District Court New South Wales Medium Neutral Citation: SafeWork NSW v PNA Property Developments Pty Ltd [2019] NSWDC 435 Hearing dates: 9 August 2019 Date of orders: 26 August 2019 Decision date: 26 August 2019 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 The offender is convicted. 2 I impose a fine of $180,000. 3 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 4 The offender is to pay the prosecutor's costs as agreed in the sum of $18,000. Catchwords: CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of serious injury – worker injured SENTENCING –objective seriousness – general deterrence – specific deterrence – aggravating factors – significant ongoing disabilities – mitigating factors – no record of previous convictions – good prospects of rehabilitation – remorse – plea of guilty – assistance to law enforcement authorities – good corporate citizen WORK HEALTH AND SAFETY – obvious risk – known to the offender – inadequate instructions – no documented safe work procedure – risk control measures available at low cost COSTS – prosecution costs OTHER – bricklaying – fall from height Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Work Health and Safety Act 2011 Work Health and Safety Regulation 2011 Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Green v The Queen (2011) 244 CLR 462 R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 Texts Cited: Construction Work Code of Practice' Managing the Risk of Falls at the Workplace' Preventing Falls in Housing Construction Code of Practice Category: Sentence Parties: SafeWork NSW (Prosecutor) PNA Property Development Pty Ltd (Defendant) Representation: Counsel: M Scott (Prosecutor) D Nagle (Defendant) Solicitors: Government and Corporate Services, Department of Customer Service (Prosecutor) Madison Marcus (Defendant) File Number(s): 2018/191137 Publication restriction: None Judgment 1. PNA Property Developments Pty Ltd (the offender) has pleaded guilty to an offence that being a person who had a health and safety duty pursuant to section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Mohammad Rahmati and Ashkan Tanha to a risk of death or serious injury contrary to section 32 of the Act. 2. The maximum penalty for the offence is a fine of $1.5 million. Facts 1. The parties presented an Agreed Statement of Facts that can be summarised as follows. Events prior to 6 July 2016 1. The offender conducted a business or undertaking as a residential and commercial property developer. 2. Viewland Developments Pty Ltd (Viewland) was the owner of a site situated at 585-589 Canterbury Road, Belmore New South Wales (the site). 3. Viewland engaged the offender as the principal contractor of the site, to construct a mixed multi-storey residential apartment block, underground basement carpark and commercial precinct. 4. Pierre Akkari was a director and secretary of the offender. Mark Akkari, the brother of Pierre Akkari, was appointed as the site foreman. This was the first site at which Mark Akkari had worked as a site foreman. 5. Pierre Akkari reviewed the activities at the site. Mark Akkari issued the majority of instructions to builders and was responsible for conducting inductions with workers coming onto the site. 6. The offender contracted Yaofu Pty Ltd (Yaofu) to undertake bricklaying at the site. Meixing 'John' Jiang was the director of Yaofu. Mr Jiang has a limited comprehension of English, both written and oral. His native language is Mandarin. 7. Mr Rahmati and Mr Tanha were employed as bricklayers by Yaofu. Mr Rahmati commenced employment with Yaofu in around February 2016 and had a limited comprehension of English, both written and oral. His native language is Farsi. Mr Tanha had a limited comprehension of English, both written and oral. Mr Tanha's native language is Hazaragi (an eastern variety of Dari, predominantly spoken in Afghanistan). 8. The offender engaged Airspec Air Specialists Aust Pty Ltd (Airspec) to supply and install ventilation units at the site. 9. The basement and carpark of the residential building had a ventilation shaft that spanned three levels; from the basement on level 1 down to the basement on level 3. The shaft was approximately 5 metres in height. The ventilation shaft on basement level 1 was 1030 millimetres by 2100 millimetres. It was surrounded on three sides by concrete walls and originally had a sheet of plywood covering the fourth open wall. 10. In about May 2016, Airspec commenced installation of mechanical components within the ventilation shaft to provide fresh air in the carpark and basement. 11. Some days prior to the incident, Airspec removed the plywood from the fourth open wall and installed a ventilation fan and fan shroud inside the ventilation shaft situated in the basement on level 1. Before completing the installation of the ventilation fan, Airspec installed metal sheeting to temporarily cover the hole between the fan shroud and the side wall of the ventilation shaft. The sheet metal covering was riveted in position. 