District Court New South Wales Medium Neutral Citation: SafeWork NSW v Wang; SafeWork NSW v Effective Building and Construction Pty Ltd; SafeWork NSW v NSW Bricklaying Pty Ltd [2020] NSWDC 260 Hearing dates: 27 April and 1 May 2020 Date of orders: 22 May 2020 Decision date: 22 May 2020 Jurisdiction: Criminal Before: Scotting DCJ Decision: Penalty – Mr Wang 1 Jianen Wang is convicted. 2 I impose a fine of $60,000. 3 Mr Wang is to pay the prosecutor's costs as agreed or assessed. Penalty – EBC 1 Effective Building and Construction Pty Ltd is convicted. 2 I impose a fine of $60,000. 3 EBC is to pay the prosecutor's costs as agreed or assessed. Penalty – NSWB 1 NSW Bricklaying Pty Ltd is convicted. 2 I impose a fine of $500,000. 3 NSWB is to pay the prosecutor's costs as agreed or assessed. Catchwords: CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker SENTENCING –objective seriousness – deterrence – aggravating factors – mitigating factors COSTS – prosecution costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Work Health and Safety Act 2011 Fines Act 1996 Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Jahandideh v R [2014] NSWCCA 178 SafeWork NSW v NSW Bricklaying Pty Ltd [2020] NSWDC 160 R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 Category: Principal judgment Parties: Proceedings 2019/243402 SafeWork NSW (Prosecutor) Jianen Wang (Defendant) Proceedings 2019/243431 SafeWork NSW (Prosecutor) Effective Building and Construction Pty Ltd (Defendant) Proceedings 2019/243425 SafeWork NSW (Prosecutor) NSW Bricklaying Pty Ltd (Defendant) Representation: Counsel: Proceedings 2019/243402, 2019/243431 and 2019/243425 J Paingakulam (Prosecutor) Proceedings 2019/243431 W Chan (Jianen Wang) Solicitors: Proceedings 2019/243402, 2019/243431 and 2019/243425 Legal, Department of Customer Service (Prosecutor) Proceedings 2019/243431 Cathay Lawyers Pty Ltd (Defendant) File Number(s): 2019/243402; 2019/243431; 2019/243425 Publication restriction: None Judgment 1. Jianen Wang has pleaded guilty to an offence that as an officer of WZY Developments Pty Ltd (WZY) he had a health and safety duty under section 27(1) Work Health and Safety Act 2011 (the Act), he failed to comply with that duty and thereby exposed Quoc Thong Tran (Mr Tran) to a risk of death or serious injury contrary to section 32 of the Act. The maximum penalty for the offence is a fine of $300,000. 2. Effective Building and Construction Pty Ltd (EBC) has pleaded guilty to an offence that being a person with a health and safety duty pursuant to section 19(1) of the Act, it failed to comply with that duty and thereby exposed Mr Tran to a risk of death or serious injury contrary to section 32 of the Act. The maximum penalty for the offence is a fine of $1.5 million. 3. NSW Bricklaying Pty Ltd (NSWB) was found guilty of an offence, after an ex-parte hearing, that being a person with a health and safety duty pursuant to section 19(2) of the Act, it failed to comply with that duty and thereby exposed Mr Tran to a risk of death or serious injury contrary to section 32 of the Act. The maximum penalty for the offence is a fine of $1.5 million. Facts 1. The offences were committed arising from the one incident. The facts relating to the offences committed by Mr Wang and EBC were agreed between the prosecutor and each offender. The facts of the offence against NSWB were determined by me in SafeWork NSW v NSW Bricklaying Pty Ltd [2020] NSWDC 160 (the verdict judgment). I will set out the common facts and note any differences, if it is necessary to do so. 2. On 5 May 2017 EBC entered into an agreement with the owners of 3 Barellan Avenue, Carlingford (the site) to construct a two storey duplex (the project). EBC had commenced work at the site in about February 2017. At all material times, EBC was the principal contractor for the site. 3. In or about March 2017, EBC entered into a verbal agreement with WZY to manage and control the day-to-day activities at the site. WZY was responsible for engaging suitably qualified contractors to perform the necessary work to complete the project. 4. Invoices from contractors were provided to WZY and it paid them. It also purchased the necessary materials to be used on site. WZY would submit regular progress payments to EBC for each stage of the building works. EBC would pay WZY, after deducting a margin for overseeing the work. 5. Mr Wang was the sole director and employee of WZY. He attended the site on an almost daily basis until WZY was deregistered on 8 February 2018. 6. WZY engaged NSWB to do the bricklaying at the site. WZY also engaged Quoc Khai Tran, trading as Spot On Constructions (SOC), to provide carpentry work at the site. Mr Tran and Viet Ha Le were engaged as sub-contractors by SOC to work as carpenters on the site. 7. Construction at the site commenced in May 2017. The first phase of construction included the construction of a 6.5m high brick cavity wall that divided the duplex along its entire length (the partition wall). 8. By 15 August 2017, NSWB had built the partition wall to a height of 6.5m. The wall was braced with timbers to half its height. The bracing did not have diagonal members. 9. NSWB left the site on 15 August 2017. At that time the partition wall was inadequately braced. 10. On 16 August 2017 Mr Tran and Mr Le were working at the base of the partition wall measuring up wooden framework for the installation of windows. It was a windy day and there were no other workers at the site. At about 9.50am the partition wall collapsed trapping Mr Tran and Mr Le underneath it. Workers from a neighbouring construction site heard the wall collapse and came to assist. 