Industrial Court of New South Wales CITATION: Inspector Steven Nikolovski v Dennis Sewell [2010] NSWIRComm 26 Prosecutor: WorkCover Authority of New South Wales PARTIES: Defendant: Dennis Sewell FILE NUMBER(S): 1025 of 2007 CORAM: Backman J LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Inspector Braddick v Connex Sydney Pty Ltd (known as Veolia Transport Sydney Pty Ltd) [2007] NSWIRComm 208 Inspector Dimitri Barlas v C&J Carpentry & Constructions Pty Ltd and Others [2009] NSWIRComm 127 CASES CITED: Inspector Stephen Charles v Premier Precast Pty Limited [2009] NSWIRComm 136 Inspector Steven Nikolovski v Northpac Constructions Pty Limited and Anor [2009] NSWIRComm 204 SZ v The Queen (2007) 168 ACrimR 249 HEARING DATES: 5/6/2009 DATE OF JUDGMENT: 2 March 2010 PROSECUTOR: Mr P Skinner, of counsel LEGAL REPRESENTATIVES: Solicitors: DLA Phillips Fox Lawyers (Mr C Nichol) DEFENDANT: Mr D Sewell, self-represented JUDGMENT: - 9 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Backman J 2 March 2010 Matter No IRC 1025 of 2007 INSPECTOR STEVEN NIKOLOVSKI v DENNIS SEWELL Prosecution pursuant to section 9 of the Occupational Health and Safety Act 2000 JUDGMENT OF THE COURT [2010] NSWIRComm 26 1 Dennis Sewell has pleaded guilty to one offence under s 9 of the Occupational Health and Safety Act 2000. The charge against Mr Sewell was that on 22 June 2005, at 300-306 Canterbury Road, Canterbury in New South Wales, he, being a self-employed person, failed to ensure that persons not in his employment, in particular, Daryl Sadler, were not exposed to risks to their health or safety arising from the conduct of Mr Sewell's undertaking while at his place of work. 2 The particulars of the contravention were set out in the body of the charge as follows: 1 Failed to ensure that adequate fall protection measures were in place for bricklayers working on level 3 of the premises; 2 Failed to adequately supervise work performed on the premises so as to prevent bricklayers from working in an area without adequate fall protection; As a result of the said failures, Daryl Sadler was exposed to risk of injury. 3 The prosecutor's brief of evidence provided for the purposes of the sentencing hearing did not include a Statement of Facts or a Statement of Agreed Facts. The Court was advised that it could rely on the material set out in the affidavit in support of the application for order. The relevant facts have also been set out in an earlier judgment which dealt with the liability of two co-defendants, both of whom entered pleas of not guilty: Inspector Steven Nikolovski v Northpac Constructions Pty Limited and Anor [2009] NSWIRComm 204. For convenience, some of the factual background common to all defendants, including Mr Sewell, may be relied upon in the present proceedings. The relevant parts of that judgment are set out below: [1] ... On 22 June 2005 at 300-306 Canterbury Rd, Canterbury [...] a number of workers were assisting in the construction of a north-western wall at the premises. Daryl Sadler, a 41 year old bricklayer, was performing bricklaying services at the premises, having been contracted verbally to do so by Dennis Sewell, a sole trader also working at the site. At about 2.40pm on the day, Mr Sadler was assisting in the construction of the north-western wall on level three when the wall blew over during a gust of wind. Mr Sadler attempted to push against the collapsing wall, but overbalanced and fell off the edge of the building approximately 2.5m onto scaffolding on the lower level of the building. Other workers in the vicinity at the time managed to escape the collapsed wall. At the time of the accident scaffolding had not been raised from level two to level three in the area where Mr Sadler fell. Mr Sadler was taken to St George Hospital. He suffered fractures to his vertebra at lumbar 1-3 and injuries to his knees and shoulders as a result of the fall. [2] At the time of the accident Mr Sewell operated his own business, Combined Brick and Block Laying. The business was a bricklaying business which provided the services of Mr Sewell and contractors such as Mr Sadler, Greg Ramsay, Robert Stewart and Steve Helmsley, all of whom were contracted to erect brick work and block work at the premises. According to Mr Sewell, he had a verbal contract with "Northpac Constructions" to perform the services. 4 As I pointed out in that earlier judgment, there was an expectation on the part of the bricklayers that the scaffolding would be lifted to the balcony area on level three to provide them with adequate fall protection while working on the floor slab and constructing the walls on that level. Mr Sewell gave evidence for the prosecution during the proceedings against Northpac Constructions and Mr Commisso. Mr Sewell was asked why the scaffolding had not been erected in the balcony area of level three, where Mr Sadler was working at the time of the accident. He responded: It's an absolute mystery to me. On that particular day, as I said the scaffolders were there for the express purpose of lifting the scaffold from level 2 to level 3 and yet they were allowed to leave the site at midday without completing, as I say, the work in its entirety. Whereas there were only 30 minutes to one hour's work remaining and at that [sic] had they stayed and completed the work we wouldn't be having this discussion today. 