District Court New South Wales Medium Neutral Citation: Safework NSW v Orbit Formwork Pty Ltd [2019] NSWDC 685 Hearing dates: 18 November 2019 Date of orders: 22 November 2019 Decision date: 22 November 2019 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The offender is convicted. (2) The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order the offender to pay a fine of $180,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (5) Order the offender 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 SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty COSTS - prosecution costs OTHER – fall from height over unprotected edge Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2011 (NSW) Cases Cited: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 Safework NSW v Emu Group Pty Limited [2019] NSWDC 537 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Australian Standard AS 4494 Temporary Edge Protection Formwork, Code of Practice 1998, WorkCover NSW General Guide for Formwork and Falsework, SafeWork Australia, July 2014 Guide to Formwork, SafeWork Australia, July 2014 Managing the Risk of Falls at Workplaces Code of Practice, April 2016 Category: Sentence Parties: SafeWork NSW (Prosecutor) Orbit Formwork Pty Ltd (Defendant) Representation: Counsel: P McEniery (Prosecutor) R Reitano (Defendant) Solicitors: SafeWork NSW (Prosecutor) Takchi & Associates(Defendant) File Number(s): 2019/95581 Judgment 1. This is yet another case involving a fall from height resulting in serious injury. In previous sentencing judgments this court has remarked upon the high number of such cases. It is almost an epidemic. The prosecutor tendered statistics (PX2) showing that in the three years between 1 July 2016 and 30 June 2019 there were 1,414 falls related incidents reported to Safework NSW, an average of nine a week. In that period there were 22 deaths. In many of the cases which have come before this court the fall from height leaves a worker, often a young or inexperienced worker, with a traumatic brain injury – Safework NSW v Emu Group Pty Limited [2019] NSWDC 537 at [63-64]. In common with many of those previous cases, the risk of a fall from height was well known to Orbit Formwork Pty Ltd (the offender), the risk was observed by the offender to be present in the work place, the precautions which should have been taken were known to the offender, and yet an inexperienced worker was required to carry out physical tasks adjacent to an unprotected edge, from which he fell six metres onto a concrete surface. 2. Part of the sentencing process, and one of the objects of sentencing, is to prevent crime by deterring the offender and other persons from committing similar offences – s 3A(b) Crimes (Sentencing Procedure) Act 1999. The District Court publishes on Caselaw each and every sentencing judgment under the Act. Thus the industrial community is informed of the significant penalties imposed for offences under the Work Health and Safety Act 2011 (NSW) (the Act), which in theory should have a deterrent effect on persons other than the offender. Further, additional purposes of sentencing include to denounce the conduct of the offender, and to recognise the harm done to the victim of the crime and the community – s 3A(f) and (g) Crimes (Sentencing Procedure) Act 1999. 3. The statistics tendered in this case show that there has been no real decline in falls related incidents over the last three years. Clearly the message sent by the level of penalties being imposed is not getting through to the industrial community and such penalties are not achieving the aim of general deterrence. 4. The sentence in this case will be imposed having regard to the level of sentences set out in previous judgments of this court for similar offences. 5. However the time is rapidly approaching when the courts may have to consider whether the penalties imposed for such offences should be increased above the current levels. 6. The offender has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Act it failed to comply with that duty and thereby exposed Mr Ali Jabur to a risk of death or serious injury contrary to s 32 of the Act. 7. The maximum penalty for the offence is a fine of $1,500,000. Background 1. The parties presented an Agreed Statement of Facts and this material is summarised below. 2. J & CG Constructions Pty Ltd (J & CG) was a person conducting a business or undertaking (PCBU) which provided specialist construction services. 3. J & CG was responsible for the construction of a 39-room boarding house at 66-68 Barker Street, Kingsford (the construction site). J & CG was the principal contractor at the construction site. Subcontract with Orbit Formwork Pty Ltd 1. On 26 November 2016, J & CG engaged the offender to undertake the installation of formwork, steel-fixing, and concrete placement and finishing at the construction site. The subcontract sum was $390,500 plus GST. 2. The offender was a PCBU which provided formwork, steel-fixing and concreting services for residential, commercial, industrial, civil and government projects. 