District Court New South Wales Medium Neutral Citation: SafeWork NSW v Askfay Pty Ltd; and; SafeWork NSW v Anthony Elias Felix Grima [2021] NSWDC 572 Hearing dates: 30 September 2021 Date of orders: 22 October 2021 Decision date: 22 October 2021 Jurisdiction: Criminal Before: Strathdee DCJ Decision: SafeWork NSW v Askfay Pty Ltd (2020/129222): (1) The defendant, Askfay, is convicted. (2) The appropriate fine for the offence is $500,000.00 and that will be reduced by 25% to reflect a plea of guilty. (3) Accordingly, I order the defendant Askfay to pay a fine of $375,000.00. (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the defendant is to pay the prosecutor's costs as agreed or assessed. SafeWork NSW v Anthony Elias Felix Grima (2020/29262): (1) The defendant, Mr Grima, is convicted. (2) The appropriate fine for the offence is $50,000.00 and that will be reduced by 25% to reflect a plea of guilty. (3) Accordingly, I order the defendant Mr Grima to pay a fine of $37,500.00. (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the defendant is to pay the prosecutor's costs as agreed or assessed. 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 – totality of sentence - appropriate sentence OTHER – s 19(1) of the Work Health and Safety Act 2011 (NSW) – s 20 of the Work Health and Safety Act 2011 (NSW) Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Cases Cited: Bulga Underground Operations v Nash (2016) 93 NSWLR 338 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Environmental Protection Authority v Barnes [2006] NSWCCA 246 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100 Jahandideh v R [2014] NSWCCA 178 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310 Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling v The Queen (2012) 35 VR 399 R v Cage [2006] NSWCCA 304 R v MA [2004] NSWCCA 92 R v Miria [2009] NSWCCA 68 R v MMK [2006] NSWCCA 272 R v Thomson & Houlton (2000) 49 NSWLR 383 SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 SafeWork NSW v Poletti Corporation [2019] NSWDC 491 Veen v R (No. 2) (1988) 164 CLR 465 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 Category: Sentence Parties: SafeWork NSW (Prosecutor) Askfay Pty Limited (Defendant) Anthony Elias Felix Grima (Defendant) Representation: Counsel: Mr D Nagle for the Prosecutor Mr F Salama and Mr A Smyth for the Defendants Solicitors: Ms G Heffernan Department of Customer Service (for the Prosecutor) Mr M Secivanovic, Braddon Marx Solicitors (for the Defendants) File Number(s): 2020/129222 and 2020/129262 JUDGMENT 1. On 14 December 2020, Askfay Pty Ltd ('Askfay') entered a plea of guilty in respect of an offence under s 32 of the Work Health and Safety Act 2011 (NSW) ('the Act') that it failed to comply with its health and safety duty under s 19(1) of the Act and thereby exposed persons, in particular Nathan Barota ('Mr Barota'), Bradley Ferguson ('Mr Ferguson'), Brendan Sharp ('Mr Sharp'), Tim Silk ('Mr Silk') and Michael Dyson ('Mr Dyson') to a risk of death or serious injury. 2. On 14 December 2020, Anthony Elias Felix Grima ('Mr Grima') entered a plea of guilty in respect of an offence under s 32 of the Act, that he failed to comply with his health and safety duty, being a person with management or control of a workplace who had a duty under s 20(2) of the Act and thereby exposed Mr Barota, Mr Ferguson, Mr Sharp, Mr Silk and Mr Dyson to a risk of death or serious injury. 3. The maximum penalty for an offence under s 32 of the Act for a corporate entity is $1,500,000.00. The maximum penalty for an offence for an individual is $300,000.00. 4. The prosecutor tendered a Prosecution Tender Bundle which became Exhibit A. 5. The defendant read an affidavit of Anthony Elias Grima sworn 6 September 2021 which became Exhibit 1, an affidavit of Anthony Elias Grima sworn 23 September 2021 which became Exhibit 2, an affidavit of Frank Carnuccio sworn 10 September 2021 which became Exhibit 3 and an affidavit of Frank Carnuccio sworn 22 September 2021 which became Exhibit 4. BACKGROUND 1. Askfay conducted a business or undertaking in the design and construction of residential and commercial buildings. Mr Frank Carnuccio ('Mr Carnuccio') was the sole director of Askfay. 2. Askfay was the principal contractor for the design and construction of six two-storey townhouses at 37 Durug Avenue and 60 Binyang Avenue, Glenmore Park ('the site'). The townhouses were known as 'Triplex 1' comprising of townhouses 1, 2 and 3 and 'Triplex 2' comprising of townhouses 4, 5 and 6. 3. Mr Grima was the site supervisor and site foreman, engaged by Askfay to supervise workers at the construction of Triplex 1. He was a person who had control, in whole or in part, of the worksite. 4. Mr Grima was engaged by Mr Carnuccio on behalf of Askfay, to perform tasks such as inductions and site safety operations on behalf of and as an agent of Askfay at the worksite. There was no written contract between Askfay and Mr Grima, all instructions and agreements were verbal. 5. Askfay also subcontracted with Arena Homes Pty Ltd ('Arena') to manufacture and erect steel frames at the site. The injured person, Mr Dyson, was employed by Arena. 