Urban Field Group Pty Ltd v SafeWork NSW - [2024] NSWCCA 62 - NSWCCA 2024 case summary — Zoe

NSWNSWCCA

Urban Field Group Pty Ltd v SafeWork NSW

[2024] NSWCCA 62

Court of Criminal Appeal (NSW)|2024-02-14|Before: Adamson JA, Wright J, Sweeney J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2024-02-14

Before

Adamson JA, Wright J, Sweeney J

Catchwords

[2014] HCA 2 Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338
[2016] NSWCCA 37 Carbone v R (No 2) [2024] NSWCCA 7 Dansie v The Queen (2022) 274 CLR 651
[2022] HCA 25 Davidson v R [2009] NSWCCA 150
(2009) 195 A Crim R 406 Dinsdale v The Queen (2000) 202 CLR 321

Source

Original judgment source is linked above.

Catchwords

[2014] HCA 2 Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338[2016] NSWCCA 37 Carbone v R (No 2) [2024] NSWCCA 7 Dansie v The Queen (2022) 274 CLR 651[2022] HCA 25 Davidson v R [2009] NSWCCA 150(2009) 195 A Crim R 406 Dinsdale v The Queen (2000) 202 CLR 321[2000] HCA 54 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1[2010] NSWCCA 194 Filippou v The Queen (2015) 256 CLR 47[2015] HCA 29 Greentree v R [2018] NSWCCA 227 Harris v Natural Resources Access RegulatorTimmins v Natural Resources Access Regulator [2023] NSWCCA 16(2023) 254 LGERA 419 Hili v The QueenJones v The Queen (2010) 242 CLR 520[2010] HCA 45 House v The King (1936) 55 CLR 499[1936] HCA 40 Hunt v R [2017] NSWCCA 305 Lowndes v The Queen (1999) 195 CLR 665[1999] HCA 29 Magro v R [2020] NSWCCA 25 Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25 Mulato v R [2006] NSWCCA 282 Nash v Silver City Drilling (NSW) Pty LtdAttorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Obeid v R (2017) 96 NSWLR 155

Judgment (18 paragraphs)

[1]

Background

By summons filed on 11 August 2021, SafeWork NSW alleged that Urban Field committed an offence under s 32 of the Work Health and Safety Act by failing to comply with its duty under s 19(1) of that Act and that failure exposed workers, including Mr Asadullah Hussaini who died, to a risk of death or serious injury.
Section 19(1) of the Work Health and Safety Act provides: "A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of - (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking."
Section 32 of that Act relevantly states: "A person commits a Category 2 offence if - (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness."
On 18 July 2022, Urban Field pleaded guilty to the charge under s 32 of the Work Health and Safety Act. The sentence hearing took place on 16 November 2022 before Scotting DCJ and generally proceeded on the basis of agreed facts. There was one factual issue in dispute, namely, whether the admitted breach of duty was a cause of Mr Hussaini's death. This issue was sometimes also expressed as whether Mr Hussaini's death was a manifestation of the risk to which workers were exposed as a result of Urban Field's failure to comply with the duty under s 19(1).
On 18 November 2022, Urban Field was convicted and the sentence of a fine of $400,000 was imposed: SafeWork NSW v Urban Field Group Pty Ltd [2022] NSWDC 575.

[2]

Appeal

On 28 November 2022, a notice of intention to appeal was filed and a notice of appeal against the sentence was filed, within time, on 9 October 2023.
Urban Field relies on two grounds of appeal: "1. The learned sentencing judge, Scotting DCJ, erred in finding that Mr [Hussaini's] death was a manifestation of the risk that he was exposed to by the appellant's failure to comply with its health and safety duty under section 19(1) of the Work Health and Safety Act 2011 (NSW). 2. The sentence was manifestly excessive."
In light of the grounds of appeal, it is necessary to review the sentencing judgment of Scotting DCJ in some detail.

[3]

The offence and the maximum penalty

Scotting DCJ commenced his judgment by noting that Urban Field had pleaded guilty to the offence under s 32 of the Work Health and Safety Act and recorded that the maximum penalty was $1.5 million.

[4]

