Director of Public Prosecutions v Seascape Constructions Pty Ltd
[2020] VCC 1132
•28 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR-18-02476
Indictment J11473722
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEASCAPE CONSTRUCTIONS PTY LTD (ACN 083 415 561) |
---
JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 June 2020 | |
DATE OF SENTENCE: | 28 July 2020 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Seascape Constructions Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1132 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty - One charge of failing to ensure persons other than employees were not exposed to risks to their health and safety pursuant to s.23(1) of the Occupational Health and Safety Act 2004 – Workplace death - Defendant company failed to actively supervise and monitor sub-contractors – Failure to ensure workplace was safe and all OH&S measures in place – Failure to ensure guardrails were in place before construction work proceeded on building’s first floor – Failure to communicate Safe Work Method Statement (SWMS) to sub-contractors – Relevant SWMS lacked detail and appropriate step-sequencing to ensure guardrails were installed at appropriate time - Delay – No prior or subsequent convictions
Legislation Cited: Occupational Health and Safety Act 2004; Occupational Health and Safety Regulations 2017
Sentence: Convicted and sentenced to fine of $850,000 – s.6AAA Sentencing Act 1991 declaration
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr C. Carr with Mr N. Goodfellow | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr D. Dann QC with Mr R. Andrew | Ward & Co Legal Consultants |
HER HONOUR:
1 David Sagor, the sole company director of Seascape Constructions Pty Ltd (I will refer to the defendant company from time to time as 'the company' or 'defendant company') has pleaded guilty on behalf of the defendant company to one charge of failing to ensure persons other than its employees were not exposed to risks to their health and safety, pursuant to s.23(1) of the Occupational Health and Safety Act 2004 (which I might refer to from time to time as 'the Act').
2 The maximum penalty in relation to the offence to which the company has pleaded guilty is 9,000 penalty units – at the time of the offence being committed, one penalty unit was $155.46 – therefore, the maximum penalty available is $1,399,140. The maximum penalty reflects the seriousness with which Parliament regards the offence and is a matter I must take into account in sentencing the company.
3 The prosecution opened the plea hearing as follows:
4 On 8 August 2016, the company was contracted to build a double-storey home on an allotment in Kalkallo (which I might refer to, time to time, as 'the workplace'). Construction commenced on or about 16 February 2017.
5 The site supervisor appointed by the company was Manvir Lidhar. He was employed to manage the site on behalf of the company.
6 Mr Lidar engaged Carpenters Code Pty Ltd to complete carpentry works at the workplace. Carpenters Code constructed the ground-floor timber framing but were unable to finish the rest of the work for a number of weeks. Consequently, Mr Lidhar commenced looking for someone else to complete the carpentry work. He engaged Tahu Mei Henry to complete plastering works at the workplace. Mr Henry had regularly completed such work for the company and helped Mr Lidhar to find a new carpenter by placing an ad online, via the website Gumtree, on 15 June 2017.
7 Wissam Taleb and Mario Mancini (who I might refer to from time to time as 'the deceased') responded to the Gumtree advertisement. Mr Taleb was described in the prosecution opening as a 'handyman' and Mr Mancini was a carpenter. Mr Henry met with Mr Taleb and Mr Mancini onsite; they agreed to start work on 23 June 2017.
8 On Friday, 23 June 2017, Mr Taleb and Mr Mancini commenced work at the workplace. Mr Henry was onsite and explained what work they would be required to do. Mr Taleb and Mr Mancini were told to frame up the second storey, which included laying down the flooring sheets on the second storey, as well as framing up. Mr Henry provided them with a copy of the plans for the construction. Mr Lidhar stopped in front of the workplace on the Friday and observed Mr Taleb and Mr Mancini working on the ground floor.
9 Mr Taleb and Mr Mancini were not provided with a Safe Working Methods Statement (or a 'SWMS') before commencing work, or while performing the work. No safety procedures or safe working methods were discussed.
10 Mr Lidhar organised for flooring sheets to be delivered to the workplace. On Monday 26 June 2017 at about 2 pm, the flooring sheets were delivered by crane onto the second storey at the workplace. Mr Taleb and Mr Mancini commenced laying the sheets that afternoon. This work was performed by accessing the second storey by a domestic ladder. Each flooring sheet would be glued down and then nailed to the trusses. They used a cordless nail gun on the Monday.
11 On Tuesday, 27 June 2017, Mr Taleb and Mr Mancini resumed laying the sheets. This time they intended to use a compressed air nail gun. To do so, they ran a compressed air hose to the first floor from a generator on the ground floor. However, they could not get the compressed air nail gun to work. They continued to use the cordless nail gun from the previous day.
