District Court New South Wales Medium Neutral Citation: SafeWork NSW v Voltex Trading Pty Ltd [2023] NSWDC 129 Hearing dates: 26 April 2023 Date of orders: 01 May 2023 Decision date: 01 May 2023 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 Voltex Trading Pty Ltd is convicted. 2 I impose a fine of $180,000. 3 The offender is to pay the prosecutor's costs of the proceedings, as agreed or assessed. 4 I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to workers SENTENCING - deterrence - aggravating factors - mitigating factors – appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2017 Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v Advanced Roofing Sydney Pty Ltd [2022] NSWDC 407 SafeWork NSW v Empire Contracting Pty Ltd [2022] NSWDC 437 SafeWork NSW v Evolve Roofing Pty Ltd [2023] NSWDC 75 SafeWork NSW v Leda Form Group Pty Ltd [2022] NSWDC 524 SafeWork NSW v LJW Solar Pty Ltd [2022] NSWDC 526 SafeWork NSW v McInerney Enterprises Pty Ltd SafeWork NSW v Parrish Group NSW Pty Ltd [2023] NSWDC 13 SafeWork NSW v PCW Constructions Pty Ltd & Peter James Woodhouse [2022] NSWDC 290 SafeWork NSW v Taylor McInerney [2023] NSWDC 56 Texts Cited: SafeWork NSW, Code of Practice Managing the Risks of Falls at Workplaces dated August 2019 SafeWork NSW, Falls through skylights and plastic roof sheeting dated 14 September 2018 SafeWork Australia, Safe work on roofs dated January 2016 SafeWork NSW Video Safety Alert, Solar safety – How to manage the risk of falls dated 5 February 2020 Category: Sentence Parties: SafeWork NSW (Prosecutor) Voltex Trading Pty Ltd (Defendant) Representation: Counsel: A Mykkeltvedt (Prosecutor) Solicitors: Legal, Department of Customer Service (Prosecutor) YS Lawyers (Defendant) File Number(s): 2022/144506 Publication restriction: None JUDGMENT 1. Voltex Trading Pty Ltd (the offender) appears for sentence after pleading guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW), that it failed to comply with the health and safety duty it owed pursuant to s 19(1) of the Act and thereby exposed Mohamed Amine Ouchenir and Ibrahim Kamara to a risk of death or serious injury. 2. The maximum penalty for the offence is a fine of $1.5 million. Facts 1. The parties tendered an Agreed Statement of Facts that can be summarised as follows. Background 1. The offender operates a business installing solar photo-voltaic (PV) systems at commercial and residential premises. 2. On 7 March 2020, Wesley Westcott engaged Bell Solar Pty Ltd (trading as SUNBoost)(Bell) to provide a quote for the installation of a solar system comprising of 20 x 330-Watt solar panels and an inverter on the roof of a shearing shed (the installation) at his property in Alectown, NSW (the property). Mr Westcott provided Bell with a description of the site, together with some photos of the relevant building and electrical power boards. 3. Bell is a company that markets the supply of solar PV systems to consumers. Bell engaged the offender to complete the installation at the property. 4. On 23 May 2020, Bell provided Voltex with a "Job List" which contained a number of installations scheduled between 26 and 30 May 2020. The schedule provided for two jobs to be performed each day. The installation at the property was scheduled for the morning of 28 May 2020. 5. The "Job List" provided details of the electrical connection at the property and stated that the installation was to occur at a "Single Storey, Tin Roof" site. The "Job List" did not include details of any particular safety concerns or considerations. 6. At approximately 7:30am on 28 May 2020, the following workers engaged by the offender attended the property to perform the installation: 1. Mohammed Bakesmati – electrician; 2. Ibrahim Kamara – apprentice electrician; and 3. Mohamed Ouchenir – roofer. 1. Mr Ouchenir was a sole trader engaged by the offender by verbal agreement. He had started working for the offender in 2014. 2. Mr Westcott was also present. 3. Neither Bell nor the offender inspected the property or conducted a risk assessment at the property prior to the attendance of the workers on 28 May 2020. The Shearing Shed 1. The solar panels were to be installed by the offender on the roof of the shearing shed. 2. The shearing shed floor was wooden. The roof and sides of the shed were constructed from corrugated sheet metal. The roof also had two skylights that each consisted of two sheets of alsynite roof sheeting, with each sheet measuring 2400mm x 800mm. 3. The height from the floor of the shearing shed to the ridge of the roof was 3.75 metres. The incident 1. At approximately 7:30am on 28 May 2020, Mr Bakesmati had a discussion with Mr Westcott in relation to the inverter. 