District Court New South Wales Medium Neutral Citation: SafeWork NSW v S & T Services Pty Ltd [2021] NSWDC 140 Hearing dates: 22 April 2021 Date of orders: 29 April 2021 Decision date: 29 April 2021 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) S & T Services Pty Ltd was convicted on 22 April 2021. (2) I take into account the Victim Impact Statement of Mr Simon Turner. (3) The appropriate fine is $300,000 but that will be reduced by 25% to reflect the plea of guilty. (4) Order S & T Services Pty Ltd to pay a fine of $225,000. (5) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (6) Order S & T Services Pty Ltd to pay the prosecutor's costs. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – crane and grillage columns collapsed at a residential construction site – design of grillage was not adequate to support the intended load of a fully erected tower crane – joints and connection pins as designed were not adequate for the tensile forces that would apply to a large load Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 30A, 30B, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 22, 32 Cases Cited: Attorney General for New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33 Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Australian Standard 1418.4, Cranes Hoists and Winches: Tower Cranes (March 2004) Australian Standard 4100:1998, Steel structures (June 1998) Gorenc, B. E., Tinyou, R. & Syam, A. (2012), Steel designers' handbook. UNSW Press, Sydney, NSW. WorkCover Authority NSW, Code of Practice: Safe design of structures (July 2014) Category: Sentence Parties: SafeWork NSW (Prosecutor) S & T Services Pty Ltd (Defendant) Representation: Counsel: B Docking (Prosecutor) W Thompson (Defendant) Solicitors: SafeWork NSW (Prosecutor) DLA Piper Australia (Defendant) File Number(s): 2019/243514 Judgment 1. On 6 August 2016 workers on a residential apartment construction site were installing a crane. The tower of the crane jolted suddenly, buckled and then collapsed. Several workers suffered injuries. 2. S & T Services Pty Ltd ("S & T Services") has pleaded guilty to an offence that as a person who conducted a business or undertaking that designed a structure to be used as a workplace, it had a work health and safety duty pursuant to s 22 of the Work Health and Safety Act 2011 (NSW) ("the Act") to ensure, so far as is reasonably practicable, that the structure is designed to be without risks to the health and safety of persons, and that it failed to comply with that duty and thereby exposed Mr Matt Dorin, Mr Nigel Jamieson, Mr Simon Turner, Mr Darren Franciscus, Mr John Sample and Mr Bill Todorovski to a risk of death or serious injury contrary to s 32 of the Act. 3. The maximum penalty for the offence is a fine of $1,500,000. Reasonably Practicable Measures 1. Paragraph 12 of the Amended Summons pleads particulars of the defendant's failure to comply with the duty under s 22(2) of the Act as follows: "The defendant failed to ensure, so far as is reasonably practicable, that the structure is designed to be without risks to the health and safety of persons, in that it failed to take one or more of the following reasonably practicable measures to eliminate (or alternatively minimise if not reasonably practicable to eliminate) the risk as follows; a) Carrying out, or arranging the carrying out of, adequate calculations and analysis of the connection elements to undertake finite element modelling and the provision of the design output from that analysis to Probuild Construction and/or Aardvark Steel; and/or b) Not relying on hand calculations for the design of adequate connection points/connection elements and where such design was to be used by Aardvark Steel to fabricate and install the crane grillage, in that: i. Adequate computer modelling was required in addition to any hand calculation in order to predict the failure mode of the pin connections and/or excessive damage and deformation of the steel plate connection components; ii. The defendant's hand calculation does not adequately assess the risk of a failure of each connection element and the consequences for persons exposed to risks to health and safety, i.e. the degree of harm that might result from the risks; and/or iii. The defendant's hand calculation used the limit state of compression failure and should have used the limit state of tension failure under gross yielding of the plate; and/or iv. The defendant's hand calculation is based on the width of the plate at its widest section and should have been based on a narrower section of the plate as the plates taper in breadth towards the pins; c) Confirming the design of the connection elements performed by the defendant, and subsequently used by Aardvark Steel to fabricate and install the crane grillage, was adequate so that the structure is capable of resisting all design actions by: i. designing thicker and/or wider connection elements or a concentric (clevis) type connection in the connection elements; and/or ii. confirming the single-shear lapped pin connection was sufficiently stiff and strong to resist the tensile load produced by the self-weight of the crane and/or that the structure was able to provide the necessary load path to the building for the crane; and/or d) Undertaking an adequate review of the defendant's design solutions arising from the defendant's stage 2 scope of works of one site inspection that took place at the premises on 4 August 2017, to confirm the effectiveness of risk controls and if necessary, redesign to minimise the risks so far as is reasonably practicable, in that: i. A review should have identified that hand calculation concerning the connection elements was inadequate; ii. A review should have identified that the design of connection elements as used by Aardvark Steel to fabricate and install the crane grillage was inadequate; and/or iii. A review should have identified the risk that the installed crane grillage would not be able to support the design crane tower loads and, therefore, the Morrow Equipment workers should not commence to install the tower crane on the crane grillage until such time that the defendant confirmed the crane grillage would be able to support the design crane tower loads; and/or e) Not issuing and leaving as structural design guidance for the premises the 1 August 2017 structural engineering letter concerning: i. Australian standards were complied with by the designed tower crane installation; and/or ii. The tower crane installation to be supported on a steel structure as depicted in drawings designed by the defendant; and/or iii. The crane grillage is supported by the permanent structure; f) The defendant should not have acted by way of issuing and leaving as structural design guidance for the premises the 5 August 2017 structural engineering letter concerning: i. The steelwork in place at the time of the defendant's 4 August 2017 inspection and the defendant's design intent were adequate; and/or ii. The tower crane grillage will be able to support the design tower crane loads." Background 1. The parties presented an Agreed Statement of Facts and this material is summarised below. 2. S & T Services conducted the business or undertaking of structural engineering in the field of builder's temporary works and cranes. 3. The directors of S & T Services were Mr John Stella and Dr Kenichiro Nagato. Mr Stella was also the Principal Engineer, as well as the company's General Manager and founder. Mr Stella was a committee member and author of Section 2 of Australian Standard 1418.4 Cranes Hoists and Winches: Tower Cranes dated March 2004. Dr Nagato had held the role of Design Manager for seven years. Dr Nagato has a Masters of Engineering degree from Kyushu University, Japan. 