SafeWork NSW v Mirvale Pty Ltd; SafeWork NSW v Ronald Ters

District Court of NSW|2021-11-19

WorkCover Code of Practice "Preventing Falls in Housing Construction" dated July 2014 SafeWork NSW Safety Alert on "Voids in House Construction" dated April 2018 Category: Sentence Parties: SafeWork NSW (Prosecutor) Mirvale Pty Ltd (Defendant) Ronald Ters (Defendant) Representation: Counsel: I Fraser (Prosecutor) P Barham (Defendants)

Judgment

On 7 March 2019 Mr Yahyeh Muchref was painting the walls of a two-storey townhouse. He fell three metres from the first floor through a void to the ground below and was seriously injured.
Mirvale Pty Ltd ("Mirvale") 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 contravened s 33 of the Act.
The maximum penalty for this Category 3 offence under the Act is a fine of $634,700.
Mr Ronald Ters has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 27 of the Act it failed to comply with that duty and thereby contravened s 33 of the Act.
The maximum penalty for this Category 3 offence under the Act is a fine of $127,050.
Section 33 of the Act provides: "33 FAILURE TO COMPLY WITH HEALTH AND SAFETY DUTY--CATEGORY 3 A person commits a Category 3 offence if-- (a) the person has a health and safety duty, and (b) the person fails to comply with that duty."

The Risk

The risk was not pleaded in each Summons but was stated in the prosecutor's oral submissions to be "the risk of falling from height".

Reasonably Practicable Measures

Paragraph 13 of the Mirvale Summons pleads particulars of the defendant's failure to comply with the duty under s 19(1) of the Act as follows: "13. The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, in that it failed to take one or more of the following reasonably practicable measures: a) Installing any, or any adequate, temporary edge protection (such as a guard railing or a solid balustrade) around the: (i) unprotected void on the first level of townhouse 4 at the site; (ii) leading edge of the staircase on the first level of townhouse 4 at the site; (iii) edge of the stair case leading up to the first level of townhouse 4; (iv) leading edge of the concrete slab above the basement car park at the site; (v) leading edge of the basement staircase at the site; and/or b) Verifying that edge protection was in place around the void on the first floor of townhouse 4 prior to permitting workers to commence work on the first floor of the townhouse; and/or c) Developing, implementing and enforcing a safe work method statement for the construction project which identified the risk of falls from heights at the site and the controls that would have eliminated or minimised the risks; and/or d) Providing adequate information, instruction and training to workers as to the risk of falls from height and the control measures to be implemented and enforced to eliminate or minimise the risk; and/or e) Conducting a site-specific induction for workers, and in particular Mr Muchref, prior to permitting workers to commence work at the site."
Paragraph 12 and 13 of the Ters Summons pleads particulars of the defendant's failure to comply with the duty under s 27(1) of the Act as follows: "12. The defendant failed to exercise due diligence to ensure that Mirvale complied with its duty or obligation under section 19(1) of the Act, because he failed to take reasonable steps (as outlined in paragraph 13 below) to ensure that Mirvale had, as far as reasonably practicable, complied with that duty, as Mirvale failed to take one or more of the following reasonably practicable measures: a) Installing any, or any adequate, temporary edge protection (such as a guard railing or a solid balustrade) around the: (i) unprotected void on the first level of townhouse 4 at the site; (ii) leading edge of the staircase on the first level of townhouse 4 at the site; (iii) edge of the stair case leading up to the first level of townhouse 4; (iv) leading edge of the concrete slab above the basement car park at the site; (v) leading edge of the basement staircase at the site; and/or b) Verifying that edge protection was in place around the void on the first floor of townhouse 4 prior to permitting workers to commence work on the first floor of the townhouse; and/or c) Developing, implementing and enforcing a safe work method statement for the construction project which identified the risk of falls from heights at the site and the controls that would have eliminated or minimised the risks; and/or d) Providing adequate information, instruction and training to workers as to the risk of falls from height and the control measures to be implemented and enforced to eliminate or minimise the risk; and/or e) Conducting a site-specific induction for workers, and in particular Mr Muchref, prior to permitting workers to commence work at the site. 13. The reasonable steps the defendant should have taken in exercising due diligence to ensure the company complied with its duties and obligations under the Act included one or more of the following: 1) Ensuring that Mirvale had in place and used appropriate processes and resources to eliminate or minimise risks to health and safety from work carried out as part of the conduct of Mirvale's business or undertaking by: a) requiring, instructing or directing Mirvale to install, (or engaging a suitably qualified person to install on Mirvale's behalf) any, or any adequate temporary edge protection, such as a guard railing or a solid balustrade, around the: (i) unprotected void on the first level of townhouse 4 at the site; and/or (ii) leading edge of the staircase on the first level of townhouse 4 at the site; and/or (iii) edge of the stair case leading up to the first level of townhouse 4; (iv) unprotected leading edge on the concrete slab above the basement car park at the site; and/or (v) leading edge of the basement staircase at the site; and/or b) requiring, instructing or directing Mirvale to verify, by inspecting the site and/or making enquiries, that edge protection was in place around the void on the first level of townhouse 4 at the site prior to permitting workers to commence work on the first floor of the townhouse; and/or c) requiring, instructing or directing Mirvale to develop, implement and enforce a safe work method statement for the construction project which identified the risk of falls from heights at the site and the controls that would have eliminated or minimised the risks; and/or d) requiring, instructing or directing Mirvale to provide training, information and instruction to workers as to the risk of falls from height and the control measures to be implemented and enforced to eliminate or minimise the risk; and/or e) requiring, instructing or directing Mirvale to provide workers with a site specific induction prior to permitting workers to commence work at the site. 2) Verifying that one or more of the resources or processes listed in paragraphs 13 (1)(a) - (d) above were provided, implemented and used by workers when undertaking work for, or on behalf of, Mirvale."