2. Whilst that discussion was occurring, Mr Kamara and Mr Ouchenir accessed the roof of the shearing shed using a ladder. No risk assessment had been undertaken prior to the workers accessing the roof. 3. Upon accessing the roof, Mr Ouchenir handed Mr Kamara a tape measure and directed him to move to a location on the roof. 4. A few moments later, Mr Ouchenir stepped onto one of the skylights, which gave way under his weight. Mr Ouchenir fell through the roof, landing on the floor 3.75 metres below. 5. The skylight was covered in dirt and discoloured, and was difficult to see whilst on the roof, but were clearly visible from below, when standing inside the shearing shed. Mr Ouchenir's Injuries 1. Mr Ouchenir briefly lost consciousness. Mr Westcott called an ambulance at 8:09am and also called the police. 2. Mr Ouchenir was transported to Orange Base Hospital, where he was assessed as having suffered a right L2 traverse process (spinal protrusion) fracture and bruising. 3. He was released from hospital three days after the incident. Systems of Work Prior to the Incident Safe Work Method Statement 1. The offender had a Safe Work Method Statement (SWMS) for solar panel installation prior to the incident. 2. The SWMS stated that it was necessary to "[m]ake sure appropriate fall protection is in place when working at heights in excess of 2 metres". 3. The SWMS also said, "Make sure edge protection and handrails are in place and secure where required". It provided no guidance as to when edge protection was required. 4. The SWMS provided for use of fall arrest systems on roofs. 5. The SWMS stated that workers should "[u]se caution" when working on slippery, brittle or fragile roofing materials, but did not prohibit undertaking work on rooves where these hazards were present. 6. Safety controls for "[f]alls from heights" were identified as follows: 1. A clear fall zone that is fenced or taped off and has restricted access. 2. The exercise of caution on slippery, brittle or fragile roofing materials. 3. Ensuring that workers working on the roof are wearing "suitable, non-slip footwear". 1. For roofing activities where the roof edge is 2 metres above the ground on commercial buildings and 3 metres on private housing, the SWMS required that a site-specific risk assessment considering the type of roof surface, the pitch and the length of the roof, be conducted. The following further controls were also provided for roofs at those heights: Make sure a stable and adequately fenced work platform is installed; or Make sure perimeter screens, fencing, handrails or other forms of physical barriers are installed; or Implement other safety controls such as safety harnesses anchored to roof that are capable of arresting the fall of a worker, and checked by competent person/supervisor; and Fall arrest systems should comply with the relevant part of the AS/NZS 1891.4: 2009 Industrial fall arrest systems and devices and be used in accordance with Part 4: selection, use and maintenance. 1. The SWMS separately identified "falls from height" as a risk in connection with the installation of solar panels. 2. The only fall prevention or arrest equipment actually available to the workers on the day of the incident was a set of harnesses and anchors. 3. The SWMS did not provide for the use of crawl boards or skylight covers of any kind and on the day of the incident, the workers were not provided with crawl boards, form-ply sheets or timber scaffold planks that could have been used to cover the skylights. 4. The workers were not provided with physical barriers that could be placed around the skylights on the roof. 5. The site-specific requirements section of the SWMS was not completed on the day of the incident. 6. There is no record of Mr Ouchenir signing on to the offender's SWMS on the day of the incident. 7. None of the three workers present at the property on the day of the incident had received proper training in supervision of works. Systems of Work After the Incident 1. In compliance with notices issued by SafeWork NSW following the incident, the offender reviewed and updated its SWMS for the task of installing solar panel systems. The offender also produced an emergency procedure. 2. The relevant amendments to the SWMS are as follows: 1. roofs should be assumed to be covered with brittle or fragile material unless they are specifically identified as metal and in sound condition; 2. staff are required to specifically identify hazards, including skylights, on the property prior to going onto the roof of the property; and 3. skylights are to be barricaded on the roof before any work is started. 