4. Probuild Constructions (Aust) Pty Ltd ("Probuild") was the principal contractor on the site where the incident occurred at Chisholm Street, Wolli Creek in New South Wales. 5. The project site was bordered by Brodie Spark Drive to the east and Chisholm Street to the north. On the opposite side of both Brodie Spark Drive and Chisolm Street were separate residential apartment complexes which were already tenanted. One of the complexes directly across the road was known as the Arc Apartments. 6. The work being undertaken at the site was part of a project known as the Discovery Point project ("Project"). The Project was valued at $162 million. The central precinct of the apartment complex consisted of 465 residential apartments in three residential towers. 7. During the process of completing stages 11, 12 and 13 of the Project, a tower crane known as "TC-3" was to be erected at the site on a cantilevered tower crane support grillage (i.e. a large steel structural supporting column) seated on a corbel (i.e. a support) ("grillage") protruding from the side of Building 11. Rather than seat the base of the crane on the ground adjacent to Building 11, it was to be seated on the corbel attached to Building 11 at various points. Pre-incident photos of the corbel are at Tab D in PX 1. 8. By placing the crane on the grillage, the footpath and road would not be obstructed. The loads and forces imposed by the weight and actions of the crane would be borne by the grillage. The grillage itself was constructed of various steel components with a mass of 20.75 tonnes. 9. A second tower crane known as "TC-1" was to be used in the erection of TC-3 at the site. It was also located at Building 11. 10. TC-3 was a free-standing Liebherr 285ECH tower crane Serial Number 53306. On 6 August 2017, while it was being erected, the grillage gave way. Parties Engaged by Probuild S & T Services 1. On 21 September 2016, Mr Stella attended the site to discuss the proposed crane location and support conditions with Probuild. Probuild engaged the services of S & T Services on 14 October 2016 after S & T Services provided a quote and its terms of engagement on 10 October 2016. Aardvark Steel Constructions 1. Clause 4.3.1 of the "Scope of Works Crane Grillage" for Aardvark Steel Constructions Pty Ltd ("Aardvark") emailed on 17 May 2017 by Probuild to Mr Jon Maher from Aardvark stated: "Ensure all items are designed, manufactured and installed taking into consideration all applicable wind loads, crowd loads, live loads and static loads where applicable. Engineers' written confirmation of structural stability of design and installation of works required. The Subcontractor (Aardvark) shall include design data within the certification issued." 1. No formal contract was signed between Probuild and Aardvark. Instead, there was an email acceptance by Mr Smith of the quote provided by Aardvark dated 29 July 2017. There was no contractual relationship between Aardvark and S & T Services. Morrow 1. Probuild engaged Morrow Equipment Company LLC ("Morrow") to erect the affected crane. Morrow had sought, in negotiating the agreement, to provide the "Design & Engineering Certification for Grillage" but that offer had not been accepted by Probuild. There was a "Scope of Works Package: Tower Cranes" between Probuild and Morrow. Morrow did not have a contractual agreement with S & T Services. Design of Grillage 1. The persons directly involved in the design of the grillage on behalf of S & T Services were Mr Stella, Dr Nagato and Mr Ben Dahlenburg, a design engineer. 2. Mr Stella was responsible for scoping the project, providing a broad conceptual design and the fee proposal. Dr Nagato was responsible for refining the conceptual design, preliminary beam sizing and reactions to structure and overseeing the detailed design. 3. Mr Dahlenburg had held the role of design engineer for approximately five years and was responsible for detailed design. Mr Dahlenburg has a Bachelor of Engineering degree from Swinburne University. 4. As at September 2017 S & T Services had designed approximately 850 tower crane installations. Approximately 76 were steel-supported installations including 49 grillages. Of the 49 grillages, 17 were cantilevered grillages. 5. In designing the grillage the defendant relied on the following information: 1. Planning documents provided by an entity known as the Robert Bird Group to determine the location, jib radius and height of the installation. 2. Architectural documentation for the project. 3. Structural documentation for the project. 4. The Loading information as stipulated in the Liebherr 285ECH manual ("Crane Manual"). 1. S & T Services prepared design drawings for the grillage. Probuild paid S & T Services $7,500 for these services. Design of Connection of Grillage to Building 11 1. The grillage consisted of a large platform connected to a vertical column against Building 11 at each end and a diagonal support from the outer end of the platform back to each column. 2. In designing the connection points, the defendant relied on hand calculations prepared by Mr Dahlenburg. The defendant did not undertake finite element analysis ("FEA") of the connection points during the design process. 3. The defendant's design had calculated the maximum design load of the grillage struts, and thus the joint from the strut to the building or short cross beam, to be 660kN. The maximum design load is the highest load the grillage is likely to experience once installed. Grillage Fabrication and Installation 1. Installation work on the cantilever grillage was undertaken by Aardvark between 27 July 2017 and 5 August 2017. 2. S & T Services, as the design engineer, did not attend Aardvark's premises to inspect the grillage or components with respect to the grillage and did not verify the materials used in the grillage fabrication. The defendant was not required to inspect or verify the materials used pursuant to its retainer by Probuild. Prior to 4 August 2017 1. On 2 August 2017 Probuild engaged a surveyor to survey columns C1 and C2 of the grillage. On the same day, Aardvark was informed by Probuild that the columns were to be pulled back so that tension rods could be tightened. On 3 August 2017, Aardvark was instructed by Probuild to pull out the columns because "they had the rods running back into the building a few metres to tighten, to tension the grillage back to the building". That task was undertaken by APS. The columns were secured to the slab by 20mm thread drilled in and with two fixings in each bottom. This was undertaken by Aardvark. Grouting was done on the column bases after everything was checked and set. 2. On 3 August Morrow was informed by Mr Smith by an email, that: "I have an engineer coming in tomorrow afternoon to inspect and sign off on the grillage installation in its entirety" and that "it is all systems go for Saturday installation". 4 August 2017 1. On 4 August 2017 Mr Stella travelled from Melbourne to attend the site to perform a site inspection and visually inspect the partially installed grillage under Stage 2 of the agreement with Probuild. Mr Stella was accompanied by Mr Smith. At the time of the inspection of the grillage Mr Stella noted that Column C2 had recently been installed and the strut ST1 supporting arm was in the early stages of being installed. The main support beams had not yet been installed, beam B4 and the grillage's associated bracing beams (also referred to as members) were also incomplete. The middle of the grillage had not yet been erected. Final grouting of some of the connections had not occurred, some of the retaining R clips had yet to be installed and S & T Services found that it was not possible to assess whether all connections requiring tensioning had been tensioned. 