WorkCover Authority of New South Wales (Inspector Webster) v Power Rise Pty Limited and ors

CATCHWORDS: Occupational health and safety - pleas of guilty - general principles - foreseeability - objective seriousness of the offences - general deterrence - held specific deterrence of limited application in relation to all three defendants - no prior convictions - subjective features taken into consideration - defendants' financial positions considered - penalties imposed - orders as to penalty, moiety and costs.

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Fines Act 1996 Occupational Health and Safety Act 2000

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Environment Protection Authority v Barnes [2006] NSWCCA 246 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v The Queen [2005] HCA 25: 18 May 2005 CASES CITED: R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131 Thorneloe v Filipowski (2001) 52 NSWLR 60 WorkCover Authority of New South Wales (Inspector Farrell) v David Karl Schrader (2002) 112 IR 284 WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New (2004) 137 IR 33

PROSECUTION: Mr D Chin of counsel SOLICITORS: WorkCover Criminal Law Practice Legal Group

POWER RISE PTY LIMITED: No appearance

NADIM GABRAEL: LEGAL REPRESENTATIVES: Self represented

ALI ACHOUH: Mr C Jurd SOLICITORS: Sid Hawach & Co

CORAM: Staunton J DATE: 3/3/2008

Matter No IRC 1309 of 2007 WorkCover Authority of New South Wales (Inspector Webster) v Power Rise Pty Limited

Prosecution arising under s 10(1) of the Occupational Health and Safety Act 2000

Matter No IRC 1310 of 2007 WorkCover Authority of New South Wales (Inspector Webster) v Nadim Gabrael

Prosecution arising under s 10(1) by operation of s 26 (1) of the Occupational Health and Safety Act 2000

Matter No IRC 1311 of 2007 WorkCover Authority of New South Wales (Inspector Webster) v Ali Achouh

Prosecution arising under s 8(1) of the Occupational Health and Safety Act 2000

1 All three defendants have entered a plea of guilty in relation to their respective offences. 2 In relation to Power Rise Pty Limited (Power Rise) and Mr Gabrael, their respective offences arise pursuant to s 10(1) of the Occupational Health and Safety Act 2000 (the Act), noting that in Mr Gabrael's case, as a director of Power Rise at the relevant time, the deeming provisions of s 26(1) of the Act operate. 3 In relation to Mr Achouh, his offence arises pursuant to s 8(1) of the Act. At the outset, the prosecutor charged Mr Achouh under s 8(1) and, in the alternative, under s 9 of the Act. Mr Achouh's plea of guilty was entered pursuant to s 8(1) and, accordingly, the prosecutor sought leave to withdraw the alternative charge under s 9. Leave was granted. 4 The factual circumstances giving rise to the offences are essentially not in dispute. On 18 August 2005, Power Rise was engaged in the construction of residential units at Wentworthville. At the time, Mr Gabrael was one of four directors of Power Rise. Power Rise sub-contracted with Mr Ali Achouh (trading as AHA Cement Rendering) to undertake cement rendering work. Mr Achouh, in turn, employed Mr Walid Elmobayad. 5 On 18 August 2005, while working at the site, Mr Elmobayad stepped on to the edge of a timber cover resting on a hole in the floor. The timber cover dislodged resulting in Mr Elmobayad falling through the hole onto the concrete floor of the basement below, a fall of approximately 3 metres. He sustained significant injuries to his back, shoulders, left hip and the left side of his chest. 6 In relation to Power Rise, it is said the defendant: failed to ensure that the premises were safe and without risks to health to people who used the premises as a place of work, in particular Walid Elmobayad, contrary to section 10(1) of the Occupational Health and Safety Act 2000. 7 The particulars of the charge are that the defendant: (a) at all material times had control, or alternatively, only limited control over the premises; . (b) failed to ensure that the floor penetration at the premises was adequately and securely covered; (c) failed to identify that the premises gave rise to the risk of injury from falling through an inadequately and insecurely covered floor penetration at the premises; (d) failed to assess, eliminate and/or control, and to properly maintain any measures adopted to eliminate or control, the risk of harm to the health or safety of people who used the premises as a place of work. 8 On Mr Gabrael's part, it is said he failed to ensure the health and safety at work of all workers, in particular Walid Elmobayad, particularised as follows: (a) the defendant failed to ensure that the premises controlled by the defendant where people who used the premises as a place of work were working, in particular Walid Elmobayad, were safe and without risks to health, in that a penetration in the floor of the building situated at the premises was inadequately and insecurely covered;

(b) the defendant failed to identify the hazard arising from the premises that had the potential to harm the health or safety of people who used the premises as a place of work, in particular Walid Elmobayad, in that the premises gave rise to the risk of injury from falling through an inadequately and insecurely covered floor penetration at the premises;

