Opcon Plumbing Pty Ltd (Opcon) has pleaded guilty to an offence, that being, a person who had a health and safety duty pursuant to section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Robert Kevin Davey to a risk of death or serious injury contrary to section 32 of the Act. The maximum penalty for the offence is a fine of $1.5 million.
Houssam Annous has pleaded guilty to an offence that as an officer of Opcon who had a health and safety duty under section 27(1) of the Act, he failed to comply with that duty and thereby exposed Mr Davey to a risk of death or serious injury contrary to section 32 of the Act. The maximum penalty for the offence is a fine of $300,000.
[2]
Facts
The parties presented two Agreed Statements of Facts that can be summarised as follows.
At all material times, Claremont Property Holdings Pty Ltd (Claremont) owned the premises at 44 Claremont Avenue, Greenacre NSW (the premises), which it leased to Cleanaway Waste Management Limited (now known as Transpacific Industries Group Ltd).
Under a new lease, Claremont was required to undertake maintenance and repair work on buildings A and B at the premises by 1 April 2016. For this purpose, Claremont engaged Opcon to perform work. The work included the removal of asbestos cement sheeting (AC sheeting) from the walls and roofs of Building A and parts of Building B and replacement of the colour bond steel sheeting, and the supply and installation of new safety mesh and insulation. The work was required to be completed on weekends.
Opcon conducted a business providing plumbing, drainage, gas, LPG and roofing services. It had about five employees at the date of the incident, and undertook work at heights around four to six times per year.
Houssam Annous was and remains the sole director and company secretary of Opcon, having been appointed on 6 February 1995. At the time of the incident, the other employees of Opcon were Mr Davey (who was 61 and had 42 years of experience as a plumber, Ahmed Eid and Fadi Annous (both registered plumbers in their 20s), and Ibrahim Annous (an apprentice plumber aged 17). Fadi and Ibrahim Annous are sons of Houssam Annous.
In August or September 2015, Mr Davey, Mr Eid, Fadi Annous and Ibrahim Annous completed a working-at-heights course for which they were issued certificates, and a WP (work platform) over 11m work course for which they were issued licences and Yellow Card updates. Mr Davey also held a national licence to perform high risk work and general induction for construction work in NSW.
Asbestos REM Pty Ltd (Asbestos REM) was sub-contracted by Opcon to remove the AC sheeting from the premises and dispose of it. The old safety mesh was still affixed beneath the parts of the roof from which Asbestos REM removed the AC sheeting. Wade Rogers, the sole director of Asbestos REM, undertook a visual inspection of the mesh before the work was carried out. Mr Rogers noted that the mesh was in good condition, and in place for the majority of the premises.
Opcon's employees used a scissor lift to access the roofs on which they worked. They were instructed to walk on the purlins, and used fall arrest harnesses. There was a safety railing along part of the right edge of the roof of Building A, but this did not provide fall protection at the centre of the roof where the incident occurred.
A generic Safe Work Method Statement (SWMS) was prepared by Opcon in respect of the work undertaken on the roof of the Claremont premises. The SWMS identified falling off the roof as a hazard, for which it stipulated the use of harnesses and safety railings as safety controls. The SWMS also identified breaking or damaging roof sheets as a hazard, for which safety controls included walking on screw lines and a prohibition on walking on the roof if it was wet.
Opcon conducted a toolbox talk on 31 January 2016, which was attended by all five employees. At the toolbox talk, the workers discussed safety measures such as staying clear from the sides and openings in the roof, wearing safety harnesses when working near openings, walking on screw lines, and using safety anchors when replacing the corrugated anchor sheets.
Building A of the premises was 100m long, 30m wide and 8.7m high. The ridge of the roof ran from the front to the rear of the building, sloping down towards the left and right edges of the building. There were three purlins beneath the apex of the roof.
On the morning of 31 January 2016, Mr Annous, Fadi Annous, Ibrahim Annous and Mr Davey used a scissor lift to ascend to the roof of Building A, in order to cut the old wire mesh beneath the roof sheeting so that it could be removed and replaced with new safety mesh and insulation. As the old mesh beneath the roof was cut, the safety mesh supporting the existing asbestos roof sheets was not re-attached to a purlin, so could not act as a fall prevention measure.
At that time, six Asbestos REM employees were removing the AC sheeting from another part of the warehouse roof. Opcon and Asbestos REM worked on the roof simultaneously because the weather was closing in. This was not common practice.