5 According to the affidavit in support of the application for order against Mr Sewell, at the time of the accident Mr Sewell was working on the ground floor and was not supervising his contractors. This is because he expected the site manager for Northpac, Mr Commisso, to provide supervision. In his evidence given during the proceedings against Northpac and Mr Commisso, Mr Sewell said that he had not been up to level three where Mr Sadler and the other bricklayers were working on the day of the accident. He had been up there on the previous day. He also said construction of the brick wall on level three had commenced on the day of the accident at about 10am. 6 At the time of the accident, the brick wall had been partially constructed. The external wall had been completed and Mr Sadler had commenced constructing the internal wall at the time of the accident. Witnesses estimated the height of the collapsed wall at that time at 2.2 metres. The length of the wall was estimated to be 9.58 metres. 7 The newly constructed wall was referred to as a "green" wall, that is, the mortar had not fully set and it was by definition inherently unstable. According to the affidavit in support of the charge, two truck loads of bricks had been delivered to the site on the day of the accident and were stockpiled in the area where the bricklayers were working. The bricklayers were therefore restricted by the stockpiled bricks as to the area in which they could work. Northpac was responsible for supplying the perimeter scaffolding at the site. As identified by Mr Sewell, the scaffolders were on site on the day of the accident for the express purpose of lifting the scaffolding from level two to level three. They left, inexplicably, before the scaffolding was raised to the area where Mr Sadler and the other bricklayers were working at the time of the accident. Both Mr Sadler and Mr Ramsay had asked Mr Commisso on the morning of the accident to raise the scaffolding to level three so that they could undertake the work. 8 It follows from this that Mr Sewell had an expectation, reasonably held in the circumstances, that the scaffolding, which had been partly raised to level three on the day of the accident, had also been raised to the area on level three where the bricklayers were working at the time of the offence. 9 In oral submissions during the sentence proceedings, the prosecutor conceded that the responsibility to ensure the scaffolding was erected belonged to the builder, that is, Northpac Constructions. It was also acknowledged by the prosecutor that the bricklayers who were sub-contracted to perform the work, had between them some 100 years of bricklaying experience and were otherwise highly qualified and experienced workers on construction sites. It was further acknowledged by the prosecutor that Mr Sewell and the bricklayers had a legitimate expectation that the scaffolders, who were contracted to erect the scaffolding on the day of the accident, had in fact completed the work at some stage before the bricklayers commenced work in the area where the wall collapsed. (It should be explained, by way of clarification, that according to the affidavit in support of the application for order, the height of the collapsed wall was estimated to be between one metre and 2.2 metres.) 10 Mr Sewell, in submissions, informed the Court that he believed that adequate supervisory measures were in place on the day of the accident. The established procedure was that if he were absent, then the site manager and the leading bricklayer (Mr Ramsay) would make all relevant decisions concerning the bricklaying work. He said that when he was present he had full responsibility for supervision. He also said that when he was on the ground floor at around the time of the accident (or otherwise not at the precise same location as the bricklayers at any given time), the means of communication, by way of mobile telephone, was established in order for the bricklayers to relay to him any concerns they had or any input they may have required from him about the work. 11 Taking these matters into consideration, it is open to conclude that Mr Sewell not only had a reasonable expectation that the scaffolding had been fully erected at the time of the accident, but he had also put in place supervisory measures, that is, ongoing communication by way of mobile phone with the workers on level three. These matters, in my view, confine Mr Sewell's failures under s 9 of the Act to a failure to check or enquire, during some relevantly short period of time during the day after the scaffolders had commenced to erect the scaffolding, as to whether the scaffolding had been fully