Director of Public Prosecutions v Bilic Homes Pty Ltd

[2016] VCC 810

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00312

DIRECTOR OF PUBLIC PROSECUTIONS

v

BILIC HOMES PTY LTD

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 June 2016
CASE MAY BE CITED AS:	DPP v Bilic Homes Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VCC 810

REASONS FOR SENTENCE
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Subject:Breach of s 21(1) and (2)(c) of Occupational Health and Safety Act 2004 – death of worker after brick wall collapsed on him

Catchwords:  
Legislation Cited:                   Occupational Health and Safety Act 2004

Cases Cited:DPP v Frewstal Pty Ltd [2015] VSCA 266 – DPP v Vibro-Pile (Aust) Pty Ltd and Frankpile Australia Pty Ltd [2016] VSCA 55

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. Coghlan
For the Accused	Mr R. Taylor

HER HONOUR:

Charge

1Bilic Homes Pty Ltd has pleaded guilty to one charge of between 13 June 2014 and 23 June 2014, of failing to maintain a workplace under its management or control in a condition that was safe and without risks to health, contrary to s.21 sub-s.(1) and (2)(c) of the Occupational Health and Safety Act of 2004.  The maximum penalty for this offence is 9000 penalty units.

Circumstances of the Offence

2Bilic Homes is a registered company (the company).  Mr Stanko Bilic is the owner of the company and is a registered building practitioner.  At the relevant time, both he and his wife were directors of the company.  The offence relates to the construction of a freestanding brick wall on a residential building site at
4 Elizabeth Street, Brighton East which collapsed on 23 June 2014 fatally injuring Michael Klanja (the deceased).

3The deceased and Stanko Brajkovic were both carpenters contracted to work on-site.  The full details relating to the construction of the wall were set out in the prosecution opening.  In summary, the company was engaged in March 2014 to build two units on the site.  Construction began in early May 2014 shortly after a building permit had been issued.  One unit was to be constructed in the front portion of the site and the other one at the rear of the site.

4Part of the construction of the rear unit included the erection of two brick veneer boundary walls.  One brick wall was to be built on the fence line of the site adjoining 6 Elizabeth Street, Brighton East, being the northern boundary.  The other was to be built on the southern boundary.  The northern boundary wall was to be approximately 2.7 metres tall and 7.47 metres long.

5Once the work commenced, Mr Bilic was on site each day, sometimes twice a day.  On Monday 2 June 2014, he told the bricklayers contracted to work on the site that he needed the brick walls up.  They understood by this that he wanted them to construct the brick walls in their entirety rather than in stages which was the usual practice.

6The bricklayers worked on the footings and the two main boundary walls.  Overall the brickwork took some seven days.  The southern boundary wall was built first and then the northern boundary wall.  As they did not have access from the neighbour's side, they laid the wall from the site side only.  Both walls were built without a timber frame.  Neither wall was braced and there was no direction given to brace them.

7The brickwork was completed on 13 June 2014.  Work continued on the site for a further ten days.  On 23 June 2014, Brajkovic and the deceased were working on the site early in the morning and there was a severe weather warning covering the Bayside area including strong winds.

8When Mr Bilic arrived at the site later that morning they discussed the bad weather and it was agreed that the work on the floor of the back unit was the safest option.  The deceased and Mr Brajkovic then commenced working close to the northern boundary wall of the back unit where the deceased was nailing down sheet flooring.

9When Mr Brajkovic went to collect a sheet from a stack further away from the wall, a gust of wind brought the brick wall down on top of the deceased.  Mr Brajkovic tried to remove the bricks off the deceased and lift him but was unable to do so.  A neighbour who heard the wall collapse came to assist him.

10Mr Brajkovic located Mr Bilic outside the front of the site still in his car.  An ambulance was called and arrived at the site shortly afterwards.  The deceased was taken to hospital but sadly he died later that day.

Expert Opinion

11The prosecution opening referred to a number of expert opinions regarding the construction of the wall.  In short, the experts were of the opinion that:

·The stud frame should have been built first (or at the least along with the building of the wall) and the bricks tied into it with access from the neighbouring side of the site.

·Absent access the bricks could be tied in from the site, although this is more time consuming.  This could be achieved by building a wall to a safe height of 1.5 metres, then the timber frame being erected and the remainder of the bricks tied in. 

·Absent the frame being built first, the built wall should have been braced with clear instructions as to how to carry out this work in a safe manner (whether verbally or with a Safe Work Method Statement).