12 At about 10 am on 27 June 2017, Mr Mancini decided to get rid of the compressed air hose as it was getting in the way. He approached the edge of the second storey and commenced lowering the nail gun down with the air hose. The Prosecution Opening records that as Mr Mancini was lowering the air hose, he fell forwards over the edge, a distance of approximately 3.1 metres. He landed on the concrete slab at the front of the building.
13 Mr Taleb saw Mr Mancini fall. He went downstairs to where Mr Mancini lay and saw Mr Mancini was bleeding from the head. He called out to the people working at nearby buildings for help. A number of people came to assist, but despite this and ambulance attendance, Mr Mancini died at the scene.
14 On 27 June 2017, at about 12 pm, WorkSafe inspectors attended the workplace and conducted an investigation. Mr Mancini's body remained in place while the investigation took place and investigators observed the nail gun near Mr Mancini's body. A number of photos were taken of the scene.
15 WorkSafe inspectors and investigators made the following observations at the workplace:
(a)the height from the top floor to the ground was approximately 3.13 metres;
(b)there was no perimeter guarding or edge protection on or around the top floor of the building to prevent falls from height;
(c)access to the top floor was by a domestic extension ladder and the ladder extended 150 millimetres past the top floor; and
(d)flooring sheets were being installed on the top floor and there were two unopened flooring sheets on the top floor.
16 Workplace inspectors met with Mr Sagor and a Mr Billy Abdou. Mr Abdou was employed by the company as a health and safety manager. According to the Prosecution Opening, Inspector Noone made enquiries about the availability of the SWMS, but Seascape Constructions were not able to provide a SWMS.
17 Inspector Noone issued an Improvement Notice requiring Seascape Constructions to provide a safe system of work associated with installation of upper-level floor sheets. This was identified as being high-risk construction work which, in accordance with Regulations 322 and 32 of the Occupational Health and Safety Regulations 2017 ('the Regulations'), required a SWMS.
18 There was something of a dispute at the plea hearing in relation to the cause of Mr Mancini's fall. Defence indicated that an issue had arisen on the evidence as to whether Mr Mancini fell from his ladder, which was an unauthorised domestic ladder, or whether he fell from the unprotected edge of the first floor. There does appear to be something of a conflict in the material in this regard and, as has been conceded by defence, it is not necessary for the prosecution to prove causation of the accident in order to establish the offence, nor is it relevant to penalty as such.
19 However, I make the following observations:
20 In Mr Taleb's first statement, taken on the day of the incident as 12.28 pm, he gives the account which is adopted in the Prosecution Opening (I refer to p.2 of the depositions). In the account of Tahu Henry, which is given in his first statement signed at 12.08 pm on the day of the accident, he makes no mention of Mr Taleb advising him that the deceased had fallen from a ladder – he says, 'Sam informed me that there had been an accident involving the other guy who he was working with.' Mr Dann of Queen's counsel referred me to the depositions and a form which had been completed on the day of the accident where it was asserted that Mr Mancini had fallen from a ladder; he was unable to say who had provided this version insofar as the form was concerned.
21 On 25 July 2017, about one month after the accident, Mr Henry made a further statement saying that he was told by Mr Taleb on the day of the accident that the deceased had fallen from a ladder (p.38 of the depositions). This latter account also recorded in the form to which I have previously referred is relied on by defence, as I understand it, in saying that, quote from the written submissions, 'initial reports of the accident' indicated that the deceased had fallen from a ladder rather than from the edge of the roof of the first floor. In all the relevant circumstances, it seems to me that if I did need to decide this issue on the material before me, the version given by Mr Taleb at 12.28 pm on the day of the accident is more likely. However, as is conceded by defence, this is not central to the matter and I put this to one side.
22 It is not necessary to prove that the company's failure resulted in Mr Mancini's death. On any view of the facts, Mr Mancini fell from height to his death, emphasising the gravity of the danger that presented itself by the company's failure to ensure that guardrails were in place before the construction work proceeded on the first floor of the building. Further, although it appears that they did have an SWMS, this was never communicated to Mr Mancini or Mr Taleb, and even if it were, as Mr Carr for the prosecution pointed out, the relevant SWMS was lacking in detail and appropriate sequencing of necessary steps to take to ensure that guardrails were installed at the right time.
