Jason Reid Stitt (the offender) appears for sentence after being found guilty at trial of an offence under s 32 Work Health and Safety Act 2011 (the Act).
The Court's reasons for the finding of guilt are set out in the decision SafeWork NSW v Jason Stitt [2024] NSWDC 255 (the verdict judgment). This judgment assumes familiarity with the verdict judgment and adopts the defined terms used in the verdict judgment.
The maximum penalty for the offence is a fine of $300,000.
[2]
Facts
The factual findings are set out in the verdict judgment. I have taken all of those findings into account in coming to the appropriate sentence. What follows is a brief summary of the relevant factual findings in the verdict judgment to permit an understanding of the sentence imposed.
The offender is a licenced builder operating as a sole trader, under the business name ReidStitt Constructions (RSC). The offender's business consisted mainly of renovating private residences in the Eastern Suburbs of Sydney.
From about 2015, RSC was engaged to undertake building work at 16 Longworth Avenue, Point Piper (the property). In 2018, the property was purchased by Neville Crichton, who contracted with RSC to continue the renovation works and to undertake other work from time to time.
Following the installation of an underfloor heating system at the property by Devex Systems Pty Ltd trading as Floor Heat Australia (Devex) in about March 2018, Mr Crichton received complaints from his neighbour that the flue was noisy when the heating system was being used.
After contacting Devex to resolve this problem and receiving a quote to extend the flue about 6-8m up the wall of the house and through the concrete soffit of the roof, Mr Crichton engaged the offender to complete the work in cooperation with Devex.
On 9 September 2019, Todd Connell, Cristobal Rivera and another worker (Adam), workers engaged by the offender, erected a mobile scaffold tower (the scaffold) at the property for the purpose of carrying out the work relating to the installation of the flue. The scaffold was erected next to a wall on the western side of the house, close to the boundary, that was about 3 storeys high. As erected, the scaffold stood 8.65m high, with two work platforms positioned more than 4m above the ground of the property and the neighbouring property.
The offender had hired a 5m single-width mobile scaffold package from Kennards Hire at Waverley on 3 September 2019. When erected as designed, the scaffold could be constructed to a height of 6m plus the height of the castors. In order to comply with the Work Health and Safety Regulation 2017 (NSW) (the Regulations), the highest work platform could only be installed to a height where there was a risk of a person or object falling no more than 4m, when erected by persons who did not hold a High Risk Work Licence (HRWL). None of the relevant workers engaged by the offender held a HRWL for scaffolding.
On 11 September 2019, Mr Connell and Mr Rivera attended the property to dismantle the scaffold. During the course of dismantling the scaffold, Mr Connell attempted to pass a work platform weighing about 25 kilograms to Mr Rivera who was standing outside of the scaffold on top of a 2.7m high wall on the boundary. When Mr Rivera said that he was off-balance and could not hold the work platform, Mr Connell tried to hold the weight of the work platform and in doing so leaned on the horizontal brace of the scaffold (ledger) that had been installed as a handrail on the second highest work platform. The ledger gave way and Mr Connell fell about 5.75m to the ground of the neighbouring property, number 14 Longworth Avenue.
The ledger gave way as a result of one of the C-hook couplers, which had a faulty spring-loaded latch and being installed facing inwards, having detached from the extension when an outward force was applied to it by Mr Connell. This would not have been possible if the C-hook coupler had been installed facing outwards, in accordance with the Tower Erection Procedure (TEP) which was set out in a sticker on the underside of the work platforms.
Once one end of the ledger detached, Mr Connell's bodyweight and the weight of the work platform applied a horizontal and downwards force on the ledger, which remained attached at the other end, causing it to act as a lever. This applied a rotational force to the C-hook coupler that remained attached to the scaffold tower, causing it to fracture and became detached completely as Mr Connell fell.
Mr Connell suffered serious head injuries in the fall and died a few days later.
The offender failed to take the following reasonably practicable steps that caused Mr Connell to be exposed to the risk:
1. Engage a person with a HRWL in basic scaffolding work at the property. The offender knew that he was required to engage a licensed scaffolder if the scaffold was to be erected, altered or dismantled, in circumstances where there was a risk of a person or object falling more than 4m from a platform or the structure.
2. Not direct a worker without a HRWL in basic scaffolding to carry out the scaffolding work at the property. The offender failed to give adequate instructions to the workers to ensure the scaffold was not erected to a height that required the engagement of a licenced scaffolder. On 9 September 2019, the offender returned to the property and saw that the scaffold had been erected to a height requiring it to be dismantled by a licenced scaffolder. Despite this, he instructed Mr Connell and Mr Rivera to dismantle the scaffold.
3. Devise, implement and enforce a system of work for the scaffolding work that addressed the steps to be taken, including, reading the installation instructions, specifying how ledgers were to be installed as handrails and identifying the risk of installing ledgers in the wrong orientation. The workers were not properly instructed on how to erect or dismantle the scaffold at the property nor where they trained on the content of the SWMS.
