Director of Public Prosecutions v Basa

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-25-00187

DIRECTOR OF PUBLIC PROSECUTIONS

ANTHONY BASA

JUDGE:	His Honour Judge Palmer
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 July 2025
DATE OF SENTENCE:	21 August 2025
CASE MAY BE CITED AS:	DPP v Basa
MEDIUM NEUTRAL CITATION:	[2025] VCC 1181

REASONS FOR SENTENCE
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Subject:Criminal Law - Sentence
Catchwords: Failing to ensure the workplace was safe and without risks to health – failure to install stair void protection – fall from height resulting in death

Legislation cited: Occupational Health and Safety Act 2004; Sentencing Act 1991

Cases Cited: DPP v Frewstal Pty Ltd (2015) 47 VR 660; DPP v Vibro-Pile (Aust) Pty Ltd( 2016) 49 VR 676; DPP v Oriana [2024] VCC 535; DPP v Palladian Three Pty Ltd and Sack Sackl [2022] VCC 325; DPP v E & O Lagondar Nominees Pty Ltd and Emil Lagondar [2021] VCC 1024; DPP v Jacbe Builders Pty Ltd and David Fergusson [2017] VCC 1276; DPP v Heavy Mechanics [2023] VSCA 69; DPP v LH Holding Management Pty Ltd and Laith Hanna (2025) 339 IR 209; Haamid v The Queen [2018] VSCA 330; Mejia v The Queen [2020] VSCA 141; Polos v The King [2022] VSCA 258.
Sentence: $10,000 fine without conviction and a CCO of 12 months with 100 hours of community work.
6AAA:$50,000 fine with conviction

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms L Crosbie	Office of Public Prosecutions Victoria
For the Accused	Mr P Hayes KC with Mr P Tiernan	McDonald Legal

HIS HONOUR

Circumstances of the offending[1]

[1] The offending is set out in more detail in the Summary of Prosecution Opening for Plea (1 July 2025, Exhibit P1). I have also reviewed and taken into consideration Prosecution Submissions (1 July 2025, Exhibit P2); bundle of still images and photos from the depositions (Exhibit P7); Outline of Plea in Mitigation and Sentencing Submissions (25 July 2025, Exhibit D1); Jeffrey Cummins, Psychological Report (11 April 2025, Exhibit D2); and bundle of character statements (Exhibit D4).

Anthony Basa, in May 2022, you were engaged by Pearl Construction Group Pty Ltd to do carpentry work at a three-unit residential development in Glen Waverley. On 31 August, you engaged 23-year-old carpenter Zachary Rolph to help you with that work.
Each of the units was built on a concrete slab and had two floors. The height from the first floor to the slab was approximately three metres. On the first floor of each unit, a void had been left for the later installation of stairs.
Pearl had originally intended to engage a specialist company to install the stair void protection. However, in mid-August 2022, Pearl found out that there would be an eight week wait before that could be done.[2]
[2] See Exhibit 80, Depositions 1335.
Instead, you covered most of each void with temporary flooring but left part of the void open to allow access from the ground to the first floor. You did not install any perimeter guardrails around the void. The remaining void in the middle unit, Unit 2, was approximately one metre by 1.2 metres in size.
On 7 September, you and Mr Rolph were erecting the roof trusses for the middle unit. Mr Rolph arrived at work before you. He got a ladder from his trailer and positioned it in the stair void. The ladder was just long enough to reach from the ground to the first floor. Mr Rolph then climbed up to the top of the first floor and started to unpack the roof trusses. You arrived about ten minutes after Mr Rolph and together you started putting the trusses up.
After lunch, you were working from the top of the first-floor frame. Mr Rolph was working within the frame, moving lengths of steel from the ground floor to the first floor. At 1:35 pm, Mr Rolph was on the first floor of the unit, carrying steel from the front to the rear when he fell through the void to the concrete slab below.^[3]
[3] I have watched the CCTV footage of the incident (Exhibit P6).
You found Mr Rolph and called an ambulance. He was taken to hospital. Ten days later he died from his injuries.
You have pleaded guilty to a single charge under s 26(1) of the Occupational Health and Safety Act 2004 of failing, as a person who had, to any extent, the management or control of a workplace, to ensure that the workplace was safe and without risks to health. The maximum penalty for your offence is $332,856.