erected to the area where the bricklayers were working at the time the wall collapsed. They relegate the offence against Mr Sewell to a less serious category than might otherwise have been the case. 12 In oral submissions, the prosecutor briefly addressed a number of objective factors. With regard to general deterrence, it was said that it was important because the construction industry is a dangerous industry. This is an uncontroversial proposition with which the Court can only express agreement. I adopt and apply my observations as to the importance of general deterrence as a sentencing principle in cases where the relevant risk to safety is a fall from height in Inspector Dimitri Barlas v C&J Carpentry & Constructions Pty Ltd and Others [2009] NSWIRComm 127 at [16]: Falls from heights in the workplace are a common and regrettable feature of the failure to implement adequate safety controls in the workplace. They often result in serious injuries, even fatalities. Just as often, the institution of simple, remedial measures could have been taken so that the risk was removed and injuries avoided. I adopt in these sentencing reasons a statement I made to that effect in Inspector Braddick v Connex Sydney Pty Ltd (known as Veolia Transport Sydney Pty Ltd) [2007] NSWIRComm 208 at [10]: General deterrence is also an important consideration in the circumstances. The risk of falling is an all too common feature of many occupational health and safety prosecutions in this jurisdiction. Many of those prosecutions have involved serious injuries (and sometimes fatalities) which in many cases could have been avoided by the implementation of relatively straightforward protective measures. As in the present circumstances the evidence which emerges from those prosecutions is that the risk of falling is often obvious and foreseeable. These matters highlight once again the need to alert employers who operate in industries where workers work at heights to the importance of ensuring the implementation of safe work practices, of safe training regimes and of conducting proper risk assessments in relation to the searching out and detection of any unsafe plant, hazards, practices or operations which might or could expose workers to the risk of falling: see WorkCover Authority of New South Wales (Inspector Robert Mayell) v DJ Gleeson Pty Ltd [2006] NSWIRComm 363 at [27], [28]. 13 As for the issue of foreseeability, the prosecutor referred to the gust of wind which was the immediate cause of the collapse of the wall. It was said that the occurrence of wind is not unusual in Sydney and it was foreseeable that a "green" wall hit by a sudden gust of strong wind would cause it to collapse. For my part, the submission advanced by the prosecutor appears to address the foreseeability of the accident, not the risk. It is the foreseeability of the risk to safety with which a court on sentence is concerned. The risk to safety relied upon was the risk of a fall from height said to result from the absence of catch scaffolding. The wall constructed by the bricklayers was a "green" wall and therefore prone to collapse if something or someone fell against it or otherwise came into contact with it in some way. In the absence of any fall protection, it is reasonably foreseeable that a worker who comes into contact with a "green" wall at a height several metres above ground would be placed at risk to his or her safety: see generally for discussion of the application of the principle on sentence, Inspector Stephen Charles v Premier Precast Pty Limited [2009] NSWIRComm 136 at [9]-[11]. 14 As for specific deterrence, Mr Sewell volunteered in oral submissions that he no longer worked for himself, but worked for a company in Australia as a bricklayer. In a handwritten document prepared by Mr Sewell for the purposes of the sentencing proceedings, Mr Sewell explained that he no longer works as a sub-contractor, "preferring the stress-free life of a construction labourer". In the same statement, he said that he planned to return to his home in New Zealand in order to live, "and re-group". Given these matters, the Court may dispense with the need to include specific deterrence as a component of any penalty or fine to be imposed. 15 With regard to systems of work emphasising safety measures in place prior to the offence, Mr Sewell, in his statement, maintained that he had implemented adequate supervisory measures at the accident site. He also sought to remind the court that the bricklayers were highly qualified in their work having together accrued some 100 years experience as bricklayers in the construction industry. He said that all the bricklayers sub-contracted to him had been schooled in general construction, induction training, which included hazard identification, and risk assessment. He also explained: As a group, we the bricklayers were mates who had worked together on a number of jobs over a number of years and trusted one another's judgment. 