11. The workers found Mr Le under the rubble. He suffered a scratch on his face and was in a state of shock. The workers then found Mr Tran under the rubble. He was not responsive and was pronounced dead at 10.48am. 12. The Bureau of Meteorology records indicated that wind gusts reached speeds of 74km/hr at 10.39am on the day of the incident. 13. Elie Farah, a builder employed by EBC, undertook regular inspections of the site. 14. EBC asked WZY to collect Safe Work Method Statements (SWMS) from the contractors that it engaged on the site, but it did not do so. EBC did not verify that it had done so. No SWMS was in place for the bricklaying work at the site. 15. The temporary supports for the partition wall were inadequate. No exclusion zone was in place around the partition wall during its construction or prior to its collapse. Neither EBC nor WZY provided supervision to NSWB to ensure that the partition wall was adequately braced. There was no risk assessment undertaken by EBC, WZY or NSWB of the work undertaken at the site. 16. Mr Wang failed to ensure that WZY complied with its duty. He did not collect SWMS, undertake a risk assessment or ensure that safe work methods were developed and implemented at the site. 17. WorkCover NSW published Guides entitled "Masonry Wall Safety During Construction Work" in October 2009 and 2015. The Guides identified the risk of collapse of the partition wall during its construction and provided for the control measures of temporary bracing, exclusion zones and the prohibition of work on sites when winds reached a certain velocity. 18. SafeWork NSW issued a prohibition notice to EBC to cease all work on the site until it was assessed by an engineer to be safe. SafeWork NSW also issued four improvement notices relating to the lack of site security, to prevent the risk of structural collapse, to provide a SWMS to prevent falls from height and to provide a SWMS to prevent crush injuries. EBC collaborated with its contractors and sub-contractors to comply with the prohibition and improvement notices. Mr Wang's Case on Sentence 1. Mr Wang relied on an affidavit sworn by him on 14 April 2020. Mr Wang observed the sentence proceedings by audio-visual link (AVL) with the assistance of an interpreter. He was not required for cross-examination. 2. Mr Wang has limited skills in speaking and reading English. He worked in the building industry from 2005 until the accident on 16 August 2017. He held a dry carpenter and plasterer's licence that expired 21 June 2019. He has not renewed his licence after the incident. 3. Mr Wang obtained work at the site because he knew the owners who requested his assistance in engaging tradesmen. Mr Wang did not hold a builder's licence, so he approached Elie Farah at EBC to use his licence. Mr Farah agreed for a fee of $60,000. Mr Wang agreed to find the contractors to do the work. 4. There was no written contract between WZY and EBC. Mr Wang deposed that he was "not told" he would be responsible for any site supervision. EBC entered into a written contract with the owners. 5. Mr Wang engaged NSWB in around June or July 2017. Mr Wang engaged SOC at around the same time. SOC provided a fixed price quotation that included a component for "wall bracing". 6. When the wall collapsed it was about 6m high. In about early August when the partition wall was at about 3m high, Mr Wang engaged SOC to install the temporary supports. Mr Wang did not know what was required for the temporary bracing to be effective. 7. On 15 August 2017 Mr Wang was told by NSWB that the partition wall had been completed. Mr Wang contacted SOC to install the wall bracing. He was told by Quoc Khai Tran that he would get it done. 8. On 16 August 2017 Mr Wang attended the site and met Mr Tran and Mr Le who had been sent to the site by SOC. Mr Wang said in broken English words to the following effect: Mr Wang: You need to get the supports done before doing something else. Your boss should have told you all those Mr Tran: Yes, my boss told me the job and asked me to work here today. My boss working nearby. He will come over shortly. But I might go home a bit earlier though because I have some family business to attend to Mr Wang: Ok, I leave it to you and your boss 1. Mr Wang then left the site and did not know about the collapse of the wall until Quoc Khai Tran called him around 10.00am. Mr Wang did not look at the weather report and did not realise the winds were high until he was at the site. Mr Wang knew that a wall over 3m high required bracing and that is why he had SOC attend to it previously. 2. On 16 August 2017 Mr Wang believed that Mr Tran and Mr Le were going to complete the bracing first before continuing with their other work. He deposed that he did not know they would complete the work in a different order. 3. Mr Wang was aware of the Guides but he was unable to read them due to his poor English skills. He deposed that returning to the site was distressing and that he would not go back to work in the industry. He is currently managing a grocery store owned by his wife. 4. Two or three days after the incident Mr Wang visited the family of Mr Tran at Cabramatta. Mr Wang apologised to the family and gave Mr Tran's wife $3,500 cash as "some small measure of financial support". Mr Wang deposed that the incident has changed his life and if he could, he would have done things differently. He feels very sorry for Mr Tran's wife and three children. EBC's Case on Sentence 1. EBC was represented by Elie Farah at the sentence hearing. Mr Farah was authorised to speak on behalf of EBC by its director, who is also his father. 