The facts as agreed

The learned sentencing judge then summarised the facts derived from the Agreed Statement of Facts. The most relevant portions of that summary are as follows: "Background 4. [Urban Field] conducted a business providing construction services and, in particular, construction of medium-density dwellings like low-rise apartment complexes and townhouses. … 6. At all material times, Abresham Pty Ltd (Abresham) was a company that undertook painting and preparation work. … 7. As part of its business, [Urban Field] was undertaking a construction project named "Champagne on Civic" (the project). The project involved construction of 25 residential units and five shops at a site in Pendle Hill (the site). The construction value of the project was $5 million. 8. [Urban Field] was the principal contractor of the project and was in control of the site. … Workers 10. [Urban Field] employed … [a] Project Manager …[who] was responsible for the overall structure and planning of the project. His role was to take care of subcontractors and suppliers and ensure their paperwork was in order. 11. [Urban Field] engaged … a supervisor/foreman at the site. [He] was responsible for the day-to-day running of the site and ensuring the site was run safely. … 13. [Urban Field] engaged Abresham to undertake painting and preparation work at the site. Abresham was to supply the labour, materials, services and equipment necessary for the preparation, application and painting of the units at the site. 14. Mr Hussaini migrated from Afghanistan to Australia in about 2017. His wife and 10 children remained in Afghanistan. Mr Hussaini was employed by Abresham as a painter, commencing in November 2018. He had undertaken approximately five jobs for Abresham prior to the incident. 15. Mr Hussaini's duties for Abresham included preparation of internal walls, ceilings and soffits, which involved grinding surfaces, sanding, patching and priming. He also applied finishing coats of paint to these surfaces. 16. Mr Hussaini was 1.76 metres in height. Systems of work Workplace Risk Management Plan 17. [Urban Field] had a generic Workplace Risk Management Plan (WRMP) for construction projects. The WRMP was the document used to prepare a project specific WRMP for construction workplaces and identify key areas affecting health and safety for the workplace. A specific WRMP was not prepared for the project. 18. In terms of training subcontracted workers, WRMP provided that, at a minimum, workers would have a "General Industry OHS Induction/Safety Awareness Training for the Construction Industry" card (known as a "white card"), a work activity induction training, a workplace specific induction and relevant certification of competency. The WRMP also required that the offender take a photocopy of the employee's "white card" and photo ID at the employee's workplace specific induction. Safe Work Method Statement 19. [Urban Field] had a Safe Work Method Statement (SWMS) for the activity of "Working at Height & Scaffolding". The SWMS identified the risk of falling from height when working off a ladder. 20. The SWMS required that ladders be footed by another person or tied off at the top and bottom of the ladder. It also required that ladders be angled 1 metre out for every 4 metres in height and that, when working at a height over 1.8 metres, the person on the ladder wear a full fall arrest harness and be anchored from above and below using a lanyard. 21. The SWMS did not specify the circumstances in which the portable ladder could be used at the site, such as for the purposes of simple access jobs, short duration work and light duty work. 22. Further, the SWMS did not adequately prescribe control measures for ladder use at the site. For example, it did not require that three points of contact be maintained with the ladder at all times, nor did it prohibit operation of power tools requiring two-handed operation whilst standing on a ladder. 23. [Urban Field] did not obtain from Abresham a SWMS for painting and preparation work at the site. [The supervisor/foreman] assumed that a SWMS was provided to "the office". 24. Abresham did not have a SWMS in place for work to be performed at the site. Use of the ladder 25. It was usual practice for [Urban Field] to undertake work at heights of up to 3.3 metres from an A-frame stepladder. Abresham would normally use a ladder to perform the task of grinding and patching walls and ceilings. Induction Training and Supervision 26. Mr Hussaini did not have a "white card" and [Urban Field] did not ensure that Mr Hussaini had undertaken general construction training prior to allowing him to commence work at the site. 27. [Urban Field]'s SWMS for "Working at Height and Scaffolding" provided that subcontractors were to be supervised by [Urban Field] and that a supervisor/foreman was to carry out daily inspection for worksite hazards. [Urban Field] did not supervise or inspect the work performed by Mr Hussaini. [The supervisor/foreman] believed that Mr Hussaini's boss told him what had to be done, so [the supervisor/foreman] "just left it up to him". The incident 28. Mr Hussaini commenced working at the site on 28 August 2019. Mr Hussaini was expected to perform a full day's work at the site from 7.00am to 3.00pm. 29. At approximately 7.00-7.30am on 28 August 2019, [the supervisor/foreman at the site] provided Mr Hussaini with a basic site induction which included the location of the toilets, first aid and the evacuation procedure. 30. [The sole director of Abresham] attended the site with Mr Hussaini and instructed him to grind and patch the first-floor balcony, including the balcony soffits, ceilings and walls. 31. [The director of Abresham] observed Mr Hussaini grind a soffit and then left the site to go to another job in the city. 32. [The director of Abresham] supplied Mr Hussaini with a patch, a Makita angle grinder and a Syneco SADP6 ladder to assist with his duties at the site. The grinder was an electrical corded power tool intended for grinding, sanding and cutting metal and stone material. The ladder was a dual-purpose ladder which could be used in either an 'A' frame configuration or in an extended straight configuration. The height of the ladder was 1.82 metres when used as a step ladder and 3.19 metres when used as a single/extension ladder. The height of the balcony soffits and ceiling was approximately 3.3 metres. 33. Mr Hussaini was working on a balcony in unit 5 on the first floor at the site. The surfaces of the floor, wall and ceiling on the balcony were uncoated concrete. 34. Weiyi Liu, a gyprocker employed by EJ Developments Pty Ltd, was working approximately 10 metres away from Mr Hussaini. Mr Liu observed Mr Hussaini working on the ladder and holding the grinder during the morning. 35. At approximately 12.30pm Mr Liu heard a loud "boom" sound and then observed Mr Hussaini laying on the floor. Mr Hussaini's face was to the floor and he was unresponsive. 36. An ambulance was called at 12.34pm and paramedics arrived at the scene at 12.44pm. Mr Hussaini was transported to Westmead Hospital for treatment. 37. Mr Hussaini sustained severe head injuries and a right wrist fracture due to the fall. 38. Mr Hussaini died on 4 September 2019 as a result of his head injuries. Site inspection 39. At approximately 3.15pm on 28 August 2019, Inspector Andrew Komisarczuk of SafeWork NSW attended the site and observed the scene of the incident. 40. Inspector Komisarczuk noted that the incident scene had been disturbed when assistance was rendered to Mr Hussaini. Namely, the grinder and ladder had been placed at the side of the room to make space for the paramedics to work. 41. At 4.20pm Crime Scene Officer Sergeant Hunt attended the site and conducted a forensic examination. Sergeant Hunt recorded in his examination notes that there was a ladder with five rungs and a top step that could be extended out. Its spreaders were not in place, nor were extender clips. Sergeant Hunt also noted that it was "unknown whether ladder originally retracted or if fully extended at the time". There was some scaffolding that was angled into the room through the adjacent void/windows. 42. On 29 August 2019, Inspector Neil Simpson of SafeWork NSW attended the site and conducted a factual inspection report. Inspector Simpson made the following observations at the scene of the incident: (a) the height of the roof over the balcony was approximately 3.3 metres; (b) the outside edge of the roof had a solid turn-down extending approximately 800 millimetres; (c) the construction material in the roof and turndown was concrete; (d) the concrete surface was primarily smooth and consistent; (e) there were some areas of concrete that appeared to have been blended by grinding and other areas that appeared rough and unground; and (f) the front of the ladder on the balcony had five steps and a top plate. The rear of the ladder had five steps. The steps were approximately 285 millimetres apart. Systems of work after the incident 43. Following the incident, SafeWork NSW issued an Improvement Notice to [Urban Field] and Abresham, requiring that they review and revise the measures implemented to control the risks associated with preparation and painting works at the site. 44. [Urban Field] engaged MSM Fire Services to review its work health and safety policies. 45. On or about 24 September 2019 [Urban Field] engaged GP Coatings Pty Ltd to complete the painting and preparation work at the site. 46. On or about 30 September 2019 [Urban Field] implemented a Project Safety Management Plan for the site, which requires that the Project Manager request a SWMS from all trades prior to any appointment and that all SWMS be kept on site for the site supervisor to implement and monitor. 47. [Urban Field] now only accepts platform ladders at its sites."