3. Mr Mohamad Hamdan was the sole Director of the offender. Mr Hamdan also supervised work undertaken by the offender at the construction site when he visited the construction site once or twice a week. 4. Mr Wael Omar was employed by the offender as its Supervisor at the construction site and shared supervisory duties with Mr Hamdan, when Mr Hamdan was at the construction site. 5. Mr Ali Jabur was employed by the offender on a casual basis as a formwork labourer. While Mr Jabur held a White Construction Card prior to being employed by the offender he had no previous experience as a formworker. 6. Mr Jabur had previously worked for the offender on one other job site, but his first day working at the construction site was 23 March 2017, the day of the accident. The duties assigned to Mr Jabur on that day included the stripping of formwork columns. 7. Mr Jabur was a native Arabic speaker, who had limited English communication skills. The Scaffold 1. On 1 February 2017, J & CG engaged Showcase Hire Pty Ltd (ACN 144 076 522) (Showcase) to supply and erect temporary scaffolding at the construction site. In the original planning and design of the scaffold, the scaffold was to be installed in the return of the building. 2. Mr Omar noticed that there were parts of the scaffold that were incomplete or insufficient. On 13 or 14 March 2017, Mr Omar took photographs of the scaffold at Level 2 of the building, where there was a gap between the return of the building and the adjacent scaffold measuring approximately 1.17 metres. 3. Mr Omar raised his concerns about the scaffold, in particular the lack of scaffold in the return of the building, in meetings with the Project Manager and the Construction Manager of J & CG on 13 and 14 March 2017. Mr Omar also discussed his concerns about the unprotected void with Mr Hamdan. 4. In spite of the fact that the exposed edges and lack of scaffolding in the return of Level 2 had been identified, and were known to the offender, work continued to be carried out on Level 2 of the construction site. 5. At some point Mr Omar erected or arranged for handrails to be erected around the return on Level 2. The handrails consisted of a timber beam that was nailed to the formwork column. This was erected about two days before the formwork columns were poured on Level 2. The Incident 1. On 23 March 2017 at approximately 7.00am, Mr Jabur arrived at the construction site to commence work. He was not provided with a site induction. 2. After he arrived, he met with Mr Omar (who could speak Arabic) and discussed what work he would be undertaking at the construction site that day. Mr Omar told him that he would be involved in stripping formwork columns on Level 2 of the building. 3. As at 23 March 2017, Level 2 of the Kingsford site was a concrete slab with formwork columns laid. Level 2 had the following significant features: 1. A return was located at the northern end of the concrete slab. The return, which was a void, measured approximately 2.3 metres in length along the southern side and 1.8 metres in length along the western side. 2. A cement column on the western side of the return ran from the floor to the ceiling. The column was about 835mm from a metal formwork prop that, in turn, was 500mm from the unprotected edge of the void of the return. 3. Positioned to the north of the return was scaffolding that ran along the front of the building. The gap between the form deck protruding from under the slab and the scaffold was 1.17 metres. 4. The drop from Level 2 to the basement level was approximately six metres. 1. Mr Omar did not check that Mr Jabur had been provided with a site induction. 2. Mr Omar did not provide Mr Jabur with any information or training about how to strip the columns. In particular, he did not provide any information about the formwork column on Level 2 which was adjacent to an unprotected edge where the scaffold did not meet the return of the building. 3. Due to his limited English communication skills, and relative lack of experience, Mr Omar paired Mr Jabur to work alongside another Arabic speaking worker, Mr Mohamed Akram. Mr Akram usually worked as a truck driver and was not an experienced formworker. 4. Between approximately 7.00am and 9.15am, Mr Jabur worked alongside Mr Akram on Level 2, and together they stripped five formwork columns during that time. 5. At approximately 9.15am they started stripping the sixth column, which was adjacent to the unprotected gap between the return on the building and the scaffold. 6. The column had timber beams supporting it, and was fixed to the lift shaft. As Mr Jabur was removing the supporting timber beams, he fell off the unprotected edge, landing on a concrete slab on the lower ground floor more than six metres below. Injuries 1. Mr Jabur was transported to St Vincent's Hospital having sustained major trauma injuries associated with the fall including multiple fractures, lacerations and muscular injuries. Systems of Work before the Incident 1. After the gap between the scaffold and the edge of the building was identified, the offender did not: 1. prohibit work in the area of the gap so that the risk of a fall from height was controlled; 2. put in place an exclusion zone, or barricades or other means to prevent access to the area; 3. provide instruction to workers not to work in the vicinity of the gap; 4. fix the erected scaffold so that there was no longer a gap; 5. put appropriate fall protection in place. The Offender 1. The offender had developed a Safe Work Method Statement (SWMS) dated 24 January 2017 for the formwork activities to be carried out at the construction site. 2. This SWMS was authorised by Mr Hamdan and submitted to J & CG as part of the tender process. Contained within the SWMS was the sequence and steps for stripping formwork, and identification of the high likelihood of the risk of slips, trips and falls associated with stripping formwork. 