SafeWork NSW v P&K Bezzina Pty Limited; SafeWork NSW v Paul Martin Bezzina

Background

1. The parties presented an Agreed Statement of Facts and this material is summarised below.
2. P&K Bezzina was a person conducting the business or undertaking (PCBU) of the design and construction of residential and commercial buildings. Mr Bezzina and Ms Kathleen Bezzina were directors of P&K Bezzina.
3. P&K Bezzina was the principal contractor for the design and construction of a two-storey residential home at Kellyville, New South Wales (the worksite). The worksite was a workplace for the purposes of s 8 of the Act.
4. The worksite was approximately 14.7 km north-northwest from the Bureau of Meteorology's weather observation station (Station 066124), located at Masons Drive, North Parramatta.

Sandhu Construction Group Pty Ltd

1. Sandhu Construction Group Pty Limited (Sandhu) was a PCBU which provided bricklaying services. Mr Parmjit Singh Sandhu was: 1. a director and an officer of Sandhu and was the site supervisor; 2. a person who made decisions that affected the whole or a substantial part of the business of Sandhu, including decisions on work health and safety policies and procedures; and 3. a person with a health and safety duty under s 27 of the Act in his capacity as an officer of Sandhu, and as such a person with an obligation to exercise due diligence to ensure Sandhu fulfilled its duties at law, including health and safety duty.

Arrangements at the Worksite

1. Sandhu was subcontracted by P&K Bezzina to perform bricklaying services at the worksite. Sandhu engaged subcontracted labourers to perform brick laying at the worksite. Sandhu engaged Mr Lovepreet Singh as one of its subcontractors. Mr Singh was influenced or directed by both P&K Bezzina (as principal contractor and supervisor) and Sandhu (as direct supervisor) in the performance of bricklaying activities at the worksite. Mr Sandhu was the direct supervisor of Mr Singh.

The Incident

1. On 15 August 2017, work commenced on the worksite at approximately 7.00am. Mr Bezzina and Mr Sandhu were on the worksite. Work commenced on the construction of a masonry brick wall on the ground level of the building under construction at the worksite. The wall was partially completed and was approximately 1.6 metres in height. At no time during the construction of the masonry brick wall was any kind of temporary bracing installed, including timber framing. The Bureau of Meteorology Station 066124 recorded the maximum wind gusts at the weather station as 4 km/h from a northerly direction.
2. On 16 August 2017, work commenced at the worksite at approximately 7.00am. Mr Bezzina was on the worksite until 7.30am. Mr Sandhu was on the worksite. At 9.00am the Bureau of Meteorology Station 066124 recorded the maximum wind gusts as 30 km/h from a west-northwest direction.
3. Mr Sandhu allocated work tasks to, and supervised, subcontracted labourers of Sandhu at the worksite, including Mr Singh. Mr Singh, a subcontracted labourer for Sandhu, was directed by Mr Sandhu to install scaffolding around the masonry brick wall to allow workers to continue construction of the wall. After the scaffolding was installed, Mr Singh and the other workers were directed by Mr Sandhu to continue to work on the masonry brick wall.
4. Mr Singh and the other workers had begun to work on the masonry brick wall when Mr Sandhu directed the workers to stop construction of the masonry brick wall, as it had become too windy to continue construction. The workers were directed by Mr Sandhu to move to another area at the worksite to lay bricks for a smaller wall. It is an agreed fact that the wall was two metres high at this stage.
5. At no time during the construction of the scaffolding or the construction of the masonry brick wall was any kind of temporary bracing installed on the masonry brick wall. Nor was an exclusion zone established near the masonry brick wall.
6. At approximately 10.05am, Mr Singh was in the vicinity of the masonry brick wall. The wall collapsed, crushing Mr Singh underneath. There is no Bureau of Meteorology evidence of the wind speed at the worksite at this time, however Mr Bezzina said in his affidavit (DX1): "It was perfect sunny day until a freak windstorm hit". From this I infer that the windstorm was of sufficient force to push over the unbraced wall.

Injuries

1. Mr Singh was taken to Westmead Hospital where he was admitted to the Intensive Care Unit for 15 days before being transferred to the Brain Injury Unit.
2. Mr Singh sustained a severe traumatic brain injury, multiple facial and cranial injuries, permanent damage to his right eye and a transverse fracture to his left radius and ulna.

Systems of work prior to the Incident

1. At the time of the incident, P&K Bezzina had: 1. no written contract between P&K Bezzina and Sandhu, with all instructions and agreements being verbal; 2. not completed a risk assessment for the construction of masonry brick walls for the worksite and did not ensure that Sandhu had completed a risk assessment for the construction of masonry brick walls for the worksite; 3. an incomplete Safe Work Method Statement (SWMS) for the worksite which did not address the construction of masonry brick walls and unbraced walls; 4. no procedure for consulting, co-operating and coordinating any work activities with Sandhu, or other subcontractors, at the worksite; and 5. no WHS Management Plan, as principal contractor, for the worksite as required by cl 309 of the Work Health and Safety Regulation 2011 (NSW) (the Regulation).
2. Sandhu and the workers at the worksite were not aware of or informed of any risk assessment being conducted by P&K Bezzina in relation to the construction of masonry brick walls at the worksite.
3. At the time of the incident, Sandhu had: 1. a SWMS for the task of laying bricks and building masonry brick walls for the worksite. However, the SWMS did not contain any risk assessment or control measures for masonry walls and unbraced walls; and 2. no worker, other than Mr Sandhu, had signed the SWMS.