Background

The parties presented an Agreed Statement of Facts and this material is summarised below.
Mirvale is a registered corporation which conducts a business or undertaking involving the provision of construction services, including the construction of residential premises.
Mr Ters is the sole director of Mirvale. At the time of the incident Mr Ters was responsible for the operations of the business and had financial control of the business. Mr Ters' daily duties included managing the site, organising trades and managing occupational health and safety on the site.
The employees of Mirvale were Mr Ters and his wife Ms Colette Ters.

The Project

Mirvale was the principal contractor for a construction project ("the project") in Caringbah South ("the site"). Mirvale commenced working at the site on 1 August 2018.
The project involved the construction of five residential townhouses and a basement carpark. Four of the townhouses at the site were two storeys in height. In each two-storey townhouse there was a void between the first floor and the ground floor of the townhouse.
Mirvale engaged contractors including OMB Painting Group ("OMB") to assist in undertaking the project.
The total cost of the project was estimated to be $2,000,000 plus costs.
Mirvale engaged OMB to paint the interiors of the townhouses at the site. OMB was a small business that conducted domestic and commercial painting work. Mr Omar Baroudi was the sole director and sole employee of OMB.
OMB engaged Mr Muchref, a 40 year-old painter, to assist with painting the townhouses at the site. Mr Muchref commenced working at the site on 5 March 2019. Mr Baroudi instructed Mr Muchref to paint the walls, ceilings and doors of the townhouses at the site.

The Day of the Incident

On 7 March 2019 workers engaged by Mirvale were undertaking delivery work, painting and tiling at the site.
Mr Muchref commenced work at the site at 7.00am.
At 9.00am Mr Baroudi met with Mr Muchref in townhouse 1. Mr Baroudi told Mr Muchref to finish painting the walls on the ground floor of the townhouses and then complete the other work required. Mr Baroudi had a coffee with Mr Muchref and left the site 30-40 minutes later.

The Incident

Immediately prior to the incident Mr Muchref was painting the walls on the first floor of townhouse 4.
While Mr Muchref was painting the walls, he fell three metres from the first-floor void to the ground below. There were no eye-witnesses to the incident.
At 11.00am a tradesman found Mr Muchref laying on the ground floor of townhouse 4 beneath the unprotected void.

Injuries

Mr Muchref sustained serious injuries as a result of the incident including spinal fractures, extensive intracranial haemorrhage and multiple skull fractures. Mr Muchref underwent an emergency craniectomy following the incident and remained in hospital until 18 April 2019.
Mr Muchref has been unable to return to work since the incident.

