "a person conducting a business or undertaking (PCBU) at a workplace must ensure, so far as is reasonably practicable, that no person plant or thing at the workplace comes within an unsafe distance of an overhead or underground electric line."
2. Clause 166(2) of the Regulation provided that: "if it is not reasonably practicable to ensure the safe distance of a person, plant or thing from any overhead or underground electric line, the PCBU at the workplace must ensure that: 1. a risk assessment is conducted in relation to the proposed work; and 2. control measures implemented are consistent with: i. the risk assessment; and ii. if an electricity supply authority is responsible for the electric line, any requirements of the authority."
3. Clause 299(1) of the Regulation provided that: "a PCBU that includes the carrying out of high risk construction work must, before high risk construction work commences, ensure that a safe work method statement for the proposed work: a. is prepared; or b. has already been prepared by another person."
4. Under cl 291(k) of the Regulation "high risk construction work" included work that: "is carried out on or near energised electrical installations."
5. The WorkCover Code of Practice Work Near Overhead Power Lines dated July 2006, was available on the SafeWork NSW website prior to the incident. The Code applies to work carried out near overhead power lines and provides guidance on risk management principles and safe approach distances to live electrical conductors. It defines the approach distance as the minimum separation in air from an exposed overhead conductor that must be maintained by a person, or any object held by or in contact with that person. The Code specifies the approach distance for work performed by "ordinary persons" as three metres for work near power lines of up to 132,000 volts. According to the Code, an ordinary person is a person without sufficient training or experience to enable them to avoid the dangers which overhead power lines and associated electrical apparatus may create.
6. The Australian/New Zealand Standard 4576:1995, Guidelines for scaffolding dated June 1995 was also available.

Systems in place before the Incident

1. At the time of the incident Kayrouz had in place a Work Health and Safety Management Plan ("WHS Management Plan") dated 19 September 2014 for the construction project at the Site, as required by cl 309 of the Regulation.
2. The hazard of working near overhead power lines was identified in the WHS Management Plan and specified that "prior to any work near overhead power lines it is essential that the height and voltage of the overhead power lines (and if applicable the horizontal safety clearance) be assessed at the worksite. Increased clearances must be allowed where a risk assessment identifies a reasonable possibility of the load or lifting gear (crane hook, chains, slings) moving or swinging toward the overhead power lines".
3. The WHS Management Plan incorporated the guidelines set out in the 2006 Code of Practice on Work Near Overhead Power Lines.
4. The WHS Management Plan also addressed work involving scaffolding near overhead power lines and referred to the Australian/New Zealand Standard 4576:1995, Guidelines for scaffolding, June 1995. By this standard a four metre approach distance must be provided for metal scaffolding used near overhead power lines.
5. Kayrouz was aware of the risks associated with the construction activities being carried out in close proximity to the high voltage overhead power lines. It arranged for SafeWork NSW approved scaffolding to be erected along the Gray Street side a year prior to the incident, as well as de-energising the power lines when the scaffolding was erected. The scaffolding was around two metres in distance from the high voltage power lines and 2.8 metres from the low voltage power lines on the street frontage of the Gray Street side.
6. In correspondence dated 9 November 2015 from Ausgrid to Ms Kayrouz, Ausgrid advised that the Principal Contractor and the person responsible for scaffolding were required to comply with the Regulation and the Code. Ausgrid advised that the nominal voltages of the overhead mains and conductor type at 71 Gray Street Kogarah were Low Voltage ABC 415 volts and High Voltage Bare Conductor 11,000 volts.
7. Ausgrid outlined the requirements to be taken when erecting and dismantling scaffolding near overhead power lines which stipulated the use of tiger tails and a risk assessment for the low voltage lines, a risk assessment for the high voltage power lines, and the need for isolation. An Ausgrid permit was required. Kayrouz Constructions followed these procedures.