3. The control measures that were stipulated to manage that risk included: 1. Requiring that all workers attended a site-specific induction. 2. Undertaking a daily pre-start safety walk. 3. Requiring a fall prevention system to be used whenever work involved the risk of falling more than two metres. 4. Reporting dangerous conditions to Mr Hamdan. 5. Using a fall catch deck when working above two standard frames or alternatively using a minimum of three planks to all exposed edges. 1. On the day of the incident: 1. Mr Jabur was not provided with a site-specific induction. 2. No pre-start safety walk took place. 3. No adequate fall prevention system was in place in relation to the return of the building on Levels 1, 2 and 3. 4. Whilst Level 2 was above two standard frames, no full catch deck was used nor was there a minimum of three planks to the exposed edges of the return. 1. The offender did not undertake a risk assessment, prior to the incident, in relation to the management of risk of falls for the work being carried out at the construction site. 2. Mr Hamdan did not take any steps to verify that the offender's SWMS had been enforced. 3. The contract between J & CG and the offender stated: "Subcontractor [i.e. the offender] to provide all internal scaffolding for walls and columns and all scaffolding internally required to carry out their works in a safe manner." 4. When Mr Jabur fell, he had been working in an area where there was a risk of falling more than two metres, and there was no adequate fall prevention system in place. It would have been reasonably practicable for the offender to have ensured that an adequate fall prevention system was in place by: 1. extending, modifying or moving the existing scaffold so that there was no gap between the scaffold and the building from which a person could fall from height; 2. putting in place edge protection, fencing, or steel mesh barricade in the area where the erected scaffold did not meet the slab of the building; 3. installing a catch platform in the areas where the scaffold did not extend to the slab of the building; 4. using individual fall arrest systems if any of the other measures above did not adequately manage the risks of a fall from height. 1. Where there was a risk of workers falling more than two metres, the offender could also have: 1. prohibited workers from working in that area until the risk was rectified; 2. put in place a barricade or exclusion zone for that area until the risk was rectified. Guidance Material 1. A significant amount of guidance material was available to the offender to control the risks arising from falling from height while formwork activities were undertaken on the construction site. Prior to, and at the time of the incident, the following guidance material was published and available on the SafeWork NSW website. Work Health and Safety Regulation 2011 1. Clause 78 "Management of risk of fall" specifically stated that a person conducting a business or undertaking at a workplace must manage risks to health and safety associated with a fall by a person from one level to another that is likely to cause injury to the person or any other person. 2. Clause 79 applied where it is not possible to eliminate the risk of a fall to which cl 78 applies. Sub-clause 3 relevantly provides that a person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by: 1. providing a fall prevention device if it is reasonably practicable to do so, or 2. if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system, or 3. if it is not reasonably practicable to comply with either par (1) or (2), providing a fall arrest system, so far as is reasonably practicable. 1. Sub-clause 5 defines "fall prevention device" to include: 1. a secure fence; and 2. edge protection; and 3. working platforms; and 4. covers. 1. Clause 300 states that a person conducting a business or undertaking that includes the carrying out of high risk construction work must put in place arrangements for ensuring that high risk construction work is carried out in accordance with the SWMS for that work. Formwork Code of Practice 1998, WorkCover NSW 1. While this Code of Practice was developed based on previous work health and safety legislation which was replaced with the Act, it is still current and can be relied on to instruct duty holders in how to meet their safety obligations in relation to formwork. 2. Section 3.2 of this Code of Practice outlines planning practices that should be employed before commencing formwork on a construction site, including: 1. assessing the risks involved in carrying out the work; 2. identifying the most appropriate methods to control any risk of injury, including safeguards such as guardrail systems (including toe boards), perimeter safety screens and barriers, and fall arrest systems; 3. providing suitable and safe access to and from the construction site including each place of work; 4. ensuring that all persons carrying out the work have received appropriate training and instruction. 