1. The offender also purchased three first aid kits and three low-voltage rescue kits for emergencies. The Offender's Case on Sentence 1. The offender tendered the following documents: 1. the offender's ASIC Current Company Extract; 2. Mr Ouchenir's General Construction Induction and Work Safe at Heights course cards; 3. emails between Boucetta Mayouf on behalf of the offender and SafeWork Inspector Keven Pile; 4. the updated SWMS provided to Inspector Pile; 5. letter from icare to Mr Ouchenir dated 28 April 2021; 6. ASIC Current Company Extract of Nomade Electrical Pty Ltd; 7. medical certificate for Mr Ouchenir from Dr Houfani dated 6 April 2023; and 8. letter from Mr Ouchenir to the Court dated 7 April 2023. 1. Abdelmenam Boucetta is the sole director and secretary of the offender. Mayouf Boucetta is the sole shareholder. 2. The offender made the above changes to its SWMS after the incident and informed SafeWork NSW of these changes. It was also inserted into the SWMS the requirement that elevated work platforms (EWPs) such as scissor lifts, cherry pickers and boom lifts were to be used "as appropriate". 3. Mr Ouchenir was issued his General Construction Induction (white card) on 21 March 2014. He competed the Work Safely at Heights Course on 8 November 2017 and his card for this course expired on 8 November 2020. The offender had copies of both cards. He had been working as a subcontractor for the offender since 2014. 4. I note from the Prosecution Tender Bundle that Mr Bakesmati and Mr Kamara had both received external training on how to work at height safely and that those qualifications were current at the date of the incident. 5. On 7 June 2020, Mayouf Boucetta visited Mr Ouchenir. 6. On 28 April 2021, icare sent a letter to Mr Ouchenir confirming that he had successfully achieved his return to work and recovery goals following his injury and notifying him that his claim would be closed on 12 May 2021. 7. On 6 April 2023, Dr Houfani provided a medical certificate which stated that Mr Ouchenir was fit to continue his usual occupation. 8. In his letter to the Court, Mr Ouchenir stated that he has recovered from his injuries and is living a normal life. He currently owns one-third of the shares in Nomade Electrical Pty Ltd, which installs solar PV systems. He also stated that he fell through the skylight because he could not distinguish between the dirty skylight and the rest of the dirty shed roof. On the day of the incident, the offender's owner drove to Parkes and stayed there for a few days. He stated that the owner was very worried about him and his health, and very supportive during Mr Ouchenir's recovery. They remain in contact. Mr Ouchenir expressed a desire that the Court extend leniency to the offender. Consideration 1. I have had regard to the objects of the Act set out in s 3 and the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999. Objective seriousness 1. The offence is objectively serious. 2. The risk of a worker falling from height while installing solar panels on a roof is well known in the industry and was known to the offender. The offender also knew that the condition of rooves were solar panels are installed varies greatly and can be the source of increased risk to workers performing the work. 3. The offender had in place a rudimentary safety system that was seriously deficient in that it did not adequately specify how edge protection should be implemented or how the hazard of brittle roofing materials could be identified or controlled. The workers were not provided with the necessary materials, equipment or training to work on roofs that may be constructed of fragile or brittle materials (such as skylights). There was no adequate supervision of the work to ensure that the SWMS was complied with. However, even if it had been complied with, the SWMS did not set out the steps that were required to be taken to ameliorate the risks posed by the skylights in the roof. 4. The likelihood of the risk coming home was moderate to high. It was only a matter of time before the workers were required to work on a roof consisting of brittle or fragile materials, for which they were inadequately protected by the existing safety system. 5. The steps that could have been taken to control the risks were well known in the industry, inexpensive and could have been undertaken with minimal inconvenience. There was extensive guidance material available to the offender prior to the incident, including but not limited to: * clauses 37, 78-80 and 299 of the Work Health and Safety Regulation 2017; * the SafeWork NSW "Code of Practice Managing the Risks of Falls at Workplaces" dated August 2019; * the SafeWork Australia "Safe work on roofs" dated January 2016; * the SafeWork NSW, Safety Alert "Falls through skylights and plastic roof sheeting" dated 14 September 2018; and * the SafeWork NSW Video Safety Alert "Solar safety – How to manage the risk of falls" dated 5 February 2020. 