District Court New South Wales Medium Neutral Citation: SafeWork NSW v Rahme Civil Pty Ltd; SafeWork NSW v Rabih Rahme [2024] NSWDC 561 Hearing dates: 11 October 2024 Date of orders: 28 November 2024 Decision date: 28 November 2024 Jurisdiction: Criminal Before: Strathdee DCJ Decision: In proceedings no. 2022/376641: (1) The corporate defendant is convicted. (2) The appropriate fine for the offence is $500,000. (3) I exercise my discretion under s 6 of the Fines Act 1996 (NSW) and the fine will be reduced by 20%. (4) Accordingly, I order the defendant to pay a fine of $400,000. (5) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (6) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed. In proceedings no. 2022/3766664: (1) The personal defendant is convicted. (2) The appropriate fine for the offence is $100,000.00. (3) I exercise my discretion under s 6 of the Fines Act 1996 (NSW) and the fine will be reduced by 50%. (4) Accordingly, I order the defendant to pay a fine of $50,000. (5) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (6) 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 – maximum penalty SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – maximum penalties COSTS – prosecutor's costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21, 22 Criminal Procedure Act 1986 (NSW) s 257B Fines Act 1996 (NSW) s 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 31, 32 Cases Cited: Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71 Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 Environmental Protection Authority v Barnes [2006] NSWCCA 246 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Haynes v CI & D Manufacturing Pty Ltd (No 2); Callaghan v CI & D Industries Pty Ltd (No 2) (1995) 60 IR 455 Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100 Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153 Jahandideh v R [2014] NSWCCA 178 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353 Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82 R v Cage [2006] NSWCCA 304 R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92 R v Miria [2009] NSWCCA 68 R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Youkhana [2004] NSWCCA 412 Rahme v R (1989) 43 A Crim R 81 SafeWork NSW v Harris Holdings NSW Pty Ltd; SafeWork NSW v Harry Zizikas [2017] NSWDC 299 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 SafeWork NSW v Rahme Civil Pty Ltd [2024] NSWDC 231 SafeWork NSW v Cosentino Australia Pty Ltd (No 2) [2018] NSWDC 182 SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142 Category: Sentence Parties: SafeWork NSW (Prosecutor) Rahme Civil Pty Ltd (Defendant) Rabih Rahme (Defendant) Representation: Counsel: C Magee (Prosecutor) R Pontello SC (Defendants) Solicitors: Department of Customer Service (Prosecutor) Madison Marcus Law Firm (Defendants) File Number(s): 2022/376641 and 2022/376664 JUDGMENT 1. On 13 and 20 May 2024 the primary proceedings ran before me. There was no appearance for the defendants, Rahme Civil Pty Ltd and Rabih Rahme, and as such the matter ran with a plea of not guilty entered on behalf of the defendants. 2. On 20 June 2024 I delivered judgment convicting the defendants, with my reasons, including the factual background of these proceedings, published in SafeWork NSW v Rahme Civil Pty Ltd [2024] NSWDC 231 (Judgment). I will adopt the abbreviations used in the Judgment and rely on my findings of fact contained within that judgment, and will not repeat them here. 3. On 11 October 2024 I heard the sentence hearing where the defendants were represented by Senior Counsel who made written and oral submissions to the Court with regard to the sentence to be imposed. 4. The Prosecutor tendered a Victim Impact Statement from Jason Maatouk dated 14 April 2024, which became exhibit A. The defendant tendered an affidavit of Rabih Rahme sworn 16 August 2024 which became exhibit B, (and had attached to it a significant number of documents as to the financial affairs of the defendant company), a bundle of references which became exhibit C, and a further bundle of references which became exhibit D. Sentencing 1. The penalty to be imposed must be one which will give overall effect to the policy of the Work Health and Safety Act 2011 (NSW) (WHS 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 WHS 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 WHS 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. 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; [2005] HCA 25. 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 primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]: "…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 offending." 1. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474-475. 2. The duties of the defendant require that they ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the duty requires the identification of risks in the workplace and an assessment of measures to address such risks. 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 Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) [1988] HCA 14; (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; [2000] NSWIRComm 71 ("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; [2005] NSWIRComm 61. 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; [2000] NSWIRComm 142 at [31]. 7. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 ("Nash v Silver City Drilling"). His Honour Justice Basten, under the heading "Assessment of Risk" said at [34]: "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) 145 A Crim R 434; [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) 164 A Crim R 481; [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. 