23 As was accepted at the plea hearing, it is no answer for the Company to say that there was a registered builder on site, namely, Mr Taleb, or that because it had advertised for carpenters who could work unsupervised and had undergone OH&S induction, that the defendant company had absolved itself from the need to put appropriate measures in place or to at least ensure that these had been taken by sub-contractors. The law requires that a company who employs sub-contractors to actively supervise and monitor them and to ensure that their workplace is safe, and that OH&S measures are met. The defendant company failed to do so in the present case by failing to ensure that guardrails were in place before the flooring commenced on the first floor, and by failing to ensure that Mr Mancini and Mr Taleb had seen the SWMS, such as it was, in respect of work to be done on the first floor before that work commenced.
24 Mr Dann told me that the site manager Mr Lidhar was supposed to provide Mr Taleb and Mr Mancini with the SWMS and ensure that a guardrail was up in time for the flooring work to commence. He told me that it was envisaged that Mr Taleb and Mr Mancini would build the guardrail themselves, although it does not appear that this was ever communicated to them. I understand that Mr Lidhar had some personal commitments in the days leading to the accident and on the day of it and had not anticipated that work would progress to the first floor on the day that it did. I must say I find this aspect rather difficult to accept in terms of what Mr Lidhar expected in circumstances where Mr Lidhar had arranged for delivery of the flooring the day before the accident and the work that Mr Mancini and Mr Taleb had been engaged for was only to endure until the following Thursday.
25 As Mr Carr pointed out, engaging the carpenters and supervising them had largely been left up to another sub-contractor, Mr Henry, who was a plasterer. Although he was apparently happy to help the defendant company in the ways that he did, it was not his role or responsibility to discharge the OH&S duties of the defendant company. The entire situation was most unsatisfactory, exposing those working on the first floor to a risk that was grave. It seems to me that the approach taken by the defendant company, the implementation of the OH&S requirements in this case, was somewhat haphazard or slipshod rather than having an uncompromisingly systematic approach that left nothing to chance when it came to the safety of those in the position of Mr Mancini.
26 I must impose a sentence on the company that is just in all of the circumstances and which appropriately denounces its offending.
27 In sentencing the company, I have taken into account the impact on the victim or victims in this matter as expressed by Mr Mancini's wife, Caroline Mancini. Mrs Mancini did not want her victim impact statement material read aloud. But in sentencing the company, I am obliged to make reference to it. Mrs Mancini spoke of the devoted relationship she enjoyed with Mr Mancini and the instant and profound effect that his loss has had on her and on other members' of the family. She spoke of divisions within the family since the accident has occurred which unfortunately often seems to happen after a tragedy such as this. She spoke of her financial hardship and her worry for her children and grandchildren who have lost such a special person in their lives. She had to sell various items to try and stay afloat financially and is struggling with debt.
28 She spoke warmly of Mr Mancini, saying that their lives were full of love and laughter. She said that her life has changed socially as well. She only goes out every several months with her friends, returning to an empty house. She said that Mr Mancini's death had a huge impact on all aspects of her life. She has a serious health condition and Mr Mancini was also her carer. She no longer sleeps and has anxiety, saying that her health is suffering.
29 In her supplementary victim impact statement dated 3 April this year, she said that she was still suffering from sleeplessness and that every day was a struggle. She had negative thought patterns and tended to ruminate about things that had occurred since her husband had died. She said it had been a domino effect since his death with so many negative and difficult things having happened for her and her family which would not have occurred if he was still here.
30 In sentencing the company, I accept that it had done something to address the relevant risk by having a SWMS prepared. I also accept that it had taken some steps in respect of OH&S issues, so it is not as if the company was completely bereft of these. I was told that Seascape Constructions does not employ tradesman but engages all of its trades via subcontracts. For the project where the accident occurred, Manvir Lidhar was engaged as project manager and under the contract for services, Mr Lidhar was required to comply with company policy which included occupational health and safety policies and laws. I understand that the company had in place a comprehensive OH&S manual and had an OH&S consultant assisting it, Mr Abdou. So, as I say, it is not as if they were completely bereft of any measures in this area.
31 I also accept that it had advertised for experienced carpenters with OH&S training. I accept that Mr Taleb was a registered builder such that the company had hired someone who they might expect had knowledge in respect of the need for guardrails and the like when working from height. But this could not be assumed and, as I said before, it did not alleviate the company from actively ensuring that the SWMS such as it was had been communicated to Mr Mancini and Mr Taleb and that guardrails were installed before any work on the first floor commenced. The company had taken some measures, but clearly, not nearly enough. As Mr Dann submitted at the plea hearing, the matters raised by him in respect of the measures that had been taken by the company were not mitigatory but are in the nature of a lack of aggravating features. He made it clear that he did not seek to blame Mr Lidhar or any other worker on site for the company's failures, which, as I said at the plea hearing, was a relief as I must say it appeared to be the tenor of the way that the trial was to be run, before the matter resolved.