After a lunch break, Houssam Annous, Fadi Annous, Ibrahim Annous and Mr Davey ascended to the roof to resume their work. Mr Davey was walking ahead of the other workers and was on weathered AC sheeting, beneath which the old wire had been cut for the purpose of being removed, or was otherwise not intact. Mr Davey was observed walking between two screw lines when the roof sheet broke, causing him to fall 8.7m through the roof onto a concrete floor.
Houssam Annous was approximately 6 to 8m from where Mr Davey was standing. He heard a crack, and turned around to see Mr Davey fall through the roof.
Mr Eid heard shouting and ran into the warehouse, where he found that Mr Davey had fallen through the roof onto his head and was lying on the ground. Mr Eid called emergency services, who assisted him over the phone until ambulance officers arrived.
Mr Davey sustained severe injuries to his head, chest, pelvis and limbs. He was pronounced deceased by the ambulance crew at 1:35pm.
Though the Opcon employees used a harness system, the anchorage points installed on the roof of Building B were unusable as they were located too far from the work site. The Opcon workers anchored their harnesses to the purlin at the apex of the roof of Building A, using an anchorage sling, rope, rope adjuster, shock absorber and lanyard. There was initially a dispute as to whether Mr Davey was wearing a harness at the time of the incident. A harness was found on the ground a short distance from where Mr Davey landed, but there was no sign of damage to the fall arrest attachment rings, suggesting that the harness had not been subject to a fall arrest load. Photographic evidence, taken by the police following the incident, depicts the anchor sling and rope coiled up on the roof some distance from where Mr Davey fell.
The fact that Mr Davey was not wearing a harness at the time of his fall was accepted by the defendants at the sentence hearing.
Following the incident, a prohibition notice was issued directing Opcon not to access the work until fall prevention or arrest measures were put in place. Opcon ceased work on the roof and did not return to complete it.
Lidoran Group was contacted by Asbestos REM to assist with completing the remainder of the work. In order to access the area where the incident occurred, Lidoran and Asbestos REM used a combination of an EWP to work from underneath the roof and a crane from above the roof, because the safety mesh in this area had already been cut and could not be relied upon as a fall prevention measure.
The Prosecution called Inspector Leonie Ball to give evidence about the investigation of whether or not Mr Davey was wearing a harness at the time of his fall. As a result of the concession made by the defendants I do not need to refer to Inspector Ball's evidence-in-chief. In cross-examination Inspector Ball gave evidence that on each occasion she spoke to Mr Annous that he was co-operative with her investigation. In the course of her contact with him she found him to be generally very distressed and upset by the incident. Her investigation revealed that Opcon was a very small business with four or five employees who were all very close and upset by the incident. She gave evidence that to the best of her recollection Opcon did not have any incidents that had been reported to SafeWork, including serious workers compensation matters.
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The Offenders' Case on Sentence
The offender called Houssam Annous, who gave evidence and was cross-examined. Mr Annous' evidence can be summarised as follows:
Mr Annous is the sole director and shareholder of Opcon. He resides with his wife, who does not currently work, and his two children, both of whom are employed by Opcon.
Mr Davey and Mr Annous worked together from about 1992. In that period they became friends. When Mr Annous commenced his own business he asked Mr Davey to work for him. Mr Annous described Mr Davey as a more experienced plumber than he was and at Opcon, Mr Davey had responsibility for training the apprentices.
Over the years Mr Davey and Mr Annous had become close. They knew each other's families well and often socialised at dinners and functions. Mr Annous considered Mr Davey to be more of a family member than a friend. Mr Annous described himself as experiencing emotional difficulties as a result of the incident.
Following Mr Davey's death, Mr Annous assisted Mr Davey's wife to complete the renovations on her home that Mr Davey had started. This involved landscaping, painting, concrete and some plumbing. Mr Annous remains in contact with Mr Davey's wife, who has now sold the house and moved away.
Mr Annous gave evidence that he and the company pleaded guilty on an understanding of the gravity of the offence and the consequences that had flowed from his and the company's actions. He accepted that he was accountable for those failings. Following the incident Opcon has engaged a safety consultant, Victor Moore, to analyse their work processes and to improve their safety systems. Mr Annous has taken the decision not to undertake any more work at height, and no longer accepts major roofing work, but continues to do some small roof jobs and incidental roofing work.
The business has suffered financially. The company is now mostly conducting maintenance work. Mr Annous is presently 52 years of age and has not been charged with any prior offence.
