SafeWork NSW v WY Constructions Pty Ltd

The Workers

1. Mr Bing Yang was engaged by WY Constructions to perform demolition work at the Site. Mr Yang had no demolition experience and no Australian construction or demolition qualifications. Mr Yang came to Australia from China on 15 August 2017. Mr Yang had worked as a welder in China.
2. Mr Han Ming Cao was also from China and was in Australia on a visitor visa (subclass 600) granted on 6 October 2017. Mr Cao was the housemate of Mr Yang. Mr Cao was also engaged by WY Constructions to perform demolition work at the Site. Mr Cao was introduced to Mr Wang by Mr Yang.
3. Mrs Gui Ying Xie, a 48-year-old worker, was engaged by WY Constructions to perform demolition work at the Site. Mrs Xie was introduced to Mr Wang by Mr Yang. Mrs Xie was the aunt of Mr Yang. Mrs Xie had arrived in Australia from China on 17 November 2016 and had applied for a bridging visa. In China Mrs Xie worked in the fruit farming and cleaning service industries. In Australia she had been a casual worker on construction sites delivering bricks and mixing and delivering cement and mortar.
4. When they were engaged by WY Constructions, Mr Yang, Mr Cao and Mrs Xie all had no prior experience in demolition work and none of them held a Construction Industry Induction Card.

Development Applications

1. Mr Wang and Mrs Zhuang applied for a Complying Development Certificate ("CDC") for the demolition of the premises on the Site and also for a CDC for the construction of a two-storey residential premises and a swimming pool.
2. On 28 November 2017 Mr Wang entered into an agreement with Archtech to carry out certification work ("the Certification Agreement") for the demolition of the existing house and the construction of the two-storey house and a swimming pool at the Site.
3. Under the Certification Agreement, Archtech was required to determine the applications for a CDC and Occupation Certificate and then undertake the functions of a PCA for the development.
4. On 28 November 2017 Mr Wang and Mrs Zhuang signed Archtech Approval Application Forms for CDCs and to nominate Archtech as PCA for: 1. The demolition of the Site with an estimated cost of $10,000. In this application WY Constructions was listed as the builder. 2. The construction of a two-storey house and swimming pool on the Site with an estimated cost of $500,000. No builder or owner builder was listed.
5. On 13 December 2017 Archtech issued a CDC for the demolition which included: (a) Conditions; (b) signed Archtech Building Application Approvals Application Forms and Building Schedule; (c) Demolition Plan by Sydney Registered Surveyors; (d) Specification for the Demolition Procedure; (e) Confirmation of Ownership; (f) Council Planning Certificate No. PC1022/1617/T - Section 149(2) Certificate.
6. A CDC for demolition must comply with the conditions prescribed in Schedule 9 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. In particular it must be carried out in accordance with AS 2601 - 2001, The demolition of structures dated September 2001.
7. On 13 December 2017 Archtech issued a record of inspection which stated that Archtech was satisfied with the pre-CDC site inspection under cl 129B of the Environmental Planning and Assessment Regulations 2000 (NSW).
8. On 13 December 2017 Archtech issued a letter to Mr Wang advising him that prior to commencing any work on the Site in relation to the CDC issued for the demolition he needed to complete the following: 1. A Notice of Commencement and Appointment of a PCA. 2. Notice to owners within 20 metres. 3. A receipt from Council for Council fees and any damage deposits or bonds.

