R v Sapform Pty Ltd

[2020] NSWDC 86

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Sapform Pty Ltd [2020] NSWDC 86
Hearing dates:	31 March 2020
Date of orders:	03 April 2020
Decision date:	03 April 2020
Jurisdiction:	Criminal
Before:	Strathdee, DCJ
Decision:	(1)   The defendant is convicted. (2)   The appropriate fine would be $600,000.00 and that will be reduced by 25% to reflect a plea of guilty. (3)   I accordingly order the defendant to pay a fine of $450,000.00. (4)   50% of the fine imposed is to be paid to the prosecutor. (5)   The defendant is to pay the prosecutors costs as agreed or assessed.
Catchwords:	CRIMINAL LAW – prosecution – work, health and safety – duty of person undertaking business – risk of death or serious injury – aggravating and mitigating factors – specific deterrence – general deterrence – discount of 25% for the utility of the plea
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation Occupational Health & Safety Act 2000 (NSW)
Cases Cited:	Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 (2000) 49 NSWLR 610 Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 R v Irvine; R v Dynamic Industries Pty Limited; and R v Cini [2009] VSCA 239 Safework NSW v Orbit Formwork Pty Limited [2019] NSWDC 685
Texts Cited:	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 New South Wales (Prosecutor) Sapform Pty Ltd (Defendant)
Representation:	Counsel: Ms J Paingakulam appeared for the Prosecutor Mr C McGee appeared for the Defendant   Solicitors: SafeWork NSW Legal Services (Prosecutor) Holding Redlich Solicitors (Defendant)
File Number(s):	2018/59485
Publication restriction:	None

Judgment

1. On 14 October 2019 Sapform Pty Ltd (ACN 167 809 592) (‘the defendant’), pleaded guilty to an offence contrary to s 32 of the Work Health and Safety Act 2011 (NSW) (‘the Act’), by failing to comply with the health and safety duty imposed upon it by s 19(1) of the Act, namely, to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the defendant’s business or undertaking and in doing so exposed workers to a risk of death or serious injury.

2. This offence carries the maximum penalty of $1,500,000.00.

3. The offence was committed at a construction site located at 11 Porter Street, Ryde NSW 2112 (‘the construction site’) on 25 October 2016. At that time and place there were workers working in the defendant’s business that were exposed to a risk to their health and safety. One of the workers exposed to the risk was Mr Iremar DaSilva (‘Mr DaSilva’) who, as a result of being exposed to the risk, was fatally injured when the risk came home.

4. The prosecutor tendered an Agreed Statement of Facts and an Agreed Tender Bundle which forms the basis of the background set out below.

Background

5. The defendant is a registered corporation that conducts a business or undertaking providing formwork services in the residential and commercial construction sector. On 21 June 2016, the defendant was contracted by KNT Constructions Pty Limited (ACN 601 696 379) (now known as Truslan Constructions Pty Limited) (‘KNT’) to complete the formwork for a six-storey unit block comprising 19 residential apartments and basement parking (‘the works’) at the construction site. KNT was the principal contractor at the construction site.

6. In 2016, Mr Luis Alberto Arrilucea (‘Mr Arrilucea’) was the sole director of the defendant. Mr Arrilucea was involved in overseeing the day-to-day work on the construction site and visited the construction site at least once a week.

7. For the purposes of the works, the defendant had subcontracted Mr DaSilva through his company Clamster Pty Limited (ACN 072 124 728) (‘Clamster’) to install formwork at the construction site. Mr DaSilva had ten years of experience as a carpenter and had previously worked alongside Mr Arrilucea on other projects installing formwork. Mr DaSilva commenced work on the construction site on 10 October 2016.

8. The defendant appointed Mr Edwin Arbildo (‘Mr Arbildo’), an employee of the defendant, as site foreman for the works.

The Incident

9. By 25 October 2016, approximately 30% of the total formwork on the construction site was complete. Work had commenced on laying the suspended formwork on Level 2 of the construction site, which was more than three metres above the ground level (known as Level 1).

10. Level 1 comprised a concrete slab with a series of metal starter bars protruding out of it. Some, but not all, of the metal bars were fitted with plastic safety caps.

11. On 25 October 2016, Mr DaSilva was at work on the construction site. That morning he received instructions from his supervisor, Mr Arbildo, to work on Level 2 to complete the deck.