Steps taken following the Incident

1. After the incident Kayrouz prepared an incident report ("the Incident Report"). The Incident Report specified the following steps to take place: 1. As part of the site specific induction, a new site rule had been included: "No objects are to be handled on the Gray Street frontage near the overhead power lines no matter how far the distance". 2. A site foreman called a toolbox talk with all plumbers to remind them of the rules when working near overhead power lines and of reckless behaviour. 3. A brief meeting with the head of trades was called to remind all workers of the dangers associated with working near power lines. 4. Checking on Mr Ilioglou regularly at the hospital to ensure his condition was monitored.
2. On 21 November 2016 SafeWork NSW issued a Prohibition Notice on Kayrouz to cease the activity of lifting copper pipes in close proximity to the high voltage power lines.
3. On 24 November 2016 SafeWork NSW issued an Improvement Notice to Kayrouz to ensure compliance with a SWMS for identifying and having in place control measures when handling materials in close proximity to energised overhead power lines.
4. On 23 November 2016, Ms Kayrouz conducted a site specific risk assessment. The site specific risk assessment outlined the following controls to be undertaken by 30 November 2016: 1. Checking all relevant trades SWMSs. 2. Carrying out toolbox talks with trades that could be working near overhead power lines, emphasising the risks and hazards. 3. Creating a new site rule that the Gray Street balconies are not to be used for handling of any materials.
5. Additionally, the following steps were taken after the incident: 1. Kayrouz held a meeting with all contractors to remind them that no materials were to be handled on the Gray Street side of the building. In compliance with the Improvement Notice, Kayrouz instructed contractors to add a thorough section to their SWMS regarding working near overhead power lines. 2. On all construction sites, Kayrouz now provides both hard and soft copies of the WHS Management Plan to all employees and subcontractors. 3. On all Kayrouz projects induction is now a more thorough process involving a colour co-ordinated sticker system to identify those who have completed the induction requirements. 4. The Kayrouz WHS Management Plan is reviewed annually and updated accordingly. 5. Kayrouz now ensures that there is thorough signage detailing the danger of overhead power lines above. This is emphasised during the induction process. 6. Kayrouz now conducts and documents weekly toolbox talks.

Documentary Evidence

1. The prosecutor tendered a Prosecution Sentence Tender Bundle (PX 1) comprising the Joint Schedule dated 19 May 2020, a series of photographs taken by a SafeWork NSW inspector, a Prohibition Notice, an Improvement Notice, a SWMS dated 7 December 2016, documents produced by the defendant in response to a s 155 Notice, a prior convictions report, and the WorkCover Code of Practice Work near overhead power lines July 2006.
2. The prosecutor tendered a written quotation dated 1 February 2016 from Spectra to the developer Majenttas for the plumbing work at the Site at 187 Princes Highway, Kogarah (PX 2).
3. The prosecutor tendered a s 155 Notice to Ausgrid and an Ausgrid investigation report (PX 3). This set out details of the interference with the Ausgrid service caused by the incident on 21 November 2016.
4. The prosecutor tendered a plan of the Site, showing the building and the surrounding streets, in particular Gray Street and Princes Lane (PX 4). During the course of the hearing this was marked by various witnesses.
5. The prosecutor tendered a Toolbox Talk record dated 23 November 2016 (PX 5). Ms Kayrouz conducted the talk after the incident and made the following written note on the record: "* No handling of materials around the power lines on Gray Street - strictly prohibited. * Copper pipes to be lifted through the fire stairs. * Keep within safe proximity from power lines at all times."

Michel Ayoub

1. The prosecutor called Mr Michel Ayoub as the first witness. Mr Ayoub gave the following evidence. He was the Director and sole shareholder of Spectra. He was shown the quotation letter which Spectra gave to Majenttas (PX 2). He was approached to start the work by Ms Natalie Kayrouz. He was paid for the work by Mr Toufic Kayrouz. On 20 November 2016 (the day before the incident) he spoke to Mr Kayrouz, who he understood to be the builder/developer. Mr Ayoub said that he would be working on the upper levels with copper pipes for water and gas. He told Mr Kayrouz that there would be a delivery the next day of six metre lengths of copper pipe.
2. Mr Ayoub said that he expected that the delivery would have arrived in Princes Lane. He was not there at 7.00am when the delivery arrived. In the past Mr Ayoub had moved copper pipes into the building by manual handling through the driveway and into the basement adjacent to Princes Lane. On those occasions his workers had to cut the pipes to size to manually carry them to the upper levels via the internal staircase.
3. Mr Ayoub said that on 20 November 2016 the driveway was "a little bit overfilled with rubbish" and there was a skip bin in the driveway. He also said that when he attended on 21 November 2016 after the incident, the driveway was "still a little bit overfilled".
4. Mr Ayoub said that when he started on the job he was given no instruction and no induction form. He was not shown a risk assessment and he was not given any instruction or SWMS about power lines. He was not shown any policy or procedure of the defendant in relation to power lines.
5. Mr Ayoub said that his company was working at the Site for 11 to 12 months prior to November 2016. The job was 80% complete by November 2016.
6. Mr Ayoub was asked whether Mr Kayrouz had told him not to do any work from Gray Street. He denied that this had been said. He was asked whether he recalled Mr Kayrouz saying that pipes should be delivered by crane or carried through the fire stairs. He denied that Mr Kayrouz had said this. Mr Ayoub was asked whether Mr Kayrouz had told him to keep away from Gray Street. He denied this. Mr Ayoub was asked whether Mr Kayrouz told him he should not handle any material on the balconies. He denied this. Mr Ayoub was asked whether Mr Kayrouz had told him only to use Princes Lane as a loading area. Mr Ayoub recalled being told that a mobile crane could be set up to lift material from Princes Lane. Mr Ayoub denied being given an induction by Mr Kayrouz. He denied that there were any written rules on the Site. Mr Ayoub accepted that he was told that he should notify Ms Kayrouz or Mr Kayrouz if anything was unsafe. He was asked whether he was told not to touch the scaffold, and he denied this.

