SafeWork NSW v Sandhu Construction Group Pty Ltd

District Court of NSW|2021-04-29

Solicitors: Department of Customer Service (Prosecutor) Mr W Ellicott, Access Law Group File Number(s): 2019/247438

JUDGMENT

On 21 April 2021, Sandhu Construction Group Pty Limited ('the defendant') entered a plea of guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) ('the Act'). That offence relates to a failure to comply with their duty under s 19(1) of the Act, to ensure, so far as reasonably practicable, the health and safety of workers while at work, and in failing to comply with that duty, exposing workers, in particular Mr Lovepreet Singh ('Mr Singh'), to a risk of death or serious injury.
The maximum penalty relevant to the defendant for an offence under s 32 of the Act is $1,500,000.
The prosecution relied upon a Prosecutor's Tender Bundle ('PTB') marked Exhibit A and a Victim Impact Statement ('VIS') marked Exhibit B. The defendant tendered no evidence.

SYSTEMS OF WORK PRIOR TO THE INCIDENT

At the time of the incident, the defendant: 1. Had only verbal agreements with P & K for the work to be done by the defendant, with nothing in writing; 2. Had no knowledge or information regarding risk assessments, if any, being conducted by P & K in relation to the construction of the masonry brick wall at the site; 3. Had a Safe Work Method Statement ('SWMS') for the task of laying bricks and building masonry brick walls for the site, however, the SWMS did not contain any risk assessment or control measures for the building of the masonry wall; and 4. No worker, other than Mr Sandhu, the director of the defendant, had signed the SWMS as of 16 August 2017, being after the incident.

OBLIGATIONS AND GUIDANCE MATERIAL

Prior to and leading up to the incident, the defendant had an obligation under s 46 of the Act to consult, co-operate and co-ordinate activities with P & K who had the same duty under the Act, to ensure so far as is reasonably practicable, they upheld that duty.
The defendant had obligations under the Work Health and Safety Regulation 2011 ('the Regulations') to manage risks by identifying foreseeable hazards (cl 34) and where possible eliminate or minimise those risks (cl 35).
The Regulations also specifies the requirement to manage risks associated with objects falling that are likely to cause injury (cl 54) and where it is not possible to eliminate such risks, to minimise those risks by providing adequate protection against the risk posed by falling objects (cl 55).
The defendant had available to it guidance material including, but not limited to: Australian Standard AS 3700-2011: Masonry Structures (October 2011) which provides the minimum requirements for the design and construction of unreinforced, reinforced and prestressed masonry; WorkCover NSW: Masonry Wall Safety During Construction Work Guide (2009) which outlines the dangers associated with masonry walls during construction and provides general practicable guidance; and, WorkCover NSW: Masonry Wall Safety During Construction Work Guide (2015) which furthers the previous guide of 2009.

SYSTEMS OF WORK FOLLOWING THE INCIDENT

There is no evidence to demonstrate that the defendant has made changes to work practices following the incident.

THE NATURE OF THE DUTY

The nature of the duty is one that requires a 'person conducting a business or undertaking' ('PCBU') to ensure as far as reasonably practicable the health and safety of workers at the workplace. The duty included ensuring, so far as is reasonably practicable, the provision and maintenance of safe plant, safe systems of work and the provision of information, training and instruction or supervision necessary to protect persons from risks to their safety: s 19 of the Act.

THE NATURE OF THE RISK

The risk is defined at paragraph 11 in Annexure A to the Summons as follows: 'the risk was the risk of workers, in particular Mr Singh, suffering death or serious injury as a result of being struck by, and/or crushed under debris from the collapse of a masonry brick wall under construction on the worksite.'
The above risk was realised when Mr Singh was crushed underneath the wall.
The duty required the defendant to identify risks in the workplace and adopt measures to eliminate or minimise them: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [34] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The notion of reasonable practicability is informed by the considerations found in s 17 of the Act. The defendant, by its plea of guilty, has admitted that the measures to ensure safety presented by the prosecutor would have been reasonably practicable.
The duty is one of strict liability: s 12A of the Act. Consequently, there is no relevant mental element to the offence, whether it be reference to intent, carelessness or recklessness.
In Markarian v The Queen (2005) 228 CLR 357 ('Markarian v The Queen') at [31], Gleeson CJ, Gummow, Hayne and Callinan JJ set out their reasons why sentencers should have particular regard to the maximum penalties specified by statute. Their Honours stated: '…careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the relevant factors, a yardstick.'
As a result of the defendant's failures, workers, in particular Mr Singh was exposed to a risk of serious injury or death.

SENTENCING PRINCIPLES

I have had regard to the objectives set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('the Sentencing Act') for the purpose of sentencing. The purposes for which a Court may impose a sentence on an offender are as follows: 1. to ensure that the offender is adequately punished for the offence; 2. to prevent crime by deterring the offender and other persons from committing similar offences; 3. to protect the community from the offender; 4. to promote the rehabilitation of the offender; 5. to make the offender accountable for his or her actions; and 6. to recognise the harm done to the victim of the crime and the community.
The penalties imposed must give effect to the intention of the Act, in particular, protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work: s 3A of the Act.
The Court is to be guided by the provisions of the Sentencing Act which include: 1. Section 3A which sets out the purpose of sentencing; 2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and 3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.
The court is to approach a sentencing exercise on the basis of it being one of 'instinctive synthesis': Markarian v The Queen.
This approach to sentencing was reiterated by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way: '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.'
The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610 ('Capral v WorkCover') at [81].

