Director of Public Prosecutions v Palladian Three Pty Ltd and Sach Sackl

[2022] VCC 325

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01207

DIRECTOR OF PUBLIC PROSECUTIONS

v

PALLADIAN THREE PTY LTD & SACH SACKL

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2022
DATE OF SENTENCE:	10 March 2022
CASE MAY BE CITED AS:	DPP v Palladian Three Pty Ltd & Sach Sackl
MEDIUM NEUTRAL CITATION:	[2022] VCC 325

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. Hersch	Ms G. Hersch
For the Accused	Mr L. Howson	Mr T. Danos

HIS HONOUR:

1Palladian Three Pty Ltd and Sach Sackl were both convicted by a jury on separate charges, contrary to s26(1) of the Occupational Health and Safety Act 2004 of being a person who had management and control of a workplace, failing to ensure so far as is reasonably practicable that the workplace is safe and without risk to health.

2Palladian Three Pty Ltd was a body corporate and Sach Sackl was sole shareholder and director of that corporation.  In late 2015 the corporation contracted to construct five townhouses at 14 Bolingbroke Street, Pascoe Vale.  The corporation and Mr Sackl had the management and control of that construction site.  Constructions of the units continued throughout 2016.

3In August 2016 Deniz Korkulu enquired of Mr Sackl about the carrying out of rendering work on the units.  Deniz Korkulu and his father, Fevzi Korkulu, operated as renderers under the business name of North Rendering.  On
21 September 2016 a written quotation was emailed to Mr Sackl by North Rendering.  On 5 October Mr Sackl informed Deniz Korkulu that the site was ready for rendering and that they could commence work on the site the following day.  The Korkulus attended at the worksite on 5 October and took some measurements.  Mr Sackl indicated where he wanted the rendering performed and Deniz Korkulu ordered materials for the rendering job.  They were told to start work the following day, 6 October, and they arrived on site at about
7 to 7.30 am that day.

4They commenced work on the upper level of Unit 1.  Initially they installed insulation paper, then cut a fitted foam to the building.  There was a timber frame constructed on the west side of Unit 1.  An aluminium plank was sitting on top of that timber frame.  There was a dispute on the evidence as to who constructed the timber frame and when it was constructed and the Korkulus maintain that it was constructed by Mr Sackl and Mr Sackl gave evidence that it was constructed by the Korkulus.  I am unable to make a definitive finding as to who constructed the timber frame.  What is clear, however, is that the Korkulus worked on top of that frame during the morning of 6 October 2016 and that Mr Sackl was aware that no proper scaffolding was employed to prevent falling from a height and that the use of the timber frame and plank represented a risk to the safety of those working on the worksite.

5Palladian Three Pty Ltd and Mr Sackl were aware of the risk created by the lack of proper scaffolding and it was reasonably practicable proper, passive, full prevention scaffolding to have been installed before the rendering work commenced.  The Korkulus ceased work for lunch at about midday.  Thirty to 40 minutes later Fevzi Korkulu climbed back up onto the garage roof of Unit 1.  Deniz Korkulu attempted to pass up a piece of foam board but Fevzi lost his balance and fell from about 3.2 metres in height to the ground in front of the garage.  He lost consciousness before ambulance and police arrived and took him to the Royal Melbourne Hospital.

6Fevzi Korkulu sustained serious injuries, including a fractured skull, brain haemorrhage, broken ribs, a punctured lung, a lacerated spleen and a fractured arm and ankle.  The injuries sustained by Fevzi Korkulu demonstrate the nature and extent of the risk created by the failure to erect proper scaffolding as a passive fall protection system.

7No victim impact statements were provided in this case although the opportunity to do was provided to the Korkulus.  I make it clear that I am not sentencing you, Mr Sackl or the company for the injuries sustained by Fevzi Korkulu.  You and your company are being sentenced for failing to take steps to reduce the risk of something like what happened to Fevzi Korkulu occurring.  The Korkulus should not have been allowed to work on that worksite without proper scaffolding being erected.  The company subsequently did install a proper scaffolding system at the worksite.