[5]

The contentious factual issue

Scotting DCJ identified the only remaining factual issue in dispute as follows: "48. [Urban Field] contended that I could not be satisfied beyond reasonable doubt that Mr Hussaini fell from the ladder or that he was using it improperly at the time when he fell and thereby that its breach of duty in failing to provide a safe system of work for the use of portable ladders was a cause of his fatal injuries."
The sentencing judge then: 1. noted the relevant principles to be applied in relation to the standard of proof and the test for causation, which were not challenged on appeal; and 2. identified the relevant evidence including the Agreed Statement of Facts and a record of interview with Mr Liu, another worker on the site who was working near Mr Hussaini, as well as oral evidence from Mr Liu.
Scotting DCJ summarised Mr Liu's record of interview and his oral evidence. The sentencing judge then made specific findings as to Mr Liu's credit as follows: "63. Mr Liu gave evidence in a thoughtful and careful manner. He made appropriate concessions and appeared to be trying to answer questions as truthfully and accurately as possible. There were some matters in his evidence that were contradictory, but I am satisfied that these arose as a result of language difficulties and the fading of his memory over time. I formed the impression that he was a reliable witness and I accept his evidence."
Based on the agreed facts, the evidence and his assessment of Mr Liu, Scotting DCJ made the following findings of fact, at [64]: "1. Mr Hussaini's first day on the site was the day of the incident. 2. He was not trained by [Urban Field] on the proper use of a portable ladder because the offender's SWMS was inadequate on the issue. 3. [Urban Field] did not have any evidence in the form of a SWMS prepared by Abresham that Mr Hussaini had been adequately trained on the use of a portable ladder. 4. In the morning of 28 August 2019, [the director of Abresham] instructed Mr Hussaini to grind and patch the concrete surfaces of the balcony soffits, ceilings and walls on the first floor of the building. Mr Hussaini was provided with a grinder and a portable ladder to do the task. [The director of Abresham] was present to observe Mr Hussaini use the ladder to grind a soffit before leaving for another site. The height of the soffits and ceilings was approximately 3.3m. The use of a portable A-frame ladder to do this type of work was usual practice for Abresham. 5. The portable ladder was unsuitable for the task because of the height of the ceilings. Accessing the upper rungs of the ladder to a point necessary to reach the upper parts of the walls and the ceiling while undertaking a task such as the grinding, was likely to make the ladder unstable and could cause the user to fall off it. 6. About an hour before the incident, Mr Liu saw Mr Hussaini climbing the ladder with the grinder in his hand in preparation to use it on the upper part of the walls or the ceiling. I am satisfied that Mr Liu first saw Mr Hussaini at a time after about 11.30am, being after his break. 7. Mr Liu observed Mr Hussaini was wearing safety goggles and that there was a lot of dust in the air which was consistent with Mr Hussaini using the grinder on the concrete surfaces of the balcony. The photographs of the balcony taken the next day depicted grey marks on the walls, soffit and ceilings that were consistent with the use of the grinder in those areas. A number of those marks were in areas that could have only been accessed with the use of the ladder. I am satisfied that in the time between when Mr Liu first saw Mr Hussaini and 12.30pm, that Mr Hussaini was undertaking the task of grinding the concrete surfaces on the balcony and was using the ladder to reach some places. 8. Mr Liu heard a noise like a loud [sic, apparently a typographical error for 'large'] [1] object had hit the ground at about 12.30pm that was consistent with Mr Hussaini falling off the ladder. 9. When Mr Liu found Mr Hussaini he was face down with his arms above his head and the ladder was on top of him, which was also consistent with him falling off the ladder. Mr Hussaini had blood coming from his nose and ears and a dark substance coming from his mouth. He was unconscious. I am satisfied that the bloodstains on the floor depicted in the photographs indicate the position where Mr Hussaini's head was after he fell. 10. The ladder was removed from Mr Hussaini by someone during attempts to treat him. The position where it was depicted in the photographs (over the top of the bloodstains) is not the position where it was when Mr Hussaini was using it. 11. The photographs of the scene depict blood stains in the floor adjacent to grind marks on the return of the soffit and on the ceiling. This is consistent with the fall being occasioned at the time when he was using the ladder to grind one of those areas."