(c) the defendant failed to assess, eliminate and/or control, and to properly maintain any measures adopted to eliminate or control, the risk of harm to the health or safety of people who used the premises as a place of work, in particular Walid Elmobayad, in that the premises gave rise to the risk of injury from falling through an inadequately and insecurely covered floor penetration at the premises. 9 As Mr Elmobayad's employer, Mr Achouh, is said to have:

failed to ensure the health, safety and welfare at work of all his employees, in particular Walid Elmobayad, contrary to section 8(1) of the Occupational Health and Safety Act 2000. 10 The particulars of that charge are that Mr Achouh: (a) failed to ensure that penetrations in the floor of the building situated at the premises were adequately and securely covered;

(b) failed to provide and maintain a safe system of work for employees performing rendering work, in particular Walid Elmobayad, on, near and/or in the vicinity of an inadequately and insecurely covered floor penetration;

(c) failed to provide any or any adequate information, instruction, training and supervision as was necessary to ensure the health and safety at work of his employees, in particular in relation to Walid Elmobayad performing work on, near and/or in the vicinity of a floor penetration at the premises;

(d) failed to undertake an adequate risk assessment to identify, eliminate or control the risks associated with his employees working on, near and/or in the vicinity of floor penetrations at the premises. 11 Mr Gabrael is no longer a director of Power Rise. On behalf of Power Rise, Mr Elie Abboud, who was also a director of the Company at the time of Mr Elmobayad's accident, initially appeared and confirmed the plea of guilty on behalf of Power Rise. Power Rise is still registered as a company but is no longer operating. 12 After two appearances on behalf of the corporate defendant, Mr Abboud left the country to work in Dubai. In doing so, he expressed an intention to return for the sentencing hearing on the date set. He did not appear and the matter proceeded in his absence. Mr Gabrael appeared unrepresented. 13 I am satisfied I can proceed to sentence Power Rise in Mr Abboud's absence. Mr Gabrael was present and adhered to his plea of guilty. As a director of Power Rise at the relevant time, his offence under s 10(1) arises pursuant to the deeming provisions of s 26(1) of the Act. While there were four directors of Power Rise at the time of the offence, including Mr Abboud, it was Mr Gabrael, as a director, who was responsible for managing the construction of the building and for managing the site generally. In that role, he liaised with Mr Ghosn, the corporate defendant's site supervisor. 14 The prosecution have filed a statement of agreed facts in relation to Mr Gabrael and a prosecution statement of facts in relation to Power Rise. They are in identical terms. Given Mr Gabrael's agreement to the statement of facts filed in relation to his offence, I am satisfied I can accept the facts relied upon by the prosecutor in identical terms relevant to Power Rise. 15 An agreed statement of facts has also been filed by the prosecutor in relation to Mr Achouh. With the exception of some minor changes relevant to Mr Achouh's role in relation to the incident, the facts filed in relation to Mr Achouh are in identical terms to those relied upon by the prosecution in relation to Power Rise and Mr Gabrael. In the first instance, I set out below the agreed facts in relation to Mr Gabrael as follows:

Corporate defendant [1] At all material times, Power Rise Pty Ltd [ACN 106 604 013] (the corporate defendant) carried on business out of 40-43 Lydbrook Street, Wentworthville in the State of New South Wales (the site). [2] The corporate defendant's registered office is situated at Suite 6, 235 Pitt Street, Merrylands in the State of New South Wales. [3] The corporate defendant's business included the constructions of the three storey building of 12 residential units at the site. [4] The offence alleged under section 10(1) of the Act is: That the corporate defendant on 18 August 2005 had control, in the course of its trade, business or other undertaking, of premises at 40-42 Lydbrook Street, Wentwortville in the State of New South Wales, being premises used by people not in the corporate defendant's employment as a place of work, and not occupied as a private dwelling, and, being a controller of the premises, failed to ensure that the premises were safe and without risks to health to people who used the premises as a place of work, in particular Walid Elmobayad, contrary to section 10(1) of the Act. The particulars of the charge are: (a) The corporate defendant failed to ensure that the premises controlled by the corporate defendant where people who used the premises as a place of work were working, in particular Walid Elmobayad, were safe and without risks to health, in that a penetration in the floor of the building situated at the premises was inadequately and insecurely covered. (b) The corporate defendant failed to identify the hazard arising from the premises that had the potential to harm the health or safety of people who used the premises as a place of work, in particular Walid Elmobayad, in that the premises gave rise to the risk of injury from falling through an inadequately and insecurely covered floor penetration at the premises. (c) The corporate defendant failed to assess, eliminate and/or control, and to properly maintain any measures adopted to eliminate or control, the risk of harm to the health or safety of people who used the premises as a place of work, in particular Walid Elmobayad, in that the premises gave rise to the risk of injury from falling through an inadequately and insecurely covered floor penetration at the premises. As a result of the said corporate defendant's failures workers, in particular Walid Elmobayad, were placed at risk to their health and safety and Walid Elmobayad was seriously injured.