Christopher Ilioglou

1. Mr Ilioglou had been working for Spectra for about a year prior to November 2016. He was either not licensed at that time or had just obtained his licence. Mr Ilioglou said that he never had a site safety induction conducted by the defendant. He never saw a risk assessment. He never saw a SWMS. He never saw any document concerning overhead power lines.
2. On 21 November 2016 Mr Ilioglou was working on the top floor. He received a phone call from another worker to assist in carrying pipes up the side of the building. This was on the Gray Street side. He did not notice the power lines that morning. He knew they were there but he did not take in the fact that they were there. The sun was rising ahead of him which would have affected his ability to see the power lines. Mr Zarkos, an apprentice, handed the first pipe from Ground Level up to Mr Derbas, who was standing on a balcony on Level 2. Mr Derbas then handed the pipe up to Mr Ilioglou who was on the balcony on Level 4.
3. Mr Ilioglou hauled the first pipe up and levered it across the balcony rail to get it to Level 4. The first pipe hit the power lines. He was knocked inside the building and was unconscious. Mr Ilioglou recalled that some work had not been completed on that level and the pipes had to be put in the ceiling on Level 4.
4. Mr Ilioglou returned to the Site in March 2017. He was asked to sign paperwork including a SWMS and induction papers. Ms Kayrouz brought them to him to sign. He was asked to go through the paperwork and start signing. He signed each paper. This took him about 20 minutes. He did not recall Mr Kayrouz being there when this paperwork was done.
5. Mr Ilioglou indicated that it was his left hand which had been shocked and burned in the accident. The left hand was now not as strong as it had been before the incident. When he first came back to work he did testing and other light work.
6. In cross-examination Mr Ilioglou said that he had been working on the Site for about a year before the accident. He recalled that the Gray Street side was covered in scaffolding, and that the scaffolding was covered by plywood and mesh. This was there until about September 2016. He said that no material was moved via the Gray Street side of the building because of the scaffolding. Mr Ilioglou said that he was on the Site a lot.

Vlasios Zarkos

1. Mr Zarkos had been employed as an apprentice plumber by Spectra for three to four months prior to 21 November 2016. He said that he did not receive an induction by the defendant. After the incident he was asked to go to the Site a couple of days later and fill out paperwork. The contents of that paperwork was never explained to him. He was never given a SWMS or a risk assessment to read or sign. He was given no training by the defendant about working near power lines.
2. Mr Zarkos recalled that the six metre lengths of copper pipe arrived between 7.30am and 8.00am on 21 November 2016. Mr Derbas told him they had arrived. He regarded Mr Derbas as the Site Supervisor.
3. On the plan of the Site (PX 4) Mr Zarkos marked with an "X" where he was standing to hand the pipes up from Gray Street. Mr Derbas told him that he needed to get them up the side of the building.
4. Mr Zarkos was standing on the ground and he handed the first pipe to Mr Derbas who was standing on a balcony above him. Mr Derbas then passed the pipe up to Mr Ilioglou who was on a higher balcony. He heard the pipe hit the power lines and he ran for cover. He then ran up to Level 4 to assist Mr Ilioglou. He went to St George Hospital with Mr Ilioglou and Ms Kayrouz.
5. Mr Zarkos said that a few weeks earlier, he, Mr Derbas and a third person (who was not Mr Ilioglou) had passed copper pipes up the side of the building on Gray Street. Mr Zarkos stood at the highest point and received the pipes. He noticed that the power lines were there. He lifted the pipes on an angle and passed them over the balcony to keep the pipes away from the power lines. More than one pipe was moved up.
6. In cross-examination Mr Zarkos said that he started work for Spectra in October 2016 and that he worked on one other site for Spectra. Mr Ayoub told him to go to the Site and see Mr Derbas. He did not go to the site office. He said "I just started plumbing". Mr Derbas was the Site foreman.
7. Mr Zarkos had not seen pipes carried in through the internal stairs. He did not recall how pipes were delivered to Princes Lane. In Princes Lane there were no power lines. Mr Derbas did not say to use Princes Lane for deliveries.
8. On 21 November 2016 Mr Zarkos recollected that Princes Lane was closed, as it had been dug up. He knew that he could not park there on that day.