12. The perimeter of Level 2 was protected by way of a permanent scaffold which ran the length of the deck, however, at many points on the Level 2 deck there were significant gaps between the edge of the deck and the scaffold, measuring up to 530mm. There were no handrails or catch decks in place in these areas to provide necessary fall protection.

13. In addition to these gaps, there were a number of uncovered penetrations on the Level 2 deck. Some of these penetrations were deliberately created to provide space for columns to be constructed at a later date.

14. At approximately 1:39pm, Mr DaSilva fell more than three metres from the Level 2 deck and was impaled on a metal starter bar protruding from the Level 1 floor below. There were no witnesses to the fall, though it is concluded that Mr DaSilva fell from an area of the Level 2 deck above the metal starter bar where he landed.

15. Mr DaSilva sustained fatal injuries as a result of his fall.

Systems of Work before the Incident

16. The accepted industry standard safe work sequence requires that the following specific, methodical order is followed when laying formwork:

1. Lay all bearing timbers, then

2. Lay all joisting timbers, and only then

3. Lay formwork boards and place those boards in such an order so as to minimise exposed leading edges, and if necessary

4. Patch or cover any voids left for columns and mark them ‘danger penetration below’.

17. It is apparent from the photographs and videos taken on the construction site, immediately following the incident, of the missing joist timbers in the Level 2 deck, the gaps between the edge of the Level 2 deck and the scaffolding, and the uncovered penetrations in the Level 2 deck, that the formwork that was being completed on the Level 2 deck was not being done in accordance with the accepted industry standard safe work sequence and had not been done in accordance with that sequence for at least several hours prior to the incident.

18. Prior to the incident, an agreement had been reached by KNT and the defendant that KNT would erect a perimeter scaffold to provide some protection to the upper decks, including the Level 2 deck, where the formwork was to be erected. Once that scaffold was erected, it was the responsibility of the defendant to install any additional fall protection, in accordance with Schedule 1 of the contract between KNT and the defendant. This additional fall protection would include all necessary fall prevention devices including the supply and installation of hand rails or catch decks. Schedule 1 of the contract between KNT and the defendant permitted the defendant to temporarily infill penetrations, such as by installation of steel mesh provided by KNT.

19. At the time that he was undertaking the construction of the formwork for the Level 2 deck, Mr DaSilva was working without direct supervision. The defendant failed to provide adequate supervision to Mr DaSilva while he was engaged in construction of the formwork for the Level 2 deck to ensure that laying joists and plywood was undertaken in accordance with the industry standard when he was working on the leading edge.

20. KNT had appointed a project team to oversee the implementation of Work Health and Safety (‘WHS’) strategies and policies at the construction site. KNT had a WHS system in place including:

• A WHS Site Specific Plan;

• Regular site inspections;

• Site Safety Inductions (which included obtaining a white card from each worker); and

• Emergency Evacuation Plan.

21. In accordance with the KNT WHS system, when Mr DaSilva commenced work on 10 October 2016 he received induction training.

22. There were no documented risk assessments undertaken in relation to the formwork as it progressed at any stage of the works at the construction site.

Safe Work Method Statement

23. The WHS system implemented for the works required KNT to obtain, review and approve a Safe Work Method Statement (‘SWMS’) from each contractor that was engaged to work on the construction site. KNT had approved the SWMS that had been submitted by the defendant dated 13 July 2016 in relation to the formwork that was to be installed on the construction site (‘the formwork SWMS’).

24. The formwork SWMS identified the risk of ‘falling from height’ while performing work in relation to the following:

• Installation of wall shutters;

• Installation of walkways at the top of formwork; and

• Stripping formwork.

25. The formwork SWMS did not identify the risk of falling from a height whilst laying formwork and it did not specify a sequence of work to be followed in order to complete the formwork safely, such as in accordance with the approved industry practice.

26. Pages 11 to 12 of the formwork SWMS contained a list of various Codes of Practice and other WHS guidance material, but none of those items were identified as being relevant to this particular SWMS.

GUIDANCE MATERIAL

27. There was an abundance of material available to KNT and the defendant to control the numerous risks arising from falling from heights during formwork on the construction site.

‘Work Health and Safety Regulation 2011’

28. Clause 78 Management of Risk of Fall specifically states 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.

29. Clause 79 applies where it is not possible to eliminate the risk of a fall to which clause 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 paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable.