1. The changes made by the offender after the incident were not extensive and could have been implemented prior to the incident with minimal inconvenience. 2. The consequences of the risk, if it came home, included a risk of death. 3. The injury sustained by Mr Ouchenir was serious, but he has made a good recovery over an extended period and is fit to resume his pre-injury occupation. 4. I have taken into account the maximum penalty for the offence. Deterrence 1. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180]. 2. Falls from height are notorious in this jurisdiction and are becoming prevalent in connection with the installation of solar panels on roofs.. A number of recent judgments have highlighted the need for PCBUs to take adequate steps to control this obvious risk by taking the well-known steps identified in the objective guidance material, see: * SafeWork NSW v Evolve Roofing Pty Ltd [2023] NSWDC 75; * SafeWork NSW v McInerney Enterprises Pty Ltd; SafeWork NSW v Taylor McInerney [2023] NSWDC 56; * SafeWork NSW v Parrish Group NSW Pty Ltd [2023] NSWDC 13; * SafeWork NSW v Leda Form Group Pty Ltd [2022] NSWDC 524; * SafeWork NSW v LJW Solar Pty Ltd [2022] NSWDC 526; * SafeWork NSW v Empire Contracting Pty Ltd [2022] NSWDC 437; * SafeWork NSW v Advanced Roofing Sydney Pty Ltd [2022] NSWDC 407; * SafeWork NSW v PCW Constructions Pty Ltd & Peter James Woodhouse [2022] NSWDC 290. 1. There is also a need for specific deterrence. The offender continues to operate a business that exposes its workers to a risk of death or serious injury through working at height on roofs installing solar panels. The offender has taken some steps to address what occurred in the incident, but I would not describe those steps as comprehensive. Aggravating Factors 1. The injury, harm and loss caused by the s 32 offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. In this case, the injuries sustained by Mr Ouchenir are sufficient to establish the aggravating factor. Mitigating Factors 1. The offender did not have a record of prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender has been operating the solar installation business since 23 March 2011. 2. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken a number of steps following the incident to upgrade its safety systems and has demonstrated that it wants to rehabilitate itself. 3. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Boucetta, on behalf of the offender, visited Mr Ouchenir and supported him through his recovery. Mr Ouchenir seeks that leniency be extended to the offender. I am satisfied that the offender has accepted responsibility for its actions and this is some evidence of remorse. Further, I accept the submission made on behalf of the offender that it is remorseful. 4. The offender entered a plea of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. It is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%. 5. The offender co-operated with the SafeWork investigation: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. 6. The offender did not tender any material to demonstrate that it had a reduced capacity to pay a fine. The offender submitted that it had two installation teams working for it at the date of the incident, that would each generate an average of $4,000 to $5,000 per day in revenue. On this limited information, the revenue generated by the offender's business was not significant. Other matters 1. The offender urged on me the need to encourage SafeWork NSW to do more to educate the solar installers who operate on tight margins in a very competitive market. Having reviewed the objective guidance material referred to in [55] above, it would be wholly inappropriate to do so. The latest video referred to was published by SafeWork NSW three months before this incident. It provided a comprehensive step-by-step analysis of what the offender should have done to control the risk that manifested in the incident causing serious injury to Mr Ouchenir and putting Mr Kamara in serious peril. Clearly, the offender was not keeping abreast of the steps that it needed to take to ensure the safety of its workers. Penalty 1. Voltex Trading Pty Ltd is convicted. 2. The appropriate fine is one of $240,000 which will be reduced by 25% to reflect the plea of guilty. 3. I impose a fine of $180,000. 4. The offender is to pay the prosecutor's costs of the proceedings, as agreed or assessed. 5. I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 May 2023