16 In my view, this material demonstrates that Mr Sewell had taken steps to ensure that a system of work was in place to enable the bricklayers to perform the work safely. His established method of communication by means of mobile phone when he was not present on site, has been referred to earlier. 17 The defendant faces a maximum penalty of $55,000. 18 A plea of guilty was entered by Mr Sewell at the earliest or first reasonable opportunity. I propose therefore to assess an appropriate discount of penalty for the utilitarian value of the plea of guilty. The discount of penalty will be awarded upon consideration of the issue of assistance provided by Mr Sewell to the prosecution authorities. This issue will be considered later in these sentencing reasons. Any further discount of penalty by reason of assistance provided will be reflected as a composite discount taking into account both the assistance and the early plea of guilty: SZ v The Queen (2007) 168 ACrimR 249 at [43] [44]. 19 As a separate consideration from the utilitarian value of the plea, the defendant is also entitled to leniency in recognition of the remorse shown by the plea of guilty. The absence of prior convictions also entitles Mr Sewell to leniency normally extended to an offender who is otherwise not adversely affected. 20 The defendant also co-operated with WorkCover during the investigation. 21 It was acknowledged by the prosecutor that Mr Sewell provided substantial assistance to WorkCover during its investigation and prosecution of Northpac and Mr Commisso. Mr Sewell was instrumental in contacting Mr Ramsay whom the prosecutor had been unable to locate. Mr Ramsay was an important witness in the prosecution case against Northpac and Mr Commisso. Mr Sewell was also of assistance in locating James Ciliegi, the director of Northpac at the time of the accident. Mr Ciliegi, not the subject of any charge in relation to the events leading up to the accident, was also an important witness in the prosecution of Northpac. 22 In addition, Mr Sewell gave evidence for the prosecution in the proceedings against Northpac and Commisso. The prosecutor conceded that Mr Sewell's assistance in this regard was "substantial". Under s 23 of the Crimes (Sentencing Procedure) Act 1999, a court may impose a lesser penalty than it would otherwise impose on a defendant having regard to the degree of assistance rendered to law enforcement authorities. Under s 23(2), the Court must take into account a number of matters specified in the sub-section in its consideration as to whether to impose a lesser penalty under s 23(1). 23 Dealing with the matters nominated under s 23(2) as best I can, I make the following observations and findings. First, as already noted, the assistance given by Mr Sewell to both WorkCover and to the prosecution was acknowledged by the prosecutor in these proceedings, as "substantial". Mr Sewell was of "great assistance" according to the prosecutor in locating Mr Ramsay and prevailing upon Mr Ramsay to attend court and give evidence for the prosecution. Mr Sewell was also of assistance in locating Mr Ciliegi, whom the prosecutor described as being of "big assistance" in the proceedings against Northpac and Mr Commisso. Secondly, Mr Sewell also gave evidence on behalf of the prosecution in the proceedings against Northpac and Mr Commisso. According to the prosecutor, Mr Sewell's evidence in those proceedings, "came up to proof and went a bit beyond it and didn't try to say anything different in cross-examination". Mr Sewell also voluntarily attended court in order to give his evidence in the related proceedings. Thirdly, there is little likelihood, given my earlier observations on the application of specific deterrence, that Mr Sewell will commit further offences in New South Wales. 24 In SZ v The Queen, at [43] and [44], the Court held that generally sentences should give only a single combined discount for both a plea of guilty and assistance. Assistance of the nature and extent rendered by Mr Sewell clearly facilitated the public interest in encouraging offenders to co-operate with authorities and to give evidence against other offenders alleged to have committed offences against Occupational Health and Safety legislation, in order to bring those offenders to justice. Mr Sewell's assistance in this regard may be characterised as assistance of a very high order (see SZ v The Queen at [46] citing with approval R v Sukkar [2006] 172 ACrimR 151 at [50], [54], [56]). Given these matters, a combined discount of sentence, taking into account the utilitarian value of the early plea and the assistance provided by Mr Sewell, of 45%, would not be inappropriate. 