Mohieddine Derbas

1. Mr Derbas was not called to give evidence.

Documentary Evidence

1. The defendant tendered a folder (DX 1) containing five affidavits: 1. Affidavit of Yonghang Wang dated 7 February 2020. 2. Affidavit of Omer Maarbani dated 7 February 2020. 3. Affidavit of Natalie Kayrouz dated 10 February 2020. 4. Affidavit of Toufic Kayrouz dated 10 February 2020. 5. Affidavit of Natalie Kayrouz dated 1 September 2020.
2. The affidavits will be summarised later in this judgment.
3. The defendant tendered a police photo of the front of the building taken from Gray Street (DX 2). The photo shows the wire fence along Gray Street. There was a gap in the fence but the evidence is that this was opened on the day to permit access to the Site after the incident. The power lines can be seen adjacent to Gray Street. On the lower level of the power pole are the low voltage lines which are encased in black and yellow tiger tails. On the upper level of the power pole are the high tension lines which are not encased or marked in any way. These high tension lines appear to be adjacent to the base of the balcony on Level 4 of the building.
4. The defendant tendered a copy of a sign which was said to be affixed to the front fence (DX 3).
5. The defendant tendered a Chronology in relation to the contact between Ausgrid and the defendant (DX 4). This Chronology was tendered by consent in lieu of the voluminous material produced on subpoena by Ausgrid. The defendant's WHS Management Plan was created on 19 September 2014 and identified the overhead power lines. It set out a "No Go Zone". It identified the risk of common construction hazards involving electricity.
6. Ausgrid conducted a site visit on 6 November 2015 and identified the need to de-energise the high voltage lines so that scaffolding could be erected. Ausgrid gave permission for such erection on 9 November 2015. On 1 December 2015 the high voltage lines were isolated and the scaffolding was erected. It remained in situ until 16 September 2016. On this date the high voltage lines were again de-energised and the scaffolding was removed.
7. The defendant tendered an extract from certain answers given by Mr Ayoub to an inspector from SafeWork NSW (DX 5). These were the matters put to him in cross-examination, with which he agreed.
8. The defendant tendered a further affidavit of Mr Kayrouz dated 17 February 2021 (DX 6). This went to a request by the defendant for any fine imposed to be paid by instalments. This is a matter to be considered by the Registrar and the Regulator, and not by the court. It was appropriate however to put it on the record.

Natalie Kayrouz

1. Ms Kayrouz affirmed her first affidavit on 10 February 2020 and her second affidavit on 1 September 2020. As mentioned earlier in this judgment, Ms Kayrouz is the Project Manager of Kayrouz.
2. In her first affidavit, Ms Kayrouz stated that she has a Bachelor of Construction Project Management from the University of Technology Sydney, as well as a building licence. She has worked at Kayrouz, her family's business, since 2013. Prior to this, she worked elsewhere for eight months.
3. Ms Kayrouz said that during the project, she was at the Site Monday to Saturday from 7.00am until 4.00pm. Ms Kayrouz said that when a worker started working on the Site they were informed of work health and safety policies which included: (a) a site specific safety induction; (b) identification of the location of site sheds, lunch rooms and first aid facilities, (c) incident/potential incident reporting requirements; (d) unsafe area reporting requirements; (e) access gate requirements; (f) expected working hours; (g) requirement not to remove any safety facilities.
4. Ms Kayrouz was in charge of deliveries management, crane bookings and skip bin bookings. In her affidavits, Ms Kayrouz detailed the various dates on which she arranged crane bookings, skip bin picks ups and replacements.
5. At all the inductions, Ms Kayrouz always said: "All deliveries must be taken on Princes Lane. That is where the loading dock, loading platform and mobile crane will be. If you are getting a delivery, you must book the delivery in with me each week so that I can organise a mobile crane as well as a permit from the Council".
6. Ms Kayrouz explained that before the incident happened, Level 4 at the Site was a working area. Scaffolding and timber hoarding blocked off the entire Gray Street perimeter of the Site four metres above and four metres below the high voltage lines and tiger tails were installed on low voltage power lines with the authorisation of Ausgrid. On the day of the incident all the remaining work to be completed by contractors and employees was at a safe distance (six metres away) from the power lines. Access to the building was through Princes Lane or internally.
7. Ms Kayrouz was in her office at the Site when the incident occurred. She explained that she did not authorise Spectra's presence in the area where the incident occurred, nor was she informed of the delivery of pipes that day or how they were being transferred to the Site.