8These Occupational Health and Safety offences are serious.  You, Sach Sackl, face a maximum fine of over $325,000 and Palladian Three Pty Ltd, a maximum fine of over $1,630,000.  The size of these fines demonstrates the seriousness of Occupational Health and Safety breaches.

9It was common ground at the trial that to allow individuals to carry out rendering work at a height of 3.2 metres above the ground poses a significant risk to health in the absence of an appropriate fall protection system, that is proper scaffold.  The critical issue for the jury in relation to Charges 1 and 2 was whether Mr Sackl on behalf of Palladian Three Pty Ltd directed the Korkulus to carry out rendering work on the upper floor of Unit 1.  Both Fevzi and Deniz Korkulu gave evidence that Mr Sackl engaged them to carry out the rendering work.  Mr Sackl gave evidence that they were not so engaged.  He said the Korkulus were present only to provide a fixed itemised location for the rendering work and to demonstrate their ability to construct scaffolding.  He said they were not meant to be upon the wooden frame carrying out the rendering and denied that he built that frame or caused it to be built.

10The jury were directed that it was for them to decide whether Mr Sackl instructed the Korkulus to do the rendering job.  They were told to determine that whether the prosecution had satisfied them beyond reasonable doubt that he had so directed and that they were not engaged, as it were, on a flight of fancy on their own.  That is are the jury satisfied beyond reasonable doubt that he was aware they were doing the work?

11The jury's verdict clearly demonstrates that Mr Sackl and Palladian Three Pty Ltd engaged the Korkulus to carry out the rendering work and that Mr Sackl and the corporation knew what they were doing.  The jury found Mr Sackl not guilty on Charge 3, as they were not satisfied beyond reasonable doubt that Mr Sackl specifically directed that Korkulus work on top of the wooden platform without scaffolding.

12Mr Sackl, you and your company are to be punished according to the gravity of the breach of the duty owed under the Occupational Health and Safety Act.  The gravity of the breach is measured by two factors:  the seriousness of the breach itself, that is the extent to which you and the company have departed from your statutory obligations; and the extent of the risk of death or serious injury which might result from the breach.  The assessment of the risk involved consideration of: (1) the likelihood of the occurrence of an event as a result of the breach, such as the fall of Fevzi Korkulu here, endangering others; and (2) the potential gravity of the consequences of such an event.  The injuries sustained by Fevzi Korkulu demonstrate the degree of seriousness of the risk to health and safety resulting from the breach.  As the Court of Appeal has made clear, the touchstone for sentencing is the gravity of the breach of the Occupational Health and Safety Act, not the gravity of the consequences.

13Your counsel relied upon a number of matters in mitigation.  He pointed to your good character and lack of prior criminal history.  Neither, you, Mr Sackl, nor Palladian 3 Pty Ltd have prior matters and Exhibit 2, the reference from Professor Nice attests to your honesty, Mr Sackl.  Mr Howson submitted that your breach was of short duration, only one day, and did not involve a protracted or ongoing risk.  That may be so but the risk ceased when Fevzi Korkulu fell.  The risk would have continued had he not done so.

14In his written submissions, Exhibit 1 on the plea, Mr Howson argued that that as the failure occurred on a single day, was not intentional and did not involve actual knowledge of the risk, the departure from the standard required is therefore lower than it would otherwise be.  I cannot accept this submission.  In my view, the jury verdict demonstrates that you engaged the Korkulus to carry out work you well knew involved risk of serious injury.  You admitted actual knowledge of the risk to health and safety but denied engaging the Korkulus to carry out the rendering.  The jury accepted beyond reasonable doubt that you did so engage them.

15Mr Howson submitted that your registration as a builder and the ability to obtain insurance may be at risk as a result of this case.  The Victorian Building Authority has not made any determination in that regard.  I accept that your future ability to construct units may be jeopardised.  However, there is no relevant evidence in this regard.

16I am obliged to have regard to you and your company's financial circumstances in fixing a financial penalty.  I was provided before today with what is now
Exhibit 2, a bundle of financial material as to the financial position of both you, your family trust and the corporation in this Palladium Three Pty Ltd.  It appears that you are not a man of substantial means personally.  You own a unit and that is mortgaged.  You have some equity in the building.  You have some small amount of cash, about $80,000 in two bank accounts.  The position of your family trust indicates that Palladian Three has no real assets save and accept a loan owed by your son to the trust of something in excess of $1.6 million.  As I said during argument, the financial position of Palladian Three is somewhat opaque.  However, I do have regard to the material that was provided in fixing the financial penalties in this case.