[6]

Urban Field's subjective case

After noting the evidence led in relation to sentence, his Honour recorded the qualifications and experience of the Urban Field's sole director and sole employee, Mr Sammour.
His Honour then made findings as to Urban Field's subjective case which may be summarised as follows.
Urban Field was a small construction company that primarily engaged contractors to work on its building projects. Those contractors could, if necessary, engage subcontractors to undertake work on the project. It was noted that Mr Sammour's evidence was that Urban Field took reasonable steps to ensure that the contractors it engaged were reputable and experienced.
For the project in question, Urban Field engaged Abresham to undertake painting works. In addition, Urban Field engaged a Project Manager as well as a site supervisor/foreman, who reported regularly to the Project Manager and Mr Sammour. The supervisor/foreman had various responsibilities including: inducting workers onto the site in relation to site safety practices concerning working from heights; conducting regular site safety inspections; supervising work of trade persons on site; issuing non-compliance notices to subcontractors; and, overseeing the general safety of all construction works on site.
Prior to the incident involving Mr Hussaini, Urban Field required any person attending the site to be inducted by the supervisor/foreman. These inductions allowed for identification and discussion of work health and safety issues on site. They also provided Urban Field with the opportunity to ensure that all trades were familiar and complied with all relevant work health and safety policies and procedures. The Project Manager was required to undertake a review of the SWMSs.
Urban Field implemented a site specific WHS Management Plan which referenced key safety issues and provided measures to address those issues. All workers were introduced to the plan as part of their induction. There were also on-site consultation meetings and safety audits involving Mr Sammour, the Project Manager and the supervisor/foreman.
As to working from heights requirements, the supervisor/foreman's daily site inspections and walk-throughs included inspections of workers performing works on-site and Mr Sammour's evidence was that, when he conducted safety inspections, he would ensure to the best of his ability that workers working from heights were doing so safely. The WHS management plan required Urban Field to obtain a SWMS which would address, inter alia, safety issues related to working from heights.

[7]

Sentencing judge's consideration

The sentencing judge commenced his consideration of the appropriate sentence by noting that he had had regard to the objects of the Work Health and Safety Act and the purposes of sentencing.
Under the heading "Objective Seriousness", his Honour concluded that the offence was "objectively serious", at [102]. The relevant findings were then set out and included what follows. 1. The risk of a fall from height through the inappropriate use of a ladder was obvious, well known in the industry and actually known to Urban Field, whose SWMS referred to that precise risk. 2. The likelihood of the "risk coming home was moderate" if steps were not taken to train workers on the site such as Mr Hussaini in relation to the relevant dangers and relevant prohibitions were not enforced. 3. The steps that could have been taken to prevent the fall included enforcing Urban Field's own SWMS and ensuring Abresham had an appropriate SWMS which required workers such as Mr Hussaini to use a work platform and which was adequately understood and supervised. 4. The induction conducted by Urban Field was so inadequate that it failed to detect that Mr Hussaini did not have a White Card. 5. The steps that could have been taken were simple, inexpensive, well known in the industry, referred to in Urban Field's SWMS and required by the Work Health and Safety Regulation 2017. 6. The consequences of the risk included a risk of death. 7. The death of Mr Hussaini was an aggravating feature of the offence. 8. Although Urban Field was the principal contractor and did not have the same level of influence over Mr Hussaini as Abresham, Urban Field "fell well short on the things it could have done to alleviate the risk that came home".
The sentencing judge then said that he had taken into account the maximum penalty for the offence.
Under the heading "Deterrence", his Honour observed that the penalty must provide for general deterrence, noting that employers must take obligations imposed by the Work Health and Safety Act very seriously, and the community was entitled to expect compliance. The sentencing judge referred to what was said in Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 (Bulga) as to the significance of general deterrence when safety obligations were breached. He also observed that it was well known in the construction industry that falls from heights were a major cause of death and serious injury and the penalty to be imposed must bring home that a failure to take all reasonably practicable steps to eliminate or minimise the risk of falls from height would be met with condign punishment.

[8]

Penalty

After convicting Urban Field, Scotting DCJ held that the appropriate fine was $500,000, reduced by 20% for the plea of guilty, and consequently imposed a fine of $400,000, with Urban Field to pay the prosecutor's costs and 50% of the fine to be paid to the prosecutor.

[9]

Ground 1

Urban Field's first ground of appeal involved the contention that the sentencing judge erred in finding that Mr Hussaini's death was "a manifestation of the risk that he was exposed to" because of the failure to comply with the health and safety duty under s 19(1) of the Work Health and Safety Act. The relevant risk was said to be "the risk of workers, in particular Mr Hussaini, suffering serious injury or death as a result of falling from a ladder whilst working at heights".
In considering the first ground of appeal, it should be borne in mind that an appeal such as the present under s 5AA of the Criminal Appeal Act is an appeal in the strict sense in that it is necessary to show error: Bulga at [96] (Bathurst CJ, Hidden and Davies JJ). Moreover, to succeed in such an appeal, the appellant must show a relevant form of error, being either an error of law or the application of wrong principles in the fact finding exercise: Bulga at [96]; Harris v Natural Resources Access Regulator; Timmins v Natural Resources Access Regulator [2023] NSWCCA 16; (2023) 254 LGERA 419 at [34] (Beech-Jones CJ at CL, as his Honour then was, Price and Garling JJ agreeing).
The error identified in Urban Field's submissions was that "there were insufficient facts from which the learned sentencing judge could safely infer, beyond reasonable doubt, that Mr Hussaini's death was a manifestation of the pleaded risk", and that therefore such a finding was "unsafe and unsatisfactory and therefore in error". To make good these propositions, Urban Field then concentrated its submissions on what it described as "the circumstances directed most acutely towards the mechanism of the alleged fall" namely: 1. "a 'bang' or 'boom'" heard by Mr Liu; 2. "the position of Mr Hussaini's body and the ladder"; and 3. "the position of the grind marks".
The ground was then supported by more detailed submissions as to why the evidence in respect of each of those three matters did not support an inference beyond reasonable doubt that Mr Hussaini fell from the ladder while working at a height.
In my view, there was a number of fundamental problems with this ground of appeal. First, Urban Field did not specifically identify any error of law or application of wrong principle in the fact finding exercise carried out by Scotting DCJ. Rather the substance of the ground was that the sentencing judge made "critical findings, adverse to [Urban Field], that were not warranted by the evidence" in relation to the three specific circumstances namely, the noise heard by Mr Liu, the position of Mr Hussaini's body and the ladder and the position of the grind marks. Secondly, Urban Field's submissions depended on the premise that each of the sentencing judge's findings in respect of those three matters was required to be made beyond reasonable doubt. Such a premise was misguided. Thirdly, in seeking to make good its submission, Urban Field adopted the approach of dealing with the evidence in relation to each of the three circumstances in isolation and piecemeal. This approach was not in accordance with the principles to be applied in cases of this kind.