2. By a site inspection report dated 5 August 2017 Mr Stella set out his observations when he attended the site to perform his inspection and noted that the steelwork complied with the defendant's design intent. 3. In a response to a SafeWork NSW s 155 Notice, Mr Stella stated at the time of his inspection he recollected that: "The pins securing the grillage to the plates fixed to the permanent structure had been installed in accordance with our design". Mr Stella stated in his response that the purpose of his inspection was to "confirm the grillage was being installed in accordance with the design intent". 4. Mr Smith asked Mr Stella at the time whether he needed to come back and look at the grillage again. Mr Stella responded that he did not need to come back. Mr Stella observed that the steel work that had been installed was of a very high quality in workmanship. The scope of works for S & T Services did not extend to a detailed examination of the grillage components and connections. 5. Late in the afternoon of 4 August 2017, Mr Smith sent an email to Mr Dahlenburg enquiring if a cross member on the grillage could be removed to allow for a section of the crane. Approval was given for this to occur. 6. The installed grouting for the two columns of the grillage was visually verified on 4 August 2017 by Aardvark in the presence of the Probuild supervisors. 7. No further inspection of the crane grillage was conducted by the defendant before the incident which occurred on 6 August 2017. 5 August 2017 1. No engineer's certification for the installed grillage was obtained by Aardvark, Probuild or Morrow. 2. At approximately 7.00am the Aardvark workers arrived at the site and the Morrow workers arrived at approximately 8.00am. During work on the grillage, the Morrow workers inspected the grillage. Between themselves, they discussed concerns they had regarding the grillage not looking adequate to support the crane. 3. The normal practice for Aardvark was to provide the principal contractor with an Inspection and Test Plan ("ITP") as part of the handover and only after an engineer's report had identified any defects and those defects had been rectified by Aardvark. No ITP was completed by Aardvark until 11 August 2017. Concerns Raised by Morrow 1. Mr Jensen raised with Mr McAlister the issue regarding the size of the pins. Mr McAlister said words to the effect of: "…I'm not qualified to know anything about pins. All I can do is assure you that the, the connections and, of this grillage and the pins and all of the components of this grillage have been designed by a specialist engineer, an engineer that specialises in cantilevered grillages. He's done so throughout the country for Probuild. The engineer that designed this is a specialist in his field for this particular crane grillage that, that's cantilevered..." 1. Mr Jensen asked, in the presence of Mr Jamieson, whether an engineer had signed off on the grillage. Mr McAlister contacted Mr Smith and asked to be provided with a copy of the engineer's certificate. Mr Jensen was told by Mr McAllister there was an engineer's sign off. Mr McAllister approached him later in the day and showed him a document on an iPad or large phone. The document shown to Mr Jamieson was the letter dated 5 August 2017 sent by S & T Services to Mr Smith. 2. I find that this letter (PX 1, Tab 14, pp 3-4) was not an engineer's certificate provided by the defendant. In its terms, it states that it is a site inspection report. Further, the letter makes clear that the inspection was carried out at a time when the grillage was still being installed. No-one could have genuinely regarded the letter as an "engineer's sign off". 3. Morrow's General Manager Craig Jones stated: "The documents Joel Jensen viewed a sign off for the grillage on the Senior Site Manager's electronic device on the 5th of Aug 2017. The Record of Toolbox Talk on 05/08/17 refers to 'inspect Grillage – sign off'. I understand that reference to refer to the Rigging Supervisor viewing documents on the Senior Site Manager's electronic device regarding the grillage's sign off." 1. At the time he was shown the electronic copy of the defendant's letter of 5 August 2017, Mr Jensen raised with Mr McAllister the loose bolts found by the Morrow workers when they first inspected the grillage in the late morning of 5 August 2017. In particular, Mr Jensen queried why there was an engineer's sign off for the grillage when there were still loose bolts and the tack welding of bolts being done. Mr Jensen had also voiced concerns that silicone had been used and not grout. 2. Mr Jensen contacted Mr Dave Dickson, the Sydney local representative from Morrow and raised his concerns regarding the pin connection's design. Mr Jensen would generally expect to receive a copy of the engineer's sign off. He had not been in that situation before. 3. No formal overall installation certification was received by Morrow before the incident. 4. At midday on 5 August 2017, the Morrow workers started installing the first tower sections of the crane on top of the grillage. As Mr Henwood was leaving the site he had a conversation with Mr Thomas Archibald (Probuild Structure Foreman) advising that the grouting was completed and their work on the grillage was done. 5. S & T Services was never informed by Probuild that the grillage was completed late in the morning of 5 August 2017. 6. Mr McAllister stated that he only saw one engineer's certification prior to the completion of the grillage, being the defendant's letter dated 5 August 2017. The normal process was that Probuild engaged a specialist engineer to design the grillage and then uses a specialist to erect the crane. Crane Installation 1. Between lunch time and leaving the site later in the day, the Morrow workers, with the assistance of the second tower crane, erected the crane's tower sections, the cabin and slew ring. Mr Dorin, Mr Turner and Mr Jamieson commenced working from the grillage, working their way up the crane as the tower grew. The remaining Morrow workers worked at ground level. Work Undertaken on 6 August 2016 - Day of the Incident 1. On 6 August 2016, the following workers, amongst others, were on site from Probuild (Probuild workers): 1. Matthew Rodgers, Leading Hand. 2. David Barnes, Crane Driver/Dogman for the second crane. 3. Scott Martin, Crane Dogman for the second crane. 4. Alvaro Valdovinos, Crane Dogman for the second crane. 5. Michael Archibald, Manitou Driver. 6. Stephen Lawler, Labourer. 1. Mr Barnes, Mr Martin and Mr Valdovinos were the crane crew responsible for operating the second crane "TC-1" that day ("second crane crew"). Mr Archibald and Mr Rodgers from Probuild were also on site but not involved in the process of erecting the crane. 2. On 6 August 2016, the following workers were on site from Morrow: 1. Joel Jensen, Crane Supervisor/ Leading Hand. 2. Matt Dorin, Electrician/Crane Operator. 3. Simon Turner, Rigger. 4. Nigel Jamieson, Rigger. 5. Bill Todoroski, Leading Hand. 6. Darren Franciscus, Technician. 7. John Sample, Rigger. 1. On 6 August 2017 between approximately 6.00am and 6.30am, the Morrow workers and the second crane crew attended the site to continue with the erection of the crane on top of the grillage. Mr Barnes was driving the second crane TC-1. Mr Martin and Mr Valdovinos were the dogmen. 2. Mr Dorin, Mr Turner and Mr Jamieson inspected the base of the affected crane before proceeding up to the top of the crane. Mr Turner and Mr Jamieson were the two riggers and Mr Dorin was the electrician working to connect the power on the crane. 