12. Airspec informed Mark Akkari that the work was not yet complete, and that the cover to the ventilation shaft was not safe, in that it presented a fall risk. Airspec employees placed some temporary cones/bollards with tape running between them in front of the ventilation shaft. The incident on 6 July 2016 1. At approximately 7:00am on 6 July 2016, Mark Akkari, Mr Rahmati and Mr Tanha commenced work at the site. It was the third or fourth day Mr Rahmati had been working on the site. At the time, Pierre Akkari was overseas. 2. Mr Jiang arrived on site at approximately 7:30am. Mark Akkari told Mr Jiang about the bricklaying work required of Mr Rahmati and Mr Tanha to external walls at the site. Mr Jiang then instructed Mr Rahmati and Mr Tanha to carry out this work. Mr Jiang then left the site, returning later in the morning. Mr Jiang communicated the instructions in his limited English to Mr Tanha and Mr Rahmati. 3. Upon returning to the site, Mark Akkari informed Mr Jiang that Mr Rahmati and Mr Tanha were almost finished the outside work and that he needed them to perform another task on basement level 1. The task consisted of installing a door frame and laying brickwork to build a wall around the door frame in order to enclose the ventilation shaft (the task). The door frame was approximately 900 millimetres wide. 4. Between approximately 12pm and 2pm Mr Jiang approached Mr Rahmati and requested that he and Mr Tanha perform the task. The instruction given was to go and install the door frame and bricks on either side. Mr Jiang then left the site. 5. Mr Rahmati approached Mr Tanha and asked him to come and assist him with the door and bricklaying. The two men proceeded to basement level 1. 6. Mr Rahmati and Mr Tanha did not see any barricades or warning signs near the ventilation shaft. Mark Akkari asserts that he notified Mr Jiang that the floor in the ventilation shaft was not safe. Mr Jiang denies this occurred. Mr Rahmati and Mr Tanha were not informed of this hazard in the area they were working in. To Mr Tanha it looked like a floor nailed to the concrete and he had thought it was a floor and nothing was down below that floor. 7. Mr Rahmati and Mr Tanha installed the door frame and the brickwork on either side. Once the brickwork became too high to reach from floor level, Mr Rahmati and Mr Tanha used a scaffold platform to reach the top of the wall. The scaffold was supplied by the offender. 8. At approximately 2:00pm, Mark Akkari approached Mr Rahmati and Mr Tanha and provided them with a verbal instruction to install a concrete bar known as a lintel, above the doorframe of the ventilation shaft. Mark Akkari did not inform Mr Rahmati or Mr Tanha of the risks associated with the area inside the ventilation shaft. 9. Mr Rahmati and Mr Tanha attempted to install the lintel, however, it was too narrow for the door frame. When the lintel was placed into position, one side of the newly installed brick wall became tilted slightly. In an attempt to rectify the situation, Mr Rahmati went to locate a piece of timber to position behind the lintel on top of the door frame. He attempted to install the wood above the doorframe in order to stop the wall from tilting. 10. While installing the timber, Mr Rahmati stepped on the metal sheeting covering the open penetration of the ventilation shaft. The metal sheet gave way causing Mr Rahmati to fall down the ventilation shaft to basement level 3, a distance of approximately 5 metres. Mr Rahmati was unconscious after impact and was unable to be reached by emergency crews for approximately two hours due to the narrowness of the ventilation shaft and the difficulty of accessing the shaft. 11. Mr Jiang returned to the site after the incident. Neither Mark Akkari nor Pierre Akkari approached Mr Tanha post incident. 12. As a result of the incident Mr Rahmati sustained the following injuries: 1. a L1 ASIA Grade E Spinal cord injury secondary to an L3 burst fracture requiring a fusion of the L1 to L5 vertebrae; 2. a fracture to the T8 vertebra; and 3. a fracture to the right foot requiring internal fixation. 1. Mr Rahmati was hospitalised for approximately four months as a result of his injuries. Systems of work before the incident 1. At the time of the incident the offender had an induction process. The offender communicated matters to the workers of Yaofu via Mark Akkari informing them what needed to be done. Pierre Akkari did not provide instructions to the workers at the Site. 2. The offender's Training Induction Check List showed that Mr Jiang, Mr Rahmati and Mr Tanha were inducted onto the Site on 5 July 2016. However, the records of Mr Rahmati and Mr Tanha were unsigned. The document was in English and was not translated. 3. Mr Tanha was not provided with an induction document and had not seen the Training Induction Check List before. Mr Rahmati did not receive induction training for the Site. At some point Mr Tanha and Mr Rahmati's White Card numbers were written on the Training Induction Check List signed by Mark Akkari. Mr Rahmati was not asked for his White Card before undertaking work at the Site. 4. Mark Akkari received no training relevant to the management of workplace health and safety on site from the offender or Pierre Akkari. 5. The offender stated that it required risk assessments or Safe Work Method Statements (SWMS) for post tension, excavation, demolition, electrical, plumbing and rendering activities. Copies of the respective risk assessments and SWMSs together with any Site Safety Management Plan and safety documents for the site were requested by SafeWork NSW during the investigation, however, no such documents were provided. 