30. Subclause 5 defines ‘fall prevention device’ to include:

1. A secure fence; and

2. Edge protection; and

3. Working platforms; and

4. Covers.

‘Formwork, Code of Practice 1998, WorkCover NSW’

31. While this Code of Practice was developed based on previous WHS legislation which was replaced with the Act, it is still current and can be relied on to instruct duty holders on how to meet their WHS obligations in relation to formwork.

32. Section 3.2 of this Code of Practice outlines planning practices a principal contractor should (in consultation with its contractor) employ before commencing formwork on a construction site, including:

1. An assessment of the risks involved in carrying out the work;

2. Identifying the most appropriate methods to control any risk of injury. These include 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; and

4. Ensuring that all persons carrying out the work have received appropriate training and instruction.

33. Section 3.3 of this Code of Practice outlines planning practices a contractor (sub-contractor) should carry out in addition to those in consultation with the principal contractor, including:

1. An assessment of the risk 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. Minimising the working heights for persons erecting and dismantling formwork;

6. Ensuring all formwork materials such as joists, bearers, plywood, support frames, jacks and U heads comply with the specification and relevant codes and standards and are used in accordance with manufacturer’s specifications; and

7. Suitable and safe access must be provided to and from the construction site including each area of work. This should include planning the position of frames to ensure safe access such as persons walking between frames.

34. 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’

35. At pages 9-10 of this Guide, it states 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; and

2. Implementing all required fall and falling object risk control measures e.g. ensure edge protection and work platforms are constructed.

36. At page 12 of the Guide, it 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; and

3. Incomplete work platforms, scaffolds or loose components where work is being done.

‘Guide to Formwork, SafeWork Australia, July 2014’

37. Specifically, at pages 7-8, this Guide refers to open penetrations and notes that these should be protected with edge protection like handrails or by securely covering them so no one can fall through them.

38. It notes at page 8 that using plywood covers alone is not a satisfactory risk control because:

1. The cover may be indistinguishable from other pieces of plywood;

2. It cannot be refitted without significant modification, once the first service is installed;

3. It may be difficult to determine if the plywood is properly secured; and

4. Secured plywood covers can be unsecured to gain entry and not re-secured.

39. It recommends that plywood covers should be structurally graded, painted in a bright colour and marked with wording, for example; ‘Danger penetration below’.

40. At page 9 it refers to edge protection on a formwork deck, and provides examples 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; and

2. At openings in stairwells or lift shafts.

‘Managing the risk of falls at workplaces Code of Practice, April 2016’

41. Section 4 of this Code refers to ‘Fall Prevention Devices’. In particular, at s4.1, it states that a safety consideration relating to the use of scaffolds includes: ‘edge protection (hand rails, mid-rails and toe boards) is provided at every open edge of a work platform.’

42. At s 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’.

43. At s 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. In this way, the onus for meeting these requirements rested with KNT and its contractors and subcontractors, as well as their relevant directors.

44. It further states that this design and planning stage should include:

1. Reducing the risk for those working at heights, such as the installation of guard rails to perimeter structural members prior to erection; and

2. Sequencing of the work to be performed at heights.

45. Neither KNT (in its capacity as the principal contractor with overall responsibility for the construction site), nor the defendant complied with the available guidance material as there was no fall protection in place in the area Mr DaSilva was working at the time of the incident.

Systems of Work After the Incident

46. Since the incident, the defendant has:

1. Conducted a risk assessment of the entire construction site, including all tools and equipment, and worker training;

2. Placed custom-built plywood boxes over all exposed metal starter bars; and

3. Engaged safety officers to undertake proactive site visits to ensure ongoing compliance.

CONSIDERATIONS

47. I have had regard to the objectives set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’) for the purpose of sentencing.

THE NATURE OF THE DUTY

48. The nature of the duty is one that requires a person conducting a business or undertaking (‘PCBU’) to ensure as far as reasonably practicable the health and safety of workers at the workplace. The notion of reasonable practicability is informed by the considerations found in s 17 of the Act. The defendant, by its plea of guilty, has admitted that the measures to ensure safety pressed by the prosecutor would have been reasonably practicable.

49. The duty is one of strict liability – s 12A of the Act. Consequently, there is no relevant mental element to the offence, whether it be reference to intent, carelessness or recklessness.

50. The duty imposed by s 14 of the Act cannot be transferred to another person. On construction sites, there will often be many people having the same duty whether as principle contractor or sub-contractor. The fact that more than one person has a duty does not in any way absolve or limit the duty holder’s own responsibility – s 16 of the Act. A person retains the duty to the extent that they have control or influence – s 16(3) of the Act.