3. Mr Franciscus was the electrician working at the bottom of the crane. Mr Jensen and Mr Todorovski were Morrow ground workers together with Mr Sample who was a ground rigger. 4. Between approximately 7.00am and 9.30am on 6 August 2017, the back deck of the affected crane was installed as well as a 2.5 tonne counterweight and the counter jib. Between approximately 9.30am and 10.30am, Mr Dorin slewed the crane 180 degrees in order to position it for the jib attachment to take place. Approximately four or five seconds after the crane had finished slewing, the crane jolted suddenly, buckled and dropped approximately one foot. Mr Jamieson looked down and saw the tower of the crane peeling away from Building 11. 5. The right hand corner of the grillage failed and let go. The crane tilted that way and then the opposite corner failed. Mr Jamieson and Mr Turner were standing on the counterweight deck of the crane at the time with Mr Dorin positioned behind the driver's cabin. Mr Dorin had just stepped out of the cabin having finished slewing the crane. 6. From the second crane, Mr Barnes heard a large screeching sound as he was slewing the second crane to the right. Mr Barnes looked to the left and saw the crane collapsing toward the Arc Apartments. 7. The crane initially appeared to be falling toward the street when the back pivoted and it started to swing around in an easterly direction toward, and then onto, the Arc Apartments. The scaffolding was pulled away from Building 11 by the grillage column collapsing. 8. Mr Jensen, who had been standing on the street near the grillage unloading the other truck with Mr Sample, Mr Todorovski and Mr Franciscus, looked up and saw Mr Turner and Mr Jamieson running up the rear deck towards the cabin. Mr Jensen, Mr Todorovski, Mr Franciscus and Mr Sample ran away from the collapsing grillage. 9. Mr Valdovinos was standing approximately 20 metres away on the southern side, in line with the Arc Apartments, working at the time with Mr Martin and other workers. Mr Valdovinos saw a traffic controller running away from the crane towards him and a second traffic controller on the northern side of the grillage had debris coming down around him. 10. At the time of the collapse many workers were in the vicinity of the grillage including Mr Dorin, Mr Turner, Mr Jamieson, Mr Jensen, Mr Franciscus, Mr Sample and Mr Todorovski. Impact with Arc Apartments 1. The affected crane toppled straight across the road and impacted the Arc Apartments. The counter jib landed partially on the roof of the Arc Apartments, on top of the parapet and a number of air-conditioning units. No components of the crane were seen to fail other than those damaged by impact with the Arc Apartments. 2. Mr Dorin, Mr Jamieson and Mr Turner jumped off the top of the crane onto the Arc Apartments rooftop. In the process Mr Jamieson's leg caught the handrail of the crane and he landed head first in between the air-conditioners on the roof of the Arc Apartments. 3. Mr Todorovski and Mr Franciscus called out over the radio to Mr Dorin, Mr Jamieson and Mr Turner and received no response. Mr Jensen instructed a traffic controller to call the ambulance, the police and the fire brigade. He instructed the traffic controller to clear the street and to evacuate the Arc Apartments. 4. On the roof of the Arc Apartments, Mr Jamieson wasn't able to walk as his leg was broken. At that time air-conditioner gas was leaking out from the air-conditioning units. 5. The ground crew workers attached a first aid cage to the second crane. Mr Barnes lifted Mr Valdovinos and Mr Franciscus up to the crane in the first aid cage. The first aid cage was landed on the roof of the Arc Apartments. They placed Mr Dorin, Mr Jamieson and Mr Turner into the first aid cage. Mr Barnes then lowered the cage to the ground. 6. Mr Sample ran into Building 11 to inspect the job site. Mr Todorovski and Mr Martin and another individual from Probuild ran up the fire escape of the Arc Apartments, however the top door was locked. They attempted to kick the door down and Mr Martin climbed through the crane from a resident's balcony to access the roof prior to them receiving radio contact that Mr Dorin, Mr Jamieson and Mr Turner had been taken down via the crane. The ambulance was already there when the emergency cage was landed on the ground. 7. All Arc Apartments residents were evacuated. The affected crane caused damage to the penthouse apartment of the Arc Apartments. Wolli Creek Train Station was also closed temporarily while the recovery process took place. 8. Late on the evening of Monday 7 August 2017, Mr Dahlenburg and Mr Henwood entered the grillage area to insert angle brackets that had been made up overnight to stabilise the south column of the grillage following a request from Mr Smith. Injuries 1. Mr Dorin suffered a cut and received four stitches and bruising. 2. Mr Jamieson suffered a left leg dislocation, resulting in him being unable to walk properly and wore a knee brace as at 20 September 2017. He has undergone three surgeries since the incident. As at August 2019, he was being treated for PTSD as a result of the collapse. As at March 2021, Mr Jamieson was still experiencing difficulty with his knee, has difficulty walking, has not returned to work and is receiving disability insurance. He also struggles with sleep and experiences nightmares. He is currently seeking office-based work. 3. Mr Turner suffered two broken bones in his left foot, bone chips in his left elbow and some tendon damage. Mr Turner could not walk properly and was in a moon boot as at September 2017 and had not returned to work. As at March 2021, Mr Turner still had a broken bone in his left ankle joint that cannot be fixed and is currently arthritic. Mr Turner struggles to walk on uneven surfaces and cannot run or perform some activities such as surfing. Mr Turner is no longer able to perform rigging work and is now working in a safety role. The Grillage and the Tower Crane at the time of Incident 1. At the time of the failure, the crane was partially installed with the base and five tower sections, slewing assembly with cabin, hoist unit, counter-jib, and one counterweight (rear) in place. The load at the time of the incident was significantly less than the maximum design load of 660kN. 2. In the weeks following the incident, S & T Services performed an analysis to determine a viable collapse mechanism at low loads. On receiving the expert reports obtained on behalf of SafeWork NSW, S & T Services acknowledged that the design of the grillage was not adequate to withstand the intended maximum design load of 660kN. Expert Reports Professor Bradford 1. Professor Mark Bradford, Scientia Professor & Professor of Civil Engineering, was retained on behalf of SafeWork NSW. On 11 August 2017 and 12 August 2017, Professor Bradford attended the site to inspect the collapsed grillage. Professor Bradford produced reports dated 28 March 2019, 28 May 2019, 6 August 2019, 22 September 2019 and an addendum dated 21 October 2020. 2. Photographs showed that the plates at Level 3, where the connections failed, were severely distorted. Professor Bradford undertook finite element modelling ("ABAQUS") based on the defendant's design drawings and associated calculations generated by the Space Gass design programme used by S & T Services to determine the combination of loads that produce the greatest stress resultants and hand calculations. 