SafeWork NSW Inspection After the Incident

At 3.10pm on 7 March 2019 Inspector Michael Holder of SafeWork NSW attended the site and conducted an inspection.
During the inspection of townhouse 4 at the site, Inspector Holden observed: 1. Blood stains on the timber floor in the entry area. 2. The timber stair access to the first floor had no handrail. 3. The height of the first floor was 3,050 mm above the ground floor. 4. The first-floor void had a 900mm x 1100mm long timber handrail installed across the leading edge. 5. There was no mid-rail on the timber handrail at the edge of the void.
During the inspection of the area around the basement carpark at the site, Inspector Holder observed: 1. Red and white striped tape tied between three orange bollards on the level above the basement driveway. 2. Red and white striped tape tied between three bollards at the entrance of the stairs to the basement carpark.
Inspector Holden did not proceed down the basement staircase for his own safety.
Mr Ters informed Inspector Holden that he installed the handrail around the first floor void following the incident as a safety measure.

Legislation and Guidance Material

Clause 78(1) of the Work Health and Safety Regulation 2017 ("the Regulations") provides that "A person conducting a business or undertaking at a workplace must manage, in accordance with Part 3.1, the risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury to the person or any other person".
Clause 78(3) of the Regulations provides that "A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that any work that involves the risk of a fall to which subclause (1) applies is carried out on the ground or on a solid construction".
Clause 79 of the Regulations provides: "79 Specific requirements to minimise risk of fall (1) This clause applies if it is not reasonably practicable for the person conducting a business or undertaking at a workplace to eliminate the risk of a fall to which clause 78 applies. (2) The person must minimise the risk of a fall by providing adequate protection against the risk in accordance with this clause. … (3) The person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by - (a) providing a fall prevention device if it is reasonably practicable to do so, or (b) if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system, or (c) if it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable."
Clause 299(1) of the Regulations provides that a person conducting a business or undertaking that includes the carrying out of high risk construction work must, before high risk construction work commences, ensure that a Safe Work Method Statement ("SWMS") is prepared or has already been prepared by another person.
Clause 291 of the Regulations provides that "high risk construction work" includes construction work that involves a risk of a person falling more than two metres.
Clause 312 of the Regulations provides that the principal contractor for a construction project must take all reasonable steps to obtain a copy of the SWMS relating to high risk construction work before the high risk construction work commences.
The SafeWork NSW Code of Practice "Managing the Risk of Falls at Workplaces" dated April 2016 ("SafeWork Code") (PX 1, Tab 5) provides practical guidance on how to manage health and safety risks arising from falls.
The SafeWork Code states that barriers or edge protection should be provided on relevant parts of a solid construction to prevent persons falling over edges or into holes. The relevant parts of a solid construction include: 1. The perimeters of buildings or other structures. 2. Mezzanine floors. 3. Openings in floors. 4. The open edge of a stair, landing, platform or shaft opening.
The SafeWork Code states that the barrier should be designed and constructed to withstand the force of someone falling against it. Edge protection should consist of guard rails, solid balustrades or other structural components, for example wire mesh supported by posts and provided with a reinforced top edge.
The SafeWork Code provides that guard rails may be used to provide effective fall prevention in the following situations: 1. At the edges of roofs. 2. At the edges of mezzanine floors, walkways, stairways, ramps and landings. 3. On top of plant and structures where access is required. 4. Around openings in floor and roof structures. 5. At the edges of shafts, pits and other excavations.
Guard rails should incorporate a top rail 900mm to 1,100mm above the working surface and a mid-rail and toe board.
The WorkCover Code of Practice "Preventing Falls in Housing Construction" dated July 2014 ("WorkCover Code") (PX 1, Tab 6) provides guidance on how to prevent the risks of falls in housing construction.
The WorkCover Code states that falls are a major cause of death and serious injury in Australian workplaces and that fall hazards are found when carrying out common tasks in the construction of a typical one or two-storey house.
The WorkCover Code provides that every open edge of a stair, landing, platform or shaft opening must be protected to prevent people falling.
In relation to guarding openings, the WorkCover Code states that all stairwells, atriums and voids, through which a person could fall, must be sturdily guarded and covered with an industrial safety net or sheeted over, regardless of the fall distance from the upper level floor.
The SafeWork NSW Safety Alert on "Voids in House Construction" dated April 2018 ("Safety Alert") (PX 1, Tab 7) states that the simplest way to make a void safe is to use a fixed cover for the void. Where this is not possible the use of a working platform or a physical barrier (such as a secure fence or edge protection) is recommended.
The Safety Alert also states that the void protection should be explained to everyone on the site including workers, sub-contractors and other visitors to the site.