12The experts were of the opinion that it was reasonably practicable for the company to comply with Australian Standard 3700-2011 Masonry Structures which includes a number of relevant clauses including, for example:

·    sub-clause 12.4.7 which relates to wall ties and structural backing; and,

·    clause 12.9.1 which relates to masonry under construction being braced or otherwise stabilised so as to resist wind and other lateral factors.

13Reference was also made to a Worksafe publication (“Preventing Masonry Structures from Collapsing”) which was published on 29 January 2009 and is available on the Worksafe website. 

Remedial Work

14After the workplace incident, the company engaged a consultant structural engineer to assist with the demolition and to rebuild the brick walls at the site using a safe system of work.

15On 9 July 2014, a Worksafe investigator attended the site and found that the procedure developed by the consultant of which the bricklayers would be informed of prior to recommencing bricklaying satisfied compliance with the Improvement Notice issued on 24 June 2014.

Defence Sentencing Submissions

16In his sentencing submissions, counsel for Bilic Homes urged a number of matters in mitigation of the offence as follows:

·The company had entered an early plea of guilty at the committal mention on 1 March 2016, which early plea was relied upon as being evidence of remorse and as saving the community the time and expense of committal proceedings and a trial and the witnesses the ordeal of giving evidence.

·The company had a good record with no prior convictions and had been a member of the housing industry since 1 July 1997 and the Master Builders Association of Victoria since 13 February 2001.

·The company through its director, Mr Bilic, could be described as being a good corporate citizen; and,

·After the incident, the company had taken appropriate action to prevent a re-occurrence of the event.

References for Mr Bilic

17A number of written references were tendered regarding Mr Bilic.  In their references Mr Tony Dorotic president of the Dandenong City Soccer Club, Mr Cimera president of the Melbourne Croatia Soccer Club, described Mr Bilic as over the years being a strong supporter of community soccer, in particular through his involvement with the Chelsea Soccer Club in Edithvale and the Melbourne Croatia Soccer Club.  Mr Bilic had held several voluntary board positions and the role of president at the Croatia Soccer Club for several years.

18Mr Gary Threlfall, a director of the South Eastern Inspections Pty Ltd, and
Mr Hamza, a director of a plastering company, had both worked with Mr Bilic in a professional capacity.  In his role as a building inspector, Mr Threlfall conducted mandatory inspection of Mr Bilic's projects.  He stated that he had observed Mr Bilic's progress in the domestic home industry for
40 years and that he had found him to be a man of integrity and high values.

19In his reference, Mr Hamza referred to having known Mr Bilic for 18 years.  During that period, he had observed that Mr Bilic took pride in his work and for the safety of others.  Mr Hamza had contacted Mr Bilic a day or so after he heard the news of the incident on the site.  He met Mr Bilic shortly afterwards and he described him on that day as being totally distressed, still shocked and in tears about the loss of not only a contractor but also a friend.     The authors of the all the character references I have just referred to were all of the opinion that Mr Bilic has been adversely affected by the incident. They variously described him as being devastated, totally distressed, fragile and depressed.

20In his report dated 27 May 2016, Chris Cunningham, consultant psychologist, was also of the opinion that the workplace tragedy had greatly affected Mr Bilic.  He diagnosed Mr Bilic as suffering significant psychological injuries as a result of the workplace incident in 2014, including post traumatic stress disorder and major depression.

21In his plea on Bilic Homes' behalf,  counsel for the defence also urged the court to take into account the financial position of the company.  The company's profit and loss statement for the year ended 31 December 2015 was tendered and it showed a gross trading loss of $467,306.  Counsel have been instructed that while in 2013/2014 the company had 12 projects.  To date in 2015 there have been only two.

22While the company continued to trade, the court was informed that this was because Mr and Mrs Bilic had sold their home for just over a million and used the funds to pay creditors of the company.  It was not anticipated that they would be able to recover these funds and they were now living with their daughter.

Prosecution Submissions

23Counsel for the prosecution accepted that the company had entered an early plea of guilty and that it had a good record.  However, the prosecution case was that, given the way the brick wall was constructed with a lack of propping or support for the wall, it was foreseeable that it could collapse when exposed to pressure including high wind conditions and that serious injury or death could result.

24The objective seriousness of the breach of the Act was submitted to be high, in particular because the wall did not present a momentary risk.  Due to the method of construction and/or the lack of bracing, the risk existed from the time it was erected until the date of the incident and that was over a period of ten days.

25Counsel for the prosecution also submitted that over this period the risk was not confined to the deceased.  Any person coming onto the site was at risk of suffering injury or death due to the wall not having the capacity to withstand strong wind conditions such as those which occurred on 23 June 2014.