3. Finite element modelling results produced by Professor Bradford found that the design had an actual maximum load capacity of about 399kN for the pin connections. Mr Ryan Fry 1. Mr Ryan Fry of CMP Engineers Pty Ltd was retained on behalf of S & T Services. Mr Fry provided two reports, in response to the reports provided by Professor Bradford, dated 29 January 2020 and 2 November 2020. Findings of the Experts 1. Both experts agreed that based on their respective calculations, the design provided by the defendant was not adequate to support the intended design maximum load of 660kN, being the load of the fully erected affected tower crane. In particular the lap joints and connection pins as designed were not adequate for the tensile forces that would apply to a load of this scale. 2. By agreement between the parties Professor Bradford and Mr Fry subsequently discussed their respective calculations of the maximum loads in the lap joints and tie pins as at the time of the incident. While there are minor differences in the maximum loads in the lap joints estimated by both experts, their calculations show that the maximum loads on the north and south lap joints at the time of the collapse would have been significantly below 399kN. 3. Regardless of what the actual maximum loads in the lap joints or tie pins were at the time of the incident and the status of the grillage and affected tower crane at that time, S & T Services inadequately designed the connection elements. No Computer Modelling of Connection Elements 1. The Act provides in s 22(3) that: "The designer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2)". 2. FEA consists of three stages: (1) Representing or modelling an engineering problem, or putting it another way, an analysis procedure that involves discretising (i.e. converting a continuous space into an equivalent discrete space for the purposes of easier calculation) a structure into discrete individual elements; (2) Solving the problem using FEA; (3) Interpreting the meaning of the FEA results to make engineering decisions about the problems. 3. At all material times, WorkCover Authority of NSW, "Safe design of structures" Code of Practice ("the Code"), dated July 2014 stated: "Example 4: Use of 3 Dimensional (3D) modelling as a tool for designers. A building designer had traditionally used sketches and 2D drawings in early project discussions with clients. Not all clients could appreciate the three dimensional implications from 2D drawings and fewer could afford the expense of scale models. With the advent of downloadable 3D modelling software it became possible (and feasible) to provide the client with a fully rendered, coloured, and three dimensional representation of their project. Capable of being submitted electronically, the file allows the client to view the proposal from any direction. This software also allowed the designer to work with the client to explain the construction process as well as identifying safety issues such as excavations, work at heights and traffic movements that could be resolved by adjusting the design. The designers' clients are also better informed so that they can consider the use of the building after construction is completed and to make any adjustments to the design at the earliest possible stage." 1. In steel deformation there are three stages: (1) elastic (linear), i.e. the material comes back to its original shape after the load is removed; (2) plastic deformation (non-linear) i.e. the material remains deformed after the load is removed; and (3) material fractures. 2. In relation to the connection elements, S & T Services considered that the job did not require non-linear materials analysis and that the problem did not warrant the use of a programme like Stand 7 to calculate the stresses within the pinned lap connection. 3. The defendant as the designers and structural engineers should have undertaken non-linear finite element modelling prior to the incident. Missing Pin Connection/Tensile Forces 1. Photographs taken by Professor Bradford on site after the incident showed the plates at Level 3, where the connections failed, were severely distorted by irreversible plastic deformations that can only occur by yielding. In the Professor's opinion, the full connection should have been modelled by the defendant i.e. both plates, the pin and the cotter pin. In Professor Bradford's opinion, the evolution of the stresses and deformations with a monotonic increase of the load would have provided useful data on the ultimate strength of the connection, as non-linear finite element software with material contact capabilities are able to provide this data. ABAQUS modelling illustrated that the connection had failed – by plate bending, rupture of the cotter pin and pull-out of the structural pin. 2. Professor Bradford opined that failure caused by a pin being missing (as suggested by S & T Services) was most unlikely and that the failure occurred by the deformation of the top pins resulting in the distorted configurations of the plates at these locations. 3. Professor Bradford also opined that the pin may have become dislodged during the collapse because of the connection at Level 1 being subjected to compression prior to the collapse and, when the Level 3 connections failed, this pin connection was subjected to tension. That produced a very sudden dynamic effect, and the very high strain rates experienced during such an event are known to strengthen materials such as steel. The dynamic effect of a load reversal could, in Professor Bradford's opinion, be causative of the pin dislodgement. Inadequacy of Hand Calculations for the Design of the Connection Elements 1. In about April 2017, Mr Dahlenburg did hand calculations for the design of the connection elements. Computer modelling should have been conducted in addition to hand calculations. The performance of components such as the pin connections of the grillage to the permanent structure should have been identified as a foreseeable hazard. The most conclusive way of eliminating any doubt regarding the structural performance would have been to have conducted numerical modelling of the pin connection (i.e. of the plies and pin) to establish a basis for minimising the risk associated with this aspect of the function of the structure. 2. The load at the time of the incident was significantly less than the maximum design load. The experts have estimated the grillage collapsed at approximately 40% of the maximum design load. 3. The capacity check in the defendant's relevant April 2017 hand calculations is a design check for compressive loading, but the connection was subjected to, and failed, under tensile loading. 4. Between the edge of the hole and the end of the plate (because the end of the plate is free) shear forces were present. This required a "plate tear out" check to be undertaken. Such a check had not been undertaken in the hand calculations. 5. It was not appropriate for the defendant's hand calculation to use the measurement taken at the wider section because yielding and potential rupturing take place at the narrowest section in a tension connection. The narrower section will fail since the tension force is constant along the plate. The defendant's structural engineers performed a compression check and not a tension check. Inadequate Design of the Connection Elements 1. Section 9.1.3 of AS 4100-1998 Steel structures, dated June 1998, (p 107) required that each element in the connection elements be adequately designed by the defendant so that the structure is capable of resisting all design actions. 2. The structure, as designed by S & T Services, was unable to provide the necessary load path to the building for the crane when it was fully erected and/or when a maximum load of 399kN or greater was applied. The single-shear lapped pin connection was neither sufficiently stiff nor strong enough to resist the tensile load produced by the self-weight of the crane. A tensile load is the capability of a material to withstand a pulling force. 