The Demolition Work

1. Mr Qui provided Mr Wang with a sample "Demolition Procedures" document that he had obtained from a previous client who was developing a property at 1 Robinson Street, Sydney NSW. The sample document referred to building regulations applicable to the State of Victoria rather than NSW.
2. As part of the CDC application lodged with Strathfield Council WY Constructions lodged a document titled "Specifications for The Demolition Procedure for the Building Located at: XXXXX Street Strathfield NSW" ("Demolition Procedures"). This document was on WY Constructions' letterhead.
3. The Demolition Procedures did not provide a specific step-by-step process for the demolition of the house. Nor did the Demolition Procedures include a Safe Work Method Statement ("SWMS"). The Demolition Procedures did provide an outline of the precautions and procedures to be taken before and during demolition. Further, it required that the demolition should be done in accordance with the relevant standards and regulations.
4. The Demolition Procedures specifically stated: 1. That demolition will not commence until precautionary measures have been inspected and approved by a building surveyor. 2. Procedure and method of demolition will be adequate to prevent injury to persons and avoid damage to neighbouring property.
5. Mr Wang was not involved in the preparation of any demolition plan.
6. WY Constructions did not have a documented WHS management plan for the Site or for the project. WY Constructions had overall responsibility for work health and safety at the Site.
7. Demolition of the existing residential structure on the Site began on 11 December 2017.
8. Mr Yang and Mr Cao began work at the Site on the first day of demolition on 11 December 2017. Mr Wang provided Mr Yang and Mr Cao with transport to the Site each day.
9. Mr Yang stated that Mr Wang did not induct him on the Site, did not provide him with any training and made no inquiries about his experience, qualifications or training in demolition work.
10. Mr Yang's personal protective equipment ("PPE") consisted of work shoes and gloves. He did not have a hard hat. Mr Wang did not discuss safety requirements with him. Mr Wang was the only person wearing a hard hat.
11. Mr Yang stated that he did not hear any discussions between Mr Wang and Mrs Xie about her experience and her ability to undertake demolition work.
12. Mr Yang and Mr Cao were not aware of the Demolition Procedures document.
13. Mr Wang provided Mr Yang and Mr Cao with the tools and equipment they used for the demolition. These included two crow bars, two aluminium ladders, a hand-held hammer and a sledge hammer. The demolition was conducted by hand by Mr Yang and Mr Cao using the tools provided.
14. WY Constructions did not provide Mr Yang, Mr Cao or Mrs Xie with a documented demolition plan. The demolition methodology implemented was not documented as a demolition plan or a SWMS.
15. The majority of the demolition was completed by 15 December 2017. The only remaining work was the removal of brickwork on the exterior of the walls on the western, eastern and southern sides of the structure and the chimney.
16. The chimney was an internal triangular-shaped structure made of single brick course work approximately six metres in height and 1.2 metres wide.

The Incident

1. Mrs Xie commenced work on the Site on 16 December 2017, being the day of the incident.
2. On the morning of the incident, Mr Wang picked up Mr Yang, Mr Cao and Mrs Xie and drove them to the Site. They arrived at approximately 7.00am.
3. Mr Wang and the workers then proceeded to remove the brickwork on the exterior of the walls of the residential structure, leaving the chimney as the only part of the residential structure that was still standing.
4. At around 9.00am on 16 December 2017, the workers had a discussion regarding the method to be used for the demolition of the chimney. It was agreed that bricks would be removed from the bottom of the chimney and the workers would attempt to push the chimney over by hand.
5. To demolish the chimney, Mrs Xie and Mr Cao took turns using the sledge hammer to knock out courses of brickwork from the bottom of the chimney. They knocked out a course of brickwork from each of the corners of the chimney.
6. Mrs Xie and Mr Cao then removed bricks from the bottom of the chimney. With Mr Yang's assistance they attempted to push the chimney down. This initial attempt to push down the chimney was unsuccessful.
7. Mrs Xie and Mr Cao then removed further bricks from the base of the chimney. The workers then attempted to push the chimney structure over by hand. During this second attempt to push the chimney down, the chimney swayed forward before rocking backwards. As it started to fall, Mr Yang and Mr Cao were able to run clear of the falling masonry. The chimney continued to fall towards where Mrs Xie and Mr Wang were standing.
8. Mrs Xie was struck by the falling chimney and buried in the brickwork, lying on her back with the bricks covering her feet to her chest. The workers then started to remove the bricks from Mrs Xie and an ambulance was called.
9. Mrs Xie was transported to Royal Prince Alfred Hospital. She was pronounced dead shortly after arrival.

Injuries

1. Mrs Xie died from a blunt force injury of the chest and neck. The chest injuries consisted of multiple rib fractures, a large right haemothorax and the fracture of the twelfth thoracic vertebra (T2) which had been pushed into the spinal canal. The neck injuries consisted of the disruption and displacement of the cervical spine at the second and third neck vertebrae (C2/3) with a fracture of the second vertebra (C2).