Sentencing Remarks

26In sentencing the company for this offence I have taken into account all the mitigating matters referred to by defence counsel.  The defendant pleaded guilty at an early opportunity and saved the State the expense of a trial and the witnesses the ordeal of giving evidence.  I accept that the plea indicates genuine remorse and the penalty I impose will be appropriately discounted.

27I accept that the company has been a good corporate citizen, having no prior or subsequent convictions or involvement with the Occupational Health and Safety breaches.  Further that its director, Mr Bilic, has been a good citizen and that he has been greatly affected by the incident.

28In addition I have taken into account that the company undertook remedial works which complied with the improvement notice issued on 24 June 2014.  Insofar as it is relevant for sentencing purposes, I have also taken into account the company's financial situation.

29The deceased's wife, Isabel Klanja, read her victim statement to the court.  It is apparent that her husband's death has greatly impacted upon her life and the life of her two young children.  I understand that she is devastated by the death of her husband and I comment her for having the courage to read her victim impact statement to the court.

30In the recent case of DPP v Frewstal Pty Ltd,[1] the Court of Appeal set out the following principles for the guidance of sentencing judges in cases where a breach of duty owed under the Occupational Health and Safety Act were applicable and they are as follows:

·"First unlike the case of unlawful homicide, the occurrence of death or serious injury is not an element of the offences charged.  An accused is punished according to the gravity of the breach of duty owed under the Occupational Health and Safety Act, not according to the result of the consequences of the breach. 

·“Secondly the gravity of the breach is measured by two factors, the seriousness of the breach itself, that is the extent to which the defendant has departed from its statutory duty and the extent of the risk of death or serious injury which might result from that breach. 

·“Thirdly, an assessment of the extent of the risk itself involves consideration of two factors, the likelihood of the occurrence of an event as a result of the breach (such as the event that occurred in the particular case) endangering the safety of employees or others and the potential gravity of the consequences of such an event (in particular whether there is a risk of death or serious injury). 

·“Fourthly, the fact that the breach in the particular case resulted in death is relevant only in the sense that it might manifest or demonstrate the degree of seriousness of the relevant threat to health or safety resulting from this breach."

[1] [2015] VSCA 266

31I have taken these guidelines into account in sentencing in this case.  Given the way in which the brick wall was constructed and the lack of any bracing or other structural support for the wall, I accept the prosecution case that it was foreseeable that on a high wind day it could collapse and place those working in its vicinity at risk of serious injury or death.

32The fact that a death did occur on such a day demonstrates the degree of seriousness of the threat to health and safety resulting from the breach.  The defendant did not turn its mind to ensuring that the wall was safe and I accept that in failing to do so, it endangered not only the safety of its employees or contractors, but potentially any person who went onto the site.

33Further I am satisfied that it was not a complicated exercise to remedy the situation.  In this respect, I accept the expert opinion of a Mr Brian Callinan that a prop could have been made using single lengths of pine framing timber propped about halfway up the wall not pressing too hard on the fresh brickwork and then holding it into the ground with a stake at the other end.

34It was accepted by both counsel that general deterrence is an important sentencing consideration in cases such as this.  In DPP v Vibro-Pile (Aust) Pty Ltd and Frankpile,[2] the Court of Appeal referred to the need for sentences in such cases to draw attention to the importance of workplace safety and to send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment.

[2] [2016] VSCA 55

35The company has been in the building industry for many years and should have been aware of the risks related to the unsupported wall.  The risks could easily have been eliminated by bracing the wall.  Mr Bilic was on site each day, sometimes twice a day but never directed that the wall be braced.  He did not seek any guidance from the contracted engineers or the documentation associated with the temporary bracing of masonry walls.

36It is important that those involved in the building trade comply with their statutory duty under the Occupational Health and Safety Act to ensure that the work site is safe to prevent tragedies such as the one that occurred on this occasion. Unfortunately for the deceased, it is apparent that insofar as the wall was concerned, the company failed to maintain a workplace that was safe and without risk to health.

37Taking into account all the circumstances of this case, the company will be convicted and fined the sum of $300,000.  Is there a need for a 6AAA?

38MS COGHLAN:  Yes, Your Honour.

39HER HONOUR:  But for the plea of guilty, $450,000 would have been the fine.  Is there anything arising?

40MR TAYLOR:  Yes.  Can I seek a stay of three months initially, Your Honour, given the amount it will be necessary to work out what cash flows might be and there probably will  need to be an application for an instalment order but I am not in a position to do that now and I will need to sort out exactly what my client wants to do with that.

41HER HONOUR:  I will grant a stay of three months.

42MR TAYLOR:  Thank you, Your Honour.

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