Personal defendant [5] At all material times Mr Nadim Gabrael (the personal defendant), of 150 Windsor Road, Northmead in the State of New South Wales was a director of the corporate defendant, a company duly incorporated. [6] By operation of section 26(1) of the Act, the personal defendant is taken to have contravened section 10(1) of the Act by reason of the personal defendant being a director of the corporate defendant.

Overview [7] On or about 18 August 2005, 40-43 Lydbrook Street, Wentworthville in the State of New South Wales was a construction site, consisting of a three storey brick building of twelve residential units ('site'). There was scaffolding around the perimeter of the building. [8] The total contract value of the construction work at the site was approximately $1.4 million. [9] The principal contractor on the site at the material time was Power Rise Pty Ltd ('Power Rise'). [10] The site supervisor, at the relevant time, was Mr Charbel Ghosn. [11] Power Rise, in its capacity as the principal contractor, directly engaged a number of sub-contractors to work on the site, including Ali Achouh (trading as AHA Cement Rendering). [12] At the relevant time, Mr Achouh was engaged by Power Rise to perform and did perform cement rendering work on the site. Mr Achouh rendered invoices to Power Rise for payment for the cement rendering work. [13] Mr Achouh in turn engaged a number of workers to assist him with the cement rendering, including Mr Walid Elmobayad who was working as a cement renderer at the site. The incident [14] On 18 August 2005, Mr Elmobayad was rendering the external walls of the southern (rear) side of the building located on the site. [15] He was on the ground floor level cement rendering the external wall. Two other workers, Mr Achouh and Mr Jamil Abdul Karim Bikai, were working on the scaffold above where Mr Elmobayad was working.

[16] At approximately 11:30am on 18 August 2005, Mr Elmobayad was talking to Mr Achouh, when Mr Elmobayad stepped back from the wall. In doing so he stepped on to the edge of a timber cover resting on a hole in the floor. The timber cover dislodged resulting in Mr Elmobayad falling through the hole onto the concrete floor of the basement below, a fall of approximately 3 metres. [17] The timber cover over the hole was not secured and there was no other means provided, such as hand or safety rails around the hole, to prevent such a fall. [18] There is some indication that the cover had previously been secured, but that it had been removed and not secured afterwards, but simply placed over the hole.

[19] The injuries sustained by Mr Elmobayad were significant and included injuries to his back, shoulders, left hip and the left side of his chest.

Power Rise Pty Limited: the principal contractor [20] Power Rise was incorporated on 8 October 2003. [21] The business or undertaking of Power Rise at the relevant time was the construction of the three storey building of 12 residential units at the site. [22] The project at the site was the first project which Power Rise undertook. [23] At the relevant time, Power Rise had four directors, Mr Nadim Gabrael, Mr Elie Abboud, Mr Yasir Gorgees and Mr Bakos Hekeik, who had been its directors since incorporation. [24] The defendant was the director responsible for managing the construction of the building at the site and for managing the site. Mr Gabrael: (a) liaised with the site supervisor, Mr Ghosn, on a daily basis; (b) attended the site regularly; (c) gave directions regarding the site, including safety issues, to Mr Ghosn; (d) gave instructions to Mr Ghosn in regards to the work he was doing on the site; and (e) from time to time gave instructions to the other workers and sub-contractors who were at the site in regards to the work they were doing on the site.

Charbel Ghosn: the Site Supervisor [25] Mr Ghosn was born on 3 January 1984. [26] At the time of the incident Mr Ghosn was attending TAFE undertaking a bricklaying course and had one more year to complete his Certificate IV in Building, in order to finalise his licence. [27] Mr Ghosn, at the time of the incident, did not hold any relevant formal qualifications. He commenced working in the construction industry as a labourer approximately 2 years prior to the incident. [28] Mr Ghosn regularly issued invoices to Power Rise for the work which he performed, although those invoices appear to be for a consistent amount of $900 each, exclusive of the Goods and Services Tax. Ali Achouh t/as AHA Cement Rendering: the sub-contractor [29] Mr Achouh was born on 23 February 1981. Mr Achouh holds a licence for cement rendering, and at the relevant time had approximately 10 years experience, six of those being in Australia. [30] Mr Achouh commenced working on the site a few days before the incident on 18 August 2005. [31] There was no written contract between Mr Achouh and Power Rise relating to the work which Mr Achouh was engaged to do.