6. ABC Scaffolding Pty Ltd ('ABC Scaffolding') were engaged to install scaffolding at Triplex 1 on 17 May 2018. On 17 May 2018, ABC Scaffolding attended the worksite but due to difficulties with site access, did not unload or install the scaffold or protection on this day. 7. Between 17 May 2018 and 22 May 2018, Arena was performing the work of erecting steel framework at Triplex 1. Prior to 22 May 2018, the steel framework for townhouses 1 and 3 had been completed. On 22 May 2018 at 7:00am, work commenced to erect steel framework on the first floor of townhouse 2, access was gained via a ladder placed by Arena employees. 8. Mr Grima was present at the worksite on 22 May 2018 when Arena workers were commencing work on townhouse 2. 9. At around 7:30am, Mr Dyson was working on level 1 of townhouse 2 when he stepped backwards and fell through an area designated to be a stairwell measuring approximately 3 metres by 1.8 metres ('the penetration'). He fell 3 metres onto the concrete floor of the ground level below. 10. Mr Dyson suffered an acute fracture of the femur and a laceration to his right fourth finger. He was admitted to Nepean Hospital for 2 days. Mr Dyson also suffered acute hip pain and could not bear any weight on his right leg for six weeks. He travelled to his family home in Queensland for six weeks to receive assistance following the incident. SYSTEMS OF WORK PRIOR TO THE INCIDENT 1. At the time of the incident, workers were not required to wear harnesses on level 1 of townhouse 2 in the event the penetration was uncovered, nor were harnesses made available to workers. 2. Although Askfay and Mr Grima were not aware, the most senior person employed by Arena, Tim Silk, had instructed workers to 'be careful' at a time when the existence of the uncovered penetration was known and obvious. Askfay and Mr Grima were also unaware Mr Dyson did not hold a general construction induction card (a white card) and had not been inducted onto the worksite. 3. In respect to Askfay: 1. No risk assessment for the erection of framing on level 1 of the worksite had been completed. A risk assessment was conducted on 15 May 2018 but did not involve the erection of framing as scaffolding was only expected on 17 May 2018. 2. Not all available steps were taken to ensure that Arena or its employees had completed a risk assessment regarding working from heights on level 1 of the worksite. 3. Not all available steps were taken to ensure that scaffolding and penetration covers were in place before workers commenced work on level 1 of the worksite. 4. Not all available steps were taken to ensure that Mr Dyson held a white card. 5. Not all available steps were taken to ensure that Mr Dyson had read and understood any Safe Work Method Statement ('SWMS') associated with high risk construction work being undertaken on the worksite. 1. In respect to Mr Grima: 1. He was the site supervisor and had the authority to refuse workers access until scaffolding and penetration covering were in place. 2. Not all available steps were taken to exercise his authority to prohibit workers from working on level 1 of townhouse 2 until such time as scaffolding and penetration covering were in place. 3. He had not ensured adequate scaffolding and penetration coverings were in place. 4. Not all available steps were taken to ensure that workers did not work on level 1 of townhouse 2 if scaffolding and penetration coverings were not in place. 5. Not all available steps were taken to ensure Mr Dyson held a white card. 6. Not all available steps were taken to ensure that Mr Dyson had read and understood any SWMS associated with working at heights at the worksite. SYSTEMS OF WORK AFTER THE INCIDENT 1. On 22 May 2018, following the incident, SafeWork NSW issued a Prohibition Notice to cease work on level 1 of the worksite until and unless the Housing Code of Practice is complied with, specifically, the requirement to provide void and edge protections. 2. On 24 May 2018, SafeWork NSW issued an Improvement Notice direction that a suitable scaffolding system be completed and be made safe for use at the worksite. 3. On 24 May 2018, Askfay, with the assistance of Arena, complied with the Prohibition Notice and Improvement Notice by installing scaffolding and penetration covers at the worksite. SENTENCING 1. The penalty to be imposed must be one which will give overall effect to the policy of the Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the Act. 2. The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act') which include: 1. Section 3A which sets out the purpose of sentencing; 2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and 3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered. 1. The court is to approach a sentencing exercise on the basis of it being one of 'instinctive synthesis': Markarian v The Queen (2005) 228 CLR 357. 2. The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way: '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 v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement.' OBJECTIVE SERIOUSNESS OF THE OFFENCE 1. The duty of the defendants requires they ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the defendants had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks. 2. The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474–5. 3. The gravity of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No. 2) (1988) 164 CLR 465. 4. The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 ('Capral Aluminium') at [81]. 5. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117. 6. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31]. 7. The Court of Criminal Appeal examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 ('Nash v Silver City'). Justice Basten at [34], under the heading 'Assessment of Risk' said: 'The sentencing judge commenced his consideration with the proposition that '[g]reater 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 upon an assessment of all those factors.' 1. His Honour further observed at [42]: '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 pressure event of the force 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 a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent's responsible officers knew or ought to have known.' 1. I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272. 2. The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]–[18] (Latham J). 3. The defendants' duties required they identify risks at the site and to adopt measures to eliminate or minimise them: s 17 of the Act; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [34] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 4. Mr Grima contracted with Askfay to act as the site supervisor for the premises, and would invoice Askfay through the company controlled by Mr Grima. Askfay was the principal contractor on the site. 5. Askfay and Mr Grima knew that scaffolding was required in order to ensure the health and safety of workers who were working at height on lots 1, 2 and 3 of the Triplex complex. The email produced at [21] of the Agreed Statement of Facts demonstrates that Askfay and Mr Grima were aware that scaffolding was required, and had ordered the scaffolding as required, in order for the site to operate safely. The scaffolding had been due to arrive for 17 May 2018. There were issues with site access and the scaffolding company, ABC Scaffolding, could not and did not unload or install scaffolding as contracted. The scaffolding included void protection. 6. In spite of the failure to install the scaffolding, workers were permitted to work on the first level of lots 1, 2 and 3 of the Triplex complex during the date range of the charges being between 17 May 2018 and 22 May 2018. Importantly, the charges are not limited to a single day, and therefore the exposure to risk to the workers over the date range, to my mind, makes the offence more objectively serious. 7. Despite there being no scaffolding on site, Askfay and Mr Grima elected to continue operating despite the need for scaffolding. This election to continue in spite of fall protection had tragic consequences. That adds to the seriousness of the offence given that the risk was clearly foreseen. 8. It is clear that the defendant had control of the site as the principal contractor, and despite this control, Askfay and Mr Grima did not take reasonable steps to ensure safety measures were implemented and enforced in regard to working at heights. 9. There were no measures put in place to protect workers working on the first floor other than those workers being told to 'be careful'. That is effectively no safety measures at all, and it is the lack thereof which culminated in both the exposure to risk between 17 and 22 May 2018, and by the manifestation of the risk being the significant injuries tragically sustained by Mr Dyson. 10. Mr Dyson stepped backwards and fell through a stairwell penetration, which was some three meters off the ground. The ground floor was concrete and when Mr Dyson struck the ground he sustained significant injuries. 11. At the time of the incident, Mr Dyson did not hold a white card, and had not been inducted onto the work site. He was only 19 years of age at the time of the incident. 12. It is trite law, that the duties of each of the defendants required that they ensure the health and safety of workers, as far as reasonably practicable, is paramount. It is expected, and in fact the case, that such a duty is not delegable and each of the defendants had control and influence over the workers on the site. The duty required the identification of risks in the workplace and a detailed assessment of the measures to address each of those risks, with a relevant safety plan not only notified to the workers but implemented by direction and correction. 13. The risk was clearly foreseen and glaringly obvious. By not ensuring that the scaffolding was installed, Askfay and Grima elected to permit the site to operate unsafely. The systems of work, as they existed, are summarised at [36] of the Agreed Statement of Facts, and demonstrate a clear and unequivocal breach of the Act. 14. Employers must take steps to protect workers against risks created by inadvertent conduct of workers in the course of their work, if it is reasonably practicable to do so: SafeWork NSW v Poletti Corporation [2019] NSWDC 491 at [88]. 15. The gravity of the risk is demonstrated by the seriousness of the injuries suffered by Mr Dyson. Mr Dyson sustained a broken femur which required surgery and significant rehabilitation. He also suffered a significant laceration to his right middle finger and was in hospital for 48 hours. I have had regard to the discharge summary from Nepean Hospital. 16. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of, it. At [53] in Nash v Silver City, Basten JA 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 failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring 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 materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.' 1. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ). 2. The objective seriousness of an offence under s 32 of the Act is considered in the context of the graduation of offences contained in ss 31–32 of the Act: Nash v Silver City at [54]–[56]. The matters relevant to objective seriousness for a s 32 offence include: * The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Ibid [34]; * The availability of steps to eliminate or minimise the risk: Ibid [53]; * Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Ibid [53]; * Whether the risk was known or ought reasonably have been known to or identified by the offender; * Whether the risk was an obvious or clear one; and * The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ). 1. Of concern is that the risk to workers existed over a number of days. The scaffolding was to have been delivered on 17 May 2018, and Mr Dyson fell on 22 May 2018, meaning that all the workers on site were exposed for a number of days to a glaringly obvious risk. There was a logical and simple solution to that problem — Mr Grima should have stopped the workers going onto the site until it was safe to do so. Mr Grima himself had ordered the scaffolding, yet allowed the works to continue for a number of days without it. 2. Having regard to the seriousness of the risk and the straightforward steps that could have been taken to overcome that risk, as detailed in the Amended Summons, I am of the view that this offence objectively falls within the middle range of seriousness. Further, in these circumstances, there was a substantial chance of the risk manifesting. DETERRENCE 1. In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act. 2. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the Court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J). 3. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68. 4. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 at [177]–[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]–[75] which said: '[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. … '[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.' 1. General deterrence must be a significant feature of the sentence imposed upon the defendants. It can be appropriately used to direct the industry's attention to the consequences of inattention, and the need for greater concentration on the potential risks of death or serious injury associated with the construction industry. The construction industry is inherently and notoriously dangerous and the industry needs reminding that a cavalier attitude to safety of the workplace will not be tolerated. 2. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors. 3. There was guidance material readily available to the defendant. This risk was known to the industry. General deterrence is necessary to heighten and focus the attention of companies engaged in construction works, that working at heights and falling through voids have the potential for serious injury or death of workers so engaged. 4. In relation to specific deterrence, the attitude of the defendants to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendants to reoffend. I note that Askfay and Mr Grima continue to work in the same industry. 5. Askfay has held a contractor's licence since 1996, and has predominantly carried out residential building work, and has no offences since about 1992/1993. After the incident, the principal of the company took immediate steps to investigate the incident and issued an Improvement Notice to Arena. 6. Further, Askfay surrendered its contractor's licence on 28 May 2021, and submits that it faces an uncertain future and is unlikely to reoffend. Mr Carnuccio deposes at [5]–[9] in Exhibit 3 that: * the company has suffered a significant reduction in turnover and has failed to secure work; * as a direct result of the incident, the company has been unable to qualify for Homeowners Warranty Insurance; * as a result of the accident and decline in turnover, the company has been unable to afford the increase in premium payable for public liability and construction insurance; * the company has been unable to renew its contractor's licence which was surrendered on 28 May 2021, and as such has been undertaking administrative tasks only; and * the combination of these factors coupled with the pandemic has meant that the company has not been able to secure any future work and it is facing an uncertain future. 1. I will allow some leniency to Askfay, but this must be counter balanced with the necessity of the fine to reflect the objective seriousness of the offending. 2. The charge against Mr Grima is pursuant to his duty under s 20 of the Act, which provides as follows: '20 Duty of persons conducting businesses or undertakings involving management or control of workplaces (1) In this section, person with management or control of a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control, in whole or in part, of the workplace but does not include— (a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking, or (b) a prescribed person. (2) The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person.' 