17I was informed that Palladian Three Pty Ltd now receives $5000 per month for architectural consulting.  Those funds flow through to you personally, Mr Sackl.  You, Mr Sackl, rely upon that $5000 a month as income and you have overheads that consume those funds.  You have the unit to which I have referred has a mortgage of nearly $300,000 upon which you pay $2000 a month in repayments.  Further, you pay $1376 a month for your motor vehicle.  You have, as I said, approximately $80,000 in the bank.  You have funded extensively your son, Andrew, in the past and I have previously referred to the figure of 1.6 million, and I repeat, the financial dealings with him are somewhat opaque.

18Principles of general deterrence, however, dictate that significant fines must be imposed in this case, and such principles outweigh considerations of your financial position.  Having said that, and I accept that that is more so in relation to the company than it is for you personally, Mr Sackl.  Mr Howson urged that a non-conviction fine be imposed in your case, that is you, Mr Sackl, personally.  There are a number of factors I must take into account in determining whether to impose a conviction in your case.  I accept you are of good character and have a spotless past history.  I have no evidence that a conviction will in any way impact your economic or social wellbeing, nor your employment prospects.  The nature of your offending is, in my view, of such seriousness that a conviction ought to be imposed in this case.

19In sentencing you and the company the court must have regard to the objects of the Occupational Health and Safety Act as set out in s2 and s4 of the Act.  Workplaces must be safe and risks to health and safety and welfare must be eliminated as far as possible.  Employers and those managing worksites need to be proactive in issues of Occupational Health and Safety.  In this case the risk of serious injury to both the Korkulus was obvious and predictable and the risk was a high one.  It was a real risk that could have and should have been mitigated by the installation of proper scaffolding.  The failure to install such scaffolding represents a serious departure from the appropriate safety standards.

20In determining the quantum of the fine both the company and you face personally; I should consider the total amount of the fines to be imposed in aggregate and who will suffer the financial penalty.  I have, as I said, considered the ability of both you and the company to pay fines.  It is unlikely, in my view, that Palladian Three Pty Ltd can or will pay any fine imposed.

21I take into account the fact that Mr Fevzi Korkulu contributed to the Occupational Health and Safety breach himself, as did his son.  They well knew the dangers of the way they were working.  However, the seriousness of the offences is not reduced just because the Korkulus took foolish risks, and as to their own safety those in control of worksites need to take measures to guard against human error, inadvertence, and foolish disregard of personal safety.  As they both said in evidence, they needed the work.

22Your personal circumstances, Mr Sackl, are set out in the submissions of your counsel.  You are now 65 years of age.  You are a qualified architect.  You were born in Austria but came to Australia with your family at the age of two.  Your parents are deceased and you have an older sister.  You are married, have two children aged 32 and 28 and divorced 20 years ago.  You have been self-employed for most of your working life in architecture and construction.  Of recent times you have concentrated on interior architectural work and you have spent much time and money supporting your son in a failed business venture.

23I accept that you have had this matter hanging over your head now for five years.  That stress would have been considerable, especially when you faced a charge where imprisonment would have been an option but however you have been acquitted in respect of that charge.

24I take the delay involved into account in sentencing both you and the company.

25I have had regard to current sentencing practices for offences like yours.  I was supplied with cases and charts by both your counsel and the prosecution.  Each case has its own features and distinguishing points, but a case of
Di Tonto & Anor v The Queen [2018] VSCA 312 was a particularly helpful authority.

26The sentences of the court are: on Charge 1, Palladian Three Pty Ltd is convicted and fined $250,000; on Charge 2 you, Mr Sackl, are convicted and fined $70,000.  Sorry?  Did someone say something?  No.  Are there any other orders required?

27MS HERSCH:  No, Your Honour.

28HIS HONOUR:  Thank you.  As I said, those fines will be dealt with Fines Victoria.

29MR HOWSON:  As the court pleases.

30HIS HONOUR:  All right, I will terminate the link.

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