3. The use of a pinned eccentric connection of this type is somewhat unusual in so far as the eccentricity induces bending stresses in the plates. By use of the lapped pin joint (eccentric connection) created four times more stress on the joint than a concentric connection system would. Guidance Materials 1. At the time of the incident the "Steel designers' handbook" by Branko Goreng, Ron Tinyou and Arun Syam (2012) UNSW Press, Sydney, NSW was available for reference. The text states: "There are precautions to be taken in the design of pins to ensure a satisfactory performance of these connections… The usual pin arrangement is a single 'eye plate' (ie the plate elements connected to the member) fitted between two 'gussets' (ie the plate elements at the support)." 1. At the time of the incident, the Crane Manual, inclusive of an extract titled "Corner pressures, foundation loadings, ballast data – Tower Crane 285 EC-B 12 Litronic", was in existence. Section 4 of the Crane Manual provides load charts of the crane loads on various bolted foundations for use in calculating the design load for a structure. The calculations by the defendant were based on the revised requirement of free standing base plus five towers and without a climbing frame. The applicable load chart for comparison is 4-88 with base plus five towers. 2. The Australian Standard 4100:1998 Steel structures was available online prior to the incident. It contains the following clauses with respect to the design of steel structures: Clause 3.1.2: "The Structural and its component members and connections shall satisfy the design requirements for stability, strength, serviceability, brittle fracture, fatigue, fire and earthquake in accordance with the procedures given in this Standard, as appropriate." Clause 4.2.5: "The design of the connections shall be consistent with the form of construction, and the behaviour of the connections shall not adversely affect any other party of the structure beyond what is allowed for in design. Connections shall be designed in accordance with Section 9." Clause 9.1.1: "Connection elements consist of connection components (cleats, gusset plates, brackets, connecting plates) and connectors (bolts, pins and welds). The connections in a structure shall be proportioned so as to be consistent with the assumptions made in the analysis of the structure and to comply with this Section. Connections shall be capable of transmitting the calculated design action effects." Clause 9.1.3: "Each element in a connection shall be designed so that the structure is capable of resisting all design actions." Clause 9.1.5: "Members of components meeting a joint shall be arranged to transfer the design actions between the parts and wherever practicable, with their centroidal axes meeting at a point. Where there is eccentricity at joints, the members and components shall be designed for the design bending moments which result." Part 7.5(d) of Clause 9.1.5: "Pin plates provided to increase the net area of a member or to increase the bearing capacity of a pin shall be arranged to avoid eccentricity and shall be proportioned to distribute the load from the pin to the member." 1. At all material times, the WorkCover Authority NSW "Safe design of structures" Code of Practice dated July 2014 ("the Code") said: "3.4 Reviewing control measures As the design progresses and design decisions become more fine-tuned and detailed, there are still opportunities for either eliminating or minimising risks. At various points in the design process, designers should review design solutions to confirm the effectiveness of risk controls and if necessary, redesign to minimise the risks so far as is reasonably practicable." 1. The Code states at p 6: "A risk management process is a systematic way of making a workplace as safe as possible and it should also be used as part of the design process. It involves the following steps outlined in Chapter 3 of this Code: • identify reasonably foreseeable hazards associated with the design of the structure • if necessary, assess the risks arising from the hazards • eliminate or minimise the risk by designing control measures, and • review the control measures. General guidance on the risk management process is available in the Code of Practice: How to Manage Work Health and Safety Risks." 1. The Code states at cl 2.5, Information Transfer, that: "Key information about identified hazards and action taken or required to control risks should be recorded and transferred from the design phase to those involved in later stages of the lifecycle. Communicating this information to other duty holders will make them aware of any residual risks and minimise the likelihood of safety features incorporated into the design being altered or removed by those engaged in subsequent work on or around the building or structure." 1. The Code states at cl 1.3: "While designers may not have management and control over the actual construction work they can discharge their duty by consulting, co-operating and co-ordinating activities, where reasonably practicable, with those who do have management or control of the construction work, for example by: • applying risk management processes to more traditional designs and considering whether new or innovative approaches to design will eliminate or minimise risk and result in an intrinsically safer building or structure • providing information of any identified hazards arising from an unconventional design to those who will construct or use the building • providing guidance on how a structure might be constructed safely • carrying out the above in collaboration with those who have expertise in construction safety." 1. The Code states at cl 3.4: "As the design progresses and design decisions become more fine-tuned and detailed, there are still opportunities for either eliminating or minimising risks. At various points in the design process, designers should review design solutions to confirm the effectiveness of risk controls and if necessary, redesign to minimise the risks so far as is reasonably practicable. Wherever possible, design safety reviews should involve the people who will eventually construct the structure. If this is not possible, the client and designer should make every effort to include people with knowledge and experience in the construction and maintenance processes in the design safety reviews. Their expertise will assist in identifying safety issues which may have been overlooked in the design." Evidence for the Defendant – Affidavit of Mr John Stella 1. Mr John Stella, the sole director of S & T Services, swore an affidavit on 15 April 2021. Qualifications and Experience 1. Mr Stella has over 35 years experience as an engineer. He holds a Bachelor of Engineering (Honours) degree and is a Chartered Member of Engineers Australia. Background to S & T Services 1. Mr Stella provided the following examples of construction engineering projects S & T Services has specialised in over the years: temporary support of bridge beams during installation; thrust blocks for launching tunnel boring machines; man and material hoist installations; and, crane installations. Mr Stella said that S & T Services "have designed dozens of crane installations for Probuild including a crane that climbed up the outside wall of a lift core on a building 200m high". 2. Mr Stella explained that S & T Services was established by his father, Mr Anthony Stella, and his business partner, Mr Ferruccio Tonelli in October 1987. Mr Tonelli and Mr Stella's father ceased being directors on 15 October 1990 at which time Mr Stella and Ms Mary McBurnie were appointed as directors. Mr Stella also became the company secretary from 10 June 1993. Ms McBurnie ceased to be a director on 25 January 1999. Mr Stella was the sole director from that point in time until 24 June 2013 when Dr Nagato was appointed as a director. 