District Court New South Wales Medium Neutral Citation: SafeWork NSW v Ru Dong Li [2018] NSWDC 189 Hearing dates: 6 July 2018 Date of orders: 13 July 2018 Decision date: 13 July 2018 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The defendant is convicted. (2) The defendant is fined $60,000. (3) Order pursuant to s 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (4) Order the offender to pay the prosecutor's costs agreed in the sum of $30,000. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty SENTENCING PRINCIPLES – totality – remorse – contrition – appropriate penalty COSTS – prosecution costs OTHER – fall from ladder – need for risk assessment – need for falls prevention system – prevalence of prosecutions for falls from height – importance of general deterrence Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Work Health and Safety Act 2011 Work Health and Safety Regulation 2011 Cases Cited: Baumer v R (1998) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Jahandideh v R [2014] NSWCCA 178 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338 R v Borkowski (2009) 195 A Crim R 1 R v McNaughton (2006) 66 NSWLR 566 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Wilkinson (No. 5) [2009] NSWSC 432 Veen v R (No. 2) (1998) 164 CLR Texts Cited: AS/NZS 1892: Portable Ladders Managing Risks of Falls at Workplaces: Code of Practice 2011 Category: Sentence Parties: SafeWork NSW (Prosecutor) Ru Dong Li (Defendant) Representation: Counsel: M Moir (Prosecutor) I Latham (Defendant) Solicitors: SafeWork NSW (Prosecutor) Juris Cor Legal (Defendant) File Number(s): 2017/264954 Judgment 1. Mr Ru Dong Li (the offender) has pleaded guilty to an offence that being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (the Act) he failed to comply with that duty and thereby exposed Mr Liang Ying Zhang to a risk of death or serious injury contrary to s 32 of the Act. 2. The maximum penalty for the offence is a fine of $300,000. BACKGROUND 1. The prosecutor tendered a joint signed Statement Of Facts and a Prosecution Sentence Tender Bundle which form the basis of the background set out below. 2. The offender (born 20 November 1964) traded as Apple Electronic Security. The offender conducted a business or undertaking which involved the installation of security systems including cameras, CCTV, anti-burglar alarms and back to base systems. 3. On 24 June 2016, the offender operated its business or undertaking by performing work at the premises of Victoria Smash Repairs located at 29 Justin Street Smithfield in New South Wales (the premises). Victoria Smash Repairs had engaged the offender to install approximately seven security cameras at the premises. 4. Mr Liang Ying Zhang was engaged on a casual basis by the offender. The offender had called Mr Zhang prior to the day of the incident to ask if he wanted to assist him with the work at the premises. 5. 24 June 2016 was the third day that Mr Zhang had worked for the offender. The offender had engaged Mr Zhang to assist him on these prior occasions and each time had paid him $200 in cash for his work. 6. Mr Zhang was engaged to perform tasks for the offender that included assisting to run cable for CCTV cameras, passing tools up the ladder, holding the ladder when the ground was uneven, working on the ladder by drilling and pulling cables as part of the process of installation, and assisting with the removal of old cameras. 7. The offender was the only other person working with Mr Zhang at the time of the incident. The offender was responsible for the supervision of Mr Zhang at the time. THE INCIDENT 1. At 4:50pm on 24 June 2016, Mr Zhang fell approximately 2.4 metres from an extension ladder during the installation of security cameras at the premises. The ladder used for the work was a Bailey aluminium extension ladder with a safe working load of 120 kilograms. The incident occurred inside the workshop at the premises and adjacent to the right hand side of the workshop roller door. 2. At the time, Mr Zhang was drilling a hole through a double brick wall of the workshop using a battery powered hammer drill Bosch GBH 36v-LI ("the drill"). The drill weighed approximately 4.5kg. The hole was to be used for an electrical camera cable to be run through the wall. This was part of the installation of the fourth camera at the premises. Three cameras had already been installed that day by the offender and Mr Zhang. 3. The offender had first attempted to drill the cable hole from the outside of the workshop. There was no cavity in the wall being drilled and it proved difficult work. After ten minutes, the offender got tired and came down the ladder. 4. Mr Zhang then climbed the ladder and attempted to drill the hole from the outside of the workshop. After five minutes, the offender instructed Mr Zhang to come down the ladder. The ladder was then moved to the inside of the workshop. The ladder was positioned on the wall adjacent to where the hole was being drilled. 5. The offender then climbed the ladder and began drilling from the inside, back towards the hole on the outside of the workshop. The offender got tired from the drilling, and Mr Zhang then took over by climbing the ladder and using the drill to continue the attempt to make the hole. The offender watched Mr Zhang do this for approximately 2 – 3 minutes while holding the ladder from the ground below. The offender then left and went outside the workshop to set up a second ladder. 