Legal Obligations and Guidance Material

1. P&K Bezzina had legal obligations under: 1. Section 46 of the WHS Act which provided that if more than one person has a duty in relation to the same matter under the Act, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter. 2. Clause 34 of the Regulation which provided that a duty holder must, in managing risks to health and safety, identify reasonably foreseeable hazards that could give rise to risks to health and safety. 3. Clause 35 of the Regulation which provided that a duty holder must, in managing risks to health and safety, eliminate risks to health and safety so far as is reasonably practicable, and if it is not reasonably practicable to eliminate risks to health and safety, minimise those risks so far as is reasonably practicable. 4. Clause 54 of the Regulation which provided that a person managing a business or undertaking at a workplace must manage risks to health and safety associated with an object falling on a person if the falling object is reasonably likely to injure the person. 5. Clause 55 of the Regulation which required a person conducting a business or undertaking at a workplace to minimise the risk of an object falling on a person by providing adequate protection against the risk, if it was not reasonably practicable to eliminate the risk.
2. Guidance material providing advice regarding masonry wall construction work, including bracing a masonry wall, was readily accessible and available in the public domain. Such guidance material included: 1. Australian Standard AS 3700-2011: Masonry Structures (October 2011) (the Standard) which provides the minimum requirements for the design and construction of unreinforced, reinforced and prestressed masonry. The Standard says at cl 12.9.1 that masonry under construction shall be braced or otherwise stabilised as necessary to resist wind and other lateral forces, in such a manner that the structural integrity of the member or structure is not impaired. 2. WorkCover NSW: Masonry Wall Safety During Construction Work Guide (2009) (the 2009 Guide) which says that during construction work, masonry walls (brick or block) can fail due to: side loads on the walls; the rate of construction; inadequate foundations; or adjacent excavations. Side loads may include: wind; inadvertent impact with the walls; or leaning materials against walls. The 2009 Guide provides practical guidance for dealing with masonry walls, outlining a number of control measures to secure masonry walls (brick or block), including: 1. installing temporary supports, which should be maintained until the wall is incorporated into the completed structure or other alternative support is installed; 2. establishing stop heights to allow mortar to gain adequate strength before further construction; 3. monitoring weather conditions (for example wind, extreme temperatures and heavy rain) and amending work practices to suit; 4. installing exclusion zones, identified by barricades or other physical identifiers, to keep people outside potential collapse zones; and 5. recommended actions for unsupported masonry walls in different wind conditions. 1. WorkCover NSW: Masonry Wall Safety During Construction Work Guide (2015) (the 2015 Guide). The 2015 Guide provides further general practical guidance for dealing with masonry walls, including the following: 1. During construction work, inadequately secured masonry walls (brick or block) can fail due to side loads on the wall, which may include wind, inadvertent impact with the walls or leaning materials against walls. 2. Principal contractors and masonry contractors are primarily responsible for the masonry work on the worksite and have an obligation to ensure that their workers are not placed at risk. 3. As part of planning and preparation, principal contractors and masonry contractors should: 1. determine who is responsible for assessing the stability of masonry walls prior to tying in to the completed structure; 2. determine who is responsible for installing, inspecting and removing any temporary supports; and 3. provide designs and materials for temporary supports, considering the characteristics of the wall. 1. Principal contractors and masonry contractors are responsible for identifying hazards associated with masonry wall construction, such as unplanned collapse. 2. Identified hazards must be managed by implementing control measures. Risk control measures may include installing temporary supports.
3. It is noted that there was no copy of the 2015 Guide in the Prosecution Tender Bundle. The summary above is taken from the Agreed Statement of Facts.

System of work following the Incident

1. Following the Incident, P&K Bezzina implemented a general WHS Management Plan, but the plan did not contain any control measures for masonry brick walls.

Evidence for the Offenders

1. Mr Bezzina swore an affidavit on 30 March 2020. He is 74 years of age and had been in the construction industry all of his working life until he retired in March 2019. P&K Bezzina was registered in 1972 and was involved in building homes and units, until its Contractor Licence expired in June 2019. Neither P&K Bezzina nor Mr Bezzina himself now conduct a business. The Incident led to Mr Bezzina retiring from the construction industry.
2. The worksite where Mr Singh was seriously injured was the last building project undertaken by either offender. It is now Mr Bezzina's family home.
3. In his affidavit Mr Bezzina expressed remorse and contrition over the Incident. He acknowledged that both he and P&K Bezzina failed to take any of the reasonably practicable measures pleaded in the Summonses. He said that he and his company accepted responsibility for Mr Singh's injuries.
4. Both offenders have no convictions from their 47 years in the industry since 1972. There was never even an insurance claim against either of them.