3. At the time of the incident, the company had three employees, all of whom were qualified design engineers. Dr Nagato resigned as company director on 28 September 2020 and Mr Dahlenburg resigned on 6 March 2020. At present, the company has no employees. Contrition and Remorse 1. On behalf of S & T Services, Mr Stella expressed contrition and remorse. He acknowledged the pain and suffering sustained by Mr Dorin, Mr Jamieson and Mr Turner. From a personal perspective, Mr Stella said: "I appreciate there were three workers on the crane when the grillage failed, placing their health and safety at grave risk. It gives me great anxiety to think about how terrified they must have been and that they suffered injury as a consequence of the grillage failure. I am extremely sorry that they have had to experience this". Retainer by Probuild 1. In his affidavit, Mr Stella noted that in his years of experience designing structures such as the grillage, it has been accepted practice for the principal contractor to obtain certification from an independent engineer on such a structure after it has been built or prior to the installation of a crane. The retainer by Probuild did not require S & T Services to provide such a certification. Mr Stella said that to his knowledge, the grillage had not been certified by an independent engineer prior to the commencement of the crane installation. Aardvark Steel Constructions Pty Limited 1. Mr Stella explained that his understanding of cl 4.3.1 of the Scope of Works for Aardvark, required Aardvark to ensure that written confirmation of structural stability of the design and installation of works had been obtained from engineers. Aardvark did not do this before the incident. Grillage Design and Failure 1. Once the design work was completed by Mr Dahlenburg under the supervision of Mr Stella and Dr Nagato, the design was deemed appropriate for the proposed purpose. The Strand 7 software that the company had was not utilised as a decision was made that the manual calculations were sufficient to carry out the analysis. 2. Mr Stella said that the fact the grillage failed under a load which was substantially less than the design load was a surprise to him as he was confident the design provided was adequate for the intended load. 3. Mr Stella stated: "I have high regard for Professor Bradford and it wasn't until I reviewed… his reports that I was able to rationalise the load capacity of the grillage at approximately 400kN as opposed to the maximum design load the grillage ought to have been able to withstand". Subsequent Developments 1. Following the incident, S & T Services introduced measures to safeguard against potential design error. This included introducing a system which: 1. Reviewed the design and designated a risk profile (i.e. low risk, medium risk or high risk) to the work. 2. Allocated a review process based on the risk assessment. 3. Required a review by the principal or an independent third party for high risk projects. 4. Introduced a separate category of "check" for situations where the company was the third party reviewing external designs. 1. The above was implemented in early 2019 and was in successful operation for the last 164 projects that S & T Services worked on. Current Status of the Company 1. In order to provide engineering services, the company needs to hold valid professional indemnity insurance. The insurer on risk for the purposes of the civil proceedings connected to the incident did not renew the insurance and came off risk from 4.00pm on 1 November 2019. Mr Stella managed to secure one year of insurance at a premium increase of 300% from the previous year. However, that lapsed in November 2020 and was not renewed. 2. Due to the inability to obtain insurance and the stigma attached to the incident, Mr Stella decided that the company had to cease to trade. The company has not traded since mid-November 2020 and Mr Stella said it is going to be wound up once all criminal and civil proceedings associated with the incident have concluded. 3. On 17 November 2020, Mr Stella commenced working as a temporary works engineer at another firm, earning approximately $2,500 per week. Other Impacts 1. Following the incident, Mr Stella assisted in devising a removal procedure for the failed grillage with Mr Dahlenburg. Mr Dahlenburg was offered counselling after the incident by Probuild and he accepted it. However, Mr Stella was not offered, and did not seek, any counselling. 2. Since September 2019, the ramifications of the incident has resulted in Mr Stella experiencing an inability to sleep, depression, significant weight loss and stress management issues. He has since sought assistance from his general practitioner and a psychologist with these health issues. 3. He explained that he is often reminded of the incident through external sources. For example in November 2019 the incident was used as a case study in training provided through Engineers Australia. Mr Stella said: "Whilst I understand and acknowledge the need for the engineering industry to use examples for learning purposes, I felt that while all of the legal proceedings were still pending, much of the commentary and analysis given was highly speculative, and in many instances, factually inaccurate, causing the company further reputational damage. The company founded by my father had been the whole of my life's professional work. That has come to an end because of the design error my team and I made." Consideration 1. I have had regard to the objects in s 3 of the Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Objective Seriousness of the Offence 1. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15]. 2. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70]. 3. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending." 1. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61]. 2. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively. 3. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment. 4. The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading "Assessment of Risk" said: "The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors." 1. Further at [42] his Honour continued: "The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs." 1. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: "It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken." 1. My findings about the defendant's level of culpability are based upon the following: 1. The risk that crane and grillage columns would collapse and injure workers in circumstances where the design of the grillage was not adequate to support the intended load of a fully erected tower crane was obvious and foreseeable. These matters were acknowledged on behalf of the defendant (MFI 2, par 88). 2. Failing to ensure that adequate computer calculations were carried out posed a known risk. Counsel for the defendant acknowledged in oral submissions that the hand calculations of S & T Services "proved to be flawed". At the time of the incident there were guidance materials that made it clear that there were precautions that should be taken in the design of pins to ensure connection elements could meet requirements for stability and strength. These matters were acknowledged on behalf of the defendant (MFI 2, par 86). 3. The potential consequences of the risk were very serious injury or death. These matters were acknowledged on behalf of the defendant (MFI 2, par 87). The workers on the crane faced death as the crane fell across the street until its progress was fortuitously arrested by an adjacent apartment block. Mr Jensen, Mr Todoroski, Mr Franciscus, Mr Sample and others in the vicinity were also exposed to a risk of death or serious injury. The dramatic photographs of the toppled carne balancing precariously on the roof of the Arc Apartments (PX 2, Tab 17) demonstrate that an even greater catastrophe could have occurred. 