[32] It appears that Mr Achouh was not permitted to do any work other than the work he was doing for Power Rise as a cement renderer without first notifying Power Rise. [33] Mr Achouh engaged a number of workers to assist him with the work he was sub-contracted by Power Rise to do. These workers were Mr Elmobayad, Mr Bikai and Mr Walid Hamed. Messrs Bikai and Hamed were said by Mr Achouh to be sub-contractors. Mr Achouh engaged Mr Elmobayad to perform cement rendering work at the site as an employee, or in the alternative, as an independent contractor. [34] Mr Elmobayad was said by Mr Achouh to be a casual employee. In response to a s 62 Notice, Mr Achouh produced the following documents which indicated that Mr Elmobayad was an employee of Mr Achouh's: (a) Hours and Wage Record lists under "Employee's Name" - Walid El-Mobayad; (b) Tax File Number Declaration of Mr Elmobayad, indicating that he was paid on the basis of 'Casual employment'. Details of the measures in place prior to incident - supervision and training [35] Mr Elmobayad commenced working on the site as a cement renderer a few days prior to the incident. [36] Mr Elmobayad was supervised on site directly by Mr Achouh, who was on site daily. [37] Mr Achouh received direction from the site supervisor, Mr Ghosn.

[38] Mr Ghosn was on site approximately 5 days each week, however, he had less than 2 years' experience in the construction industry and did not hold any formal construction related qualifications. [39] Mr Ghosn was in turn directed by Mr Gabrael, a director of Power Rise.

[40] The defendant was not on site everyday, but liaised on a regular basis with Mr Ghosn about what work needed to be undertaken on the site and other relevant issues. [41] Mr Elmobayad did not receive any site-specific induction nor did any of the other workers, Mr Achouh, Mr Hamed and Mr Bikai. [42] Power Rise, through Mr Ghosn and Mr Gabrael, claims that such induction did take place, however, the documentation held by Power Rise in relation to site-specific induction and training was not signed by Mr Elmobayad, nor was it signed or dated by anyone as having provided the training. The documentation did not contain the project name or site address. [43] The same details were absent from Power Rise's documentation relating to the alleged induction of Mr Achouh, Mr Bikai and Mr Hamed. [44] The defendant apparently relied on Mr Ghosn's verbal assurances about whether subcontractors had received site-specific induction. [45] Mr Achouh did not supply Power Rise with any Safe Work Method Statement, nor did Power Rise seek one from Mr Achouh prior to the incident.

Details of measures in place prior to incident - open floor penetration [46] There appears to have been provision for a cover over the hole to be bolted into place, however, this was not the state of the cover on the day of the incident. [47] The board placed over the opening was simply resting there, unsecured with no timber under it. [48] It appears that the previously secured cover was removed. The cover was not re-secured between the time of its removal and the time of the incident. [49] There was no system in place to identify any of the risks associated with the hole on the ground floor through which Mr Elmobayad fell, including any system to ensure that the cover was properly secured and, if ever removed, was securely replaced.

Notices issued [50] As a result of a workplace visit by Inspector Anthony Nicholson after the incident, on 19 August 2005 Power Rise was issued with two Improvement Notices: (a) No. 7-90765 in relation to the unsecured penetration in the floor; (b) No. 7-90767 in relation to access and egress on the site. [51] Those notices have been complied with. Improvements post incident [52] Apart from complying with the Improvement Notices, Power Rise has only taken negligible steps in ensuring that a similar incident does not happen again. [53] Power Rise is now said to be more cautious and stricter with implementing its policies. Mr Gabrael, on behalf of Power Rise, has stated that the company has learned from the experience. The defendant has also indicated that further safety meetings/toolbox talks have been held since the incident.

[54] Nothing further has been offered by the company to show how it will prevent similar incidents from occurring in the future. Conclusion [55] Power Rise placed a substantial degree of responsibility for the site in the hands of Mr Ghosn, a person with less than two years' experience in the construction industry with no qualifications, formal or otherwise. [56] Mr Gabrael, the director responsible for the management of the site, relied on Mr Ghosn, a person with limited construction experience to communicate progress of work and any issues to him. [57] The premises and the system of work at the site at the time of the incident was unsafe as it failed to eliminate or control the risk of workers falling through an inadequately and insecurely covered floor penetration. While the cover may have previously been secured, steps were not taken to re-secure it after its temporary removal; nor had any other fall prevention mechanism been implemented. [58] At the time of the incident there was no representative of the principal contractor on site. [59] The documents held by the principal contractor, Power Rise, were generic rather than site-specific, and were unsigned and incomplete. [60] Mr Achouh did not provide any documentation, including any Safe Work Method Statement, to Power Rise prior to the incident, nor was it sought. No WorkCover prior convictions [61] Both the corporate and personal defendants have no prior WorkCover convictions under the Occupational Health & Safety Legislation. [62] Both the corporate and personal defendants cooperated with WorkCover. 16 In relation to all defendants, the following material was tendered on behalf of the prosecution, without objection: (i) Factual inspection report of Inspector Anthony Nicholson dated 22 August 2005; (ii) Colour photographs, numbered 1 to 7, taken by Inspector Anthony Nicholson on 19 August 2005; (iii) Two Improvement Notices issued to Power Rise Pty Limited as follows: (a) Improvement Notice Number 7-90765 issued by Inspector Anthony Nicholson on 19 August 2005; (b) Improvement Notice Number 7-90767 issued by Inspector Anthony Nicholson on 19 August 2005; 17 In relation to Mr Achouh, those paras in the agreed facts that are relevant specifically to Mr Achouh and differ somewhat to the agreed facts filed in relation to Mr Gabrael and Power Rise are as follows: [8] At the relevant time, Mr Achouh was engaged by Power Rise as a sub-contractor to perform, and did perform, cement rendering work on the site. Mr Achouh rendered invoices to Power Rise for payment for the cement rendering work.