51. In the present proceedings, the defendant as the contractor of Mr DaSilva’s company, Clamster, had direct control and influence over the work performed by Mr DaSilva at the site. It plainly had the ability to conduct and document a risk assessment to identify the most appropriate methods and control measures for preventing the risk of injury, including falls from heights. Furthermore, it had the ability to implement the identified control measures, including to provide supervision to ensure that a safe work system was adopted to install the formwork, and it failed to do either.

OBJECTIVE SERIOUSNESS OF THE OFFENCE

52. The duties of the defendant require that it ensure the health and safety of workers as far as reasonably practicable. As the defendant has pleaded guilty, it has admitted that the measures to ensure safety would have been reasonably practicable. This duty is not delegable, and the defendant cannot escape its liability as a consequence of its contractual relations with other parties, as the defendant had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

53. Although the gravity of the risk, degree of foreseeability of the risk and the ease of implementation of remedial measures are relevant to the assessment of objective seriousness, I am not limited to taking into account such factors.

52. The Court of Criminal Appeal examined the approach to sentencing in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96; in which Basten JA said as follows:

‘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 to guard against the occurrence of which is extremely unlikely’. However the truth of that proposition depends upon other considerations including:

the potential consequences of the risk, which may be mild or catastrophic;

the availability of steps to lessen, minimise or remove the risk; and

whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.

…..

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, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.’

55. The more obvious the risk, the ease with which it can be controlled or eliminated and the more serious the consequences of the offence, when considered together, the more serious the offence will be.

56. Mr Arrilucea swore an affidavit on 20 March 2020 which was tendered and became Exhibit 1. He was required for cross-examination by the prosecutor.

57. In his affidavit, Mr Arrilucea expresses his heartfelt remorse, personally and on behalf of the defendant, that the incident occurred and that Mr DaSilva tragically lost his life. I accept his remorse that Mr DaSilva lost his life.

58. The affidavit then provides information as to the relationship between Mr Arrilucea and Mr DaSilva, in that they had previously worked together on other worksites undertaking formwork. It states as follows;

‘11.   Over this 15 year period, on each and every occasion that I have worked with Mr DaSilva, I observed that he followed the accepted industry standard sequence that is detailed at paragraph 18 below. On each occasion that Mr DaSilva was engaged by the defendant, he would have been provided with the Defendant’s Safe Work Method Statement (SWMS).

12.   As part of Mr DaSilva running his own business, he was also running his own jobs and was undertaking work for other people. To my knowledge, when Mr DaSilva was undertaking work for his own business he had his own formwork carpenters assisting him.

……

17    On the day of the incident Mr DaSilva’s role was to install the joists and lay plywood. Mr Arbildo had worked with Mr DaSilva on a number of previous occasions and was satisfied that Mr DaSilva had knowledge of how to safely install and lay plywood in the proper sequence.

18.   Mr Arbildo was satisfied that Mr DaSilva was proficient with the accepted industry standard sequence for laying deck. The sequence requires that the following steps are followed when laying the deck (as detailed at paragraph 17 of the Statement of Agreed Facts located at tab 1 of the Agreed Tender Bundle):

(a)   lay all bearing timbers; then

(b)   lay all joisting timbers; then

(c)   lay formwork boards, and place those boards in such an order to minimise exposed leading edges; and if necessary

(d)   patch or cover any voids left for columns and mark the “danger penetration below”.

19.   Mr Arbildo was on the Site each day and provided supervision to Mr DaSilva, including on the day of the incident.

20.   On the day of the Incident, instructions were provided by Mr Arbildo to Mr DaSilva that he should lay the deck. He was told he would work with another worker who would clean the boards and pass them to him after Mr DaSilva had laid the timbers. Mr DaSilva was highly experienced in conducting formwork and had performed the same task numerous times in the past. On the day of the Incident there was nothing unusual in the way that the deck was to be laid. There was no reason or expectation for the works to be undertaken in a rush.

21.   After the incident, I inspected the Site and it appeared that the proper sequence of laying all the timbers, joists first before laying the boards had not been strictly followed.’