1. The charge is brought under s 20(2) of the Act, as Mr Grima was an individual who was conducting a business or undertaking. Mr Grima admits that he had control of the site as he had the day-to-day running of the site. As the supervisor, he had the power to stop work on the site. He knew that scaffolding was required, as he had ordered it, yet he allowed the works to continue — there is no explanation why he did so. The offending is thus more serious, as Mr Grima in the position of control as the site supervisor or person with management or control of the site over all the workers on site, elected to accept the risk because he knew that scaffolding was required on site. Moreover, the workers were so exposed for a number of days. 2. Whilst Mr Grima had such a duty, so did Askfay. Askfay was the principal contractor and as such had a non-delegable duty to protect the safety of all workers on site. Section 20 demonstrates that more than one person can have duties under the Act and the relevant duties that may overlap with another person conducting a business or undertaking, as happened in this instance. One does not extinguish or diminish the duty of the other, and the opportunity to stop the works in the absence of scaffolding that he had ordered, rested with Mr Grima. 3. It is not sufficient in the discharge of obligations in the Act, to direct someone not to do something, it requires that the task be done properly and safely. Mr Grima accepts that he failed to implement the SWMS that was in place, and that had he done so, no one would have been exposed to the risk. 4. Mr Grima has been working as a carpenter since 2009 without any prior convictions, but continues to operate in the construction industry, and his engagement of sub-contractors demonstrates that he continues to be in a position of control over workers on the site. I accept that the practices referred to in [27.2]–[27.4] of the defendants written submissions, remain as practices that Mr Grima adheres to. 5. I accept that the incident has caused Mr Grima to reconsider and assess his company's work, health and safety management systems, and to ensure that incidents such as this one are avoided in the future. He engaged an external consultant, at cost, to complete a work, health and safety audit and assist with his work, health and safety systems. These changes are significant and wide ranging, and if adopted and enforced will go a long way to protect the health of workers. AGGRAVATING FACTORS 1. At the time of the offence, Mr Dyson was only 19 years of age, had no white card and had not been inducted onto the site. Askfay and Mr Grima say that they were unaware of this matter, and this is accepted in the Agreed Statement of Facts. 2. That is concerning, as it demonstrates that rather than ensuring workers on the site were qualified and inducted, the defendants took no steps to confirm these matters as is apparent from [14(e)] of the particulars of the charge. 3. Given the need for training and guidance in the construction industry, I am satisfied that Mr Dyson was in a position of vulnerability: s 21A(2)(l) of the Sentencing Act. 4. Furthermore, Mr Dyson suffered significant injuries as referred to previously and could not bear any weight on his right leg for 6 weeks following the incident. He suffered acute hip pain and was required to travel to his family home in Queensland so he could be cared for by his family: s 21A(g) of the Sentencing Act. MITIGATING FACTORS 1. The defendants co-operated with the SafeWork investigation: s 21A(3)(m) of the Sentencing Act. 2. The defendants entered pleas of guilty on 14 December 2020, which I accept was the first available opportunity, and as such this early plea is a mitigating factor: s 21A(3)(k) of the Sentencing Act. 3. Mr Grima has no prior convictions, and Askfay has had no convictions since an earlier offence in 1992/1993, which does not appear on the SafeWork Prior Convictions Certificate which was part of Exhibit A: s 21A(3)(e) of the Sentencing Act. 4. Section 21A(3)(i) of the Sentencing Act provides that remorse may be taken into account as a mitigating factor in recognition of the remorse shown by the defendant. Mr Carnuccio, on behalf of Askfay, swore two affidavits (Exhibits 3 and 4) and Mr Grima also swore two affidavits (Exhibits 1 and 2). In all four affidavits there is not one word to demonstrate any remorse or contrition. Nor do they contain any concern or follow-up with Mr Dyson after his terrible accident. 5. I find the lack of concern for the victim concerning and that raises an issue as to whether the defendants accept and acknowledge the circumstances they allowed to exist which led to the incident. The defendants will not be afforded any leniency which may have been applicable had they shown any remorse or contrition. 6. The defendants entered a plea of guilty early, and the prosecutor submits it is open to me to find that the defendant is entitled to the maximum discount on that basis, thus I will allow the deduction of 25% for the utilitarian value of the pleas in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383: s 21A(3)(k) of the Sentencing Act. CAPACITY TO PAY 1. Section 6 of the Fines Act 1996 (NSW) provides as follows: '6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) Such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) Such other matters as, in the opinion of the court, are relevant tp the fixing of that amount.' 