[12] At approximately 11:30am on 18 August 2005, Mr Elmobayad had finished rendering a wall and was talking to Mr Achouh,, when Mr Elmobayad stepped back from the wall. In doing so he stepped on to the edge of a timber cover resting on a hole in the floor. The timber cover dislodged resulting in Mr Elmobayad falling through the hole onto the concrete floor of the basement below, a fall of approximately 3 metres.

[28] It appears that Mr Achouh was not permitted to do any work other than the work he was doing for Power Rise as a cement renderer unless and until he had finished the work required by Power Rise and hadwithout first notifiedying Power Rise of any other work he intended to perform.

[29] Mr Achouh engaged a number of workers to assist him with the work he was sub-contracted by Power Rise to do. These workers were Mr Elmobayad, Mr Bikai and Mr Walid Hamed. Messrs Bikai and Hamed were said by Mr Achouh to be sub-contractors. Mr Achouh engaged Mr Elmobayad to perform cement rendering work at the site as an employee, or in the alternative, as an independent contractor.

[41] Mr Achouh did not supply Power Rise with any Safe Work Method Statement, nor did Power Rise seek one from Mr Achouh prior to the incident. Mr Achouh states that he gave his workers a safe work method statement and read it to them in Arabic. Mr Elmobayad recalls Mr Achouh talking to him about safety at the site during a lunch hour.

[55] The safety documents held by the principal contractor, Power Rise, were generic rather than site-specific, and were unsigned and incomplete. 18 No affidavit or any documentation was received on behalf of Power Rise. 19 Mr Gabrael tendered material on his own behalf that went predominantly to his current financial circumstances. Mr Achouh was legally represented and an affidavit with annexures was received on his behalf. 20 No oral evidence was received in the course of these proceedings. Relevant principles 21 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account. 22 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]: ....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.'

23 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. 24 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 at [81].

25 On the issue of foreseeability, the Full Bench in Capral stated at [82]: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: ... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy.

26 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at [73]-[77]. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at [74] as follows: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 27 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c). 28 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure: ... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender. 29 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends . ... (emphasis added)

30 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]: ...The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice... 31 Overall, I observe nothing in Markarian that precludes me, properly in my view, from identifying a discount for the entry of an early plea of guilty. Additionally, to the extent that there are subjective and mitigating features relevant to the defendant, they are matters which also should be considered in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular s 21A(1) earlier referred to. Considerations

32 None of the defendants have prior convictions. Accordingly, the maximum penalty that may be imposed on Power Rise is $550,000. In relation to Mr Gabrael and Mr Achouh, the maximum penalty is $55,000. 33 Reference to the failures alleged with respect to each of the defendants as well as the photographs provided by the prosecutor indicate that the work being undertaken by Power Rise was work in an industry that is replete with risks to safety. That is, it was a construction site. At the time of the incident, it was a three storey brick building in a rudimentary stage of construction, with scaffolding still in place. Mr Elmobayad was engaged in cement rendering work from a height. On the part of all the defendants, those factors in themselves should have elicited a heightened awareness of their respective obligations to ensure a system of work was in place that took account of the risks to safety that such working conditions represented. 34 As the relevant pleas of guilty attest, the defendants failed in their safety obligations in a number of respects. On the part of Power Rise, the defendant failed to identify and then deal with the clear risk to safety that arose to an employee by inadequately failing to cover a floor penetration at the premises under construction. Photograph number 5 in the photographs tendered by the prosecutor, as well as photograph number 7, identify only too vividly the extent of the open penetration that Mr Elmobayad fell through and the height from which he fell. On one view, Mr Elmobayad was fortunate to escape with the injuries that he did, despite the fact that they, in themselves, were serious. 35 As reference to the agreed facts in relation to Power Rise and Mr Gabrael attest, the corporate defendant as well as Mr Gabrael were content to leave the supervision of the construction site to Mr Ghosn. It is not disputed that at the time of the incident, Mr Ghosn was in the process of attending TAFE undertaking a bricklaying course. He did not hold any relevant formal trade qualifications and had commenced work in the construction industry as a labourer only some two years prior to the accident involving Mr Elmobayad. Clearly, Mr Ghosn was significantly inexperienced to be adequately supervising a project of the nature being undertaken by Power Rise. 36 Quite apart from Mr Ghosn's inexperience, Mr Gabrael, as the director of Power Rise and as the director overseeing the overall construction, took no steps, as best as can be ascertained, to ensure appropriate training, instructions and general systems of work were in place to ensure, amongst other things, that the penetration in the floor of the building through which Mr Elmobayad fell was adequately and securely covered. As reference to the facts in paras [46] to [49] inclusive disclose, the relatively large hole through which Mr Elmobayad fell had been provided with a cover but that cover had not been bolted into place and was unsecured. It is obvious the cover was removed and was never re-secured prior to Mr Elmobayad's fall. 37 On the part of Mr Achouh, his failures as an employer centred around his failure to provide and maintain an overall safe system of work, particularly in relation to ensuring floor penetrations were identified and that they were adequately and securely covered. In this respect, it seems Mr Achouh did not have in place any system by which he provided information, instruction and training to his employees. Further, the notion of risk assessment was a somewhat foreign concept to him. According to Mr Achouh, he was unaware of the open floor penetration. As he explained in his affidavit: [5] I did not see Mr Elmobayad fall through the hole in the floor. I later learned that the formwork over the hole was not secured, but it was not removed by me and it was not obvious to me that it had not properly been secured.