32 In sentencing the company, I allow for a fairly substantial discount on the sentence that it would otherwise receive in circumstances where it did not run a contested committal hearing, but chose to run a trial until I gave a ruling in respect of the law ahead of a second jury empanelment. Therefore, the plea of guilty came at a late stage. A jury had previously been empanelled but discharged by me after the first witness, Mr Taleb, had been subjected to some cross examination, although, this had not been for a lengthy period when a matter arose leading to the jury being discharged. I allow for a fairly substantial discount in circumstances where no committal hearing was run so there was the witnesses were saved the time and trouble of this proceeding and the community was saved the time and expense of this. Further, the stage at which the case resolved meant that ultimately, the witnesses, save for Mr Taleb in part, were saved the time and trouble of taking part in a trial and the company saved the community the time and expense of completing a trial. However, the discount will not be as great as it would have been had the company pleaded guilty at an earlier stage.
33 Mr Dann submitted that I ought allow for remorse in this matter as seen in the severe regret suffered by Mr Sagor and his staff after the accident and steps he had taken to further OH&S training. Also, Mr Sagor and his staff had undergone psychological counselling due to the effects that the accident had had on them. However, he also told me that since the accident the company had been issued with five further improvement notices, all of which related to fall from height safety issues. Mr Dann submitted that Mr Sagor chose to run the trial due to the legal advice he received, intimating that this course ought not be seen as being inconsistent with remorse. In the end, I accept and have always accepted that Mr Sagor is most regretful for what happened to Mr Mancini. He also took some steps to address OH&S issues in the intervening period. On the other hand, the company has had five improvement notices, albeit in the context of about 150 houses being built, following the accident, and also Mr Sagor did choose to run a trial until I gave a ruling which reflected the current state of the law. The way that the trial was being run, which was evident from discussions and the initial cross examination of Mr Taleb reflected a view that the company did seek to blame Mr Taleb for the accident. Different counsel was involved in the trial to lead counsel at the plea hearing, but the fact remains that Mr Sagor, the sole director of the company instructed counsel to run the trial in this way albeit that he may well have done so on legal advice.
34 I make it clear that I do not punish the defendant company or Mr Sagor for commencing to run the trial; but the decision to do so and the stage at which the matter resolved, being so late, with all that goes with this for the witnesses and the victim's wife and family, does not reflect insightful remorse insofar as the company taking responsibility for its offending is concerned, in my view.
35 Having said all of this, I give some weight to insightful remorse, but in all of the circumstances, I cannot give it a great deal of weight I am afraid.
36 In the company's favour, it has no prior or subsequent convictions and I have taken this into account in sentencing it. On the other hand, as Mr Dann quite properly told me, it has been issued with a number of improvement notices, to which I have previously referred, all of which related to fall from height problems. I must also have regard to this in determining the company's prospects of rehabilitation and the weight which is needed to apply to specific deterrence.
37 I factor in delay. It has been in the order of about three years since the accident, and in the intervening period, the company and Mr Sagor have had these matters hanging over their heads. While it might well be said that the way to reduce such anxiety was to plead guilty to an appropriate charge at a far earlier stage, I still make some allowance for delay in this way. Further, the intervening period has been used to take some steps toward rehabilitation in respect of further OH&S training but there have also been some retrograde steps when one considers the improvement notices during the intervening period. In saying this, I have kept in perspective that multiple homes have been built during that period so five notices must be seen against that back drop. However, after such a tragic accident involving a fall from height, it is concerning that there have continued to be fall from height issues from time to time. It is to be hoped that Mr Sagor and those he engages for work site supervision are far more actively involved in respect of OH&S requirements especially when it comes to ensuring grave risks such as falls from height are avoided at all costs.