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 of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ). 4. The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31-32 of the WHS Act: Nash v Silver City Drilling at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include: 1. 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 materialise: Nash v Silver City Drilling at [34]. 2. The availability of steps to eliminate or minimise the risk: Nash v Silver City Drilling at [34]. 3. Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Nash v Silver City Drilling at [34] and at [53]. 4. Whether the risk was known or ought reasonably to have been known to or identified by the offender. 5. Whether the risk was an obvious or clear one. 6. 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. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of. In Nash v Silver City Drilling, his Honour Justice Basten dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying at [53]: "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." Matters Relevant to Determining the Culpability of the Defendant Foreseeability of Risk 1. The corporate defendant was the excavation and demolition contractor engaged by the principal contractor, Scopeview, to undertake the demolition of an existing residential building and excavation at the site. The risk arose from the existence of a hazard manifesting from the interface of the existence of unstable masonry brick walls at the site created by demolition and excavation works undertaken by the corporate defendant, and persons working in the vicinity of those walls, including excavating, demolition and cleaning of the footings directly near the walls. These brick walls were unstable as they were not braced, and the foundations were undermined due to factors including excavation and demolition works, and weather events. 2. The defendants knew or ought to have known of the hazards and risks associated with excavation in the vicinity of remaining sandstone footings of the existing masonry brick walls of the original dwelling, particularly in circumstances where it had failed to implement any controls to address the risk of further damage to the wall structures, causing the strength and integrity of the walls to be further compromised, as well as the potential for damage to, or undermining of the existing footing from the walls. 3. Furthermore, the defendants ought to have had an awareness of the hazard before the incident due to the 30 October collapse, yet they both failed to respond adequately either directly, or through a request of Scopeview, to engage a competent person to assess the site undertake regular documented risk assessments, to inform the workers of the hazard, to create exclusion zones until the risks were appropriately addressed, and regularly checking on and documenting changes to the walls or foundations. 4. The defendant did not request and verify essential information and documents from Scopeview, such as dilapidation reports, engineering reports, HSMP requirements, in relation to the excavation and demolition works prior to the incident. 5. The construction industry is a notoriously dangerous industry, in part because it involves the interaction of humans, large heavy machinery and moving substances such as walls, particularly in the demolition stage as it was in this instance. The circumstance of this offending highlights the need for caution on construction sites, including the obvious need to ensure people are not put in harm's way when working in and around masonry brick walls during demolition and excavation works. Availability and Feasibility of Measures to Control the Risk 1. There was almost a total absence of steps taken by the defendants to comply with their respective duties. They were specialist contractors engaged to undertake the demolition work and excavation work at the site. 2. The offending conduct will also be more serious if mitigating steps could easily have been taken to eliminate or minimise the risk: Nash v Silver City Drilling at [34] and at [53]. 3. Simple remedial steps were available which would have completely avoided the risk. Here, it is the defendant's failure to take any steps to manage the work at the site, the potential hazards and the risks associated with those works that equally gave rise to the pleaded risk that arose on the date of the incident. Further Matters as to Culpability 1. It concerns me that the defendants continued to permit workers and other persons to work in and around the inadequately shored excavations and foundations, and inadequately braced walls at the site, without informing either the workers nor other persons of the risk of the wall or foundation collapse, due to the excavation and demolition works, and without creating an exclusion zone and implementing more appropriate control measures. 2. It was not sufficient for the defendants to place "some reliance" on Scopeview's interaction with SafeWork NSW, without actually taking proactive steps to assess the ongoing hazards and risks associated with the work they were undertaking at the site. 3. The possible serious consequences for the health and safety of workers being struck and crushed by falling masonry brick walls at the site, particularly given the presence of other construction materials and equipment, including the screw piling, is demonstrated by the serious injuries sustained by Mr Maatouk. 