[6] Mr Elmobayad had been working for me for two (2) days at the time of his injury. I had been engaged to undertake cement rendering work at the building site controlled by Power Rise Pty Ltd. At no stage was I aware of any problem with the covers over holes. At no stage was I told by Power Rise Pty Limited representatives of any problems with the covers of the holes.

[7] In the area where we were working there was quite a bit of timber lying around. I was not told whether some of that timber was covering holes.

[8] It was my habit to speak to the people I was working with at the start of the day. None of these workers were fluent in English and our discussions were usually in Arabic. No instructions were written down in Arabic. It was the practice at this worksite for the supervisor to tell me what needed to be down and for me to instruct the workers to do it, namely, the cement rendering work for which I had been engaged.

[9] I did not see Mr Elmobayad fall through the hole, but I do not believe that he stepped backwards to go through it, because the area was one where workers would not have been walking backwards. 38 I do not doubt that Mr Achouh may have not been directly aware at the time of the unsecured floor penetration. That is not the issue. The issue is Mr Achouh's overall failures as an employer to ensure that, when working on a site such as the construction site where he and Mr Elmobayad were engaged, it was his obligation to take steps to ensure that, in the rudimentary stages of building construction, clear and identifiable hazards such as floor penetrations were not only identified but that they were, at all times, adequately and securely covered. Further, that his employees, such as Mr Elmobayad, were informed and instructed in relation to the need to take care in or around such floor penetrations and for Mr Achouh to put in place appropriate steps to ensure the risk to safety such floor penetrations represented did not give rise to injury. 39 The nature of the workplace at the time of the accident is referred to by Mr Achouh in para [7] of his affidavit. That is, he said, where he and Mr Elmobayad were working, '... there was quite a bit of timber lying around. I was not told whether some of the timber was covering holes.' Given the state of the building under construction, as shown in the photographs before me, it was a building site that was covered in considerable timber off-cuts, building debris, scaffolding and other such hazards. In short, it was a place of work that required an absolute commitment to workplace safety in order to ensure that the risks to safety that open penetration holes such as evidenced in the photographs were identified, risk assessed and did not represent the risk to safety that this one clearly did. That is not an obligation Mr Achouh can transfer to anybody else and it is not my suggestion that he is attempting to. His plea of guilty attests to his acknowledgement both as to his responsibilities under the Act and his failures in relation to them that have arisen from this incident. 40 The Full Bench in Capral said at [94] that 'a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences'. In isolation, the potential for 'serious consequences' is not conclusive of the nature and quality of the offence, but it is clear that such a factor may be considered when assessing the ultimate culpability of a defendant. 41 Further, as was stated in Capral at [82], the presence of a reasonably foreseeable risk of injury 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. 42 On any view, given the relatively significant short comings in the respective defendants' system of work, evidenced in the particulars of breach, the risk of injury to Mr Elmobayad was reasonably foreseeable. 43 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable. 44 It was always open to the defendants to take steps to eliminate the risk to safety that the open floor penetration represented. For example, Power Rise could have: (i) bolted or fixed the board over the floor penetration so that it could not be dislodged; or (ii) provided a hand rail or other perimeter fencing around the open penetration to prevent access. 45 On Mr Achouh's part, he could have been more proactive in taking steps to identify the floor penetration and insisting Power Rise take steps such as those identified above to deal with it. 46 Immediately arising from the accident, the prosecutor issued two Improvement Notices on the corporate defendant and, according to para [52] of the agreed facts, while complying with the Improvement Notices, Power Rise took only 'negligible steps' to ensure that a similar incident such as that which gave rise to Mr Elmobayad's accident, did not happen again. 47 As para [53] and [54] of the agreed facts state: [53] Power Rise is now said to be more cautious and stricter with implementing its policies. Mr Gabrael, on behalf of Power Rise, has stated that the company has learned from the experience. The defendant has also indicated that further safety meetings/toolbox talks have been held since the incident.