Seriousness of your offending

The principles that apply to sentencing for OHS offences are well-established.[4] The first is that offences under the OHS Act are risk-based rather than outcome-based. This means that your offending is not made more serious because of the fact that Mr Rolph died. I am nevertheless required to take into account the impact of your offending on those who were directly affected by it. This includes Mr Rolph’s partner Rebecca Shield, his mother Deidre Russel and his father Geoffrey Rolph:[5]
a.Ms Shield describes how the death of Mr Rolph – the man she had hoped to spend her life with – has changed her, leaving her feeling as if she has lost herself, and grieving that their now four-year-old daughter has missed out on a lifetime of knowing her father.
b.Ms Russel says that there are no words that can truly express the pain of losing a child. With Zac’s death she lost an enormous source of support, both practical and emotional. Every day his death continues to devastate her family as a whole, including her other children, Nicholas and Samantha, and her grandchildren.
c.Mr Rolph’s father Geoffrey still struggles with the fact that Zac went to work one day and never came home. He describes how his mental health has been affected, with recurring images of his son coming into his mind, and how even the sound of a nail gun makes him emotional.
[4] See DPP v Frewstal Pty Ltd (2015) 47 VR 660; and DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676.
[5] See victim impact statements (all dated 25 July 2025) of Rebecca Shield (Exhibit P3), Deidre Russel (Exhibit P4) and Geoffrey Rolph (Exhibit P5).
The importance of workplace safety means that the primary sentencing purpose for OHS offences is general deterrence, particularly in cases such as this, where the offending involved a risk of death or serious injury. The primary sentencing factor is the objective seriousness of the offending (with subjective matters playing a subsidiary role):
a.The gravity of a contravention is determined by two factors: the seriousness of the breach (that is, the degree of departure from the duty); and the extent of the risk resulting from the breach;
b.The second of these factors – the extent of the risk – is a product of two further factors: the likelihood of the occurrence of a safety endangering event as a result of the breach; and the potential gravity of the consequences of that event.
In this case, you have accepted by your plea that there were two measures you could have taken to reduce the risk of someone falling through the stair void:
a.Installing perimeter guardrails around the stair void; and
b.Installing a ladder that extended at least 900 mm past the first floor, securely fastened at the top and bottom.
I find that your offending was serious:
a.The risk of falls from height on construction sites is both notorious and grave, and you were aware of it.
b.You knew that the stair void was not fully protected, and that a stair void protection company would not be coming to carry out that work.
c.You were aware of the measures that you could have taken to protect the stair void, and it would have been relatively easy for you to implement those measures.
d.There was a reasonable likelihood that someone working on the first floor might, in a moment of inattention, fall through the stair void, and if they did the consequences could be very serious, including death (as happened here).
e.Your failure to install perimeter guard railing around the stair void was not an isolated instance of disregard for a fall risk. This is evidenced by the fact that the stair voids in the other two units were also unprotected, and by your own risk-taking behaviour while working close to an unprotected edge on the same day.
f.However, your failure to install a ladder that extended at least 900 mm past the first floor does appear to have been limited to the day of the incident.
The defence provided me with a table of comparator cases involving fall risks.[6] The prosecution referred me to four decisions, all of which involved individual duty-holders and fall risks. [7] None of these cases is on all fours with yours, for reasons I discussed with counsel during the hearing. [8] Nevertheless, current sentencing practice suggests that it is open to me in sentencing an individual duty-holder – such as you – to impose a substantial fine; a CCO with a punitive element of unpaid community work; or a combination sentence involving both a fine and a CCO; and to do so either with or without conviction.
[6] The bulk of these cases were decided in the Magistrates’ Court. The identity of the sentencing court is not a sentencing factor: like cases should be treated alike regardless of which court imposes the sentence. However, many of the fines imposed in the Magistrates’ Court appear to me to be an order of magnitude lower than the fines typically imposed for offending of comparable seriousness in this court or, more importantly, by the Court of Appeal.
[7] DPP v Oriana [2024] VCC 535; DPP v Palladian Three Pty Ltd and Sack Sackl [2022] VCC 325; DPP v E & O Lagondar Nominees Pty Ltd and Emil Lagondar [2021] VCC 1024; and DPP v Jacbe Builders Pty Ltd and David Fergusson [2017] VCC 1276.
[8] I found three decisions, involving individual duty-holders, to be particularly helpful as comparators:
·Kouroush Siamak (Heidelberg Magistrates’ Court, 30 November 2023): Mr Siamak, a painter and sole trader, engaged another painter to help him; the other painter was injured when he fell from the first floor. Mr Siamak was placed without conviction, on an 18-month CCO with 100 hours of unpaid community work.
·DPP v Oriana [2024] VCC 535 (Judge Rozen): Mr Oriana, a plasterer and sole trader, engaged another worker to help him; that worker fell through a first-floor stair void and died. Mr Oriana was convicted and fined $8000 after he did not consent to a CCO.
·DPP v LH Holding Management Pty Ltd& Laith Hanna (2025) 339 IR 209 (Priest and McLeish JJA): Mr Hanna was the director and owner of LH Holding; he drove a forklift in a criminally negligent fashion and caused the death of another person. LH Holding pleaded guilty to workplace manslaughter; Mr Hanna pleaded guilty to being an officer of a body corporate that committed workplace manslaughter (clearly, much more serious offending than Mr Basa’s). The sentencing judge convicted Mr Hanna and sentenced him to a two-year CCO with 200 hours of unpaid community work. The Court held that Mr Hanna’s sentence was not manifestly inadequate noting that: it was unnecessary to impose a fine on Mr Hanna in addition to the CCO, because of the large fine imposed on the company; they would have been inclined to impose a CCO of greater duration and more community work hours; but the sentence, although lenient, was open to the judge.