OBJECTIVE SERIOUSNESS OF THE OFFENCE

The duty of the defendant requires that it ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable and the defendant had the control and influence over workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.
Although the gravity of the risk, degree of foreseeability of the risk and the ease of implementation of remedial measures are relevant to the assessment of objective seriousness, I am not limited to taking into account such factors.
The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474-5.
Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31].
The gravity of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No. 2) (1988) 164 CLR 465.
An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117.
In Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96, Basten JA at [34], explained the approach to sentencing as follows: 'The sentencing judge commenced his consideration with the proposition that "[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than to guard against 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.'
His Honour further observed at [42]: '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, cost.'
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 materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.' (emphasis added)
The more obvious the risk, the ease with which it can be controlled or eliminated and the more serious the consequences of the offence, when considered together, the more serious the offence will be.
The Court recently restated the principles relevant to the objective seriousness in SafeWork NSW v ProjectCorp Australia Pty Ltd (2017) 25 DCLR (NSW) 219 as follows: '[38] The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard ti the objective circumstances: Veen v R (No. 2) (1998) 164 CLR 465 at 472, 485 - 486, 490 - 491 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton (2006) 66 NSWLR 566 at [15]. [39] The task requires the court to consider where in the range of conduct covered by the offence, the offender's conduct falls: Baumer v R (1998) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v The Queen (2011) 218 A Crim R 10 at [70]. [40] 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]. [41] 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 Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively.'
The Court of Criminal Appeal has recently commented upon the increase in the statutory maximum fine under s 32 of the Act. It was said in Morris McMahon & Co Pty Ltd v SafeWork NSW [2019] NSWCCA 36 at [74] (Schmidt J): 'That the duty imposed by s 19 was different to that imposed under the predecessor legislation and that the penalties imposed by s.32 for breach of that duty were significantly higher than those imposed by the predecessor legislation, must also be taken into account. That increase was introduced in order to reflect 'the strength of this legislation as a deterrent to conduct that endangers health and safety.' Agreement in Principle speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 May 2011 at 223.'
In assessing the defendant's level of culpability, I note the following; 1. The Australian Standard AS 3700-2011: Masonry Structures (October 2011) ('the Standard') provides 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. In contravention of the above standard and recommendations, no exclusion zone or barricade was established or erected. The wall was not braced and there was no risk assessment completed for the construction of masonry brick walls. Further, the SWMS for the worksite which did not address the construction of masonry brick walls and unbraced walls, and was incomplete; 3. Moreover, Mr Sandhu did not direct that any of the above steps be taken; 4. Mr Singh was a vulnerable worker who was sub-contractor of the defendant. The Prosecutor tendered a Victim Impact Statement from Mr Singh dated 14 April 2021: Exhibit B. In that statement it details the hard work that Mr Singh and his family had undertaken to get him to Australia and continue his academic studies. To supplement his income he took a job with the defendant, and the incident occurred on his second or third day working for the defendant. He had no experience in the construction industry. At the worksite Mr Singh was told only how to move and hold bricks. He was provided no further training or induction and did not sign a SWMS; 5. The incident has had a devastating impact on Mr Singh's life. He suffered multiple injuries, including a severe traumatic brain injury, and he has had to undergo multiple surgeries. He remains significantly disabled as a consequence of the injuries sustained in the incident, including physical and psychological injuries requiring extensive ongoing treatment and medication; and 6. In Attorney General (NSW) v Tho Services Ltd (in liquidation) (2016) 264 IR 171, consideration was given to inadequate instruction given to a work experience student whilst on work experience in the workplace, Harrison J made the following finding at [99]: 'I consider that the offence falls above the mid-range of objective seriousness for matters of its kind. The victim was young and otherwise vulnerable. The injuries sustained by him were permanent and presumably devastating.'
Objectively, the defendant's breach of its work health and safety duties was serious, and consequently its culpability is high: Attorney General (NSW) v Ceerose Pty Ltd [2019] NSWCCA 35.