59. My findings about the offender’s level of culpability are based on the following:

1. The risk here was the risk of falling a distance of about 3 metres from the edge of a partially constructed deck. Unfortunately, it came home, and Mr DaSilva lost his life;

2. The nature of the risk was foreseeable. The measures that could have been taken to control or eliminate the risk were not difficult or expensive, and as such the offence is objectively more serious. The risk of falling from heights on building and construction sites are notorious. It is common sense that people working at heights are at risk of falling down unless there is something that intervenes to prevent that occurring. It is a feature of many decisions of this Court in this jurisdiction and in the Industrial Court of NSW;

3. The risk was also obvious, glaringly so. There were no guard rails or edge protection, and the work was being performed at height. It seems impossible to me that even a perfunctory inspection and risk assessment would not have revealed this risk;

4. To my mind Mr Arrilucea, in his affidavit, seeks to pass the blame to others. Firstly, he seeks to blame the deceased for not following the industry standard sequence of events. He seems to have placed reliance on the fact that he thought Mr DaSilva was experienced enough to not proceed with the task contrary to industry sequencing. The tenor of his evidence is that if Mr DaSilva had complied with the appropriate sequence, the incident would not have happened;

5. Then it appears to me that he tries to inculpate the defendant’s supervisor, Mr Arbildo, on the basis that had he been properly supervising Mr DaSilva, the risk would have been identified and steps taken to minimise or eliminate it. At paragraph 34-36 of his affidavit he states as follows:

‘34.   Throughout the day, Mr Arbildo supervised the activities taking place on the Site and if there were any concerns with respect to work health and safety, it was promptly identified by, or reported to, Mr Arbildo.

35.   I would also walk around the site when I was at the Site and speak to workers about how the job was progressing. I would observe how the work was being undertaken and ensure that the safe work processes were being followed. This was so that I could identify any additional work health and safety issues and take immediate action if required.

36.   On the day of the incident, while the usual supervision was in place, Mr DaSilva was not directly being supervised at the time that he fell.’

6. This to my mind is an attempt to pass the duty of inspection and supervision on to Mr Arbildo, and suggest that it was he who failed to identify the risk. These duties are non-delegable, and his approach shows a cavalier attitude to the risks to which his workers were exposed;

7. The risks were not identified by the defendant’s employees for reasons that are unexplained. The risk may have been created by the form workers, but it is incumbent that the person in control of the business, here the defendant, makes appropriate risk assessments, and not simply rely on the experience of the workers, in particular Mr DaSilva.

8. The means to control the risks were cheap and not difficult to implement, as is evidenced in the relevant publications to which the defendant had access. The measures available to the defendant to eliminate the risks were as well known as the risk itself. However, at paragraphs 52-54 of the Affidavit of Mr Arrilucea, the defendant again seeks to, in part, excuse the defendant’s breach of duty by complaining as to guidance material which was available. He complains that the Code of Practice and SafeWork Guidelines are ‘limited’ and contain ‘an absence of detail and explanation’. I reject that submission, having regard to the documents contained in the tender bundle as follows;

1. SafeWork Australia – General Guide to Formwork and Falsework July 2014

2. SafeWork Australia – Formwork and Falsework Information Sheet July 2014

3. SafeWork Australia – Guide to Formwork July 2014

4. WorkCover NSW – Formwork, Code of Practice 1998

5. SafeWork NSW- Code of Practice – Managing the Risk of Falls at Workplaces

6. Work Health and Safety Regulation 2011, clauses 78 and 79.

9. The guidelines are in plain English and are easy to understand. They are comprehensive and provide details and diagrams.

10. The steps to which Mr Arrilucea deposes in paragraphs 44-55 of his affidavit as steps taken after the incident do go some way to create a better situation to provide better protection to workers. However, I note the safety officer that the defendant appointed into that role was previously employed by the defendant as a labourer at the time of the incident, and was only appointed into the safety role about 9 months ago. It has been submitted that he has ‘done some courses’ but there is no evidence before me as to what those courses are.

11. I note that revision of the defendant’s SWMSs occurred on October 2016, November 2016 and January 2020, the last being with the assistance of a consultant. The documents are comprehensive and address the appropriate issues.

12. The consequence of the defendant’s actions exposed workers to the risk of serious injury or death. The death of Mr DaSilva evidences as such, and the loss and devastation his passing has caused his family, and in particular his son who was midway through his HSC examinations, is enormous.

13. These factors point to an objectively serious offence.

DETERRENCE

60. In fixing a penalty in relation to this offence, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the CSP Act. The approach to be adopted is set out in Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 (2000) 49 NSWLR 610 at 644 para [74]:

‘Both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be some exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.’