Systems of Work prior to the Incident

1. Under cl 292 of the Work Health and Safety Regulation 2017 (NSW) ("the WHS Regulation"), the work being conducted at the Site was a "construction project". By cl 293 of the WHS Regulation WY Constructions was the principal contractor.
2. Pursuant to cl 309 of the WHS Regulation WY Constructions had an obligation to prepare a written WHS management plan for the workplace before work on the project commenced. WY Constructions did not have a WHS management plan for the construction phase of the work at the Site.
3. WY Constructions did not comply with the following work health and safety conditions of the CDC issued for the demolition: 1. Notification to SafeWork NSW of the commencement of the demolition pursuant to cl 142 of the WHS Regulation. 2. The specification of the Demolition Procedures lodged with the CDC including precautionary measures inspected and approved by a building surveyor.
4. WY Constructions did not comply with the conditions prescribed in Schedule 9 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 or in accordance with AS 2601-2001.
5. The WY Constructions demolition procedure stated that procedures and the method of demolition would be adequate to prevent injury to persons.
6. WY Constructions did not conduct a risk assessment or have a SWMS pursuant to cl 299 of the WHS Regulation that set out procedures for the demolition to take into account the associated risks and put systems in place to prevent injury to workers.
7. The system of work WY Constructions employed to demolish the chimney was an on-site discussion by its workers, who were not trained, experienced or qualified in demolition to determine the method of demolition.
8. WY Constructions did not develop, implement or enforce a demolition plan which included a plan for the demolition of the chimney, that considered the method of demolition and its sequencing, plant and equipment requirements, experience and training of workers, or exclusion zones for workers. WY Constructions did not undertake the demolition work using powered mobile plant such as an excavator, a loader, or a bulldozer.
9. In undertaking the demolition of the chimney, WY Constructions did not develop and implement an exclusion zone around the area of chimney that: 1. consisted of physical barriers that prevented falling objects from being ejected outside the work area; 2. prevented unauthorised personnel from entering the work area; 3. was of a sufficient size to encompass all areas where a falling object might reasonably be expected to land during the demolition process (1.5 metres x the height of the chimney).
10. In circumstances where the demolition of the chimney was to be undertaken manually WY Constructions did not develop, implement and enforce a SWMS that specified that: 1. the work was to be carried out from a safe work platform; 2. the work was to be carried out through the removal of successive courses of brickwork from the top; 3. the work was not to be undertaken by the induced collapse of the chimney; 4. an exclusion zone implemented around the area of chimney.
11. In circumstances where the demolition of the chimney was to be undertaken manually WY Constructions did not engage workers who were appropriately experienced and competent in demolition work.
12. WY Constructions did not provide adequate information, instruction and training to workers engaged in the demolition of the chimney. WY Constructions did not provide adequate supervision by an experienced and competent person of the workers engaged in the demolition of the chimney to ensure that they complied with a demolition plan and a SWMS.

The Act and Work Health and Safety Regulation 2017

1. WY Constructions had a duty under Part 3.1 of the WHS Regulation to: 1. Identify reasonably foreseeable hazards that could give rise to risks of health and safety (cl 34). 2. Eliminate the risk to health and safety so far as reasonably practicable, and if not reasonably practicable to do so, minimise the risk so far as reasonably practicable by implementing control measures in accordance with the hierarchy of risk control (cll 35 and 36). 3. Maintain any implemented control measure so that it remained effective (cl 37). 4. Review and, if necessary, revise all risk control measures (cl 38).
2. WY Constructions had a duty under Part 3.2 of the WHS Regulation to ensure that information, training and instruction provided to a worker is suitable and adequate.
3. WY Constructions had a duty under Part 6.3 of the WHS Regulation to manage the risks associated with the carrying out of construction work.
4. WY Constructions had additional duties as the principal contractor of a construction project under Part 6.4 of the WHS Regulation, including an obligation to prepare a written work health and safety management plan.
5. WY Constructions had a duty under Part 6.5 of the WHS Regulation to ensure that workers had been trained. A person conducting a business or undertaking must not direct or allow a worker to carry out construction work unless the worker had successfully completed general construction induction training, and the worker holds a general construction induction training card.

Australian Standard 2601 - 2001: The demolition of structures (dated September 2001)