1. Section 3.3 of this Code of Practice outlines planning practices that a contractor (or subcontractor) should carry out in addition, including: 1. assessing the risks in carrying out the work; 2. identifying the most appropriate methods of preventing the risk of injury including falls, slips and trips; 3. providing a documented work method statement describing the sequence of work tasks and activities and how the work is to be done safely. This work statement should take into account an assessment of the risk involved in carrying out the work; 4. ensuring that the sequence of work tasks is designed to increase safety; 5. providing suitable and safe access to and from the construction site including each area of work. This should include planning the position of frames to ensure safe access for persons walking between frames. 1. Sections 4.1 to 4.3 refer to the prevention of falls, including appropriate methods of edge protection. General Guide for Formwork and Falsework, SafeWork Australia, July 2014 1. Pages 9-10 of this Guide, state that a safe system of work should be followed in the erection of formwork including: 1. a methodical work sequence where all component connections are secured and tightened as required before progressing; 2. implementing all required fall and falling object risk control measures e.g. edge protection and work platforms. 1. Page 12 of the Guide notes that the following hazards may increase the risk of a fall when erecting formwork: 1. Protruding objects below. 2. Penetrations and void areas not identified or protected. 3. Incomplete work platforms, scaffolds or loose components where work is being done. Guide to Formwork, SafeWork Australia, July 2014 1. This Guide refers at pp 7-8 to open penetrations and says that these should be protected with edge protection such as handrails, or by securely covering them so no one can fall through them. 2. At p 9 it refers to edge protection on a formwork deck, and provides examples of where edge protection should be installed: 1. When a leading edge is to be left unattended and entry onto the deck has not been barricaded off. 2. At openings in stairwells or lift shafts. Managing the Risk of Falls at Workplaces Code of Practice, April 2016 1. Section 4 of this Code refers to "Fall Prevention Devices". In particular, at 4.1 it states that a safety consideration relating to the use of scaffolds requires that: "edge protection (hand rails, mid-rails and toe boards) is provided at every open edge of a work platform". 2. At 4.2 the use of perimeter guard rails is discussed, to provide effective fall protection at: "the edges of mezzanine floors, walkways, stairways, ramps and landings" as well as "around openings in floor and roof structures". It refers to the Australian Standard, AS 4994 Temporary Edge Protection for the specifications for guard rails. 3. At 10.3 it specifically refers to how the design and planning stage of construction of buildings or structures for larger projects should involve consultation, co-operation and co-ordination between the builder and other designers to ensure the safe interaction of the different design aspects. 4. It further states that this design and planning stage should include: 1. reducing the risk for those working at heights, for example by the installation of guard rails to perimeter structural members prior to erection; 2. sequencing of the work to be performed at heights. Australian Standard AS 4494 Temporary Edge Protection 1. AS 4994 Temporary Edge Protection relevantly provides that: 1. Edge protection must be designed so that the forces transferred to the equipment will not cause or enable the edge protection to become detached from the support structure thereby enabling a person to fall from the edge (cl 3.5). 2. Edge protection must not include an opening through which a person can pass inadvertently (cl 3.6.1). 3. A barrier must include a top rail, mid-rail and bottom rail (cl 3.6.1). 1. The handrails which Mr Omar arranged to have erected to Level 2 around the edge: 1. contrary to cl 3.5 were not designed so that the forces transferred to the equipment would not cause or enable the edge protection to become detached from the support structure thereby enabling a person to fall from the edge; 2. contrary to cl 3.6.1 included an opening through which a person could pass inadvertently; and 3. contrary to cl 3.6.1 did not include a top rail, mid-rail and bottom rail. 1. The offender did not comply with the available guidance material as there was no adequate fall protection or safe work sequence in place at the time of the incident. Systems of Work Following the Incident 1. SafeWork NSW issued improvement and prohibition notices to the offender following the incident. As a result of those notices, the following actions were taken and had been complied with by 3 April 2017 when a follow-up visit by a SafeWork NSW Inspector occurred: 1. Installation of scaffolding, catch decks, handrails and steel mesh barricades to prevent falls from height in the area where Mr Jabur fell. 2. Installation of catch platforms in the areas where the scaffold did not extend to the slab of the building. 