1. The onus is on the defendants to satisfy the Court on the balance of probabilities as to the truth of such evidence and its relevance to the fixing of a penalty: McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310 at [24]. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16] (Rothman J, Hoeben CJ at CL agreeing). 2. In Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100, Staff J said at [57]–[58]: 'The principles to be applied in respect of an application under s 6 of the Fines Act were discussed by Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 are as follows: '[83] The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons (at par 50): 'It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Ltd (1999) 94 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as (2002) 112 IR 284 at 309 far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200-201.' [84] This approach was subsequently adopted in Manpac Industries where the Full Bench of this Court stated (at pars 81-82): '... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at 339); WorkCover Authority (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333; and Profab Industries (49 NSWLR at 714; 100 IR at 76).' However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209 - 210, Wright J, President observed: '... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty ... When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence. ...' [85] I would reiterate what the Court stated in WorkCover Authority (NSW) (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 at 476: 'Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged and then reduce the fine to take into account the defendant's means and impecuniosity: see R v Rahme (1989) 43 A Crim R 81 at 86.'' 1. Attached to Mr Carnuccio's affidavit (Exhibit 3) is a bank statement for the last three months only, and an accountant's report with regard to the Carnuccio Family Trust for years ending 30 June 2019 and 30 June 2020. 2. Whilst I accept that Askfay may experience some difficulties moving forward, I am not satisfied that the evidence presented establishes a diminished capacity to pay a fine. The documents provided make clear that there have been vast loans to the Carnuccio family which have to some extent diminished the assets of the company, and there is nothing provided to the Court regarding the personal assets of those that control the company. 3. I also accept that Mr Grima has been suffering some mental health difficulties, and that the COVID-19 pandemic has had a significantly negative impact on the carpentry work that Mr Grima performs. Contained within Exhibit 1 are financial documents which Mr Grima has provided very openly, and I accept that the business is struggling, and will have some difficulty paying a fine, and I therefore will allow some leniency on that basis. 4. Having said that, the objective seriousness of the offence is such that it must be reflected in a significant fine. I accept that the defendants are reasonably unlikely to reoffend, but the seriousness of the offence is such that a fine must be imposed to send a message to employers that they must take their obligations to protect their workers from a risk of injury very seriously. To reduce the fine significantly would not provide the level of general deterrence that is expected, nor specific deterrence, given the risks that the workers on the site were exposed to over a number of days. 5. The Court is entitled to take into account the fact that the defendants will be liable to pay the prosecutor's costs when considering any monetary penalty to be imposed on the defendants, particularly in circumstances where there is evidence of a limited capacity to pay a fine. The costs payable to the prosecutor are an important aspect of the punishment of the defendants. The Court can also have regard to the defendants' own costs that it will have to bear as a consequence of a breach of the Act, and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78]. I have also taken into account that the defendant will be liable for the prosecutor's costs as part of the overall penalty imposed. 6. The appropriate fine for Askfay is $500,000.00. The defendant is entitled to a discount of 25% for the early plea. 7. The appropriate fine for Mr Grima is $50,000.00. The defendant is entitled to a discount of 25% for the early plea. PENALTY 1. I make the following orders: SafeWork NSW v Askfay Pty Ltd (2020/129222): 1. The defendant Askfay is convicted. 2. The appropriate fine for the offence is $500,000.00 and that will be reduced by 25% to reflect a plea of guilty. 3. Accordingly, I order the defendant Askfay to pay a fine of $375,000.00. 4. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. 5. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the defendant is to pay the prosecutor's costs as agreed or assessed. SafeWork NSW v Anthony Elias Felix Grima (2020/129262): 1. The defendant Mr Grima is convicted. 2. The appropriate fine for the offence is $50,000.00 and that will be reduced by 25% to reflect a plea of guilty. 3. Accordingly, I order the defendant Mr Grima to pay a fine of $37,500.00. 4. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. 5. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the defendant is to pay the prosecutor's costs as agreed or assessed. ********** 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: 22 October 2021