4. Provide adequate supervision of the workers carrying out the scaffolding work at the property. The offender was not at the site when the scaffold was being erected or dismantled. The offender knew that he had provided no instructions as to the height which the scaffold was to be erected and that the 5m scaffold package could be erected to a height that required the engagement of a licenced scaffolder.
[3]
Offender's Case on Sentence
The offender read the affidavit of Jason Reid Stitt sworn 12 August 2024. The following is a precis of the evidence relied upon by the offender.
The offender completed a Carpentry Apprenticeship at Hornsby TAFE in 1994 and a Bachelor of Applied Science (Building) at the University of Technology Sydney in 1994. He currently holds a Builders Licence and a General Construction Induction Training Card Licence.
[4]
Business (post incident)
The offender runs his business as a sole trader.
The offender also has a company, Reidstitt Constructions Australia Pty Limited (Reidstitt), which owns some of the assets and equipment used in the business and is used to employ workers. The offender is the sole director and sole secretary of this company. Reidstitt was not involved in the present matter.
The offender currently employs three workers through this company. He also has approximately 10-12 sub-contractors that rely on him for ongoing work.
He generally has one foreman and one labourer on each project at all times. Sub-contractors are engaged to complete specialised works.
Following the incident, the offender avoids having more than three building sites going at the same time. This allows him to better ensure the sites are safe and workers adhere to his instructions as he can attend each site daily.
The offender assigns himself as "foreman" for the largest of his current projects and spends all his time at that job unless he is visiting the other sites. He has foremen at his other sites, who he is in contact with numerous times throughout each workday.
His current projects are as follows:
1. construction of a new residence at 22 Village High Road, Vaucluse which commenced on 8 April 2022. The offender was the main foreman on this project up until 9 March 2024. Rodrigo Zepeda has taken over as foreman on this project.
2. alterations and additions to an existing residence at 97 Bellevue Road, Bellevue Hill which commenced on 9 March 2024. The offender is the foreman on this project.
3. alterations and additions to the rear of an existing residence at 107 Kings Road, Vaucluse which commenced on 6 June 2024. The foreman on this project is Steven Younan.
Each of these projects has a dedicated SWMS.
If the offender is required to leave a job where he is foreman, he delegates responsibility for that site to a fully licenced tradesman. He has had the same sub-contractors for 25 years and each know what the offender expects of them.
[5]
Changes to method of operation since incident
Following the incident, the offender no longer uses single bay mobile scaffolding when scaffold under 4m is required. Instead, he will use a double bay scaffolding platform so that the scaffold components can be passed through the centre rather than over the side when being erected or dismantled.
If the offender requires scaffolding higher than 4m or orders a scaffold that could be built to a height of greater than 4m, he now engages licenced scaffolders to do the work. The charges on the invoices for scaffolding hired by the offender, exhibited to his affidavit, confirm that he has been paying a licenced scaffolding company to erect and dismantle the scaffold ordered.
Prior to one of his foremen having been trained and accredited with a high-risk licence in basic scaffolding, no scaffold over 4m was built on any building sites under the offender's control unless he was in attendance and personally supervising the work. He was able to control this as he orders all of the scaffolding.
The offender has reiterated to all his workers that a SWMS must be completed before undertaking any high-risk work, including scaffolding work where there was a risk of falling from a height of greater than 2m. He or the site foreman then review the document to ensure it relates specially to the work being undertaken and a copy is retained in the WHS site safety folder.
The offender now requires that all scaffolding over 4m in height be erected and dismantled by a person with a high-risk scaffolding licence. The offender's worker, Carlo Paciocco, is his only direct worker who holds a high-risk scaffolding licence.
Approximately one week after the incident, when the offender's building operations recommenced, the offender held a "toolbox talk" with employees and subcontractors on site to discuss the following:
1. no employees were to be engaged in the erection or dismantling of any scaffolding whatsoever unless the offender was personally on site;
2. the offender reiterated that the maximum height allowance for scaffolding built without a scaffolding licence was 4m, but that he was required to be on site.
Statutory declarations of seven workers exhibited to the offender's affidavit confirm the toolbox talk took place.
The offender now holds toolbox talks at the commencement of each day on any job he undertakes.
[6]
Remorse and contrition
This is the first and only incident the offender has been involved in during his time in the construction industry.
The offender expressed remorse and regret in his affidavit that he failed to ensure Mr Connell's safety, that he passed away and that his daughters will grow up without their father.
The offender acknowledges in his affidavit that he should have arranged for a licenced scaffolder to assemble the scaffolding on the site because the risk was obvious and foreseeable.
He accepts that he did see the scaffold after it had been erected, saw it was built to 8.65m and took no steps to stop the scaffold from being dismantled.
Mr Connell's death has had a profound impact on the offender. He has had sleepless nights and has found himself drinking more alcohol to cope with the feelings of remorse.
In February 2022, the offender sought treatment from a psychologist focusing on addressing post-traumatic stress symptoms associated with the death of Mr Connell. He attended six appointments with the psychologist between 15 February 2022 and 26 May 2022.