Toufic Kayrouz

1. Mr Kayrouz affirmed an affidavit on 10 February 2020. As mentioned earlier in the judgment, he is a Director of Kayrouz along with his wife. Mr Kayrouz has been a builder for 50 years. Mr Kayrouz stated that his company works on one job at a time and so he worked on the Site full time until the building of the residential units was complete.
2. Mr Kayrouz said that he and his daughter provided inductions to all the different types of workers on site which covered: (a) main safety concerns; (b) rules on the Site; (c) entry and exit points; (d) first aid; (e) telling workers to notify either Ms Kayrouz or himself if they see anything unsafe; (f) telling workers to not touch any of the scaffolding; (g) where amenities such as toilets and lunch rooms were. Mr Kayrouz remembered that in the induction with Spectra workers he said: "You should only use Princes Lane as a working area, there is a loading dock, loading area and a mobile crane can be set up in this area. You should not ever use Gray Street because there are overhead power lines there and it is not safe".
3. Mr Kayrouz explained that he usually was on the Site from 7.00am so that subcontractors could ask any questions they needed to and he spoke to the head of each of the subcontractors every day about their progress. He held informal meetings with all workers every few weeks where issues such as safety concerns and upcoming deliveries were discussed.
4. Mr Kayrouz said he walked through the Site daily, supervised the various contractors, and directed all movement in and out of the Site to occur through Princes Lane. He recalled that on several occasions, he advised the Spectra workers that "Gray Street was not a working area. Keep away from Gray Street because there were high voltage lines. They should not handle any material on balconies". In relation to delivery of pipes generally, Mr Kayrouz said he told Mr Ayoub on many occasions that pipes should be delivered either by mobile crane or otherwise broken up and carried through the fire stairs.
5. After the scaffolding was erected on the Gray Street side, Mr Kayrouz said he met with all the workers and told them: "The scaffolding is up now and it is safe to work on the Gray Street side of the building. However you should still stay clear and not walk or work in the scaffold area unless it is absolutely necessary. You should still use Princes Lane to move materials". Mr Kayrouz said that workers continued to use Princes Lane when the scaffolding was up. After the scaffolding was removed, Mr Kayrouz said he told workers the following: "Do not do any work from the Gray Street side at all, this is a finished area".

Yonghang Wang

1. Yonghang (Leo) Wang affirmed an affidavit on 7 February 2020. He is a Gyprocker and the Director of Hippo Building Ltd. In June or July 2015, Mr Wang was engaged by Kayrouz to carry out the gyprock work at the Site including suspended ceilings, partition walls and external walls.
2. Mr Wang stated in his affidavit that on his first day on the Site he attended an induction for gyprockers with both Ms Kayrouz and Mr Kayrouz. Mr Wang stated that there were different workers attending the Site on different days and each one went to an induction on their first day at the Site. He remembered that the induction included being: (a) told the locations of the Site office, entry gate and exit, emergency exit points, bathroom and the lunchroom; (b) run through safety procedures including PPE, tool safety checks, the gyprock cutting room, dust & waste management; (c) notified of the need provide their SWMS to Mr Kayrouz before starting the job; (d) advised that there would be access to a work health safety plan; (e) told that all deliveries needed to be booked with either Mr Kayrouz or Ms Kayrouz at least one week in advance so that a crane could be organised and a Council road lane closure arranged; (f) told that they would need to advise Mr Kayrouz what materials were going to be delivered; (g) informed that there were power lines on Gray Street, to be careful of the power lines on Gray Street and to not bring deliveries onto that side of the street; (h) told that materials were only supposed to be delivered on the Princes Lane side.
3. Mr Wang stated that at the beginning of the job he had four to six workers on the Site. This was increased to 20-30 workers when work got underway.
4. Mr Wang felt that the Site was "good and safe to work in". He said he knew about safety procedures and no injuries were suffered by himself or his workers on the Site. Mr Wang said he saw Mr Kayrouz and Ms Kayrouz every day that he was at the Site. When his workers asked questions that he could not answer, he referred them to Mr Kayrouz. He stated that he "always had access to Princes Lane and could always access the development from Princes Lane". Mr Wang went on to say there was no obstruction to prevent materials being taken from the Princes Lane into the building.
5. Mr Wang did not see the incident involving Mr Ilioglou but recalls having a conversation with Mr Kayrouz after the incident when Mr Kayrouz told him to be careful at the Site and went through safety requirements again. Shortly after this conversation, Mr Wang held a toolbox talk with Ms Kayrouz and Mr Kayrouz for his workers about the safety at the Site.

Omer Maarbani

1. Omer Maarbani swore an affidavit on 7 February 2020. He is a formworker and the owner of D&J Formwork. Mr Maarbani and several of his employees worked at the Site but he could not remember the exact dates he was there. Mr Maarbani finished his work prior to the date of Mr Ilioglou's accident.
2. In his affidavit, Mr Maarbani stated that on his first day at the Site he and his employees received an induction from Ms Kayrouz and Mr Kayrouz. He remembered that the following topics were discussed: (a) where everything was located; (b) what to do in case of an emergency, including being told to go to the site office if an accident occurred and being shown the location of the hospital; (c) informed that all deliveries were to come to Princes Lane and to notify Ms Kayrouz or Mr Kayrouz at least three to four days earlier if it was "a big delivery so that they could close Princes Lane and hire a mobile crane for the day"; (d) Gray Street was not to be used for any deliveries as it was a 'no stopping area' and there were high voltage power lines there.
3. Mr Maarbani stated that he had at least 10 to 15 of his employees on the Site each day and on some days there were 25 of his workers on the Site. He said that he was personally on the Site every day and met with Mr Kayrouz every morning to discuss the formwork and safety procedures. Mr Maarbani stated that the Site "seemed to me like a safe place to work" and there were no accidents suffered by himself or his workers. He said that he always had access to the Site through Princes Lane and never saw any obstruction to moving material through Princes Lane.
4. Mr Maarbani was not required for cross-examination. It is noted that he says nothing about the inductions or the safety discussions being documented or signed off.