[10]

Ground 2

Although the second ground of appeal was framed only as ground alleging that the sentence was manifestly excessive, Urban Field's submissions in relation to this ground also included the contentions that the sentencing judge erred in specific respects, namely: 1. in assessing objective seriousness; 2. by double counting in relation to the risk of harm; and 3. by not treating specific deterrence as of secondary importance.
I shall deal with those specific criticisms first before considering whether the sentence was manifestly excessive.

[11]

Objective seriousness

Urban Field submitted that the sentencing judge's assessment that the offence was objectively serious based on the factors summarised at [32] above did not take into account "many of the particular circumstances in which these failures occurred". The particular circumstance identified as an example was that Mr Hussaini was working only mid-way, or between 900mm and 1.2m, up the ladder, calculated based on his height, the height of the ladder, the height of the ceiling and the distance between the rungs. Thus, it was said that this was not a case where the relevant failures related to high risk construction work which involves workers falling more than 2m. Urban Field also submitted that Scotting DCJ had "placed significant weight on the gravity of the apparent consequence" when, given the height at which Mr Hussaini was working, this was not a case in which there was "every prospect of serious consequences".
Contrary to Urban Field's implicit contentions, the factors relied upon by the sentencing judge did not include that the work involved "high risk construction work" or that this was a case in which there was "every prospect of serious consequences". His Honour held, at [103], that the risk was the risk of a fall and that the likelihood of that risk coming home was "moderate if steps were not taken to train the workers on site". That finding was open in the circumstances and was a relevant consideration in relation to objective seriousness. At [106], it was found that the consequences of the risk "included a risk of death", which was no doubt correct. The finding of objective seriousness was not based on the finding that a fatal consequence was likely or that there was "every prospect" of such a consequence. Accordingly, I do not accept that Scotting DCJ failed to take into account the relevant circumstances of the present case when assessing objective seriousness, as Urban Field contended.
Further and in any event, in my view, his Honour's finding that the offence was objectively serious was open given the relevant circumstances of the offending as found. It is sufficient to note the generally accepted position that a finding of objective seriousness is quintessentially a matter for the sentencing judge and is reviewable only on a limited basis: Mulato v R [2006] NSWCCA 282 at [37], [45]-[46]; Greentree v R [2018] NSWCCA 227 at [34]; Magro v R [2020] NSWCCA 25 at [31]; Ahmad v R [2021] NSWCCA 30 at [18]. None of the bases for review has been established in this case.

[12]

Double counting

Under the heading of "Double Counting", Urban Field submitted that the findings that: the "risk of a fall from height through the inappropriate use of a ladder was obvious, well known in the industry and actually known to the offender"; the "likelihood of the risk coming home was moderate"; and, the "consequences of the risk included a risk of death", together with the statement that it was "well known in the construction industry that falls from height are a major cause of death and serious injury", did not sit neatly with his Honour's statement that "[i]n order for the aggravating factor to be established, [he] must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question".
In support of the contention that there was double counting it was then submitted, at par 79 of Urban Field's written submissions: "Either the objective seriousness is increased by the obviousness of the risk of death or the aggravating factor can arise as the consequence of the offence was greater than may ordinarily be expected, but not both."
In my view, there was no impermissible double counting on the basis submitted by Urban Field. The sentencing judge identified and took into account the relevant objective circumstances of the offending. It was not part of the reasoning that the objective seriousness was increased by the obviousness of the risk of death. The risk found to be obvious was the risk of a fall from height through the inappropriate use of a ladder, at [103]. The consequences of the risk were found to include a risk of death, at [106], but it was not otherwise found that the risk of death was obvious. In accordance with s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the aggravating factor that the injury, harm and loss was substantial was taken into account, since the death of Mr Hussaini was sufficient to establish that factor to the requisite standard, as was made clear at [106] and [113]. It can be noted at this point that the aggravating factor at s 21A(2)(ib), that "the offence involved a grave risk of death to another person or persons" was not taken into account.
In addition, Scotting DCJ's comment concerning it being well known in the construction industry that falls from height are a major cause of death and serious injury was made in the context of considering general deterrence, at [111], not in assessing objective seriousness. There was no error or double counting in the sentencing judge doing so.