3. Installation of scaffold within voids identified by SafeWork NSW Inspectors. 4. The use of suitable individual fall arrest systems as a final control if any of the other measures implemented did not adequately manage the risks of falls from heights. 5. Review of the SWMS for stripping formwork, with the inclusion of site-specific actions and controls, incorporation of visual aids including photos and further use of bilingual workers to communicate hazards, risks and controls contained within the SWMS. The Offender's Evidence 1. Mr Hamdan swore an affidavit on 13 November 2019 (DX1). He is the sole director, secretary and sole shareholder of the offender. The company was incorporated on 26 October 2016 and has been trading for three years providing formwork on residential, commercial and industrial construction sites. The offender has no convictions for breaches of the Act or the Work Health and Safety Regulation. 2. In his affidavit Mr Hamdan deposed that the offender presently employs four people: 1. Mr Wael Omar – Foreman. 2. Mr Mohamad Geriety – Carpenter. 3. Mr Mohamad Hamdan – Operation Manager and Director. 4. Mr Ray Hamdan – Administrator (casual). 1. However in oral evidence he said that the offender has seven or eight employees out on sites, as well as people working in the office. 2. Mr Hamdan accepted the failures of the offender as set out in the Summons filed. He deeply regretted and apologised for those failures that have resulted in the charge brought. 3. Mr Hamdan visited Mr Jabur in hospital daily. He has assisted with Mr Jabur's needs, paid for all medical expenses of Mr Jabur while at the hospital and contributed to all his financial expenses at that time. He also visited Mr Jabur's mother to check on her and he assisted her financially. 4. Following Mr Jabur's discharge from hospital, Mr Hamdan continued to visit him at home on a regular basis and continued to pay for the costs of his medical treatment. He assisted Mr Jabur to pay his tax for the year. 5. Mr Hamdan acknowledged the need to increase attention to workplace safety matters. Post-Incident Changes 1. As a result of the incident, the offender took the following actions to ensure that there was no repeat of the incident involving Mr Jabur: 1. Conducted a safety audit at all of its sites. 2. At the construction site, conducted detailed site consultation and inspections with the personnel from the principal contractor J & CG. 3. Ensured all employees were well informed about the risks on any job site before commencing working. 4. Arranged for safety scaffold to be available on all sites before conducting any type of work. 1. The offender also identified and implemented the following measures to control risks, including: 1. Erection of scaffolding and catch decks to prevent the risk of falls during formwork stripping. Engineering controls such as handrail barricades have also been erected. 2. Installation of scaffolding hop-ups to the underside of formwork to create a solid construction work platform while stripping formwork. 3. Installation of catch platforms to areas where scaffolding cannot be used to manage the risk of falls while stripping formwork. 4. Installation of complete steel scaffolding to large void areas to create a solid construction work platform while stripping formwork. 5. The use of suitable individual fall arrest systems in the event that any of the above options do not work. 1. The Foreman Mr Omar has been trained by Benchmark OHS Consulting Pty Ltd (Benchmark) with regards to safety matters on work sites. Review of SWMS 1. With the assistance of Benchmark, the offender reviewed its SWMS for formwork. A new SWMS has been implemented, particularly in relation to safe methods of formwork stripping. This new SWMS includes: 1. The inclusion of more site-specific actions and controls. 2. A requirement for higher level controls such as barricades, handrails and catch decks as a system for prevention of falls from heights. 3. A requirement for further use of bi-lingual workers to communicate hazards, risks and controls within the SWMS for formwork stripping. Integrated Management System 1. The offender has developed and implemented an Integrated Management System (IMS) at a cost of approximately $12,000. 2. The offender hopes to acquire ISO 9001 accreditation. It is a requirement of ISO 9001 for a quality management system to be implemented in order for the defendant to meet its quality and safety standards. 3. There have been no safety incidents since the introduction of the IMS. 4. Mr Mohamad Hamdan, Mr Omar and Mr Ray Hamdan have been trained by Benchmark on managing and implementing the IMS. Capacity to Pay 1. The affidavit of Mr Hamdan annexed the financial statements for the offender for the years ended 30 June 2017 and 2018. It also annexed the tax returns for the offender for 2017, 2018 and 2019. The financial statements for the year ended 30 June 2019 were separately tendered (DX 2). 