Systems of Work Before the Incident

One month prior to the incident Mr Ters installed a temporary timber balustrade ("the balustrade") around the voids on the first floor of the townhouses.
Mr Baroudi observed the balustrades in place on the first floor of the townhouses when he inspected the site and commenced work at the site.
Mr Ters last saw the balustrade in place a day or two before the incident.
At the time of the incident: 1. There was no balustrade in place around the first floor void in townhouse 4. 2. There was no edge protection on the leading edge of the staircase on the first floor of townhouse 4. 3. There was no handrail on the staircase leading to the first floor of townhouse 4. 4. There was no edge protection installed on the leading edge of the concrete slab above the basement car park. The leading edge of the concrete slab was the courtyard area in townhouse 1 at the site. The distance from the concrete slab to the ground was approximately 3.1 metres. 5. There was no edge protection installed on the leading edge of the staircase to the basement car park. The distance from the leading edge of the staircase to the ground was approximately 2.8 metres.
The balustrade had not been removed with Mr Ters' authority. Mr Ters does not know when the balustrade around the first floor void in townhouse 4 was removed or who removed it.

Work Health & Safety Management Plan & SWMS

Mirvale had a Work Health & Safety Management Plan ("WHS Management Plan") in place for the project.
The WHS Management Plan stated: 1. A safe system of work must be developed for any hazardous works undertaken on site (which includes fall prevention and falling objects). 2. A SWMS must be developed in consultation with relevant persons for high risk tasks undertaken during this project. 3. SWMS's are to be provided to the Principal Contractor. 4. SWMS's must be kept on site, accessible to workers and complied with at all times. 5. All persons involved in the task will be trained in the content of the SWMS and all risk controls detailed therein.
Mirvale did not have any SWMS's in place for the work being performed at the site.
Mirvale did not request or obtain a SWMS from OMB in relation to the painting work it was engaged to perform at the site.

Induction

The WHS Management Plan stated: "Section 7 Site Induction Checklist Mirvale Pty Ltd will provide a site-specific induction for all workers, labour hire workers and contractors prior to any work being conducted for this project."
A checklist was to be utilised for the site-specific induction which included the items of "site-specific hazards/risks" and "site-specific risk controls".
Mr Ters was responsible for providing inductions at the site.
Mr Ters provided Mr Baroudi with an induction for the site.
Mr Ters did not provide Mr Muchref with a site induction. Mr Ters mistook Mr Muchref for another worker and did not realise that Mr Muchref came onto the site without an induction.

Changes Introduced after the Incident

SafeWork NSW issued a Prohibition Notice to Mirvale which required it to eliminate the risk of falls from the stairs of the townhouses under construction, or where that was not reasonably practicable, to minimise the risk by providing a safe system of work.
In response to the Prohibition Notice, the Mr Ters installed permanent glass balustrades to the first floor voids of the four townhouses. Glass balustrades were also installed around the leading edges of the staircases.
On 13 March 2019 the Mr Ters installed timber handrails on the leading edge above the basement carpark and the leading edge of the basement staircase.

Evidence for the Defendants

Mr Ters affirmed an affidavit dated 9 November 2021 (DX 2).

Background and Experience

Mr Ters is married with three children, the youngest being 9 months old.
Mr Ters holds a Certificate IV in Construction, a Building Diploma and a Builder's Licence.
Mr Ters worked for various construction companies between 1998 and 2009.
In 2009 Mr Ters commenced an inspector job which consisted of conducting sinking fund forecasts, occupational health and safety audits, maintenance reports and asbestos surveys for strata buildings. Mr Ters stated that as a result of this experience he was very aware of work health and safety ("WHS") requirements and standards at NSW construction sites.