[54] Nothing further has been offered by the company to show how it will prevent similar incidents from occurring in the future. 48 In relation to Mr Achouh, his view, in part understandably, was expressed as follows: [10] Without written instructions in Arabic I do not know what more I could have done than to speak to the workers with me about the work that needed to be done and the safety required on the job. I was not told that the formwork over the opening had at any stage not been securely fitted. If I had been told I would have told the other workers including Mr Elmobayad. I did not remove the plywood or ever interfere with it in anyway. I am very concerned about the health of fellow workers and I would not have had them working in that area if I had any idea of the problem with the covering over the hole.

[11] I have a reasonable amount of experience with working in buildings and I am aware of the risks that there are on those buildings. At no stage did I believe that there was risk of falling through the floor with an unsecured covering over a hole at the worksite at Wentworthville. 49 Overall, it is clear the corporate defendant, as well as Mr Gabrael, the person responsible for the overall construction being undertaken on the site, were significantly tardy in addressing their occupational health and safety responsibilities, both before the accident and, on the evidence before me, following the accident. 50 In relation to Mr Achouh, I accept, on the evidence before me, he was a person who, as a general proposition, was aware of the need for safety at work but it would seem, with a limited understanding of English and without written instructions in Arabic, he was simply unable to comply fully with those obligations. That is a factor I take into account in determining penalty in relation to Mr Achouh. 51 Taking into account all of the above with respect to Power Rise and Mr Gabrael, I consider the offence to be objectively serious and will approach penalty on that basis. I consider the culpability of Power Rise and Mr Gabrael to be equal. In relation to Mr Achouh, while I consider his offence to be a serious one, I consider his overall culpability giving rise to his offence is less than that of Power Rise and Mr Gabrael. 52 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process. 53 In respect of specific deterrence, the Full Bench held in Capral at 644-645: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. 54 In these matters, general deterrence is a relevant consideration. In relation to specific deterrence, I accept that such a factor is of somewhat limited application in relation to all three defendants. Power Rise is no longer operating and, by all accounts, judging by Mr Gabrael's statement, which was not disputed, he is no longer able to work in the building industry as he has lost his Builder's License although he is hopeful that one day he will be able to regain it. In relation to Mr Achouh, while he continues to work, according to his statement he has not been working full-time. As he stated: [15] I have never had an experience of work similar to what happened with Mr Elmobayad. I have tried to work out what happened and I am not sure but, as far as I am aware, a buildup of cement was removed by the builder and I believe that when it was removed the cover over the floor opening may well have been removed as well and not secured afterwards.

[19] I realised the concerns there are about having safe work places as I have mentioned above. In this case I was not aware of any changes to the working area and realise that I can not blame somebody else for any changes in an area in which I was working and leading men. I can only say that I just did not expect this problem, was not aware that the lid was no longer nailed down and could not foresee the risk that was caused by the lid being removed or not nailed down properly. 55 In all the circumstances, while I consider specific deterrence to be applicable in relation to the defendants, it is not, in my view, a significant factor in my considerations. 56 The financial circumstances of the respective defendants is a relevant consideration in these proceedings. In doing so, I have regard in the first instance to s 6 of the Fines Act 1996 which provides: In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration, and

(b) such other matters as, in the opinion of the Court, are relevant to the fixing of that amount. 57 I have no financial documents that assist me in understanding the current financial position of Power Rise except to say that, while still registered, to the best of my knowledge, it is no longer operating. The extent of its assets and/or liabilities or otherwise is simply not known to me. 58 In relation to Mr Gabrael, he places before the Court an overall statement together with relevant documentation demonstrating what can only be described as a parlous financial position. As his said in his statement: [2] During the past 24 months and still on going I myself personally along with my family including my wife and three children aged 6, 5 and 3 have been in the most disturbing and unstable life of financial ruin. Both myself and also the personal company of G Group Developments Pty Ltd, to which I am a sole director and which I try to work through as a builder also has amassed large debts outstanding and financial trouble with creditors.

[3] I have lost the family home and also dried up all monetary means by savings accounts and credit cards in order to salvage this situation to no avail.