1. As recited above, a CDC for demolition must be carried out in accordance with AS 2601-2001 which was applicable at the time of the incident.
2. AS 2601-2001 was developed with the primary aim of providing guidance to planners, engineers, contractors and interested parties on the planning and procedures for the demolition of a structure. It provides that: "Section 1.1 Scope This Standard sets out requirements and provides guidance to planners, owners, engineers, contractors and interested parties on the planning and procedures for the demolition of a structure. The Standard also provides advice and guidance on a range of controlled demolition methods so that the risk - (a) to the health and safety of the public and site personnel and occupiers of an adjourning property… will be minimized. … 1.5.2.2 Site personnel - Personal protective clothing and devices (PPE) ….every worker and every visitor shall wear a safety helmet complying with AS/ZS 1801. 1.5.2.2 also relates to the provision of other appropriate PPE, such as gloves, footwear and eye protectors. … 3.5.1 Induced collapse methods - General Induced collapse methods of demolition shall not be used unless they can be controlled and …. the area onto which the collapsing materials are likely to fall is ….kept clear of all persons at the commencement of and during the collapse. … E7.1 Chimneys - General Chimneys… require a particular skill and expertise to demolish in a safe and controlled manner. These structures should only be demolished by contractors who are competent and experienced to do so in a safe and controlled manner. …"
3. The Standard goes on to state that: "Manual demolition of masonry chimneys should be carried out from a safe working platform. The platform should be supported by either an internal or external scaffold."

SafeWork NSW Code of Practice: Demolition Work (dated September 2016)

1. Prior to and at the time of the incident, the Code of Practice: Demolition Work (September 2016, SafeWork NSW) was available and provided that: "1. Introduction: 1.1 What is demolition work? ...the demolition of an element of a structure that is load-bearing or otherwise related to the physical integrity of the structure is 'high risk construction work'. A safe work method statement (SWMS) must be prepared before the high risk construction work starts." …. Specific obligations for a person conducting a business or undertaking to manage the risks associated with demolition work…include: • Preparing a Safe Work Method Statement (SWMS) for the proposed work, or ensuring a SWMS has already been prepared by another person, before any high risk construction work commences. … 2.1 Identifying the hazards The first step in the risk management process is to identify the hazards associated with demolition work (including): • Unplanned structure collapse … 3. Planning the demolition work Demolition work should be carefully planned before work starts so it can be carried out safely. Planning involves identifying hazards, assessing risks and determining appropriate control measures. … 3.4 Safe Work Method Statements If the demolition work is or involves high risk construction work, a person conducting a business or undertaking must prepare a SWMS before the work starts. The SWMS must: • identify the type of high risk construction work being done • specify the health and safety hazards and the risks arising from that work • describe how the risks will be controlled • describe how the control measures will be implemented, monitored and reviewed, and • be developed in consultation with workers and their representatives who are carrying out the high risk construction work. … 5.1 Manual demolition Manual demolition includes any technique where hand tools such as…sledge hammers…are used. Manual demolition has many of the hazards that are present in other major demolition activities including unexpected collapse… Areas where debris could fall should be barricade off and signs erected to prevent persons from entering before demolition starts. … 6.6 Independent chimneys and spires …it is common for chimneys to be demolished by hand or through induced collapse… Hand demolition should be carried out progressively from the top of the chimney and from safe working platforms. …"
2. Part 4.3 of the Code provided that in planning for exclusion zones the following should be taken into consideration: 1. Erecting secure impassable barricades with adequate signage and appropriate lock out procedures to prevent unauthorised pedestrian or vehicular access to the area. 2. Providing information to workers and other persons at the workplace advising them of the status of the exclusion zones. 3. Providing supervision so that no unauthorised person enters an exclusion zone.
3. The Code states that due to the height, it is common for chimneys to be demolished by hand or through induced collapse. As explained, the method being attempted to be used by WY Constructions at the time of the incident involved the method of induced collapse.
4. However, the Code notes that if the chimney is to be demolished manually then temporary supports may be required to ensure that premature collapse does not occur.
5. The Code also provided that due to their height, control measures that need to be considered when demolishing chimneys include: 1. Temporary work platforms. 2. Falling object protection. 3. Exclusion zones. 4. Dust control.
6. The Code notes that if the chimney is to be demolished manually through induced collapse it will require sufficient clear space, approximately 1.5 times the total height of the chimney, and sufficient width depending on the type of structure.

Systems of Work following the Incident

1. Following the incident, WY Constructions ceased all work on the Site and engaged C&M Tipping Pty Ltd, a SafeWork NSW approved contractor, to complete the demolition. C&M Tipping Pty Ltd provided a SWMS for the work to be completed.
2. On 13 March 2018 Archtech issued: 1. A CDC for the demolition and the construction of a two-storey house and swimming pool. 2. A letter to Mr Wang advising him that prior to commencing any work on the Site in relation to the CDC issued for the construction he needed to complete: 1. A Notice of Commencement and Appointment of a PCA. 2. Notice to owners within 20 metres. 3. A receipt from Council for Council fees and any damage deposits or bonds. 4. A copy of the either home warranty insurance or owner builder permit.