2. In the eight months after incorporation, the company received gross income for the year ended 30 June 2017 of $867,745.50, and had total expenses of $844,140.57. The profit before income tax was $23,604.93. The balance sheet showed a non-current liability described as "Director's loan account" in the amount of $119,123.75. Mr Hamdan gave oral evidence that a Mr Faour had lent this money to him, and that he had then lent the funds to the offender as a director's loan. 3. In the year ended 30 June 2018 the offender had gross receipts of $3,098,578.18 and total expenses of $3,010,306.38. The profit before income tax was $88,271.80. The loan which came from Mr Faour was still listed as a non-current liability. 4. For the year ended 30 June 2019 the gross receipts of the company were $3,172,900.70. Total expenses were $3,477,267.84, leaving a loss of $304,367.14. How this loss was funded was not explained by any documentary or oral evidence. How the offender managed to repay the loan from Mr Faour of $119,000 in that financial year, was also not explained. 5. The balance sheet as at 30 June 2019 showed as a non-current liability "Loans from other persons" in the amount of $258,188.42. In oral evidence Mr Hamdan said that he owed money to subcontractors, but that the obligation to pay the subcontractors had been treated as a loan to the company. In oral evidence he said that this amount of $258,000 was totally repaid during 2019, with the last payment being in May 2019. Why it still appeared in the balance sheet as a non-current liability as at 30 June 2019 was not explained. 6. Mr Hamdan was also cross-examined about the profit and loss statement for the year ended 30 June 2019. One of the line items was "Consultants fees" in the amount of $302,727.27. Mr Hamdan was asked which consultants were paid these fees but he could not explain that. He said that he would have to ask the accountants. This figure for consultants fees almost exactly mirrored the loss made for the year of $304,367.14. That could be purely a coincidence. 7. Mr Hamdan was cross-examined about two subcontracts (PX 4 and PX 5). A subcontract for the Barker Street work, where Mr Jabur was injured, was signed by Mr Hamdan as a Director of the offender, and also by Mr Eddie Faour as a Director/Company Secretary. Mr Faour held neither office. An unusual feature of that subcontract is that the licence held by the offender was said to be a builder's licence, and the licensee's name was Adib Faur. Mr Hamdan said in his oral evidence that this was Eddie Faour. 8. A subcontract for a project at Eastlakes was signed by Mr Faour as a Director of the offender. Mr Hamdan signed as a Director/Company Secretary. Once again, the builder's licence was in the name of Adib Faur. 9. Mr Hamdan could not provide any satisfactory explanation for why Mr Faour had signed these two subcontracts as a Director. He did say that he had known Mr Faour for a long time, and that when he (Mr Hamdan) was away, Mr Faour used to run the company for him. However, Mr Hamdan was obviously around when those two subcontracts were signed, as he also signed them. 10. Mr Hamdan was also cross-examined about the projects which the offender had carried out in the 2019 tax year. Curiously, he was unable to recall with any clarity the addresses of the projects upon which the offender worked in the recent past, even though each was a large project worth hundreds of thousands of dollars in income. 11. I formed an unfavourable impression about the credibility of Mr Hamdan as a witness. His explanations about financial matters just did not make sense. He could not explain how it was that in the year when the company made a loss of over $300,000, it had managed to completely repay a loan of $119,000. He was clearly wrong when he said that the further "loan" of $258,000 had been completely repaid by May 2019, as it is recorded as a non-current liability as at 30 June 2019. Even if the offender had repaid such a loan, there was no explanation how it achieved that in a year where it recorded a loss of over $300,000. Mr Hamdan could not explain the large entry for over $300,000 worth of consultants fees. I had no confidence in his evidence and I had no confidence in the accuracy of the financial accounts presented as evidence in the case. 12. In those circumstances, I find that the offender has not discharged its onus of convincing the court that it should exercise its discretion to reduce the amount of the fine. Consideration 1. I have had regard to the objects in s 3 of the Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 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 The Queen (No. 2) [1988] HCA 14; (1988) 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] NSWCCA 242; (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 [1988] HCA 67; (1988) 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] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively. 5. 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 judgment without any attempt to state precisely how any given factor has influenced the judgment. 