Resolution of the Disputed Facts in Issue

1. The Joint Schedule characterised facts as agreed, not agreed and contested. For the purpose of this judgment, facts that are not agreed or contested by the defendant will be referred to collectively as disputed facts.
2. The disputed facts are set out below together with the finding of the court in relation to each fact: 1. Mr Ayoub's day to day involvement with the company was managing the company and working as a licensed plumber (Joint Schedule, par 12). Proved by the unchallenged evidence of My Ayoub. 2. On 1 February 2016, Spectra submitted a quotation to Majenttas for the plumbing work for the project in the sum of $695,000. Under the scope of works provided in the quote, Spectra was responsible for supply and installation of hot and cold water pipe reticulation, drains and other associated plumbing (Joint Schedule, par 17). Proved by PX 2. 3. On 21 November 2016, Spectra was finishing off the installation of cold water pipes on Level 4 of the building (Joint Schedule, par 27). Proved by the evidence of Mr Ilioglou, Mr Zarkos and Mr Kayrouz. 4. The task involved the workers manually lifting the copper pipes up to Mr Ilioglou on Level 4 of the building by passing them up outside of the building along the Gray Street side of the building. This process involved Mr Zarkos standing on the Ground Level vertically passing the copper pipes to Mr Derbas standing on the Level 2 balcony who would relay the copper pipes to Mr Ilioglou who was standing on the balcony of Level 4 of the building. All the balconies faced the Gray Street side of the building (Joint Schedule, par 32). Proved by the evidence of Mr Ilioglou and Mr Zarkos. 5. As the first copper pipe was passed up to Mr Ilioglou from Mr Derbas, Mr Ilioglou took hold of the copper pipe with his left hand while standing on the balcony of Level 4. In an attempt to lift the pipe into the building, Mr Ilioglou levered the pipe against the top rail of the balustrade of the balcony, when it came into contact with the energised high voltage overhead power lines while the pipe was still in his grasp. Mr Ilioglou was thrown back from the balcony into the building (Joint Schedule, par 33). Proved by the evidence of Mr Ilioglou and Mr Zarkos. 6. The contact of the copper pipe with the 11Kv overhead electrical conductors caused significant arcing which damaged the overhead conductors and were required to be repaired by Ausgrid. The contact also made two holes in the balustrade of the Level 4 balcony where the pipe was resting (Joint Schedule, par 34). Proved by PX 3 and the photographs in PX 1. 7. On 20 November 2016, the day before the incident, Mr Ayoub and Mr Kayrouz had a discussion about the outstanding work required to complete installation and connection of the mains water service on Level 4 of the building (Joint Schedule, par 51). Not proved as the evidence of Mr Ayoub in relation to this conversation is impossible to accept. 20 November 2016 was a Sunday and the Site was not open. (This fact was important in the assessment of the objective seriousness of the offence.) 8. On the day prior to the incident, Mr Ayoub and Mr Kayrouz discussed the outstanding work that was required, at the Site, to complete the connection of the water mains on Level 4 of the building (Joint Schedule, par 54). Not proved for the same reasons. (This fact was important in the assessment of the objective seriousness of the offence.) 9. On the day of the incident, Mr Derbas and Mr Zarkos, decided to manually lift the pipes up on the Gray Street side having previously done so a couple of weeks ago in the same manner (Joint Schedule, par 56). Proved in that Mr Derbas decided to do this. Mr Zarkos did as he was told. 10. A couple of weeks prior to the incident Mr Derbas, Mr Zarkos and another worker engaged in the same activity on the Gray Street side of the building (Joint Schedule, par 57). Proved by the evidence of Mr Zarkos. 11. On that prior occasion, Mr Derbas and Mr Zarkos took up four or five six metre lengths of copper pipe using the same method used on the day of the incident. Mr Zarkos states that on that occasion he was standing on the Level 4 balcony and was aware of the high voltage overhead power lines and that when handling the copper pipes, he would "twist the pipe sideways" so that it would not go near the power lines (Joint Schedule, par 58). Proved by the evidence of Mr Zarkos. 12. At the time of the incident, it was the first time that Mr Ilioglou had been involved in lifting copper pipes up the outside of the Gray Street façade of the building. Mr Ilioglou states that the task of lifting pipes up onto floors of the building was usually undertaken from the Princes Lane side as there no scaffolding or rubbish in the way (Joint Schedule, par 59). Proved by the evidence of Mr Zarkos. 13. However, on the date of the incident, the Princes Lane side of the building was inaccessible because of rubble and other construction debris (Joint Schedule, par 60). Not proved. Nobody said this. (This fact was important in the assessment of the objective seriousness of the offence.) 14. There was no risk assessment conducted by Kayrouz for the task of transporting the copper pipes from the ground floor to Level 4 of the building (Joint Schedule, par 62). Proved, but noted that no such risk assessment was done as the defendant had no knowledge that Mr Derbas would undertake such a foolhardy operation. 15. There no safe work method statement or any safe work procedure prepared by Kayrouz Constructions for the task of transporting the copper pipes from the ground floor to Level 4 of the building (Joint Schedule, par 63). Proved but noted as above. 16. While the requirement for induction was contained in Kayrouz's WHS Management Plan, Mr Ilioglou, Mr Derbas and Mr Zarkos did not receive any site induction training or work health safety induction prior to the incident (Joint Schedule, par 65). Proved in respect of Mr Ilioglou and Mr Zarkos, by their evidence to that effect. 17. There was no training, information or instruction provided by Kayrouz to Spectra workers, including Mr Ilioglou, in relation to working near overhead power lines (Joint Schedule, par 66). Proved in respect of Mr Ilioglou and Mr Zarkos, by their evidence to that effect. 18. At the time of the incident Mr Ilioglou was unaware of any policies or procedure requirements from Kayrouz in relation to tasks near overhead power lines (Joint Schedule, par 67). Proved by the evidence of Mr Ilioglou. 19. Mr Ayoub was aware of the presence of overhead power lines at the workplace as he was aware that WorkCover had attended the Site and provided information to Kayrouz and the scaffolder about protecting the scaffolding from the power lines, approximately one year prior to the incident (Joint Schedule, par 69). Proved by the evidence of Mr Ayoub and Ms Kayrouz. 20. Mr Ayoub had arranged for the delivery of the pipes and had notified Toufic Kayrouz the week prior to the incident that Spectra would be working on Level 4 of the building (Joint Schedule, par 70). Proved that Mr Ayoub arranged for delivery of the pipes, by his own evidence. Not proved that Mr Kayrouz was notified as alleged, because of the credibility findings above regarding Mr Ayoub. (This fact was important in the assessment of the objective seriousness of the offence.) 21. A day or two before the incident Mr Ayoub did a Site visit and spoke to Spectra at the Site about the work to be carried out, however there was no discussion about how the workers would get the copper pipes to Level 4 of the building (Joint Schedule, par 71). Not proved because of the credibility findings above regarding Mr Ayoub. 22. Following the incident, the construction waste materials and rubbish, that were inhibiting access to the Princes Lane side of the building, were cleared and waste materials were removed from the Site to allow access to the area (Joint Schedule, par 77). Not proved as no-one said this. (This fact was important in the assessment of the objective seriousness of the offence.) 23. The process of completing the work on Level 4 occurred after the rubble was cleared up on the Princes Lane side of the building. The copper pipes were manually handled up the outside of the building to Level 4 on the Princes Lane side where there were no power lines. This was completed by Mr Derbas and two other workers (Joint Schedule, par 78). Not proved as no-one said this.