[13]

Specific deterrence

As to specific deterrence, Urban Field drew attention to the fact that, although the sentencing judge noted, at [114], that it had operated since 2002 without any prior safety breaches, this did not form part of his Honour's analysis for specific deterrence. The submission was then that specific deterrence should have assumed a secondary importance given that history and the steps taken by Urban Field following the incident. The implicit premise of the submission was that specific deterrence was wrongly given primary significance by the sentencing judge.
Scotting DCJ's consideration of specific deterrence included at [112] the following: "The penalty imposed must also provide for specific deterrence because the offender continues to operate a business in the construction industry. However, it is reduced to some extent by reference to the extensive steps that the offender has taken after the incident to bring its safety systems to a sufficient standard."
This reflected the principle that it is possible to be satisfied in the case of a small corporation that changes in management practice may diminish significantly the need for individual deterrence: Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 at [59] (Basten JA, Hoeben CJ at CL and Walton J agreeing).
The need for specific deterrence was found, in the circumstances of the case, to be "reduced to some extent". Thus, it did not appear that Scotting DCJ gave specific deterrence primary, or non-secondary, significance in the sentencing exercise, as Urban Field appeared to contend.
In addition, the sentencing judge held at [114] under the heading "Mitigating Factors": "The offender does not have any previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender has operated since 2002 without any prior safety breaches."
In its context, it is clear that the sentencing judge treated the absence of prior safety breaches as mitigating the sentence.
Further and in any event, the weight to be given to particular factors in sentencing is pre-eminently a matter for the sentencing judge: Hunt v R [2017] NSWCCA 305 at [62] (Adamson J as her Honour then was, Basten JA and Bellew J agreeing). There was no error disclosed in Scotting DCJ's consideration of specific deterrence as a factor in determining the sentence to be imposed.

[14]

Manifest excess

Finally under ground 2, Urban Field contended that the sentence of a fine of $400,000 was manifestly excessive, particularly having regard to the fines imposed and the principles established in one decision of this Court and six District Court cases.
The principles in relation to whether a sentence is manifestly excessive were not in dispute and it is sufficient to quote the helpful summary provided by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] which has been relied upon in many subsequent cases and is as follows: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. ● Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. ● Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. ● It is not to the point that this Court might have exercised the sentencing discretion differently. ● There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. ● It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
The sentence imposed in the present case was a fine of $400,000, after a discount of 20% for the utilitarian value of the plea of guilty. Thus, the starting point was a fine of $500,000. At the relevant time, the maximum penalty was $1.5 million.
I shall consider each of the cases said by Urban Field to be comparable in turn noting, however, that while in seeking consistency in sentencing regard must be had to what has been done in other cases, the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence: Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]-[41] (French CJ, Hayne, Kiefel and Bell JJ). Furthermore, it is important to bear in mind the comments of French CJ, Gummow, Hayne, Kiefel and Bell JJ in Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54] endorsing the observations of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]‑[305] as follows: "a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned'." (Footnotes omitted).

[15]

Urban Field submitted that the "above cases show that the principles have not been consistently applied in respect of [Urban Field]". The submissions did not specify, however, which relevant principles were said not to have been applied consistently in the present case or how. On my review of the cases, the fines imposed (prior to any applicable discount) appeared to reflect the particular circumstances involved rather than being illustrations of specific underlying principles. In particular, it did not appear to me that the cases established a principle that the greater the height of any fall the higher penalty. While the height at which a worker was required to work and the consequences of any breach of s 32 in respect of that work are relevant and potentially significant considerations, there is no necessary direct correlation between penalty and height of the work.
If an overview of the cases relied on by Urban Field is taken, the fine in Safe Work NSW v Wholesale Joinery Pty Limited might be put to one side as that case did not bear sufficient similarity to the present case to make comparison meaningful. It appeared to have been heavily influenced by the markedly less serious nature of the injury to the worker in that case compared to the other cases, the fact that the company did not generally carry out the type of work relevantly involved and did not intend to do so again, and the otherwise very strong subjective case.
The remaining cases establish a relevant range of fines of $300,000 to $500,000, for an offence with a maximum penalty at the relevant times of $1.5 million. This selection from the history of fines imposed does not establish that the range identified is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits but it does provide guidance as a yardstick against which to examine the impugned sentence.
Applying that yardstick and having regard to all the relevant circumstances of the present case, as well as the purposes and the principles of sentencing, I could not conclude that the fine of $400,000 imposed (after applying the 20% discount) was unreasonable or plainly unjust or that it was so far outside the range of sentences available that there must have been error. Indeed, the undiscounted quantum of the fine fell at the top end of the range derived from the cases relied upon by Urban Field, even if the fine in Safe Work NSW v Wholesale Joinery Pty Limited were included.

[16]

Conclusion on ground 2

For these reasons, I reject all aspects of the second ground of appeal.

[17]

Proposed orders

Since Urban Field has not succeeded on any of its ground of appeal, I propose that the order of the Court should be: 1. Appeal dismissed.
SWEENEY J: I agree with Wright J that Scotting DCJ, who is very experienced in sentencing for offences of this kind, did not err in any of the ways asserted by the appellant, and the appeal should be dismissed.