Affidavit of Mr Wei Huang Wang

1. Mr Wang affirmed an affidavit on behalf of the offender on 30 November 2020. Mr Wang is a Director of WY Constructions.

Personal Background

1. Mr Wang migrated to Australia in June 1990 and received recognition for Industrial & Civil Architecture tertiary courses he completed in China to the Graduate Diploma level. He went on to obtain licences in Scaffolding, Carpentry and Dry Wall Plastering. At the time of the incident, he held an NSW Contractor Licence, a National Licence to Perform High Risk Work and the Construction Induction White Card.
2. Mr Wang can understand and speak basic English but is not fluent. In his affidavit he stated that he "can read maybe 30% or 40% of written English" and has difficulty understanding the contents of technical documents.
3. Mr Wang has been involved in business ventures since the mid 1990s. In 1995 he commenced a local furniture manufacturing company. In 2005, a new business was commenced involving the importation, wholesale and retail sale of wooden furniture. This business is ongoing and is run by Mr Wang and his wife, Olivia, and employs five people.
4. Mr Wang stated that he does not have any personal experience in carrying out demolition work.

Background to WY Constructions

1. Mr Wang formed WY Constructions in August 2014 to explore his interest in architecture, building and property development. After sponsoring Mrs Zhuang (Mr Wang's mother) in her move to Australia from China, Mr Wang decided to buy the 26 High Street, Strathfield property in 2017 and develop it. Ninety per cent of the proceeds from the eventual sale of this property were to go to Mrs Zhuang and the other ten per cent to Mr Wang. Mr Wang financed the purchase of the land and paid all the outgoings for the purchase, development and financing of the property. Mr Wang explained that the subject building works did not provide WY Constructions with any profit.
2. Apart from the works that are related to these proceedings, Mr Wang said that WY Constructions has only been involved in one other property development project. Prior to the present matter, WY Constructions had no other WHS legislation breaches.

Demolition Approval

1. In relation to the engagement of a private certifier to obtain the relevant approvals to be able to demolish the existing house on the property, Mr Wang explained that the certifier provided him with an example "Specifications for the Demolition Procedure" document that he was going to use to adapt for the development at 26 High Street, Strathfield. Mr Wang stated that he had difficulty in reading the whole of the document and so he asked one of his teenage sons to assist. He explained that the language difficulty led to several errors in the document including not changing the name of the premises to the correct one and not inserting the correct company name.

Engagement of Contractors and the Skills of Mrs Xie, Mr Yang and Mr Cao

1. Mr Wang said that it was always his intention to engage suitably qualified contractors to undertake all aspects of the building and construction work of WY Constructions. WY Constructions has never had any of its own employees.
2. Mr Wang stated that WY Constructions accepts that Mr Yang, Mr Cao and Mrs Xie did not have the relevant qualifications for the demolition work for which they were engaged. However, Mr Wang explained that before the incident, Mr Yang, Mr Cao and Mrs Xie made representations to him that they did have the appropriate expertise and an extensive history of construction and demolition work both in China and Australia. These representations were conveyed in telephone conversations and text messages.
3. Mr Wang said that when he met Mrs Xie in person on 16 December 2017 he was surprised that she would be engaged in demolition work as she appeared to be a short and slim middle-aged woman. When he asked questions, Mrs Xie told Mr Wang that she had worked in demolition in China for eight years and in Sydney for one year.
4. Mr Wang went on to explain that he accepts, with the benefit of hindsight and knowledge gained through the incident, that he should have requested copies of demolition licences from Mr Yang, Mr Cao and Mrs Xie. He said he trusted what he was told and he would never have engaged them if he had discovered that they did not have the appropriate licences.

Personal Consequences

1. Mr Wang detailed the impact the incident has had upon him. He personally was struck by parts of the chimney as it collapsed because he was standing next to Mrs Xie when the bricks fell. Mr Wang stated that he assisted in calling the ambulance, administered First Aid and helped carry Mrs Xie to his van to help take her to hospital.
2. Following the incident Mr Wang had nightmares, took sleep medication and sought assistance from a psychiatrist to come to terms with what he had witnessed. He still experiences anxiety and difficulty sleeping whenever he hears of events that remind him of the incident.