4. As a consequence of the matters set out above, I am of the view that this is an objectively serious offence. The seriousness of the foreseeable harm to a worker was significant, and the steps available to avoid the risk were straightforward and available to the defendant. 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 Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 ("Bulga") 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 high risk work that is regularly performed in the building industry, in particular excavation and demolition work. In circumstances where workers are working in extremely dangerous conditions, the industry must understand that this heightens their responsibility to ensure the safety of workers. 2. The requirement to comply with the expectation that both large and small employers will comply with safety requirements means that employers must take the obligations imposed by the WHS Act very seriously. 3. 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. 4. In relation to specific deterrence, the attitude of the defendant 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 defendant to reoffend. 5. Material tendered by the defendants suggests that it has improved its systems of work since the offending in December 2020. The defendants continue to operate the same business. I note that the corporate defendant has replaced its Site Control Plan with an up-to-date Site Safety Plan, and submits that it ensures that comprehensive risk assessments for every worker and every task on every project are conducted and documented. Additionally, it submits that the individual defendant is now taking a more hands on approach to occupational health and safety matters. I note there have been no further issues since December 2020. I am of the view that the defendant's likelihood of re-offending is reasonably unlikely. Victim Impact Statement 1. Exhibit A is a statement from Mr Maatouk who had worked for Scopeview for four years prior to this incident, and loved his job. 2. As a consequence of the injuries he sustained, he now lives with physical and psychological pain every day. He has had to relearn basic tasks and describes himself as: "a 28 year old man who has been severely traumatised and has suffered head injuries due to the brick wall falling on me on the 14/12/2020." 1. He now lives with significant disability, and has undergone a complete personality change to someone who he says no one wants to be around. He has lost relationships with his partners and his siblings. He further states: "I have lost all future hopes and dreams, I have nothing to look forward to and no hope of returning to my pre-injury life." 1. I thank Mr Maatouk for having the strength and courage to put his feelings in writing, despite it being very hard to read. A young man has had his life taken away from him by an accident at work. This is a most tragic circumstance for him to find himself in, and I hope that as the days pass, his suffering diminishes, and thank him again for the Victim Impact Statement he has prepared. Aggravating Factors 1. The defendants' offending conduct exposed a person or persons to a grave risk of death: s 21A(2)(ib) of the Sentencing Act. 2. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act. In order for this 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] (Hidden J, McColl JA and Levine J agreeing). I am so satisfied. Mitigating Factors 1. In Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench held the following: "We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record. Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question." 1. The defendants have not been subject to any prior convictions under work health and safety law: s 21A(3)(e) of the Sentencing Act. 2. Having read the numerous references tendered by the defendants, I accept that the defendant is a corporate citizen of good character and has made significant charitable donations and contribute to the community: s 21A(3)(f) of the Sentencing Act. 3. I accept that the defendant is reasonably unlikely to reoffend (s 21A(3)(f) of the Sentencing Act) as it has implemented some remedial measures that the defendant has taken after the incident which demonstrates its commitment to improving its WHS systems. There is however no indication as to when these steps were taken. I cannot be certain whether these measures were adopted shortly following the incident in December 2020 or at a much later point in time. 4. I accept that the defendants have shown remorse for the incident having occurred and for Mr Maatouk having suffered such serious injuries. However, I find it difficult to accept that the defendants have demonstrated and accepted responsibility for the offence: s 21A(3)(i) of the Sentencing Act. I refer to Mr Rahme's affidavit at [41] of exhibit B: "I am extremely sorry that Jason Maatouk was injured and to the extent that my failing may have contributed, I wish to express my sincere remorse and apologise to Jason and his loved ones." (Emphasis added). 1. The defendants did not appear at the trial, and on that basis I entered a plea of not guilty by the defendants. The trial proceeded in their absence and I was satisfied that the Prosecutor proved the elements of the offence and I convicted the defendants. It was only at the sentence hearing before me, that Senior Counsel appeared for the defendants. Thus, I will not allow any deduction for the utilitarian value of the plea in accordance with the principles set out in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and s 21A(3)(k) and s 22 of the Sentencing Act. Capacity to Pay 1. Section 6 of the Fines Act 1996 (NSW) provides as follows: 6 Consideration of an 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 to the fixing of that amount. 