DETERRENCE

In fixing a penalty in relation to this offence, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.
General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the Court to ensure a level of penalty for a breach will compel attention to work, health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).
When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68. The prosecutor submits that the facts of this case do not present any basis for departing from the established principles relevant to deterrence.
The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) NSWLR 338 at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral v WorkCover: '[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. … [75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.'
The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors.
In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.
At this point it is necessary to highlight a number of features that cause me some concern. They are such that they have had an impact on my sentence. They are as follows; 1. The defendant, through his solicitor, maintained a plea of not guilty throughout many applications for adjournments. The defendant failed to comply with Practice Note 16 and at the Case Readiness Hearing made a further application for an adjournment, which I refused. The matter was set down for a trial of 5 days commencing on 21 April 2021. 2. On the first day of the trial, the defendant did not appear, but Mr Stewart, the defendant's solicitor, did. It was indicated that the defendant now wished to enter a guilty plea. The plea was entered and a date for sentencing the following week was set. I made orders with regard to the parties filing written submissions on sentence before the sentence hearing. 3. I received the submissions on sentence from the Prosecutor on 28 April 2021, the day before the sentence hearing. 4. At 10:00am on 29 April 2021, the morning of the sentence hearing, there was no appearance by the defendant nor any legal representative on its behalf. Mr Stewart arrived at Court at about 10.20am. I was informed that the defendant was not in attendance as he was ill. I was further informed that my direction as to written submissions was ignored as the solicitor had IT problems and had also been ill on the previous day. 5. There was no evidence tendered or produced by the defendant. Mr Stewart made brief submissions, the majority of which amounted to evidence from the Bar table, which I cannot accept. 6. I am therefore left in the position where there is no information as to what happened after the incident, and in particular what, if any, changes and systems the defendant has put in place to ensure the safety of its workers. I can only assume that nothing has been done. 7. There is no evidence of contrition or remorse, nor any respect for the victim and his injuries, and the Court: s 21A(3)(i) of the Sentencing Act. 8. There is no evidence of whether the defendant is of good character or has ties with the community: s 21A(3)(f) of the Sentencing Act. 9. There is no evidence as to the prospects of rehabilitation, or the defendant's likelihood to re-offend: s 21A(3) of the Sentencing Act. 10. The defendant's solicitor made submissions as to the incapacity of the defendant to pay a fine. To allow any leniency in that regard, I must be satisfied based on evidence provided to the Court. No such evidence has been provided and thus I do not believe that I should exercise my discretion under the Fines Act 1996 (NSW). 11. The Prosecutor concedes that the defendant has no prior convictions: s 31A(3)(e) of the Sentencing Act. 12. The plea of guilty was only entered on the first day of the trial. On the basis of the Prosecutor's submission, I will allow a 5% discount for the utility of the plea.
In these circumstances, I find that the need for specific deterrence is paramount, and there also needs to be some element of general deterrence. I have absolutely no confidence whatsoever that the defendant has addressed its health and safety failings. I also have no confidence at all that the defendant can be re-habilitated (s 21A(3)(h) of the Sentencing Act), and the defendant's blatant disregard for his obligations and the Court process confirms my view.

PARITY

There have been related proceedings, SafeWork v P&K Bezzina [2020] NSWDC 91 where his Honour Judge Russell SC sentenced the principle contractor that had sub-contracted this defendant to undertake bricklaying services at the worksite.
Noting the principles of parity expressed in Green v The Queen (2011) 244 CLR 462 and Lowe v The Queen (1984) 154 CLR 606 that like cases are treated alike and different cases are to be treated differently, I find that it is appropriate to award a higher sentence to the defendant than that which was awarded to P&K Bezzina for the following reasons;

P&K Bezzina Pty Limited was the principal contractor who subcontracted the defendant to undertake the bricklaying services at the worksite. As a result the defendant subcontracted Mr Singh, and engaged a worksite supervisor who was the direct supervisor of Mr Singh;
The need for specific deterrence for P&K Bezzina Pty Ltd was limited as P&K Bezzina no longer held a contractor licence and did not operate as a builder at the time of sentencing;
P&K Bezzina entered a plea of guilty 3 months after the brief of evidence was served and was awarded a 25% discount of sentence for the utility of the plea;
In the Judgment on sentence, his Honour noted that P&K Bezzina no longer operates the business, and Mr Bezzina has retired and left the construction industry and that this job was the last one undertaken by the offender. His Honour was also satisfied that P&K Bezzina expressed remorse and contrition, and had accepted the responsibility for Mr Singh's injuries. None of these matters can be said of this defendant that I am sentencing.

AGGRAVATING FACTORS

Pursuant to s 21A(2)(g) of the Sentencing Act, I must take into account that the injury, emotional harm, loss and damage caused by the offending were substantial. The offence involved a grave risk of injury. The serious injuries suffered by Mr Singh engage these aggravating factors.

MITIGATING FACTORS

To establish a mitigating factor, the onus is on the defendant. As set out above, there are no mitigating factors, apart from the concessions made by the prosecutor with regard to no previous convictions and the 5% reduction for the utility of the plea.

MOIETY AND COSTS

The prosecutor is entitled to seek a moiety of any fine imposed pursuant to s 122 of the Fines Act 1996 (NSW), and that will be in the order of 50%.

PENALTY

I make the following orders: 1. The defendant is convicted. 2. The appropriate fine for the defendant is $700,000.00 and that will be reduced by 5% to reflect a plea of guilty. 3. Accordingly, I order the defendant to pay a fine of $665,000.00. 4. Pursuant to s 122 (2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. 5. The defendant to pay the prosecutor's costs as agreed or assessed.

Amendments 31 May 2021 - Paragraph 6 amended. April 2017 amended to read August 2017. 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: 31 May 2021

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