6. No SWMS or risk assessment was sought from, or provided by, Yaofu to the offender, regarding Mr Rahmati and Mr Tanha. The offender did not seek a copy of Yaofu's safe system of work documentation. The only documentation obtained by the offender from Yaofu was Yaofu's insurance documentation. 7. Mr Tanha and Mr Rahmati were not given any written procedures for the work at the site. Mr Rahmati stated that no work health and safety issues were communicated to him and he did not sign any documents for the site. 8. The offender, Mark Akkari and Mr Jiang did not request to see Mr Tanha's White Card. Mr Tanha sent a photo of the White Card to Mr Jiang after the incident. 9. Prior to the incident, SafeWork NSW issued various Improvement Notices to the offender in relation to potential fall from height issues at the site. The offender was issued a Penalty Notice for failing to comply with one of those Improvement Notices. Relevant guidance material 1. Pursuant to clause 291 of the Work Health and Safety Regulation 2011 (NSW) (the Regulations) the offender was undertaking "high risk construction work" at the site. 2. Clause 299 of the Regulations mandates the preparation of a SWMS prior to undertaking any high risk construction work. The clause requires the identification of reasonably foreseeable hazards that could give rise to the risk and eliminate the risk so far as is reasonably practicable. 3. Pursuant to clauses 312 of the Regulations, the principal contractor for a construction project must take all reasonable steps to obtain a copy of the SWMS relating to high construction work before the high construction work commences. 4. Clauses 34 to 36 of the Regulations require a risk assessment to be undertaken to identify risk control measures to minimise the risk. 5. The SafeWork document 'Managing the Risk of Falls at the Workplace' (Code of Practice) was available online at the time of the incident. The Code of Practice states that: "Working on a solid construction provides an environment where the likelihood of a fall may be eliminated. 'Solid construction' is defined as an area that: is structurally capable of supporting workers, material and any other loads applied to it; is provided with barriers around its perimeter and around any openings from or through which a person could fall." 1. The Code of Practice also states: "The surface and its supports must be able to safely carry the expected loads, including workers, materials, tools and equipment. When in doubt, have a structural engineer determine the safe load capacity before use." 1. The offender was aware that the surface of the ventilation shaft on basement level 1 presented a risk to workers. At the time of the incident the offender had not received the certification of a structural engineer that the area was able to withstand the safe load capacity. 2. On pages 11 to 12 of the Code of Practice, at 3.2, the document states: "Barriers (or edge protection) to prevent a person falling over edges and into holes should be provided on relevant parts of a solid construction. These include: openings in floors; the open edge of a stair, landing, platform or shaft opening. The barrier should be designed and constructed to withstand the force of someone falling against it. Edge protection should consist of guard rails, solid balustrades or other structural components." 1. Prior to the incident the offender placed a barricade of cones and yellow chain around the ventilation shaft. The offender failed to ensure that the barriers and yellow cones were of a solid construction. 2. At page 12, under the heading 'Protection of openings and holes', the Code of Practice provides: "Holes, penetrations and openings through which a person could fall should be made safe immediately after being formed. If a cover is used as a control measure, it must be made of a material that is strong enough to prevent persons or objects falling through and must be securely fixed to prevent any dislodgement or accidental removal." 1. On page 38 at 8.0, the Code of Practice states: "Administrative controls may be used to support other control measures and may include 'no go' areas, permit systems, the sequencing of work and safe work procedures… 'No go' areas can be an effective method of making sure people are not exposed to the hazardous area. They require clear signs warning people not to access the hazardous area. They can be used to highlight the risks of entry to an area where there is an unguarded hazard…Relevant information and instruction should be provided about 'no go' areas with adequate supervision to ensure that no unauthorised worker enters the 'no go' area." 1. The offender failed to implement any administrative controls that could have been used in combination with the identified higher control measures. 2. SafeWork NSW's 'Construction Work Code of Practice' (Construction Code) was available at the time of the incident. The Construction Code specifies the steps for managing risks in construction work and provides a work health and safety management plan template. 