Background to Mirvale

Mirvale was incorporated in 2014. Mr Ters is the sole Director and Operator.
The two employees of Mirvale are Mr Ters and his wife Ms Colette Ters. Mirvale has always used subcontractors for all trades.
Mr Ters' duties as an employee of Mirvale were: 1. Coordination and preparation of all DA documentation and submissions to Council. 2. Review the designs with architects prior to construction commencement. 3. Review overall site access and materials handling management. 4. Supervision of work practices ensuring compliance with quality and safety standards. 5. Organising the trades, work sequencing and staging of deliveries. 6. Ensuring compliance with WHS requirements. 7. Chairing regular site meetings with subcontractors.
Over the past seven years Mirvale has constructed three different dual occupancy sites and a townhouse comprising five units. Mirvale also subcontracted to another builder and Mr Ters was engaged by Mirvale as the foreman.
Mr Ters stated that he has always been careful to ensure the health and safety of subcontractors and their employees.

The Project

OMB was engaged by Mirvale as the painting contractor at the site. The injured worker, Mr Muchref, was engaged by OMB. No written contract was in place between Mirvale and OMB. A verbal quote from the Director of OMB, Mr Baroudi, was accepted by Mirvale. Mirvale had engaged OMB on previous occasions for painting of internal walls, ceilings, doors and architraves.
In February 2019 Mr Ters had a discussion with Mr Baroudi about the work to be undertaken. The discussion occurred on the first day that Mr Baroudi attended the site.
Mr Ters dealt with Mr Baroudi and rarely spoke with the people working for OMB ("OMB workers"). The OMB workers undertook the painting of the inside of the five units. The work was completed correctly and with no issues.
Mr Ters did not meet Mr Muchref personally prior to him commencing work at the site. Mr Ters did not instruct or induct Mr Muchref as he was not aware that Mr Muchref was new to the site and he was not aware that Mr Baroudi had not carried out that obligation. Mr Ters thought that Mr Muchref was another worker who had already been inducted.
Mr Baroudi did not inform Mr Ters that any of the OMB workers were new. Mr Ters and Mr Baroudi did not discuss whether Mr Ters should be informed if Mr Baroudi engaged new workers. However, Mr Ters had informed Mr Baroudi on previous occasions that new workers were to be inducted. Mr Ters did not specifically advise Mr Baroudi that he had to instruct Mr Muchref on WHS obligations.
Mr Ters believes that Mr Baroudi instructed Mr Muchref to paint the walls on the day of the incident.
Safety equipment was not supplied by Mirvale to assist with the internal painting of the units however scaffolding was available around the external walls of the units.
A WHS Management Plan was available at the site.
The painting work was to be done with the use of rollers, extendable rollers and a ladder rather than scaffolding. Mr Ters considered a ladder to be safe as most of the work was to be performed in an area with a gap of only 2.7 metres between the floor and the ceiling.
At the time of the incident OMB was in the first stages of the work which involved preparing and undercoating internal wall and ceiling linings.
Prior to the incident Mr Ters had installed temporary timber balustrades around all of the staircase voids in the townhouses.
A day or two before the incident Mr Ters observed that the temporary balustrades were all in order.
After the incident Mr Ters inspected the townhouses and observed that townhouse 4 had had its temporary balustrade removed. The temporary balustrades were still in place in all other townhouses. The removal of the temporary balustrade would have required considerable effort and time as it was held in place using nails and masonry fixings.
Mr Ters does not know who removed the balustrading. Mr Ters stated that, in his experience, workers on site may remove temporary balustrades when they are in the way of their work, to make it easier to pass material to the upper floor or to use the timber for their benefit. Mr Ters stated that the only way to control tampering with temporary handrails and balustrades is by conducting regular inspections to ensure they are safe and have not been tampered with. This is not always practical.
Mr Ters was called to townhouse 4 after the incident had occurred and he found Mr Muchref on the floor still conscious and with a cut on his head.