4. There were several steps that were readily available, which could have been implemented to eliminate or minimise the risk at the time of the incident. These matters were acknowledged on behalf of the defendant (MFI 2, pars 88 and 90). The measures included: 1. Carrying out adequate calculations and not relying solely on hand calculations for the design of the connection elements. 2. Confirming the design of the connection elements was adequate by: 1. designing wider connection elements or a concentric type connection in the connection elements; 2. ensuring the pin connection was sufficiently strong to resist the tensile load produced by the self-weight of the crane and/or that the structure was able to provide the necessary load path to the building for the crane. 1. Undertaking an adequate review that would have identified the following: 1. hand calculations were inadequate; 2. the design of connection elements used to fabricate and install the crane grillage was inadequate; 3. there was a risk that the installed crane grillage would not be able to support the design crane tower loads. Identification of such a risk would have prevented the tower crane installation from commencing until it could be confirmed that the grillage would be able to support the loads. 1. These measures would not have been particularly complex or burdensome for experienced engineers to implement. S & T Services was designing the structure for a fee, so any extra costs could have been built into its price. It already possessed the software necessary to perform appropriate calculations. 2. The harm caused is very serious. Mr Dorin, Mr Jamieson and Mr Turner were injured. In particular, the serious injuries suffered by Mr Jamieson and Mr Turner have prevented them from returning to the roles they used to perform. These matters were acknowledged on behalf of the defendant (MFI 2, par 89). 3. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature's view of the seriousness of the offence. 4. Counsel for the defendant submitted that others were at fault besides S & T Services. Counsel pointed to: the failure to obtain an ITP which could have led to an independent engineer querying the validity of the defendant's calculations and design; the assertion by Probuild that it had an engineer's certificate, when clearly it did not; and the rush to finish the erection of the crane. These matters were really a submission that if proper steps had been taken by other entities, someone else might have discovered the flaws in the design work of S & T Services. There is some force in that submission, but it must be recognised that the predominant causative factor in the creation of the risk was the breach of duty by the defendant. 1. I find that the level of culpability of S & T Services is in the high range. Deterrence 1. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180]. General deterrence is of particularly importance in construction cases: Attorney General for New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33 at [92]. 2. While the penalty must reflect the need for specific deterrence, S & T Services has ceased trading. It is no longer providing engineering services or engaging workers. Specific deterrence is not an important factor in this case. Aggravating Factors 1. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. Mitigating Factors 1. S & T Services does not have any prior conviction record: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. 2. S & T Services is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. S & T Services had been in business from 1987 without any other incidents other than the event which is the subject of these proceedings. 3. S & T Services is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. 4. S & T Services has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this accident occurred. 5. S & T Services has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injuries to Mr Dorin, Mr Jamieson and Mr Turner were caused by its actions. 6. S & T Services entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give S & T Services a 25% discount for an early plea. A defended trial would have been lengthy, complex and expensive. 7. S & T Services gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion. Capacity to Pay a Fine 1. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence. 2. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said: "First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to 'the means' of the defendant, pursuant to s 6 of the Fines Act 1996." 1. There was no submission about capacity to pay, so this issue does not arise. S & T Services is going to be wound up. Victim Impact Statement 1. Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with by the District Court where the offence results in the death of, or actual physical bodily harm to, any person – s 27(2)(a). 2. A Victim Impact Statement may be tendered to the court only by the prosecutor – s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division – s 30B. 3. A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate – s 30E(1). Victim Impact Statement of Simon Turner 1. Mr Turner was one of the injured workers. In his Victim Impact Statement, Mr Turner said his initial reaction was that the fallen crane was not going to remain on top of the Arc Apartments. He explained that this was why he and Mr Jamieson jumped off the back deck as the crane impacted. 2. Mr Turner listed the injuries he sustained including 2 bone chips in left elbow, several stitches, ligament damage in his right knee, a break in the talus bone in his left foot, a break to the calcaneus bone in his left foot and a break to the apex of the bone in his left ankle joint. He stated that after two months of recuperation post-incident, his orthopaedic surgeon informed him that the 17mm x 14mm chip of bone on the apex of his left ankle joint was not going to heal. Mr Turner decided not to take the surgery option as he was told by his surgeon that it may not work and could possibly make his mobility and pain worse. The surgeon also explained to Mr Turner that the bone could dislodge or disintegrate in future which would give rise to the need to have his ankle fused. As a result of this injury, he is unable to put downward pressure on his left foot and is experiencing arthritis. The injury also is causing back issues due to favouring the right side of his body. 3. Mr Turner can no longer participate in the numerous sports, outdoor activities and family activities he used to engage in with his wife and children. 4. Mr Turner also explained in his Victim Impact Statement that the incident has led to a reduction in his income, causing both financial and personal strain. He said: "I have been very depressed on how I am going to deal with life in the future". Costs 1. The parties have agreed to an order that the defendant is to pay the prosecutor's costs. Penalty 1. My orders are: 1. S & T Services Pty Ltd was convicted on 22 April 2021. 2. I take into account the Victim Impact Statement of Mr Simon Turner. 3. The appropriate fine is $300,000 but that will be reduced by 25% to reflect the plea of guilty. 4. Order S & T Services Pty Ltd to pay a fine of $225,000. 5. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. 6. Order S & T Services Pty Ltd to pay the prosecutor's costs. ********** 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: 29 April 2021