Subjective matters

You were born in 1995 and at the time of the offending were 26 years old. You are now 29 years old. After leaving school, you worked as a brickies labourer for several months and then started a carpentry apprenticeship. You completed your apprenticeship in 2017 and shortly afterwards started your own sole trader carpentry business, Big Basa Constructions. You worked as a subcontractor for builders such as Pearl. To help you with your work, you engaged subcontractors of your own and had two apprentices.
You are a person of good character,[9] and have never before been in trouble with the law. You have excellent prospects for rehabilitation, and there is little need for specific deterrence.
[9] See also bundle of character references (Exhibit D4).
Charges were laid in September 2024. You first offered to plead guilty in December 2024. The matter resolved after the second committal mention in January 2025. Your plea saved the courts, witnesses, prosecuting agencies and the community as a whole time, money, inconvenience, uncertainty and stress.
Pearl has also been charged with a breach of s 26 of the OHS Act in relation to the inadequacy of the fall protection. Pearl was obviously the principal contractor, and its representatives visited the worksite on a regular basis, where they could have seen the unprotected stair voids. Therefore, Pearl was or should have been aware that there was an unguarded fall risk. The prosecution accepted that Pearl had pressured you to complete the work as quickly as possible, and that this pressure may have contributed to your own failure to take fall protection measures. My preliminary view is that, given its role as principal contractor, Pearl is more culpable than you.
Once you had resolved these proceedings you offered to make a sworn statement to be used in the prosecution of Pearl.[10] In the hearing before me, you undertook to give evidence against Pearl in accordance with your statement. Because of this undertaking, I will give you a less severe sentence than I otherwise would have.[11] In determining how much of a discount to give you, I have taken into account the following matters:[12]
a.Your undertaking is well-intentioned and provides further evidence of your remorse;
b.Your evidence is not critical to the prosecution of Pearl (charges were laid before you made your offer),[13] but may improve its prospects of success;[14]
c.If the prosecution of Pearl proceeds to trial, then giving evidence will, no doubt, be an unpleasant experience for you, not least because Pearl is likely to blame you for the failure to install perimeter guard railing;
d.However, giving evidence will not expose you to any more serious risks, such as reprisal.
[10] Statement of Anthony Basa (30 April 2025, Exhibit D3). See also bundle of emails confirming undertaking (Exhibit D6).
[11] In accordance with s 5(2AB) of the Sentencing Act 1991, the fact that the undertaken was given and its details will be noted in the court records.
[12] See Haamid v The Queen [2018] VSCA 330 at [24]; Mejia v The Queen [2020] VSCA 141 at [2]; and Polos v The King [2022] VSCA 258 at [71].
[13] From my own preliminary assessment of the brief of evidence against Mr Basa, there appears to be a reasonably strong case against Pearl based on evidence that it was aware that the void was an unprotected fall risk and did not do enough to reduce that risk.
[14] Because of the matters set out in paragraph [18] of the defence plea submissions.
You were friends with Mr Rolph, and his death has had a profound and ongoing impact on you. You have closed your business and gone back to working as an employee carpenter. You gave evidence about your current financial circumstances:[15]