Contrition

1. On behalf of WY Constructions, Mr Wang accepted that WY Constructions failed to: (a) conduct a risk assessment in relation to the demolition work; (b) undertake the work using a powered mobile plant such as an excavator, loader or a bulldozer operated by a competent operator; (c) develop and implement a demolition plan prepared by a competent person (including the demolition method for the chimney, identification of appropriate plant and equipment, ensuring workers were experienced and trained for chimney demolition work, identification of an appropriate exclusion zone); (d) develop and enforce a SWMS dealing with the manual demolition of the chimney; (e) implement an exclusion zone around the chimney area; (f) ensure that workers were appropriately qualified; (g) ensure that a competent person provided adequate training and instruction to workers on safe work practices; (h) provide adequate PPE; (i) ensure adequate supervision by an experienced and competent person of workers engaged in the demolition process.
2. Mr Wang accepted that had some or all of the above measures been carried out, the risk posed to Mr Yang, Mr Cao and Mrs Xie would have been eliminated or minimised. Mr Wang expressed remorse and said "I am extremely sorry that Yang, Cao and Xie was exposed to the risk of death and that Mrs Xie died as a result…".

Financial Situation

1. The material in Mr Wang's affidavit pertaining to the capacity to pay a fine is dealt with later in this judgment.

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. 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."
4. 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].
5. 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.
6. 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.
7. 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."
8. 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."
9. 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."
10. My findings about the defendant's level of culpability are based upon the following: 1. The risk of injury or death of a worker being crushed by a masonry chimney during demolition works in circumstances where there is a failure by the principal contractor to comply with relevant demolition procedures was obvious and foreseeable. 2. Being struck and crushed by a collapsed structure is a well-known and obvious risk in the demolition and construction industry. Relevant guidance materials specifically dealt with the risk. 3. The potential consequences of the risk were very serious injury or death. Mrs Xie lost her life. 4. There were several steps that were readily available, which could have been implemented to eliminate or minimise the risk at the time of the incident, including: 1. conducting a risk assessment in relation to the demolition work; 2. undertaking the work using a powered mobile plant operated by a competent operator; 3. developing and implementing both an appropriate demolition plan and a SWMS dealing with the demolition of the chimney; 4. implementing an exclusion zone around the chimney area; 5. ensuring that workers were appropriately qualified, supervised by a competent person and provided with adequate training and PPE. 1. These measures were not complex, costly or burdensome. 2. Mrs Xie was on her first day on the Site at the time of the incident and was completely unqualified for demolition work. She was a very vulnerable worker. Mrs Xie died from the severe injuries sustained during the demolition work. 3. Mr Wang had no appreciation of the precautions which were necessary during the demolition. He had to run for his life to escape being crushed. His ignorance shows that WY Constructions made no attempt whatsoever to ascertain or carry out its obligations under the Act. 4. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature's view of the seriousness of the offence.
11. I find that the level of culpability of WY Constructions is in the high 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. The penalty must reflect the need for specific deterrence. WY Constructions is still conducting a business. It owns a residential property in Campsie which it hopes to develop, in time, into a block of home units.