38 I take into account the company's background and that of its sole director, Mr Sagor: Mr Sagor is 49 years old and completed his secondary education in Geelong. He went on to complete a four-year TAFE course in civil engineering, obtaining a diploma in that field. While doing this course, he worked with his brother as a bricklayer, applying himself to a good deal of his studies at night school. He went on to work for a council in the area of town planning, then worked for a private company doing foundation type work. He obtained a license as a domestic builder, qualifying to do so as he had relevant work experience of 10 years. He started the defendant company in July 1998, starting with small home renovations and graduating to the point where the company was building 50 homes per year. I was told that in 2017 it had an annual turnover of $22,758,701 which equated to approximately 50 homes, allowing for $450,000 per home. At any one time, the company had numerous projects underway. I was also told that in more recent times, the business was not nearly as profitable as it had been, especially because of the impact of COVID-19. But even before this, its profits had declined due to its concentration on occupational health and safety training and compliance which had apparently slowed its productivity.
39 I was told that Mr Sagor had staff who assisted him these days and had an office in Brooklyn. Mr Dann took me through the names and occupations of some of his various staff members, a number of whom he had engaged to focus on occupational health and safety aspects of the company's business. I have read a number of character references from members of staff who have spoken highly of Mr Sagor and his efforts in respect of OH&S training and issues.
40 In all of the relevant circumstances, I find that the company's prospects of rehabilitation are fairly good. I place some weight on specific deterrence in view of the circumstances of the offending, lack of insightful remorse and subsequent improvement notices. I place strong weight on general deterrence in a bid to deter others from offending in the way that the defendant company has.
41 I have factored in the company's financial situation which has declined quite dramatically over the past two years also, although Mr Dann frankly conceded that it was still a going concern and could withstand a substantial fine for its wrongdoing. As Mr Carr submitted, the financial situation of the defendant company, although relevant, was not a matter of primary concern or a controlling factor when sentencing for this kind of wrongdoing.
42 I have also borne in mind the current sentencing practice in respect of this matter, but also bearing in mind that this is but one factor and not a controlling one in the exercise of my instinctive synthesis.
43 In the end I have arrived at a sentence which, in my view, does justice to all relevant sentencing principles and the weight which I have attached to them. It must be made clear to the victims in this matter that the fine is not designed to, and nor could it ever, give them solace for the loss of their loved one. As I hope I have made clear, there are a number of matters which I must take into account when sentencing in a case such as this.
44 The company is convicted of the offence and is fined $850,000.
45 I indicate that if not for the plea of guilty I would have fined the company $1,100,000. Is there anything further?
46 MR DANN: Yes, Your Honour. When it is appropriate, I just need to raise an issue in respect to the application for appeal costs certificate that we mentioned on the last occasion.
47 HER HONOUR: Yes, very well. It is convenient to raise that - I will just hear from Mr Goodfellow. Is there anything arising from the sentencing remarks, Mr Goodfellow?
48 MR GOODFELLOW: No, there is not, Your Honour.
49 HER HONOUR: All right. Yes. Yes, Mr Dann.
50 MR DANN: Your Honour, in the certificate that has been issued, it suggests that an application was made for a half-day certificate. That is not correct. There was no application for a half-day certificate. It was an application for a full day. And secondly, the certificate only refers to one counsel, not two.
51 HER HONOUR: Right. So can you just take me back to the application for the appeal costs certificate?
52 MR DANN: Yes, so the matter was listed on 16 April. My instructing solicitor requested - well, suggested the matter should not proceed because of the fact that we could not go to court. The court informed us no, it would proceed by way of WebEx. At about 3.30 the afternoon before the 16th, we were told that it could not proceed by way of WebEx. So the matter would not proceed.
53 HER HONOUR: And the day was booked in? Sorry, the hearing was for a day? A day's booking, was it?
54 MR DANN: Yes, correct. That was my understanding.
55 HER HONOUR: Just one moment. I think the reason for that was that at that stage we were not up to accommodating as many people as wanted to beam in on WebEx but I think that has been improved since then, if I am right in my memory of it. Yes, we did not have it - right. That's right. Yes, we did not have a WebEx licence that is why. So just in terms of how long the matter was booked in before the day after - I will have no difficulty. Mr Dann, if that is what you are telling me, then that is - I accept that that was the position. I apologise for that if that is - - -
56 MR DANN: I am just not sure if there are such things as half-day certificates perhaps - - -
57 HER HONOUR: Half day. Well, I do not know. I thought that there were and I thought that I had granted them in the past but maybe you are right. In any event, yes, I will grant a certificate for Thursday, 16 April for a full day for you and junior counsel.
58 MR DANN: As Your Honour pleases.
59 HER HONOUR: Very well, is there anything further?
60 MR DANN: No, not from me, Your Honour.
61 MR GOODFELLOW: No, Your Honour.
62 HER HONOUR: Yes. Very well, thank you. We will now adjourn.
63 MR DANN: As Your Honour pleases.
- - -
3
0
0