The offender was in contact with Mr Connell's father the day after he passed to offer support. He assisted in going through Mr Connell's belongings. He has since been in contact with Mr Connell's parents several times, at least once in every six-month period. He was a pallbearer at Mr Connell's funeral at the request of Mr Connell's parents.
[7]
Financials
The offender exhibited to his affidavit a list of his and Reidstitt's assets and liabilities as at 11 July 2024. The offender's total assets amounted to $47,147.38 and his liabilities $63,800.00.
The offender also exhibited to his affidavit copies of his personal Tax Returns for the years 2021 to 2023 and copies of the Tax Returns and Financial Statements of Reidstitt for the years 2021 to 2023. No building projects are undertaken directly through the company. This company has one bank account that is used for the payment of all employee related matters, including wages, superannuation and workers compensation payments. The financial records show:
1. for the year ended 30 June 2021 the offender sustained a loss of $624,618;
2. for the year ended 30 June 2022 the offender made a profit of $258,132;
3. for the year ended 30 June 2023 the offender sustained a loss of $825,232.
An affidavit of the offender's accountant, Steven Wilson, confirms the information provided in the offender's Tax Returns and the Tax Returns and Financial Statements of Reidstitt are true and correct.
The offender's business suffered a substantial loss in 2023. A significant part of this loss was due to District Court civil proceedings against the offender which resulted in him having to pay a settlement of $450,000. The offender was forced to borrow money from his parents to meet the settlement.
Losses also arose due to the generally poor conditions in the building industry. The offender had projects underway during the COVID-19 lockdowns. Time delays and inflation resulted in costing blowouts on all projects during this time, and he obtained loans from his parents to keep his business operating.
[8]
Consideration
I have had regard to the objects of the Act set out in s 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999.
[9]
Objective seriousness
The offender knew that there was a risk of a fall from height from the scaffold and that if it was to be erected to a height where there was a risk of a person or object falling more than 4m that it needed to be erected by a licensed scaffolder, as a primary means of alleviating the known risk.
The likelihood of the risk arising was high. The scaffold was erected by Mr Connell without regard to the TEP. Further, the erroneous supply of additional extensions by Kennards permitted the scaffold to be erected to the height that it was. This meant that there were insufficient ledgers and cross-braces supplied to erect the scaffold in accordance with the TEP to that height.
The steps that the offender could have taken to avoid the risk were simple, inexpensive, known both to him and throughout the industry. The offender engaged licensed scaffolders at some time on each site and he knew that the scaffold had been erected to a height that required it to be dismantled by a licensed scaffolder. He could have passed the cost of engaging a licensed scaffolder onto the owner of the property. He failed to instruct and supervise the workers to ensure that the scaffold was not erected to a height that was controlled by the Regulations.
The risk included a risk of death.
The death of Mr Connell is an aggravating feature.
I have taken into account the maximum penalty for the offence.
[10]
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 some need for specific deterrence in this case because the offender still operates a construction business that potentially exposes workers and other persons to risks as a result of its operation. Conversely, the offender has taken some steps to improve its safety systems as a result of the incident and has acknowledged his failings that led to the incident.
[11]
Aggravating factors
The injury, harm and loss caused by the offence was substantial: s 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 merely the creation of a risk of death or serious injury. The death of Mr Connell is sufficient to establish the aggravating factor.
[12]
Mitigating factors
The offender does not have any previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender is now in his 50's and this is a significant matter.
The offender was a person of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The offender has provided employment for a number of workers in his business, and he showed compassion and empathy for Mr Connell's family.
The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has made some changes to the way that he works and has acknowledged his failure to comply with the legislation. He had taken some steps to provide a safe working environment for his workers. I am satisfied that he has good prospects of rehabilitation.
The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender expressed remorse for the incident and has accepted the Court's findings. He has belatedly acknowledged that he knew that the scaffold had been erected to a height of 8.65m and that he should not have instructed the unlicensed workers to dismantle it. The offender's expression of remorse is a mitigating factor, but I will place less weight on it by reason of the timing of it.
[13]
Capacity to pay a fine
The Court is required to have regard to s 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, he or she 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: 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.
The offender operates a relatively small business. Its turnover is not large. He has suffered some adverse impacts from the COVID-19 pandemic.
A significant source of the offender's impecuniosity has been an adverse civil judgment against him in relation to a particular project. He agreed to settle that dispute and pay a substantial sum of money to the plaintiff. He borrowed money from his parents to put towards payment of that settlement and has been repaying them. He has managed to continue to trade and to attract new work.
In this case, the costs of the proceedings that the offender will be ordered to pay are likely to be substantial. I will mitigate the fine to some small extent.
[14]
Penalty
Jason Reid Stitt is convicted.
I impose a fine of $100,000.
I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
The offender is to pay the prosecutor's costs of the proceedings as agreed or assessed.
[15]
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Decision last updated: 04 September 2024