[18]

Endnotes

See SafeWork NSW v Urban Field Group Pty Ltd [2022] NSWDC 575 at [60] where Scotting DCJ recorded that "Mr Liu described the noise he heard as a 'bang' like a large object had fallen to the ground".
The raker ties were scaffolding elements consisting of metal tubes which were attached to, and ran at approximately 30o from, the vertical scaffolding elements at the site and which were also attached to the floor. Photographs of the raker ties were contained in the Sentence Tender Bundle, Ex 1 in the sentence proceedings, for example at p 35 et seq. 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: 06 May 2024

Accordingly, it was not necessary for Scotting DCJ to be satisfied of each of the three circumstances said to be "directed most acutely towards the mechanism of the alleged fall" beyond reasonable doubt as Urban Field's submissions appeared to assume. Moreover, the circumstances actually relied on by Scotting DCJ in reaching his conclusion extended well beyond the three matters upon which Urban Field's submissions focused. They were distilled at [64] of his Honour's judgment and may be summarised as set out in the following paragraphs. 1. The fact that the incident occurred on Mr Hussaini's first day at work and Mr Hussaini had not been trained or adequately trained on the proper use of the portable ladder. 2. Mr Hussaini's instructions were to grind and patch the concrete surfaces of the balcony soffits, ceilings and walls and he was given a grinder and portable ladder to do the task and he was observed using the ladder to grind a soffit. 3. The height of the soffits and ceilings was approximately 3.3m and the portable ladder was unsuitable for the task of grinding them because of their height. 4. Accessing the upper rungs of the ladder to a point necessary to reach the upper parts of the walls and the ceiling while grinding was likely to make the ladder unstable and could cause the user to fall off it. 5. About half an hour before the incident, Mr Hussaini had been observed climbing the ladder with the grinder in hand in preparation for using it on the upper part of the walls or the ceiling. 6. There was a lot of dust in the air consistent with Mr Hussaini using the grinder during the period before the incident. 7. Grey marks on the walls, soffits and ceiling indicated where the grinder had been used and a number of those marks were in areas that could have only been accessed with the use of the ladder. 8. Before the incident, Mr Hussaini was grinding the concrete surfaces on the balcony and was using the ladder to reach some places. 9. Mr Liu heard a noise which sounded to him to like a large object hitting the ground and this was consistent with Mr Hussaini falling off the ladder. 10. When Mr Liu found Mr Hussaini he was face down with his arms above his head and the ladder was on top of him and this was also consistent with him falling off the ladder. 11. The bloodstains on the floor depicted in the photographs indicated the position where Mr Hussaini's head was after he fell. 12. The bloodstains on the floor were adjacent to grind marks on the return of the soffit and on the ceiling and this was consistent with the fall being occasioned at the time when he was using the ladder to grind one of those areas.

In addition, however, Urban Field's submissions included what amounted to challenges to some of the relevant findings made by Scotting DCJ. In my view, none of those challenges should be upheld for the reasons set out below. 1. It was submitted that: "Mr Liu did not provide evidence that the sound was 'consistent with Mr Hussaini falling off the ladder'. The only relevant evidence was "a 'boom' sound, and a 'Bang. Large object falling down to the ground'." While it is true that Mr Liu did not give evidence that the sound was consistent with Mr Hussaini falling down, that was clearly an inference drawn by Scotting DCJ and it was open given: Mr Liu's evidence that the sound was like that of a large object falling to the ground; all the other circumstances relating to Mr Hussaini working on the site; and, the fact that Mr Liu observed Mr Hussaini face down on the ground, unconscious with blood and bodily fluids around his head immediately after he heard the sound in the location from which the sound came. 1. It was submitted that: "[i]n circumstances where this was a building site, a bang or a boom of objects falling could literally have been anything. Given Mr Hussaini's body was next observed prone and unmoving, there was no basis to conclude that the two observations were even temporally related." Mr Liu's evidence was to the effect that, after hearing the sound, he instinctively and immediately looked and saw Mr Hussaini lying face down on the floor with the ladder on top of him. This provided a solid basis for inferring that the two events were temporally linked and that Mr Hussaini's hitting the ground after falling from the ladder while working at height was the cause of that particular type of sound. The submission to the effect that such inferences were not reasonably open cannot be accepted. Scotting DCJ's relevant findings were all plainly open on the evidence viewed as a whole. 1. As to the position of the ladder, it was submitted in effect that the fact that Mr Hussaini ended up directly below the grind marks on the ceiling with the ladder on top of him meant that he must have slipped under, rather than toppled off, the ladder. In my view, such a conclusion that this must have been what occurred was not justified. Common human experience indicates that a person can fall from a ladder and then the ladder can topple over onto the person lying on the ground. It is not the case that, as Urban Field effectively contended, the inference was not available that Mr Hussaini was on the ladder, toppled off and the ladder fell on top of him. Scotting DCJ's finding that the fact that the ladder ended up on top of Mr Hussaini was consistent with a fall from the ladder was open based on all of the circumstances viewed as a whole, including the fact that the incident involved a sound like a large object falling from a height, that Mr Hussaini's assigned task involved him working with a grinder up a ladder at height which was likely to make the ladder unstable and could cause the user to fall off and that he had been so working. 2. It was also submitted that: "the position of the ladder in the Simpson Photos [was] the most likely place it would have been located given the work that Mr Hussaini was undertaking. That position was not capable of supporting an inference of a fall from the ladder at that position, and certainly not beyond reasonable doubt." Once again, the substance of this submission appears to be speculative at best. The Simpson photographs were taken after the ladder had been moved from where it was when Mr Hussaini was first found. The sentencing judge did not find that the position shown in those photographs was the position the ladder had been in when Mr Hussaini fell and there was no reason why he would have been compelled so to find. Furthermore, the submission proceeded on the assumption that this factor should have been capable, by itself, of supporting an inference beyond reasonable doubt, which is not in accordance with the principles referred to above. 1. As to whether Mr Hussaini was using the grinder at the time he fell, it was submitted that: "there was no evidence that there was any dust in the air [at the time of the incident]"; and that "there was no evidence that Mr Liu heard the grinder prior to the 'boom'." These submissions appear to involve the fallacy that an absence of evidence of a fact establishes the absence of the fact. In any event, the sentencing judge's conclusion did not depend on whether Mr Hussaini was actually grinding at the precise time of the incident. Mr Hussaini's task on the day in question was to grind the concrete using a grinder and the step ladder and the evidence supported the inference that he did so. He was not performing that task only when the grinder was actually being applied to a concrete surface. He would still have been relevantly working up the ladder at height using the grinder even if the grinder was not operating in contact with the concrete at the point in time immediately before the bang or boom and he was found lying on the ground.