Systems of work prior to the Incident

Mr Ters usually undertook regular inspections of the site throughout the day, but he did not do so on the day of the incident. An inspection of the site usually involved Mr Ters walking through two or three townhouses per day, depending upon the works being undertaken, and looking into each room. On some occasions Mr Ters thought that it was not necessary to inspect a townhouse as no works were being undertaken and no tradesmen were accessing the townhouse.
Workers were inducted on site daily however Mr Ters no longer has any records of the inductions. A work method statement was supplied to the workers at the time of the induction.
Toolbox talks were undertaken whenever Mr Ters deemed necessary. This would usually occur monthly. Mr Ters would normally call all the necessary workers on site into either one of the townhouses or to his site office and he would have different conversations depending upon what work was being undertaken that day. With OMB, Mr Ters said to Mr Baroudi words to the effect of "How many workers would you be bringing?", "Do you need any items moved?" or "Do you need me to supply any equipment?".

Apology

Mr Ters stated that he is very sorry for what happened to Mr Muchref. He has developed a sense of fear and has been very reluctant to contract any jobs since the incident until recently.
Mr Ters was in contact with Mr Baroudi daily after the incident. Mr Ters visited Mr Muchref in hospital numerous times and transferred $5,000 to him to assist with any immediate bills or payments.

Co-Operation with SafeWork NSW Investigation

Mr Ters assisted SafeWork NSW with the incident investigation. He provided a statement and participated in an interview with investigating officers.
Mr Ters provided SafeWork NSW with all required documentation and has been open and honest with SafeWork NSW from the beginning of the investigation.

No Prior Convictions or Incidents

Mr Ters stated that there have been no other safety incidents on sites under his management. Neither Mr Ters nor Mirvale have any prior convictions.

Changes Introduced After the Incident

Mr Ters now takes the following steps to ensure that such an incident does not happen again: 1. Mr Ters opens the site himself each day and monitors who comes onto the site and leaves the site. 2. Mr Ters ensures that all contractors and their workers have been inducted. 3. Mr Ters receives the contractors' insurances and licences before work is commenced. 4. Mr Ters does several inspections a day of all areas on the site to ensure safety of all workers.

Consideration

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

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].
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].
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."
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].
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.
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.
The Court of Criminal Appeal has examined the sentencing process with regard to the Act 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. Justice Basten at [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."
Further at [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 [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: "It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken."
My findings about the defendant's level of culpability are based upon the following: 1. Mirvale and Mr Ters knew of the risk. In any event the risk was foreseeable as there was guidance material directed to this particular risk. 2. The likelihood of the risk occurring was high. Inspection of the site uncovered two further unprotected voids in the basement carpark. 3. Simple and well-known steps were readily available to eliminate or minimise the risk. 4. There was no great burden or inconvenience in these steps being implemented. Mr Ters had previously installed temporary balustrades around the first floor voids and he was unaware that the temporary balustrade in townhouse 4 had been removed. However, the incident could have been avoided if regular site inspections took place and site inductions were being carried out for all workers. Mirvale and Mr Ters took these remedial measures quickly after the incident. 5. Mr Muchref sustained spinal fractures, extensive intracranial haemorrhage and multiple skull fractures. Mr Michref has been unable to return to work since the incident. 6. The maximum penalties for these Category 3 offences are $634,700 for Mirvale and $127,050 for Mr Ters, which reflects the legislature's view of the seriousness of the offences. 7. Mirvale and Mr Ters did install balustrades to guard the void above the first floor. The balustrade was removed by persons unknown. As counsel for the defendants submitted, the photographs at Tab 4 of PX 1 suggest that it would have taken some effort for a person to remove the balustrade.
Counsel for the prosecutor accepted that the objective seriousness was "below the mid-range" (MFI 3, par 41).
I find that the level of culpability of Mirvale is in the low range.
I find that the level of culpability of Mr Ters is in the low range.

Deterrence

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].
Proceedings in this court concerning falls from heights resulting in serious injury are far too common. In my judgment in SafeWork NSW v Ru Gong Li [2018] NSWDC 189 I listed 22 such cases in the previous 2.5 years. Since that decision there have been a further 31 cases heard in this court.
The penalty must reflect the need for specific deterrence. Mirvale is still conducting a business and Mr Ters is still the Director of the business. Mirvale's operations involve construction services and the continuing engagement of workers.