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. WY Constructions does not have any prior convictions under work health and safety legislation: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
2. WY Constructions is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.
3. WY Constructions has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It 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 accident occurred.
4. WY Constructions has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the death of Mrs Xie was caused by its actions.
5. WY Constructions 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 WY Constructions a 25% discount for an early plea.
6. WY Constructions gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It 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 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.
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 were several financial statements and documents annexed to Mr Wang's affidavit directly relevant to the present capacity to pay a fine. In his affidavit, Mr Wang explained that WY Constructions is a small company with few assets. The Strathfield property owned by Mr Wang and Mrs Zhuang was sold by them on 22 November 2019 for $4.1 million. The initial purchase price on 19 August 2017 was $2.2 million with $100,000 stamp duty, $1.2 million spent on total construction costs, and approximately $350,000 in interest charges over two years. The overall profit on the Strathfield property ultimately came to approximately $250,000.
4. A residential property at Campsie which is still owned by WY Constructions was purchased for $1,490,000 in August 2014. A Development Consent for the property was obtained in November 2017. The Campsie property is subject to a mortgage to secure almost $972,000 as at 30 October 2020. The Campsie property is valued at $1,565,209 in financial statements for FY 16-17 FY 17-18, FY 18-19 and FY 19-20. There was no evidence provided to corroborate the book value of the Campsie property in the accounts. This court does not operate in a vacuum. It strains credulity that a property in an inner suburb of Sydney has only increased in value by $75,000 since it was purchased six years ago. Further, a Development Approval for conversion of the property into home units has been granted since the purchase.
5. Mr Wang stated that there is no income other than rent of about $770 per week that helps to meet the mortgage repayments and offset some other expenses. Mr Wang explained that the mortgage repayments, rates, taxes and related expenses will exceed the rental income this financial year as it has in past years. As at 30 October 2020, there was $10,300 cash held in a WY Constructions account.
6. Between the time of purchasing the Campsie property in August 2014 and the end of the 2020 financial year, Mr Wang has invested $1.5 million of his own funds into WY Constructions to cover the expenses, shortfalls and the balance of the purchase price of the Campsie property. Pages 18 to 20 of Mr Wang's affidavit list hundreds of thousands of dollars of development and construction expenses paid by Mr Wang personally for the Campsie property. In the normal course such expenditure, being in the nature of improvements to the Campsie property, should have increased its value.
7. Mr Wang expressed the view that it is unlikely that WY Constructions will make a profit on the Campsie property, either by selling or developing it, for a number of years. Mr Wang believes that any penalty imposed would have to be paid by himself personally.
8. WY Constructions has presented no evidence about the true market value of the Campsie property. Even on what is a surprisingly low value in the company financial statements, there is equity in the Campsie property, over and above what is owed to a secured creditor, of almost $600,000. WY Constructions has not satisfied the court that it has a reduced ability to pay a fine.
9. However, the fine to be imposed will be moderated to take into account the small size and the cash flow position of WY Constructions.
10. I reject the submission made by counsel for the defendant (MFI 2 par 32(g)) that the court should "consider using the maximum penalty for an individual as a maximum starting point in assessing the appropriate penalty". As authority for that submission, counsel referred the court to Haynes v CI & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455 and WorkCover Authority of New South Wales v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462. Neither case supports the submission. In fact both confirm that even though a corporation is essentially a one-man band, it is to be sentenced having regard to the maximum penalty applicable to a corporation and not to the maximum (and much lower) penalty applicable to a natural person. See Haynes at 457-458 (per Bauer, Hungerford and Cullen JJ) and WorkCover Authority at 475 (per Walton J).
11. The Court of Criminal Appeal has very recently given further guidance concerning the appropriate fine in a case involving a death, where the offence is objectively quite serious, even when a defendant has several mitigating factors in its favour: Attorney General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319.

Work Health and Safety Project Order

1. WY Constructions consents to the work health and safety project order sought by the prosecutor. Such order is in addition to the fine to be imposed: s 235(2) of the Act.

Costs

1. The defendant is to pay the prosecutor's costs.

Penalty

1. My orders are: 1. WY Constructions Pty Ltd is convicted. 2. The appropriate fine is $400,000 but that will be reduced by 25% to reflect the plea of guilty. 3. Order WY Constructions Pty Ltd to pay a fine of $300,000. 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 WY Constructions Pty Ltd to pay the prosecutor's costs. 6. Order pursuant to s 238 of the Work Health and Safety Act 2011 (NSW): 1. Within six months of the date of these Orders, the defendant is to undertake and fund the development and production of a de-identified educative animated video (the project) by a suitable external provider (the provider) that documents, illustrates and highlights: 1. the incident in which Gui Ying Xie, Wei Huang Wang, Han Ming Cao were exposed to a risk of death or serious injury on 16 December 2017 (the material date); 2. the risks to which the persons were exposed on the material date; 3. the content, nature and operation of a suitable safe system of work that would have reduced the risk to which Gui Ying Xie, Wei Huang Wang, Han Ming Cao were exposed on the material date as far as is reasonably practicable; 4. the guidance material applicable to the demolition of brick structures as deemed appropriate by SafeWork NSW. 1. The management of the project and the provider will be undertaken by SafeWork NSW. 2. The defendant is to make periodic payments, when approved, within the terms specified in the agreement between SafeWork NSW and the provider. 3. The defendant is to agree that the copyright and all exhibiting and distribution rights in relation to the project, including the educative animated video, are to be held exclusively by SafeWork NSW. 4. The defendant is to notify the prosecutor, and the Registrar of the NSW District Court at the Downing Centre Sydney of any change of address for service. 5. Liberty to restore the matter before the Court if the defendant does not comply with this order.

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: 11 December 2020