3. Also, WorkCover NSW's 'Preventing Falls in Housing Construction Code of Practice' was available at the time of incident. It provides that: "All stairwells, atriums and voids through which a person could fall must be sturdily guarded, covered with an industrial safety net or sheeted over, regardless of the fall distance from the upper level floor…Any coverings or temporary floors and their supports must be of robust construction capable of withstanding impact loads from any potential falls." 1. The offender failed to ensure that the material used to cover the area was strong enough to prevent a person from falling through, prior to persons working in or near the ventilation shaft. Systems of work following the incident 1. In response to the incident, SafeWork NSW issued Improvement Notice no 7-293442. 2. On 27 September 2016, the offender produced a Certificate of Structural Adequacy prepared by Australian Consulting Engineers Pty Ltd, certifying that the framing for the mechanical shaft penetration was structurally adequate for the proposed design loads. 3. A site visit by Inspector Dubois on 18 October 2016 indicated that access to the ventilation shaft was locked and signage had been attached to the door stating "Danger No Entry Authorised Personnel Only" and "Anchor Point Must be Used at All Times". This site has since been handed over to Sarraf Strata. The Offender's Case on Sentence 1. The offender relied on an affidavit of Pierre Akkari, the secretary and sole director of the offender, affirmed 8 August 2019. Pierre Akkari was present in Court but not required for cross-examination. The content of his affidavit can be summarised as follows. 2. The offender is a family business, incorporated in August 2014, undertaking residential property construction works. Since incorporation, it has completed four construction projects, which were undertaken in collaboration with Viewland. 3. Pierre Akkari is a licensed builder with more than 10 years' experience in the construction industry. His brother, Mark Akkari, has a Certificate IV and Diploma in Building and Construction Management and over 10 years' experience in the building industry as a leading hand. 4. Currently, the offender employs five people - two labourers, two foremen and a "jack-of-all trades". The offender also engages sub-contractors, as required. 5. Pierre Akkari stated that the offender has no prior convictions, and he is not aware of any prior safety issues involving SafeWork NSW at any of the offender's construction sites. 6. The offender had in place a WHS management system for the Site, including an induction procedure. The procedure was to be implemented by Mark Akkari in his capacity as foreman and involved sighting the construction industry general induction training record (the White Card) of the worker, completing the induction checklist with the worker and submitting a SWMS for the work to be undertaken. 7. The offender was unable to produce to SafeWork a copy of the induction checklist signed by Mr Rahmati and Mr Tanha. 8. Pierre Akkari was of the understanding that the bricklaying work to be performed on the ventilation shaft, was to be done from outside the ventilation shaft. There was a harness attachment point installed within the ventilation shaft for that purpose. 9. The offender did not obtain a documented risk assessment and SWMS from Yaofu in relation to the bricklaying work as it mistakenly believed that such documentation was not required for jobs with a monetary value of less than $5,000. 10. Pierre Akkari expressed remorse, personally and on behalf of the offender, for the injuries sustained by Mr Rahmati. He accepted responsibility on behalf of the offender for the failures that led to Mr Rahmati and Mr Tanha being exposed to the risks on the day of the incident. 11. In response to the incident, the offender arranged for all of its employees to undertake training in relation to working safely at heights. The training was provided by an external provider, Allens Training. The offender also had its site induction documentation translated into the nine most common languages of workers on construction sites (Arabic, Cantonese, Mandarin, Filipino, Greek, Hindi, Italian, Spanish and Vietnamese). 12. The offender is currently seeking to employ a full-time, qualified workplace safety officer to act as a dedicated resource to ensure safety at its sites. If the offender is unable to find a suitably qualified WHS officer, they intend to engage the services of an external auditor to conduct periodic reviews. 13. Pierre Akkari has taken a more direct approach to the management of WHS at the offender's sites. He visits the construction sites on a weekly basis and inspects site records to confirm that site inductions are being conducted, checklists are completed, SWMSs are being submitted and toolbox talks are being conducted. 14. The offender has contributed to the community by donating money to charity, specifically Camp Quality and Save our Sons Duchenne Foundation. Camp Quality provides assistance to children with cancer and Save our Sons supports boys born with Duchenne, a form of muscular dystrophy. In addition, the offender provides support to its employees. In February 2019, the offender gave $5,000 to one of their labourers, to assist him with the expenses associated with looking after two foster children. 