[4] My personal Builder's Licence to which was the sole means through the company of obtaining contract work legally has also been cancelled by the Department of Fair Trading due to the fact that I was unable to renew the licence by the required due date because I had no funds to do so at the time. 59 In addition, Mr Gabrael also attached to his statement what can only be described as documentary evidence of default notices concerning a variety of matters including telephone accounts, workers compensation payments, credit card debts and a repossession notice in relation to the family home executed by the Bank of Queensland. There is also evidence of Small Claims proceedings against the defendant in the Magistrate's Court in Queensland. 60 None of the material was in anyway disputed on behalf of the prosecution and it is difficult to avoid any other conclusion but that Mr Gabrael is in the most straitened financial circumstances. As he stated, he has a wife and three children and, as best as I can determine, he simply has no assets on which he would be able to rely in order to pay any fine. As well, following the entry of his plea and the ultimate decision that I will make, he will have to bear a proportion of the prosecutor's assessed legal costs of these proceedings. They have been approximately estimated as between $12,000 to $20,000 with respect to all three defendants. That is a factor I am entitled to take into account in determining penalty: See Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and [88]. 61 Mr Achouh also claims that his financial position is somewhat limited and that, in his words, 'my business is not going well'. In support of this assertion he annexed a copy of the last Commonwealth Bank statement for his business (AHA Cement Rendering). That statement covers the period between 25 May 2007 and 2 January 2008 and discloses an ultimate balance of $5.51. Mr Achouh further deposed that his financial position is 'not good' and he does not own any property. He has two children, his wife does not work and they currently reside in rented accommodation. 62 Based on the above, one would conclude that Mr Achouh is also of limited financial means. Crucially, there were no current tax returns or bank statements for Mr Achouh personally. 63 In relation to a defendant's ability to pay, the Full Bench in WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New (2004) 137 IR 33 said: ... where a defendant desires to plead incapacity to pay as a determinative issue in the imposition of penalty, it behoves the defendant to discharge the onus that such a submission invokes by placing before the Court all of the information it relies upon in support of that submission in order for the Court to give that information proper consideration in the exercise of its sentencing discretion. 64 In Mr Achouh's case, the provision of tax returns and/or accountant's reports together with current bank statements relevant to him personally would have shown a more complete overview of his current financial circumstances. In all the circumstances, however, I consider his financial position to be modest. 65 I have already commented on the financial position of Power Rise which is that I am unable to come to any conclusion based on the absence of any material before me other than that the defendant is not trading. In relation to Mr Gabrael, based on the material before me, which is also of somewhat limited assistance, I do accept that his financial position is in a critically adverse state. He advised that he is doing some work as a site supervisor, working some three days a week, earning $300 per day. 66 In Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210, Wright J, President said: ... whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty ... the penalty should reflect the objective seriousness of the offence. 67 There will be circumstances, however, where it is appropriate that the quantum of penalty imposed be reduced in light of a defendants limited means or impecuniosity. In the decision of Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Farrell) v David Karl Schrader (2002) 112 IR 284 his Honour held at para [86]: Having regard to the aforementioned authorities regarding the relevance of the financial means of a defendant, I shall significantly reduce the amount of the fine which would have otherwise been ordered to be paid by the defendant due to the defendant's limited means and impecuniosity. 68 In these proceedings in relation to Mr Gabrael and, to a lesser extent, Mr Achouh, I will reduce the defendants' fine because of their respective limited financial means. 69 In the determination of penalty, all the defendants are entitled to have taken into account the early pleas of guilty entered. In assessing the impact of those pleas, the Court is guided by the decision of R v Thomson; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. 70 By way of additional subjective features to be taken into account in favour of all the defendants, the prosecutor has acknowledged their full cooperation with WorkCover. Further, I accept that both Mr Gabrael and Mr Achouh have accepted responsibility for the circumstances of the accident involving Mr Elmobayad and that they are, in my view, properly contrite in relation to that. Orders 71 Taking into account all of the matters I have referred to, I determine a penalty in these matters as follows:

(1) Matter No IRC 1309 of 2007: WorkCover Authority of New South Wales (Inspector Webster) v Power Rise Pty Limited : Prosecution arising under s 10(1) of the Occupational Health and Safety Act 2000: (i) The defendant is convicted of the offence charged; (ii) I impose a penalty of $32,500; (iii) I allocate a moiety on penalty to the prosecutor on the usual terms. (2) Matter No IRC 1310 of 2007: WorkCover Authority of New South Wales (Inspector Webster) v Nadim Gabrael : Prosecution arising under s 10(1) by operation of s 26 (1) of the Occupational Health and Safety Act 2000: (i) The defendant is convicted of the offence charged; (ii) I impose a penalty of $1,500; (iii) I allocate a moiety on penalty to the prosecutor on the usual terms.

(3) Matter No IRC 1311 of 2007: WorkCover Authority of New South Wales (Inspector Webster) v Ali Achouh: Prosecution arising under s 8(1) of the Occupational Health and Safety Act 2000: (i) The defendant is convicted of the offence charged; (ii) I impose a penalty of $2,500; (iii) I allocate a moiety on penalty to the prosecutor on the usual terms. (4) The defendants are to pay the prosecutor's costs in equal proportion between them, as agreed or assessed.

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