1. The onus is on the offender to satisfy the court on the balance of probabilities as to the truth of such evidence and its relevance to the fixing of penalty: McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353 at [24]. 2. 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). 3. 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 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. 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. I accept this authority is relevant to these proceedings. The company consisted of four family members and has endured some financial hardship and could not be described as a "large corporation". 2. The Full Bench of the Industrial Relations Commission of NSW observed in Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153, citing Rahme v R (1989) 43 A Crim R 81 that: "It is well established that a court should first arrive at a penalty and then review it on the basis of any case properly made out by a defendant of a lack of capacity to pay a substantial penalty or any penalty." 1. It follows that the question of capacity to pay and, hence, the exercise of the discretion under s 6 of the Fines Act should be considered after the court has determined the appropriate fine(s). 2. I accept that the principles which are then applicable to the exercise of the discretion conferred by s 6 of the Fines Act are as follows: 1. The financial position and means of a defendant should be taken into account when determining the fine to be imposed. 2. The defendant bears both the evidentiary onus and the onus of proof, on the civil standard, in relation to satisfying the court that it does not have the capacity to meet a fine. 3. It is for the defendant to place detailed financial information that fully discloses his financial circumstances to the court so that a proper assessment of his capacity to pay can be undertaken. 4. It is for the prosecutor to check the information provided by the defendant and to assist the court in relation to the assessment of the defendant's capacity to pay. 5. In any event, notwithstanding the capacity of a defendant to pay a fine, the penalty to be imposed must reflect the objective seriousness of the offence: Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at [209]-[210]; McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353 at [24]-[25]; SafeWork NSW v Harris Holdings NSW Pty Ltd; SafeWork NSW v Harry Zizikas [2017] NSWDC 299 at [134]-[141]; SafeWork NSW v Cosentino Australia Pty Ltd (No 2) [2018] NSWDC 182 at [23]-[24]. 1. The defendant has filed evidence setting out its financial position, and I accept that such evidence reflects a limited capacity to pay a fine. The corporate defendant derives its income from leasing plant and equipment to Rahme Civil Aust Pty Ltd. The corporate defendant made a loss of over $200,000. The year before that it made a profit of only $29,045.98. The related entity has not fared much better due to market forces in the construction industry. 2. I accept that the fine on the corporate defendant is likely to be the responsibility of Mr Rahme and I have had regard to his recent Tax Returns. I note he currently receives a wage from Rahme Civil Aust Pty Ltd of $79,999.00 per annum. 3. Whilst I accept that the fine I impose may be legitimately tempered by the defendants' capacity to pay it, and I am not constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on the offender: Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31. The nature of the offending, and the defendant's unexplained absence from the liability trial, indicate to me that the fine for such serious breaches of the WHS legislation needs to reflect the seriousness of the offending. 4. However, given the objective seriousness of the offending and the requirement for general deterrence, the fine must be such that it satisfies all of the relevant sentencing considerations. 5. On the basis of the totality of the documents before me, I will allow the defendant some leniency and exercise my discretion under s 6 of the Fines Act. Costs 1. The issuing of costs against a defendant in both criminal and civil proceedings is not punitive, but rather compensatory to the prosecution: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543 (Mason CJ). 2. 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 them, and I have taken this into consideration. 3. The court can also have regard to the defendant's own costs that it will have to bear as a consequence of a breach of the WHS Act, and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78]. Penalty 1. I make the following orders: In proceedings no. 2022/376641: 1. The corporate defendant is convicted. 2. The appropriate fine for the offence is $500,000. 3. I exercise my discretion under s 6 of the Fines Act 1996 (NSW) and the fine will be reduced by 20%. 4. Accordingly, I order the defendant to pay a fine of $400,000. 5. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. 6. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed. In proceedings no. 2022/3766664: 1. The personal defendant is convicted. 2. The appropriate fine for the offence is $100,000. 3. I exercise my discretion under s 6 of the Fines Act 1996 (NSW) and the fine will be reduced by 50%. 4. Accordingly, I order the defendant to pay a fine of $50,000. 5. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. 6. 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: 28 November 2024