Reasonably Practicable Measures Established by the Evidence

1. As previously recited the defendant accepted that it failed to take the measures particularised in subpars (c), (e) and (g) in par 10 of the Summons.
2. Paragraph 10(a) of the Summons pleaded that the defendant should have taken the following measure: "(a) conduct a risk assessment or ensure that a risk assessment had been conducted of the hazards involved in the task of manually lifting 6-metre lengths of copper pipes from the ground floor to the upper levels of the building (the task), in particular, a risk assessment which identified the risk of the copper pipes coming into contact with high voltage power lines at the site if the task was performed on the Gray Street side of the building and the control measures to eliminate or minimise the risk, in accordance with clause 166 of the Work Health and Safety Regulation 2011 (the Regulation);"
3. Once the scaffolding was removed, the building was still in the course of construction. There was a fence or barricade erected along the Gray Street side of the building. However, workers might have accessed the Gray Street side of the building for any number of purposes. As demonstrated by the facts in this case, the plumbers might seek to pass copper piping up the side of the building. The painters were still on the Site, and it is conceivable that they could have used a scissor lift from the Gray Street side to try to access upper levels. Landscapers were still on the Site, and they might have used a crane to lift some garden feature into place. While par 10(b) of the Summons is cast in terms of a specific risk assessment in relation to manually lifting copper pipes from the Gray Street side of the building, the general and continuing nature of the risk arising from the power lines being very close to the Gray Street side of the building required a risk assessment to be carried out. While one was done in the early stages of the building project, Ms Kayrouz did not turn her mind to any continuing risk, as she perceived there was no risk after the scaffolding came down. The risk may well have been much less after that time, but there was still a risk which should have been properly assessed.
4. I find that par 10(a) of the Summons has been established by the prosecutor.
5. Paragraph 10(b) of the Summons is in the following terms: "(b) develop, implement and enforce a safe work procedure for undertaking work in the task that included: i. using an alternative location or access route to transport the copper pipes from the ground floor to the upper levels of the building, such as, access from the Princes Lane side of the building; and/or ii. arranging for the high voltage power lines to be de-energised while the task was being undertaken on the Gray Street side of the building; and/or iii. arranging for a lifting device or equipment (such as a crane) to be made available to deliver the copper pipes to the upper levels of the building on the Princes Lane side of the building."