6. The offender then walked back inside the workshop in order to take the ladder to the outside of the building. He saw Mr Zhang lying unconscious on the concrete floor of the workshop. There was no eye-witness to the incident in which Mr Zhang fell from the ladder. The drill and the ladder remained fixed in their original positions after Mr Zhang fell. 7. The work was being carried out late in the afternoon, after the Victoria Street Smash Repairs workers had left the premises for the day. INJURIES 1. Mr Zhang sustained a broken jaw, shoulder and hip and severe head injuries. He remained unconscious while paramedics provided treatment on site for almost one hour. He was transferred to Westmead Hospital where he was pronounced brain dead. 2. On 25 June 2016, after discussions with medical staff, Mr Zhang's family decided to turn off his life support and he passed away. Mr Zhang was 58 years old. CODES OF PRACTICE & GUIDANCE MATERIAL 1. Australian Standard AS/NZS 1892: Portable ladders Part 5: Selection, Safe Use and Care recommends that a person should have three limbs in contact with the ladder at all times, i.e. both arms and one leg, or both legs and one arm. 2. Managing the Risk of Falls at Workplaces: Code of Practice dated December 2011 ("the Code of Practice") provides that: 1. Portable ladders should only be used where the use of safer systems is not reasonably practicable. 2. Extension or single ladders should generally only be used as a means of access to or egress from a work area. They should only be used as a working platform for light work of short duration that can be carried out safely on the ladder. 3. The ladder should be secured and/or there should be another person holding the base of the ladder during use. 4. Only light duty work is to be undertaken while on the ladder, where three points of contact can be maintained and tools can be operated safely with one hand. 5. Except where additional and appropriate fall protection equipment is used in conjunction with the ladder, it is not safe to … over-reach (the centre of the torso should be within the ladder stiles throughout the work) ... [or] use any power or hand tool requiring two hands to operate… [or] use tools that require a high degree of leverage force which, if released, may cause the user to over-balance or fall from the ladder. SYSTEMS OF WORK PRIOR TO THE INCIDENT 1. The installation work conducted on 24 June 2016 was high risk construction work as defined by clause 291 of the Work Health and Safety Regulation 2011. 2. The offender was supervising Mr Zhang at the time of the incident. Prior to the incident, Mr Zhang had been up the ladder running cables at various times throughout the day. The camera being installed at the time of the incident was to be used to monitor the entry to the workshop. The intended location for the camera was recommended by the offender, after discussing the requirements of Victoria Smash Repairs. 3. The difficult nature of the work and the weight of the drill may have caused Mr Zhang to operate the drill with both hands and/or to use his body weight to force the drill into the hole. 4. The offender conducted an informal site inspection at the time he provided a quote for the work, about one week prior to the day of the incident. He stated that it involved looking for hazards associated with the job, in particular electrical hazards and hazards associated with working at heights. The offender did not complete a documented risk assessment for the work being conducted at the premises. There was no Safe Work Method Statement available for the work. 5. Mr Zhang had only been shown the basic aspects of the type of work the offender was doing. This was done on the first day Mr Zhang worked for the offender. No structured or competency-based training or training on the drilling task had been provided to him. 6. Prior to the incident, the offender did not request Victoria Smash Repairs to allow the offender to use a mobile scaffold or EWP to undertake the work. If the offender had requested permission to use a mobile scaffold or EWP, Victoria Smash Repairs would have given its permission. 7. The daily hire cost of a mobile scaffold is $124 including GST. The cost of hiring an electric scissor lift (5.8 metres) is $256 including GST for four hours, and the cost of hiring a mobile hydraulic platform (12 metres) is $353 including GST for four hours. SYSTEMS OF WORK FOLLOWING THE INCIDENT 1. Since the incident the offender now has the following new systems of work : 1. He undertakes a formal written risk assessment for all new jobs undertaken in the course of his business; and 2. If a ladder is to be used, and he is working with someone else, he holds the ladder all the time for the other person. THE OFFENDER'S CASE ON SENTENCE 1. The evidence for the offender came from his affidavit affirmed on 5 July 2018. The offender has been installing and maintaining CCTV cameras in Australia since 2000 to the present, and has conducted his own business since 2001. His business never had a work-related incident until 24 June 2016. 2. The offender's usual practice was to work alone, but when Mr Zhang became unemployed he offered him some work so that he might "earn some money", as he was a close friend. 