The offenders tendered the financial statements for Opcon for the financial years 2013 to 2016 inclusive. Opcon reported a profit of approximately $13,000 for the financial year ending 30 June 2016. This was the highest reported profit for the relevant period. Mr Annous tendered his Notices of Assessment for the financial years ending 30 June 2014 to 30 June 2017 inclusive. His taxable income in those years was within a range of $48,819 to $55,600. Mr Annous gave evidence that there had been no material change in the company's fortunes in the period after the latest available accounts. This was confirmed by the tender of more recent Business Activity Statements.
Mr Annous gave evidence that he lives at home with his wife and two sons. His wife does not work. Mr Annous and his wife own a property in Auburn which has a value of between $840,000 and $880,000. There is a mortgage on that property in the sum of $200,000.
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Consideration
I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999.
[5]
Objective Seriousness
The offences are both objectively serious.
The risk of a worker falling from or through the roof was obvious. The offenders foresaw the need for protection including the use of harnesses. It was accepted that Mr Davey was not wearing his harness at the time of the incident.
Simple remedial steps were available that could have minimised or eliminated the risk. These included, ensuring that Mr Davey was wearing his harness and that it was properly secured to the roof, using an elevated work platform to carry out the work from underneath the roof, or fitting the new safety mesh and using the new roofing sheets as fall prevention measures.
The risk was one of serious injury or death. The roof was about 8.7 metres above the concrete floor.
The fall resulted in Mr Davey's death.
I have had regard to the maximum penalty for each offence.
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Deterrence
The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].
There is a need for specific deterrence because Opcon continues to employ workers to undertake some roof work, although it no longer undertakes major roofing work. There is also a need for specific deterrence in relation to Mr Annous because he continues to operate Opcon and is responsible for exercising due diligence in how it satisfies its section 19(1) duty under the Act. Both offenders have taken steps to improve the safety systems of Opcon. The incident has had a significant emotional effect on Mr Annous. Both of these matters can be taken into account in reducing the weight to be afforded to specific deterrence.
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Aggravating Factors
The injury, harm and loss caused by the offences was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. I am satisfied beyond reasonable doubt that the death of Mr Davey is proof of substantial injury and harm.
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Mitigating Factors
The offenders do not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. Opcon was incorporated in 2000. Mr Annous was 52 years of age at the date of the sentence hearing.
Mr Annous was a person of good character: section 21A(3)(f) Crimes (Sentencing Procedure) Act 1999.
The offenders have good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offenders have accepted responsibility for the failings that led to the risk to which Mr Davey was exposed and his subsequent death. The offenders have taken steps to improve the safety systems involved in the performance of work carried out by Opcon.
The offenders have demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offenders expressed remorse through the evidence of Mr Annous, as well as through their actions in implementing changes and by supporting Mr Davey's wife. I am satisfied on the balance of probabilities that the offenders have accepted responsibility for their actions and have demonstrated genuine remorse and contrition.
The offenders entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. They are entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.
The offenders co-operated with the SafeWork investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
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Capacity to Pay a Fine
The Court is required to have regard to section 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offenders' capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
Opcon is the corporate vehicle for the business of Mr Annous and to a large extent his earning capacity is reflected in the company's fortunes. He is married with three children, two of which live at home and are employed in the business. Opcon has some assets but they are not liquid and they are required for the profitability of the company. The accounts do not indicate large sums of money being available to Opcon. Mr Annous is regularly drawing a wage of approximately $50,000 gross per annum. I am satisfied that Opcon and Mr Annous have established that they have a limited capacity to pay a fine.
There is presently an agreement the defendants should pay the Prosecutor's costs in the sum of $35,000. It is appropriate to take into account that estimate of that amount into account in deciding the appropriate amount of the fine to be imposed, because of the offenders' limited capacity to pay: Environmental Protection Agency v Barnes [2006] NSWCCA 246 at [78].
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Penalty - Opcon
Opcon Plumbing Pty Ltd is convicted.
The appropriate fine is one of $100,000 that will be reduced to reflect the plea of guilty.
I impose a fine of $75,000.
I order that pursuant to section 122(2) Fines Act 1996, 50% of the fine is to be paid to the prosecutor.
[11]
Penalty - Mr Annous
Houssam Annous is convicted.
The appropriate fine is one of $10,000 that will be reduced to reflect the plea of guilty.
I impose a fine of $7,500.
I order that pursuant to section 122(2) Fines Act 1996, 50% of the fine is to be paid to the prosecutor.
I order that the defendants pay the Prosecutor's costs as agreed in the sum of $35,000.
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Decision last updated: 26 November 2018