The remaining six cases, which all involved fines for breaches of s 32 of the Work Health and Safety Act, can be summarised as set out in the table below. Case Some of the Relevant Circumstances Penalty SafeWork NSW v Poletti Corp Pty Ltd [2019] NSWDC 791 The offence was "one of considerable objective gravity". There was a void of 0.8m x 0.5m which presented an obvious risk for persons falling through it from one level to another. The void had plywood over it and, after checking it was secure, the worker stepped onto the plywood which gave way. The worker was seriously injured by the fall but was not killed. $300,000 The company's subjective case included that it had no previous convictions, good prospects of rehabilitation, took steps to ensure that the incident would not be repeated, co-operated with the SafeWork investigation, was not found to have shown remorse but did express some regret, and it limited the matters in contest at trial demonstrating a willingness to facilitate the course of justice which mitigated the penalty imposed. SafeWork NSW v Wholesale Joinery Pty Limited [2018] NSWDC 91 The offence "approach[ed] the mid-range of objective seriousness". The worker was dismantling a cool room by removing air conditioning and ceiling panels. There was no SWMS. He walked towards the end of a suspended panel which tilted and gave way causing him to fall. The worker was injured but returned to work on suitable duties after 4 months and to pre-injury duties the following year. $160,000 (before discount of 25%) The company's subjective case included that the company was a kitchen manufacturer employing 88 people and in effect the work was outside its core activity, it apologised to the worker for the incident and demonstrated genuine remorse, it was active in the community and contributed to charity, the worker had been inducted into the WHS policies at the commencement of his employment and after the incident the company kept in contact with the worker and purchased aids to assist his recovery. The company committed not to undertake the type of work involved again, it implemented safety training and compliance programs, it had no previous convictions and good prospects of rehabilitation, and co-operated with the investigation. SafeWork NSW v Landmark Roofing Pty Ltd (No. 2) [2020] NSWDC 420 The "level of culpability [was] in the high end of the mid-range". A vulnerable, young and inexperienced apprentice was working on the roof of a shed approximately 11m above the ground repairing a storm damaged roof without being properly secured because one of the two ropes available to attach the harness to the static line was left on the ground. He fell from the roof and died nine days later. The risk of fall was obvious, known to the company and its consequences were grave. $400,000 The company's subjective case included that the company had no previous convictions, was of good character and had been in business for 16 years, it was unlikely to reoffend and had good prospects of rehabilitation, it had subsequently taken steps to guard against the risk of such an incident, it gave assistance to enforcement authorities, it did not establish that it had limited capacity to pay but was a relatively small commercial enterprise with a good prior safety record which led to the fine being moderated. SafeWork NSW v Easy Fall Guttering Pty Limited [2021] NSWDC 44 There was no express assessment of the objective seriousness of the relevant offence. The worker was installing guttering on a two-storey house alone at an area adjacent to a swimming pool using a makeshift platform about 2m high. Attempting to lift a 7.5m length of steel into position, part of the platform moved and he fell suffering spinal injuries requiring hospitalisation for two weeks. The risk to safety was obvious and the company had appropriate scaffolding and should have ensured its use. $300,000 (before discount of 25%) The company's subjective case included that it had no previous convictions, it demonstrated only limited remorse, it took no remedial steps before prosecution and it might have difficulty paying a fine but this was held not to reduce the fine significantly but led to there being no order for payment of costs. Note: there were fines imposed for other offences as well and the principle of totality was applied. SafeWork (NSW) v Romanous Contractors; SafeWork (NSW) v John Allen Romanous [2016] NSWDC 48 The offence fell "slightly above the middle range of objective seriousness". The company was the principal contractor on a multi-storey retail construction. The worker was a bricklaying sub-contractor on the site. There was a penetration of 1m x 1m in a concrete slab near which the worker was working. It was covered with two planks and plywood and was 5.1m above the level below. The worker fell through the penetration and was killed. The company was aware of the penetration and had not ensured that it was adequately covered or secured. There were no procedures in place to record planned or actual control measures for penetrations at the site and no SWMS. $500,000 (before discount of 15%) The company's subjective case included that it had no previous convictions but it had only been in operation for 2.5 years, it was unlikely to reoffend because it had ceased trading and was likely to be wound up, but the company failed to discharge the onus of proving incapacity to pay a substantial fine. Note: there was also a fine imposed on the director of the company SafeWork NSW v Co-Wynn Building Contractors Pty Ltd [2018] NSWDC 61 The offence was "in the mid-range of objective seriousness". The company was the principal contractor constructing a multi-level school building. A young apprentice carpenter on the site was installing a walkway in the roof space and was found lying injured on the concrete floor. He died some 5 days later. The SWMS had not been shown to the apprentice and required fall arrest systems to be used and it required only competent workers to work in roof trusses but was not appropriate for high risk construction work. The apprentice was not such a person but he had completed a site induction. $450,000 (before discount of 10%) The company's subjective case included that it had no previous convictions and operated since 1954 without prior incident, it had good prospects of rehabilitation and took considerable steps to improve its safety since, and it demonstrated genuine remorse and contrition.

Urban Field Group Pty Ltd v SafeWork NSW

At a glance

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Judgment (18 paragraphs)

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Legislation Cited (4)

Cases Cited (51)