3. The offender was devastated by Mr Zhang's death, and felt depressed and guilty every day because deficiencies in safety measures he used may have caused Mr Zhang's death. He and his wife visited Mr Zhang's family five or six times in order to apologise and offer assistance. He acknowledges that nothing he did could return Mr Zhang to his family, but he wanted to help however he could. On various visits he and his wife brought food, nutritional products, pre-prepared meals, and monies totalling $4,000.00. They also offered to pay for Mr Zhang's funeral, but this was declined. After the last of these visits the offender says he could not face seeing Mr Zhang's family any more. 4. The offender was co-operative with SafeWork inspectors and the Police throughout the whole investigation, and assisted the authorities as much as he could. 5. Since the incident, the offender has realised that there were a number of deficiencies in his work practices. He believes that he should have: 1. used a mobile scaffold instead of a ladder; 2. provided Mr Zhang with comprehensive and systemic training in relation to working at height and handling heavy electric drills. Mr Zhang did not have any relevant qualification or experience. He had only given Mr Zhang a basic rundown and was content to let him learn while working; 3. completed a formal written risk assessment that detailed the nature of the work to be undertaken and the associated risks; 4. implemented additional fall protection measures. 1. The offender said that after the incident occurred, he has suffered from depression, has difficulty sleeping at night, and finds it difficult to concentrate during the day. He is seeking help from a psychologist, but believes that he will live with regrets for the rest of his life. He has not been as active in accepting as many new jobs as previously, because every new job is a reminder of the incident. He has only accepted a limited number of jobs since the accident. 2. The offender said that he has improved his work practices and safety measures by: instituting a formal written assessment; ensuring that all available options including mobile scaffold, electric work platform, and platform ladder are considered in order to reduce the risk of falls; and if a ladder is used he ensures that additional fall protection measures are in place. In circumstances where the offender needs someone to assist him, he now engages professional contractors rather than people with minimal or no experience. 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 of the Crimes (Sentencing Procedure) Act 1999. OBJECTIVE SERIOUSNESS OF THE OFFENCE 1. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v R (No. 2) (1998) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton (2006) 66 NSWLR 566 at [15]. 2. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R (1998) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70]. 3. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61]. 4. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively. 5. The Court of Criminal Appeal has recently examined the sentencing process with regard to the Work Health and Safety Act 2011 in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338. His Honour Justice Basten at paragraph 34, under the heading 'Assessment of Risk' said: The sentencing judge commenced his consideration with the proposition that 'greater 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 on assessment of all those factors. 1. Further at paragraph 42 his Honour continued: 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, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs. 1. My findings about the offender's level of culpability are based upon the following: 1. The existence of the risk was known or should have been known as the risk was identified in: 1. Australian Standard AS/NZS 1892: Portable ladders Part 5: Selection Safe Use and Care; 2. Managing the Risk of Falls at Workplaces: Code of Practice, dated December 2011 and published by SafeWork Australia; 1. The offender failed to adhere to the Standard and Code of Practice as outlined above; 2. The systems of work at the site for working from heights were unsafe as the offender did not have any documented systems, policies or procedures in place for: 1. working from heights generally, including the safe use of the ladders; 2. high risk construction work, being construction work that involved a risk of a person falling more than two metres; 1. The offender did not conduct any formal toolbox meetings with Mr Zhang to discuss work health and safety issues; 2. No documented risk assessments were conducted by the offender for the task of installing the CCTV cameras; 3. The offender allowed workers to use ladders and undertake work involving working from heights without providing those workers with any training; 4. The offender did not provide those workers with any fall prevention devices or fall arrest systems; 5. The offender did not adequately supervise or train its employees to manage the risk associated with the work assigned to them. The offender was responsible for supervising Mr Zhang, however he allowed Mr Zhang to work on his own at a height of approximately 2.4 metres; 6. The risk of this accident happening was an obvious risk; 7. The likelihood of the risk coming home was quite high; 8. Simple remedial steps were available which would have completely avoided the risk; 9. The injuries sustained by Mr Zhang on 24 June 2016 were a manifestation of the risk; 1. I find that the offender's level of culpability is in the mid-range. DETERRENCE 1. The penalty imposed in relation to these offences 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 Limited v Nash (2016) NSWCCA 37 at [180]. 