2. EBC could not continue to afford to be legally represented as a result of a downturn in its work caused by the COVID-19 pandemic. 3. Mr Farah apologised to the Court and to Mr Tran's family for the offence. He described himself and his father as "very sorry". 4. EBC has two full time employees. It undertakes residential building work predominantly through the engagement of contractors. 5. EBC had worked on projects in the past with Mr Wang and considered him to be a competent tradesman. EBC had built Mr Wang's house and been involved on other sites through connections with his family. EBC was introduced to the project by Mr Wang. EBC did not have any affiliations with the contractors engaged by Mr Wang to complete the work. 6. Mr Farah attended a number of inspections at the property. The latest was after the concrete slabs had been poured. 7. Mr Farah left with his family to travel to Lebanon on 3 August 2017 and was away at the time of the incident. He had gone to visit family. He received a telephone call in Lebanon telling him about the incident. He returned with his family the next day. 8. Mr Farah said that he asked Mr Wang to get SWMSs but accepted that he had failed to check on him and understand his obligations as the principal contractor. Mr Farah described the incident as having a big effect on the business and on his family. He accepted that the incident had a far more significant impact on Mr Tran's family. 9. Mr Farah said that EBC ordinarily operates in a way to make sure that their contractors complete work safely. At the moment EBC has one job with no others on the horizon. Mr Farah said that he was concerned about the future viability of EBC. 10. Mr Farah said that he co-operated with SafeWork NSW and did what they asked of him. EBC entered a plea because it understood that it had fallen short of the requirements of it. 11. EBC in the past has undertaken work for Providential Homes in a project building houses and additions to houses for vulnerable people. EBC has also been a supporter of the Children's Hospital. 12. Mr Farah asked the Court to take into account the financial position of the company in that it is a small business, it only has one small house addition to complete at the moment and otherwise has no jobs on the horizon for the next three months. 13. Mr Farah said that during the course of the COVID-19 pandemic that he and his father were working from home by the use of sub-contractors. EBC had a current bank balance of about $20,000. Consideration 1. I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999. Objective Seriousness – offence committed by Mr Wang 1. The offence is of considerable objective gravity. 2. The risk was actually known to Mr Wang and he engaged SOC to install wall bracing. He was not as familiar with the guidance material as he should have been as a result of his poor English skills. He made some attempt to have the wall bracing installed on the day of the incident, however in accordance with the Guide, he should have shut down work on the site because of the high winds. 3. The risk was likely to occur if adequate precautions were not taken. 4. The consequences of the risk involved a risk of death and serious personal injury. 5. The available steps to eliminate and/or minimise the risk were set out in the Guide which was publically available and should have been known and understood by a person engaged to conduct supervision of a building site. 6. The steps that could have been taken were relatively simple and could have been implemented with little inconvenience and expense. 7. The death of Mr Tran is an aggravating factor. 8. I have taken into account the maximum penalty for the offence. Objective Seriousness – Offence Committed by EBC 1. The offence is of some objective gravity. 2. EBC did not have actual knowledge of the risk posed by the partition wall. It engaged WZY, but in particular, Mr Wang, who it believed to be competent to act as a supervisor of the work at the site. EBC undertook some inspections in an effort to verify that the work at the site was being undertaken competently. However, EBC did not ensure that WZY had complied with the directions that it had given it relating to a collection of SWMSs or other steps to ensure that supervision was being provided to conduct the work safely. 3. EBC could have taken more relatively simple, convenient and inexpensive steps to supervise WZY more closely. It relied almost entirely on WZY to undertake its role as principal contractor. WZY and Mr Wang fell well short of complying with the obligations of competent principal contractor. 4. The matters in [50] to [55] also apply in relation to the offence committed by EBC. Objective Seriousness – Offence Committed by NSWB 1. The offence is one of considerable objective gravity. 2. The risk was known to NSWB or should have been known. Mr Fayazi told Inspector Hall that the wall should have been braced, but that he did not think it would collapse. Those comments were somewhat contradictory in relation to Mr Fayazi's knowledge of the Guide. I do not accept that Mr Fayazi did not know of the risk of collapse posed by the wall. 3. Mr Fayazi demonstrated a cavalier attitude to the risk to health and safety posed by the wall in his interview with Inspector Hall. He did not acknowledge that the Guide provided a joint responsibility between the masonry contractor and the builder. Mr Fayazi sought to place all blame for the accident on Mr Wang without acknowledging any responsibility on the part of NSWB to take appropriate precautions. I am satisfied beyond reasonable doubt that NSWB had a complete disregard for its obligations under the Act. 4. The matters in [50] to [55] also apply to the offence committed by NSWB. Deterrence 1. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180]. 2. There is little need for specific deterrence in the penalty imposed on Mr Wang. He has not renewed his building licence and has effectively retired from the industry. 3. There is some need for specific deterrence in the penalty imposed on EBC because it continues to operate in the industry. It is reduced by reason of EBC's timely and professional response to the incident. EBC completed the project after the incident and attended to the shortfalls in safety that were created by WZY. 4. I have no current information about NSWB. It displayed a very cavalier attitude to safety at the site. If it is still operating a bricklaying business, it is likely that it is continuing to expose its workers and other persons to risks to their health and safety and that the need for specific deterrence is patent. Aggravating Factors 1. The injury, harm and loss caused by the section 32 offences was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. The death of Mr Tran is sufficient to establish the aggravating factor. I am satisfied beyond reasonable doubt that the injury, harm and loss caused by the offence was substantial. Mitigating Factors 1. The offenders do not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. Mr Wang is 36 years of age. I do not have any information about when EBC or NSWB were incorporated. 2. Mr Wang was a person of good character: section 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. Mr Wang has no previous convictions and conducted himself in a way following the incident that demonstrates he is a person of good character. 3. Mr Wang and EBC have good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. EBC took steps to rectify the deficiencies in safety management at the site after the incident. Mr Wang has accepted that he is presently not qualified to do the work that he was performing on the site and removed himself from the industry. I am satisfied on the balance of probabilities that each of them have demonstrated that they have good prospects of rehabilitation. 4. Mr Wang and EBC have demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Wang visited Mr Tran's family a few days after the incident and apologised to them. He also made some payment as a gesture of the acceptance of responsibility for his actions. Mr Farah, on behalf of EBC, expressed an apology to the Court and to Mr Tran's family and accepted that EBC had fallen short of its duty to ensure that the work was undertaken safely at the site. I am satisfied on the balance of probabilities that the offenders have accepted responsibility for their actions and have expressed genuine remorse and contrition. 5. The offenders entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. An offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The primary consideration in determining where in the range a particular case should fall is the timing of the plea, so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount for Mr Wang and EBC is 25%. 6. Mr Wang and EBC co-operated with the SafeWork investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. 7. I have taken into account the personal toll that the incident has had on Mr Wang. I accept that he has suffered emotionally as a result of the incident, that it has had an adverse effect on him and that he has given up work in the building industry. Capacity to Pay a Fine 1. The Court is required to have regard to section 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence. 2. Mr Wang did not submit that he had a limited capacity to pay a fine. 3. EBC was unrepresented and did not present evidence of its financial capacity to pay. I accept that EBC was not in a position to be represented and provide such evidence because of the COVID-19 situation and a downturn in its work. I have taken into account that EBC is a small company, has only one current project and does not have any other significant projects on the horizon. I accept that its business has been impacted significantly by the COVID-19 pandemic. I accept that it has a limited capacity to pay a fine and that it is appropriate to reduce the fine that otherwise would have been imposed. Penalty – Mr Wang 1. Mr Wang is convicted. 2. The appropriate fine is one of $80,000 which will be reduced by 25% to give effect to the plea of guilty. 3. I impose a fine of $60,000. 4. Mr Wang is to pay the prosecutor's costs as agreed or assessed. Penalty – EBC 1. Effective Building and Construction Pty Ltd is convicted. 2. The appropriate fine is one of $80,000 which will be reduced by 25% to give effect to the plea of guilty. 3. I impose a fine of $60,000. 4. EBC is to pay the prosecutor's costs as agreed or assessed. Penalty – NSWB 1. NSW Bricklaying Pty Ltd is convicted. 2. I impose a fine of $500,000. 3. NSWB is to pay the prosecutor's costs as agreed or assessed. Moeity of the fines 1. In each matter, I order that pursuant to section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. ********** Amendments 02 June 2020 - Formatting 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: 02 June 2020