Consideration

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

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 The Queen (No. 2) [1988] HCA 14; (1988) 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] NSWCCA 242; (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 [1988] HCA 67; (1988) 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. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
4. 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].
5. 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] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.
6. 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. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

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; (2016) 93 NSWLR 338 at [180].
2. The penalty must reflect the need for specific deterrence. Kayrouz is still conducting a business. Its operations involve construction of residential buildings and the continuing engagement of workers.

Aggravating Factors

1. The injury, emotional harm, loss or damage caused by the offence was not substantial in terms of s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. The prosecutor properly conceded that there were no aggravating factors.

Mitigating Factors

1. Kayrouz does not have a prior record of convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
2. Kayrouz is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. It has been in business for 37 years.
3. Kayrouz is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.
4. Kayrouz has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.
5. Kayrouz has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Ilioglou was caused by its actions.
6. Kayrouz entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999.
7. Counsel for the prosecutor properly conceded that the plea of guilty was entered at an early stage. Attention was drawn to the decision of the Court of Criminal Appeal in R v AB [2011] NSWCCA 229. The court said: "32. Likewise a person who pleads guilty but puts the Crown to proof on certain factual issues and who loses that dispute, is not entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require such a contested hearing. 33. These observations will have no application to the determination of the present Crown appeal. However, as a matter of general principle, this Court should state that the utilitarian value flowing from a plea of guilty is not a fixed element, and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. This involves no more than an acknowledgment of the fact that what may be gained in utilitarian terms as a result of the avoidance of a trial may be lost, also in utilitarian terms, by way of a protracted sentencing hearing involving the adducing of evidence and a consumption of public resources for a purpose ultimately determined adversely to an offender."

Parity

1. Spectra was also prosecuted for a breach of its health and safety duties arising under the Act, relating to the same incident in which Mr Ilioglou was injured. Spectra appeared before Scotting DCJ on 31 July 2019. On 12 August 2019 Spectra was convicted and his Honour imposed a fine of $200,000 reduced by 25% to reflect the guilty plea, plus costs of $23,000: SafeWork NSW v Spectra Plumbing Pty Ltd [2019] NSWDC 415.
2. Where two or more offenders are involved in the same criminal conduct or enterprise the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [30].
3. The principle operates in the nature of a "check" required of the sentencing Court: DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [31]. The Court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [139] Justice Campbell said: "An essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence."
4. The court should not use a co-offender's sentence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v The Queen at [32]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.
5. It is appropriate for the court to consider the respective contributions of Spectra and Kayrouz. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 at [241].

Capacity to Pay a Fine

1. I am required to have regard to s 6 of the Fines Act 1996 (NSW) 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: Mahdi Jahandideh v The Queen [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. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said: "First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to 'the means' of the defendant, pursuant to s 6 of the Fines Act 1996."
3. There was no submission about capacity to pay, so this issue does not arise.

Costs

1. The parties wish to read and consider this judgment before dealing with costs. I will give the parties seven days to do so. If the parties fail to agree, they will have a further seven days to file a written submission on costs. Costs will then be dealt with on the papers.
2. I draw attention to my remarks above as to some important facts which are relevant to objective seriousness, and which the prosecution did not prove. While many of the disputed facts should have been admitted as they were uncontroversial, the defendant quite properly challenged some of the facts alleged by the prosecutor, and was successful in doing so.

Penalty

1. My orders are: 1. Kayrouz Constructions Pty Limited is convicted. 2. The appropriate fine is $80,000 but that will be reduced by 25% to reflect the plea of guilty. 3. Order Kayrouz Constructions Pty Limited to pay a fine of $60,000. 4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. 5. Reserve the question of the prosecutor's costs. 6. If the parties cannot agree on costs by 10 March 2021, direct that each party shall file written submissions on costs by 17 March 2021 and that the question of costs will then be determined on the papers.

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: 03 March 2021