25 Mr Sewell also relied upon two written testimonials in the sentence hearing. The first testimonial is contained in a statutory declaration dated 13 June 2008 and signed by Jani Olavi Suominen. Mr Suominen is a former construction supervisor for Northpac. Mr Suominen stated that in his professional dealings with Mr Sewell over a four-year period, Mr Sewell was both professional and considerate "in his interpretation of work safety practices" and, "compromising the safety of his fellow workers was never an issue". The second testimonial was provided by Mr Ciliegi in a statement dated 6 October 2008. Mr Ciliegi said "his company" had worked with Mr Sewell for over eight years. The company to which he referred is presumably JKN Constructions Pty Limited, as it appears on the letterhead. Mr Ciliegi writes: Dennis has always shown his insistence that all matters relating to OH&S in the workplace especially on Building Sites be strictly adhered to and we have always found him to fully co-operate when we as Builder needed adherence to the code. He has always provided us with safe work method Statements and attended Tool Box Meetings on site and we have no hesitation in giving this recommendation. 26 The statements attest to Mr Sewell's good character, as well as his willingness to ensure the safety of workers under his supervision in the workplace. The statements were not challenged by the prosecution during the sentence proceedings. I therefore accept them and they will be taken into account in mitigation of penalty. 27 Mr Sewell has also asked the Court to take into account his means to pay a fine. The financial records relied upon in support of the request go to November 2008. They include bank statements, one of which shows a nominal credit amount of $8.39 as at November 2007. A statement of earnings from a former employer between the period 1 and 29 October 2007 shows a net income during that period of $3,072. Mr Sewell said he had not lodged a personal income tax return since 30 June 2002. He also has a personal loan in the sum of $1,500 from Adam Smith Financiers with a closing balance as at 15 November 2007 of $1,529.59. He estimates he owns second-hand work equipment to the value of $3,000. He is in receipt of a letter of demand from Australian Taxation Office dated 25 August 2007 requiring immediate payment of $27,387.11. The documents reveal that Mr Sewell has a limited capacity to pay a fine. The prosecution has not contended otherwise. 28 Mr Sewell asked the Court to make an order under, "s 10 where a conviction is recorded but there is no financial penalty or only a nominal fine". The request as it has been framed suggests that what Mr Sewell is seeking from the Court is an order under s 10A of Crimes (Sentencing Procedure) Act 1999. The prosecution did not object to the Court entertaining the making of such an order. Given the prosecution's approach to the making of such an order, the substantial subjective factors present in the defendant's favour, and taking into account the overriding consideration of the objective seriousness of the offence, it is, in my view, appropriate to make an order under s 10A of the Act. Such an order would reflect a finding that the offence is serious enough to warrant a conviction, but not so serious, taking into account all objective and subjective considerations, as to result in the imposition of a fine of any substance. An order under s 10A would also not offend against the purposes for which the section was inserted into the Act, namely, to overcome situations where an inappropriate sentence has been imposed, such as a nominal fine, or where the offence is not trivial, or it is inconvenient to impose any further penalty, for example, where the offender is already serving a term of imprisonment and any fine imposed would be rarely recovered. Section 10A was inserted into the Crimes (Sentencing Procedure) Act 1999 in 2006. In the second reading speech for the amending Act, a spokesperson on behalf of the Attorney-General explained the purposes of s 10A as follows: Schedule 1.9 makes a number of amendments to the Crimes (Sentencing Procedure) Act 1999. Item [1] creates a new sentencing option for courts by inserting new section 10A providing that the court may decline to make any further sentencing order other than the recording of a conviction against the person. This option addresses an anomaly in the sentencing regime to overcome situations where inappropriate sentences have been imposed such as fines of 50c. Imposing very small nominal fines costs the courts, and State Debt Recovery Office, more to administer and recover, than the value of the fine; and where the offender is already serving a sentence of imprisonment, the fine is rarely recovered in any event. This amendment will address such cases. 29 The prosecution has sought costs in the amount of $15,000. I decline to make the Order. The defendant has not expressed agreement with the making of an order for costs in that amount. The Court will, instead, make the usual order as to costs. Orders 30 In IRC No 1025 of 2007, the Court makes the following orders: 1. Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 the defendant is convicted of the offence. 2. The defendant is to pay the reasonable costs of the prosecutor in an amount agreed, or in the absence of agreement, as 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.