6. The Court of Criminal Appeal has recently examined the sentencing process with regard to the Act 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. His Honour Justice Basten at para 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 para 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, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs." 1. At para 53 his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: "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 the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting 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 materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken." 1. My findings about the offender's level of culpability are based upon the following: 1. The risk was not only foreseeable but it was foreseen by the offender. In spite of seeing that there was no appropriate edge protection, and knowing that the situation had not been rectified, the offender directed an inexperienced worker to strip formwork on Level 2, bringing with it the risk of a fall from a considerable height. 2. The likelihood of the risk occurring was significant. The offender's own SWMS said so. Mr Jabur was required to work, when stripping the column, at a position almost adjacent to the unprotected edge. 3. The potential consequences of the risk were most serious, and included death and serious injury. 4. There were simple and effective steps which could have eliminated or minimised the risk. These were known to the offender but were not taken. The steps taken by the offender after the event were those which should have been taken before. The subcontract required the offender to provide appropriate scaffolding, and this no doubt was built into the price for the work. In that sense there was no additional cost in taking the steps which would have eliminated or minimised the risk. 5. There was no particular burden or inconvenience involved in taking appropriate steps to minimise the risk. There was no evidence that the stripping of the formwork would have been impeded at all by appropriate protection being provided. 6. The injuries to Mr Jabur were serious, necessitating a lengthy stay in hospital, and a later admission to hospital for a shoulder reconstruction operation. 7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature's view of the seriousness of the offence. 8. The submission was made that the fact that Mr Omar identified the risk posed by the unprotected edge, and raised this with others on site, somehow reduced the objective seriousness of the offence. I reject that submission. It ignores s 16(2) of the Act which provides that each duty holder must comply with their duty to the standard required by the Act, even if another duty holder has the same duty. If anything, the fact that the risk was observed by the offender ten days before the accident, but not eliminated or minimised, increases the objective seriousness. 1. I find that the offender's level of culpability is in the mid-range. Deterrence 1. The penalty imposed in relation to this offence 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; (2016) 93 NSWLR 338 at [180]. As recorded in the opening paragraphs of this judgment, general deterrence is a very important factor in cases involving a fall from height. 2. The penalty must reflect the need for specific deterrence. The offender is still conducting a formwork business. Its operations involve working at heights and the continuing engagement of employees, subcontractors and consultants. 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 has no prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. However it had only been in business for less than 5 months when this accident occurred. 2. The offender is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which the offender took after the incident demonstrate this. The offender has now been in business for three years. 3. The offender is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. 4. The offender has good prospects of rehabilitation: s 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. The offender has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this accident occurred. 5. The offender has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Jabur was caused by its actions. 6. The offender entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give the offender a 25% discount for an early plea. 7. The offender gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. The offender co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion. Capacity to pay a fine 1. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it 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: Mahdi Jahandideh v The Queen [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. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 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. My findings about capacity to pay have been recorded earlier in this judgment. There will be no reduction of the appropriate fine, because of any capacity to pay issue. Costs 1. The parties have agreed to an order that the offender is to pay the prosecutor's costs as agreed or assessed. Penalty 1. My orders are: 1. The offender is convicted. 2. The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty. 3. Order the offender to pay a fine of $180,000. 4. Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 5. Order the offender 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: 25 November 2019