15. Pierre Akkari has also made personal donations to Camp Quality, Save our Sons Duchenne Foundation and other registered charities, which assist people in local communities. Consideration 1. I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999. Objective Seriousness 1. The offence is one of some objective gravity. 2. The risk was actually known to the offender, but not effectively communicated to the workers. The covering of the penetration could have been easily marked and either covered with a solid covering, or securely barricaded off. Further, the instructions provided by Mark Akkari on site directly to the workers were inadequate to point out to them the latent danger that existed. It should have been apparent to Mark Akkari that the workers might step inside the shaft in the process of performing the task and in particular, installing the lintel. 3. The offender did not have a SWMS in place for the high risk construction work that was undertaken and the workers were not adequately inducted onto the site. The documentary procedures the offender had in place were not complied with. 4. Prior to the incident, the offender had been issued a number of Improvement Notices at the site, each relating to the risk of a fall from height. 5. The steps that should have been taken were simple, inexpensive and would not have caused any inconvenience to the offender. 6. The risk included a risk of death and was posed to two workers. 7. The injuries suffered by Mr Rahmati were serious. He has been unable to return to work. 8. I have had regard to the maximum penalty for the offence. Deterrence 1. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180]. 2. There is a need for specific deterrence in this case because the offender continues to operate a business in the construction industry. The offender has improved its safety systems in response to the incident. The offender arranged for all of its workers to receive working-at-heights training delivered by an external training provider. It is taking steps to employ a full-time work health and safety officer. Aggravating Factors 1. The injury, harm and loss caused by the section 32 offences was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. In this case the injuries sustained were serious and has led to Mr Rahmati experiencing significant ongoing disabilities. Mitigating Factors 1. The offender does not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender was incorporated on 8 August 2014. 2. The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated by the steps it has taken after the incident, that it has good prospects for rehabilitation. 3. The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Pierre Akkari, on behalf of the offender, accepted responsibility for its actions and has expressed contrition and remorse. 4. The offender entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. It is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%. 5. The offender co-operated with the SafeWork investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. 6. The offender is a good corporate citizen. The offender has made a number of generous donations to charities. I note that Pierre Akkari has also made similar donations. Parity 1. Mr Jiang pleaded guilty to a section 32 offence and was fined the sum of $22,500. The maximum penalty for that offence was $300,000. 2. I have had regard to the parity principle: Green v The Queen (2011) 244 CLR 462 at [28]. 3. In my view, there are good reasons for departing from parity to some extent. First, as principal contractor the offender had obligations to ensure that Yafou had in place appropriate policies. The offender's system to do that failed, because it was not complied with. Second, as principal contractor the offender had overall control of the site and it should have taken steps to remove the hazard or ensured that Airspec did so, on completion of its initial work. It had more opportunity to control the hazard than Yafou or Mr Jiang did. Third, the offender was on notice prior to the incident by the issue of the Improvement Notices that its approach to preventing falls from height at the site was deficient in a number of respects. Penalty 1. The offender is convicted. 2. I have taken into account the Victim Impact Statement prepared by Mr Rahmati. Mr Rahmati is 34 years of age, his wife and children reside in Pakistan. At the time of the incident, he was supporting them financially. He has undergone a number of surgeries. He continues to suffer pain and disability. He is unable to work and has suffered depression. He has been isolated from his family as a result of his injuries and their intention to live in Australia as a family may be in jeopardy. 3. The appropriate fine is one of $240,000 which will be reduced by 25% to give effect to the plea of guilty. 4. I impose a fine of $180,000. 5. I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 6. The offender is to pay the prosecutor's costs as agreed in the sum of $18,000. ********** Amendments 27 August 2019 - Typographical error corrected on title page and paragraph 1 of the decision. 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: 27 August 2019