District Court New South Wales Medium Neutral Citation: WorkCover Authority of New South Wales v El-Hayek [2014] NSWDC 362 Hearing dates: 29 July 2014 Decision date: 01 August 2014 Jurisdiction: Criminal Before: Kearns DCJ Decision: On the offence charged, the defendant is convicted and fined $15,000. I order a moiety of the fine be paid to the prosecutor. I order the defendant to pay the prosecutor's costs agreed at $8,000. Catchwords: Work Health and Safety Act 2011 s 19(1) – worker fell through opening on first floor of construction – serious injury – duty of person conducting business or undertaking to ensure the health and safety of workers at work in the business or undertaking – worker did not receive any safety training – defendant not present on site at all times – opening not appropriately covered – seriousness of offence – specific deterrence – general deterrence – seriousness of injury – no prior convictions – good character of defendant – co-operation with regulatory authority – early guilty plea – remorse – consideration of defendant's ability to pay Legislation Cited: Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999; Fines Act 1996 Category: Sentence Parties: WorkCover Authority of New South Wales (prosecutor) Rabie EL-HAYEK (defendant) Representation: Counsel: Ms P McEniery appeared for the prosecutor Mr R C Pontello appeared for the defendant File Number(s): 13/371399 Judgment 1. In this matter the defendant pleaded guilty to a charge under s 19(1) of the Work Health and Safety Act (2011). It provides, "A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking." 1. This case concerns a construction at 26 Webb Street, Merrylands in 2012. A duplex building was being erected. There were some family arrangements I need not go into. The result was the defendant became the proprietor of the premises at 26 Webb Street. Approval for building on the site was given by the council in 2010. After considering a number of options with the family the defendant decided to proceed with the construction as an owner builder. This was a decision driven by financial considerations. The defendant had no training or experience in building or any aptitude for it. He undertook and owner builder's training program in December 2010. It seems to have been a fairly cursory course. 2. Construction proceeded with the defendant contracting different trades to undertake the work. One of the trades was plumbing. The defendant contracted with Plumbwizard Pty Ltd for that. One of its employees was Daniel Gogtapeh. He had no prior experience in the construction industry. He was 16 years old and working as an apprentice plumber with Plumbwizard. He was only about three weeks into employment. 3. The construction was on three levels. The top level had or was intended to have skylights. Openings were left or created for them. On 20 June 2012 the defendant inspected the site as was his daily routine. This was at about 7am. He observed the skylight openings were covered using timber pallets and scaffold planks. How that could be is not quite clear to me as Mr Gogtapeh was injured when he fell through a skylight opening. 4. The defendant's family lived next door at 28 Webb Street and the defendant's father was meant to be keeping an eye on the construction. He was not present at the time of the accident. Mr Gogtapeh had been drilling clips to secure a down pipe and had been moving equipment between floors. He fell through a skylight opening that clearly was either not covered or was inadequately covered at the time. He fell about three metres and was injured. 5. Mr Gogtapeh had not received any safety training before his accident. 6. The defendant, either by itself or his representative, was not present on the site at all times when work was being done. 7. Such covering as there was over the skylights was not secured in place. 8. After the accident the opening was covered by plywood which was fastened into position. 9. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act (1999). It provides, "The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 1. Of particular significance here are the recognition of the seriousness of the offence and deterrence. 2. The offence is serious. Falls on construction sites are notorious. This one resulted in injury including hospitalisation for a few days. Others can be more catastrophic. The seriousness of the offence is not necessarily measured so much by its consequences, but by its potential consequences. Falls on construction sites are serious. This is no doubt why the legislation is riddled with Acts and regulations governing things such as scaffolding and ladders. The legislation is designed to protect workers in the workplace. One way the legislature expects the seriousness of these offences to be recognised is by the imposition of a suitable fine. It acts as a deterrent. 3. There is both specific and general deterrence to consider. 4. I do not think specific deterrence is much of an issue in this case. This was a one off job, a private job undertaken by the defendant and one most unlikely ever to be undertaken by the defendant again. 5. As to general deterrence this is not a case in the category of a builder doing the job as part of his business or earning his living, nor of a person buying, renovating, and on selling property. This is in a different class altogether and a relatively rare one. 6. Section 21A of the Crimes (Sentencing Procedure) Act provides for aggravating and mitigating factors to be taken into account. The only aggravating factor of any significance to be taken into account in this case is the seriousness of the injury to the victim. Mitigating factors are that the defendant has no prior convictions and is a person of good character. Character references tendered attest to that. He is most unlikely to re-offend. There is an element of remorse. The defendant has co-operated with WorkCover and there has been an early guilty plea. 7. As to remorse, I accept that the defendant has expressed to others his concern about this event. Remorse would carry more weight if there were evidence of contact with or attempts to contact the victim and inquire as to his welfare. 8. The maximum penalty available for this offence is $300,000. It is relevant to look at other causes of this accident. The defendant's evidence is that the opening was covered though not adequately when he inspected it at 7am. Mr Gogtapeh had seen the pallets that were meant to be covering the opening in a corner of the site and the opening was not covered. If those facts are correct, and I have no basis for understanding they are not, somebody must have moved the pallets after the defendant inspected them and before Mr Gogtapeh had his fall. It would appear that must have been Plumbwizard or one of its subcontractors. Plumbwizard is not being tried here. But on those facts the least responsibility, in terms of physical causes of this accident, lies with the defendant. The responsibility of Plumbwizard assumes much greater significance not only on those short facts recited but also by reason of the age and inexperience of Mr Gogtapeh. 9. With a full discount of 25 per cent for an early guilty plea I think an appropriate fine in this case is $15,000. 10. The defendant led some evidence about his financial circumstances seeking to invoke s 6 of the Fines Act 1996. I do not think the evidence supports a basis for reducing the fine. The defendant and his wife presently have a combined income that would indicate the fine I have imposed should be manageable. The defendant led evidence that the building is to be subdivided and one half given to his brother. He will be left with a property which he values at about $500,000 which is approximately the principal sum of a mortgage on the property. The evidence as to subdivision does not persuade me to apply s 6. The value of the total property at the moment on the defendant's reckoning is about $1million which provides more than enough security for the National Australia Bank, the mortgagee, to assist the defendant to cover this fine if the defendant needs to resort to that. 11. On the offence charged the defendant is convicted and fined the sum of $15,000. I order a moity of the fine to be paid to the prosecutor. I order the defendant to pay the prosecutor's costs in an agreed sum of $8000. ********** 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: 11 November 2015