a.You have no assets other than the 2018 Ford Ranger you use for work;
b.In the 2023-2024 financial year, your taxable income was approximately $90K;
c.After paying your necessary expenses, you have an annual “surplus” of somewhere between $10K and $30K; and
d.Your employer does not provide opportunities for overtime.
[15] See also Mr Basa’s tax return for the 2023-24 financial year and budget planner (Exhibit D5).
This triggers the following principles:
a.If I decide that a fine is the appropriate disposition, the amount of the fine should be moderated to take account of your capacity to pay;[16]
b.However, your capacity to pay is not a dominant sentencing factor, and does not override the need for a fine capable of serving the purpose of general deterrence;[17] and
c.If it is clear that even a moderated fine would not be paid, then I should effectively disregard your current financial circumstances and impose the fine that would otherwise have been appropriate.[18]
[16] Sentencing Act 1991, s 52(1); and DPP v LH Holding Management Pty Ltd (2025) 339 IR 209 at 232, [80] (Priest and McLeish JJA).
[17] DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69 at [85] (Niall and Macauley JJA); and DPP v LH Holding Management Pty Ltd (2025) 339 IR 209 at 233, [81] (Priest and McLeish JJA).
[18] DPP v LH Holding Management Pty Ltd (2025) 339 IR 209 at 233, [83] (Priest and McLeish JJA).
On the evidence before me, you do not have the capacity to pay a fine that is commensurate with the seriousness of your offending or the need for general deterrence. Of course, no fine, large or small, can ever attempt to reflect the value of Zachary Rolfe’s life. Life is too precious to be measured in money.
I am satisfied, however, that you do have the capacity to pay a fine that will both be punitive for you, and have some deterrent effect on sole trader duty-holders like yourself. However, the level of fine you can pay will not – on its own – be able to reflect the seriousness of your offending and the full need for deterrence.
I have therefore decided that the best way to balance the competing sentencing purposes and factors is to give you a combination sentence involving both a fine and a CCO. Before I can impose a CCO, you need to consent to it. If I cannot impose a CCO because you do not consent, then the only adequate sentencing option available to me would involve a larger fine.
The CCO I intend to impose will be of one year’s duration. I will now explain the conditions that would be included in a CCO, so you can decide whether or not you consent. [Read from draft CCO].
If you fail to comply with the CCO, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach. You can also be re-sentenced for the offence which is currently before me. I will make an order that any breach of the CCO be brought back before me.
Do you consent to the imposition of a community correction order? [Yes].
You are still a young man and hopefully have a long life ahead of you as a productive member of the community. You will carry the burden of your responsibility for Mr Rolph’s death for the rest of your life. I do not think it will help with your rehabilitation for you to also carry the taint of conviction.

Orders

Had you not pleaded guilty,[19] I would have convicted you and imposed a fine of $40,000. Instead, I impose a fine of $10,000, without conviction, together with a one-year CCO requiring you to perform 100 hours of unpaid community work.
[19] Had you not done so, you also would not have given an undertaking to give evidence against Pearl.

[2025] VCC 1181

21 August 2025