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. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
4. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.
5. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.
6. The Court of Criminal Appeal has recently 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. His Honour Justice Basten at par 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."
7. Further at par 42 his Honour continued: "The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
8. At par 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."
9. My findings about the offenders' level of culpability are based upon the following: 1. The risk of an unbraced partially-built brick wall collapsing was obvious and foreseeable. I find that the risk was known to both offenders and certainly should have been known by reason of the guidance material. 2. There was a significant likelihood of the risk occurring. The guidance material set out several different ways in which this could happen - one of those was the effect of wind upon an unbraced wall. 3. The potential consequences of the risk were very serious, and included a risk of death, or catastrophic injury as suffered by Mr Singh. 4. The steps set out in the guidance material would have eliminated or minimised the risk. 5. There was no particular burden or inconvenience in the steps which should have been implemented. 6. While there was no information put before the court about the present condition of Mr Singh, the injuries he suffered were extremely serious. 7. The maximum penalties for the offences are a fine of $1,500,000 for P&K Bezzina and $300,000 for Mr Bezzina. These penalties reflect the legislature's view of the seriousness of the offences. 8. Mr Bezzina gave no evidence of any steps he took to discharge P&K Bezzina's duty under the Act. He admitted that both he and P&K Bezzina failed to take any of the reasonably practicable measures pleaded in the Summonses. Mr Bezzina said in his affidavit that he told Mr Sandhu that the work should be performed safely and that he should take care on site. This was completely inadequate. P&K Bezzina was the principal contractor on site and thus had a safety duty under the Act. Safety in relation to bricklaying was left up to the bricklaying contractor.
10. I find that P&K Bezzina's level of culpability is in the low end of the mid range.
11. I find that Mr Bezzina's level of culpability is in the low end of the mid range.

Deterrence

1. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].
2. Specific deterrence is not a consideration. P&K Bezzina is no longer conducting a business. Mr Bezzina has retired and now cares full time for his wife who has a serious illness.

Aggravating Factors

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

Mitigating factors

1. The offenders have no previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
2. The offenders are otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. Both operated in the construction industry for 45 years before the Incident, without blemish. This is an outstanding record in an industry notorious for rancour, disputes and litigation.
3. Both offenders are unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.
4. Both offenders have shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. They provided evidence that they have accepted responsibility for their actions and have acknowledged that the injury to Mr Singh was caused by their actions.
5. Both offenders entered pleas of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that an 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 offenders a 25% discount for an early plea.
6. Both offenders gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. They co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to pay a fine

1. I am required to have regard to 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 capacity of an offender 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 have agreed to an order that the offenders are to pay the prosecutor's costs.

Penalty

1. My orders are in relation to P&K Bezzina Pty Limited are: 1. The offender P&K Bezzina Pty Limited is convicted. 2. The appropriate fine is $120,000 but that will be reduced by 25% to reflect the plea of guilty. 3. Order the offender P&K Bezzina Pty Limited to pay a fine of $90,000. 4. Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 5. Order the offender P&K Bezzina Pty Limited to pay the prosecutor's costs.
2. My orders in relation to Paul Martin Bezzina are: 1. The offender Paul Martin Bezzina is convicted. 2. The appropriate fine is $20,000 but that will be reduced by 25% to reflect the plea of guilty. 3. Order the offender Paul Martin Bezzina to pay a fine of $15,000. 4. Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 5. Order the offender Paul Martin Bezzina to pay the prosecutor's costs.

Postscript concerning the conduct of the hearing

1. Due to pandemic social distancing measures this hearing was to be conducted through the court's AVL system. That system failed. Initially the court itself could not log on to the system. When the court finally succeeded, the parties themselves could not log onto the system, either by audio visual link, or as a backup, by audio link alone. The hearing was then conducted by my Associate calling both counsel and both solicitors separately on a mobile phone and merging the calls so that everyone could hear everyone else. Mr Bezzina was in his solicitor's office so he too could hear. I asked whether there was any objection to the hearing proceeding in this fashion. All parties agreed that it could proceed. There was one caller who was dropped off the system but that was rectified by counsel repeating a submission which was missed.
2. The hearing could only proceed in this fashion because: 1. Mr Pintamalli, the solicitor for the prosecutor, did a superb job in preparing an electronic version of the Prosecution Sentence Tender Bundle. To my surprise I found it easier to locate documents in his electronic bundle than in the usual paper folder of several hundred pages; 2. both counsel filed very helpful written submissions; 3. both counsel moderated the pace of their delivery and got straight to the real issues.
3. I am grateful to all involved, including my staff and the sound recorder, for the professional and pragmatic approach which enabled the sentence hearing to proceed.

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: 27 April 2020