Aggravating Factors

The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

Neither Mirvale nor Mr Ters have a prior record of conviction: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
Mirvale and Mr Ters are otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps taken after the incident demonstrate this. Mirvale and Mr Ters have been in business for approximately seven years.
Mirvale and Mr Ters are unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.
Mirvale and Mr Ters have good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. Mr Ters, on behalf of Mirvale, 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.
Mirvale and Mr Ters have shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Ters has provided evidence that both he and Mirvale have accepted responsibility for their actions and have acknowledged that the injury to Mr Muchref was caused by their actions.
Mirvale and Mr Ters 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. It is appropriate to give both Mirvale and Mr Ters a 25% discount for early pleas. Counsel for the prosecutor accepted that this was the appropriate percentage.
Mr Ters, on behalf of Mirvale, gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. He co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

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.
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."

Affidavit of Mr Ters dated 22 October 2021

Mr Ters affirmed an affidavit dated 22 October 2021 (DX 1).
Mirvale is no longer involved in the construction of residential premises to the same extent as it had been prior to the incident. Mirvale has undertaken one residential construction job since the incident. The main aspect of the business of Mirvale now is providing site supervision services.
Mr Ters provided financial evidence in DX 1 (including tax returns and financial statements) as follows: 1. In 2017/2018 financial year, Mirvale paid $115,500 in wages, had a net income of $0, total assets of $250,539 and net assets of $70,000. 2. In 2017/2018 financial year, Mr Ters had a gross income of $85,000 and a net income of $66,089 and spouse income of $28,606 (gross). 3. In 2018/2019 financial year, Mirvale paid $72,000 in wages, had a net income of $0, total assets of $102,517 and net assets of $70,000. 4. In 2018/2019 financial year, Mr Ters had a gross income of $54,919 a net income of $45,919 and spouse income of $21,344 (gross). 5. In 2019/2020 financial year, Mirvale paid $101,000 in wages, had a net income of $0, total assets of $102,168 and net assets of $70,000. 6. In 2019/2020 financial year, Mr Ters had a gross income of $55,000, a net income of $46,546 and spouse income of $44,799 (gross). 7. In 2020/2021 financial year, Mirvale paid $48,703 in wages, had a net income of $0, total assets of $186,476 and net assets of $70,000. 8. In 2020/2021 financial year, Mr Ters had a gross income of $36,235, a net income of $33,992 and spouse income of $12,300 (gross).

Submissions

The prosecutor accepted in his written submissions that there are some limitations on Mirvale's and Mr Ters' capacity to pay a fine.
I accept the submissions of counsel for the defendants concerning capacity to pay: 1. Mirvale is a small family company which has a modest income and a limited capacity to pay. 2. Mr Ters has a modest income and significant family financial commitments, including a large home mortgage. 3. While Mirvale has $70,000 in cash, this money is a bond provided in connection with home owners warranty insurance. 4. Both Mirvale and Mr Ters have a limited capacity to borrow to pay fines.

Costs

The parties have agreed to an order that the defendants are to pay the prosecutor's costs in the total amount of $39,900. I will make an order for that amount in both matters, with the intent that $39,900 is the total figure for the costs of both proceedings.

Penalty

I take into account the means of both defendants and will moderate the fines which I would otherwise impose.
The penalties are for breaches of s 33 of the Act, not s 32. There is no guidance to be obtained from previous decisions of the court. Every case heard in this court in the last five years has involved a s 32 prosecution.
My orders are: Penalty for Mirvale Pty Ltd (2021/00065542): 1. Mirvale Pty Ltd is convicted. 2. The appropriate fine is $65,000 but that will be reduced to $40,000 by reason of capacity to pay and further reduced by 25% to reflect the early plea of guilty. 3. Order Mirvale Pty Ltd to pay a fine of $30,000. 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. Order Mirvale Pty Ltd to pay the prosecutor's costs agreed in the amount of $39,900. Penalty for Ronald Ters (2021/00065552): 1. Ronald Ters is convicted. 2. The appropriate fine is $20,000 but that will be reduced to $12,000 by reason of capacity to pay and further reduced by 25% to reflect the early plea of guilty. 3. Order Ronald Ters to pay a fine of $9,000. 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. Order Ronald Ters to pay the prosecutor's costs agreed in the amount of $39,900. 6. The total costs payable to the prosecutor in proceedings 2021/00065542 and in these proceedings 2021/00065552 shall be $39,900.

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: 26 November 2021

Work Health and Safety Regulation 2017(NSW)

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