2. Falls from heights resulting in serious injury are far too common. Since the start of 2016 the following District Court cases have involved the risk of falls from heights: * Inspector Orr v Perilya Broken Hill Limited; Inspector Orr v Perilya Limited [2018] NSWDC 131 * Inspector Orr v Perilya Broken Hill Limited [2018] NSWDC 130 * SafeWork NSW v Powell [2018] NSWDC 104 * SafeWork NSW v Wholesale Joinery Pty Limited [2018] NSWDC 91 * SafeWork NSW v Freyssinet Australia Pty Ltd [2018] NSWDC 66 * SafeWork NSW v Co-Wynn Building Contractors Pty Ltd [2018] NSWDC 61 * SafeWork NSW v Christopher Michael Butler; SafeWork NSW v Edgesafe Pty Ltd [2018] NSWDC 60 * SafeWork NSW v Universal Property Group Pty Ltd [2018] NSWDC 19 * SafeWork NSW v CTN Construction Pty Limited [2017] NSWDC 340 * SafeWork NSW v Travis Brown [2017] NSWDC 337 * SafeWork NSW v Billyard Homes Pty Limited [2017] NSWDC 336 * SafeWork NSW v Tolputt [2017] NSWDC 285 * SafeWork NSW v Hydro Clean (Griffith) Pty Ltd [2017] NSWDC 264 * SafeWork NSW v P.K. Roofing Pty Ltd (Unreported, NSWDC, Scotting J, 28 October 2016) * SafeWork NSW v Grip Asia Pacific Pty Ltd [2017] NSWDC 210 * SafeWork NSW v Action Concreting and Constructions Pty Ltd [2017] NSWDC 191 * SafeWork NSW v Karimbla Constructions Services (NSW) Pty Ltd [2017] NSWDC 68 * SafeWork NSW v United Roof Tiling Pty Ltd [2017] NSWDC 14 * SafeWork NSW v Schaefer Systems International Pty Ltd [2016] NSWDC 321 * R v BS & JH Bailey Pty Limited [2016] NSWDC 148 * SafeWork NSW v JSN Hanna Pty Ltd [2016] NSWDC 117 * SafeWork NSW v Romanous Contractors; SafeWork NSW v John Allen Romanous [2016] NSWDC 48 1. In the light of that troubling litany of death and serious injury, general deterrence is a very important factor in this case. 2. The penalty must reflect the need for specific deterrence. The offender is still conducting a business. His operations involve the use of potentially dangerous equipment and working at heights. AGGRAVATING FACTORS 1. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. MITIGATING FACTORS 1. The offender does not have any record of previous convictions: Section 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999. 2. The offender is otherwise of good character: Section 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999. The steps which the offender took after the incident demonstrate this. 3. The offender is unlikely to re-offend: Section 21A(3(g) of the Crimes (Sentencing Procedure) Act 1999. He has changed to safer work practices. 4. The offender has good prospects of rehabilitation: Section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken positive steps to guard against the risk of an incident such as this ever happening again. 5. The offender has shown remorse for the offence: Section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender proved that he has accepted responsibility for his actions and has acknowledged that the injury to Mr Zhang was caused by his actions. 6. The offender entered a plea of guilty: Section 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when he pleaded guilty, and the circumstances in which he indicated an intention to plead guilty: Section 22(1) Crimes (Sentencing Procedure) Act 1999. The offender entered the plea of guilty at the earliest possible opportunity. It is appropriate to apply a discount of 25%. 7. The offender gave assistance to law enforcement authorities: Section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. The offender co-operated at all times with the prosecutor and the Police. CAPACITY TO PAY A FINE 1. I am required to have regard to s 6 of the Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, he bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence. 2. The offender, his wife and two sons live in the family home. There was evidence in his affidavit that his taxable income was $31,162. The income of his wife is about $20,000. The affidavit said that living expenses were $1,600 per week, or $80,000 per annum. How this was afforded on the two disclosed incomes was not explained. 3. Apart from the family home, the offender owns two investment units. A property at Burwood was purchased for $500,000 and there is a mortgage of $387,806. There was no evidence as to the current value of the property. A property at Wentworth Point was purchased for $560,000 and there is a mortgage of $480,389. There was no evidence of the current value of that property. 4. There was no evidence as to whether the offender had other savings. 5. The offender, after paying living expenses and business expenses, has no spare cash to pay a fine. However, he has assets so it may well be that an investment property has to be sold to pay the fine. I do not propose to moderate the fine because of a reduced capacity to pay. The offender has the capacity to pay. COSTS 1. The parties have agreed to an order that the offender is to pay the prosecutor's costs agreed in the sum of $30,000. PENALTY IN RELATION TO OFFENCE UNDER SECTION 19 OF THE ACT 1. The offender is convicted. 2. The appropriate fine is $80,000 but that will be reduced by 25% to reflect the plea of guilty. 3. My orders are: 1. The defendant is convicted. 2. The defendant is fined $60,000. 3. Order pursuant to s 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 4. Order the offender to pay the prosecutor's costs agreed in the sum of $30,000. ********** Amendments 16 July 2018 - Added instructing solicitor firm 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: 16 July 2018