61. The Court of Criminal Appeal in Bulga Underground OperationsPty Ltd v Nash [2016] NSWCCA 37 (‘Bulga’) reaffirmed the principle that both aspects of deterrence are matters which should be normally given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule:

‘It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, WorkCover Authority (NSW) (Inspector Page) v. Walco Hoist Rentals Pty Ltd (No. 2) [2000] NSWIRComm 39 at 40-43), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. …’

‘Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence; see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.’

62. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety following a breach of a duty are relevant, as is the propensity for the defendant to re-offend.

63. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all factors.

64. In Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Walton J observed at [241]-[242]:

‘There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety (McDonald’s) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); WorkCover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) [2002] NSWIRComm 27; (2002) 112 IR 312; WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and WorkCover Authority (NSW) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316.’

65. The issue of general deterrence is important, and must be approached in the context of the industry in which the defendant is engaged, as the types of duties and the broader hazards and risks associated with the industry are significant.

66. In Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 (2000) 49 NSWLR 610 at [74], a Full Bench of the Industrial Relations Commission in Court Session (as it then was) in relation to contraventions of the Occupational Health & Safety Act 2000 (NSW) said of deterrence:

‘Both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [200] NSWIRComm 39 at [40]-[43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.’

67. In R v Irvine; R v Dynamic Industries Pty Limited; and R v Cini [2009] VSCA 239 at [52], Nettle JA (as he then was) said of general deterrence in the context of work health and safety prosecutions:

‘Workplace safety requires employers to 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 therefore a significant factor when safety obligations are breached.’

68. The instant offence is one in respect of which general deterrence assumes particular prominence in the sentencing exercise. Its occurrence is widespread in the construction industry as a result of frequent poor management of what is an inevitable risk in that environment. In Safework NSW v Orbit Formwork Pty Limited [2019] NSWDC 685, Russell SC DCJ held as follows:

‘[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 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] …

[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.

69. 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.’

70. However, I am of the mind that the issue of specific deterrence is also significant in this matter. The defendant concedes that it did not conduct a risk assessment of the formwork services to be performed. They had a SWMS that addressed the risks from working at heights generally at that site, but not in regard to the performance of formwork. Presumably a risk assessment would have revealed that the following steps could have been taken;

1. To install the formwork deck using the accepted industry standard safe work sequence; and

2. The installation by the principle contractor of perimeter scaffolding to provide fall protection to the upper decks, including the Level 2, formwork deck, whilst the formwork was being erected.

71. It was submitted on behalf of the defendant that there is no evidence that Mr DaSilva, who was an experienced formwork carpenter who had previously undertaken this fundamental task of erecting of formwork, would not have been aware of the risk from falling from the partially constructed formwork deck whilst undertaking the construction of the formwork, whilst working at heights. It was further submitted that in light of those matters, the failure to undertake a general risk assessment of all the formwork services to be performed at the construction site by the defendant, was only marginally causally connected to the exposure of Mr DaSilva to the risk. This, it is submitted, would significantly reduce the objective seriousness of the risk.

72. The defendant further concedes that the failure was to ensure that there was adequate supervision of Mr DaSilva whilst he was doing the work. The defendant failed to ensure that Mr DaSilva was performing the task in accordance with the accepted industry sequence.

73. The defendant further submits that the guidance material is limited and does not go far enough to adequately address guidance.

71. I completely reject those submissions. It unfortunately suggests to me that this is fits within the matters that the defendant asks me to accept to minimise its culpability. The case presented by the defendant smacks of a deliberate attempts to blame someone else, and that because others were at fault, the defendant’s breach of duty is not as egregious as others, and in those circumstances, the breach is one that does not fall within the mid or high range of seriousness.

72. The defendant firstly seems to me to be attempting to blame the victim, Mr DaSilva, because he should have known better as an experienced formworker and should have followed accepted industry sequence. If that not be the case, the defendant seeks to blame the supervisor, Mr Arbildo for not supervising Mr DaSilva closely enough, or alternatively blame KNT the head contractor for failing to provide any or any adequate fall protection. He places blame on the guidance material, that it was inadequate and out-dated.

73. In attempting to pass at least some of the blame to others does not to my mind sound like a defendant that is unlikely to re-offend. It is hard to envisage that it’s prospects of rehabilitation are good, in circumstances where it fails to accept the seriousness of the breach of duty. Mr DaSilva died of his injuries, and the risk that he was exposed to, and that other workers were exposed to, was something that could have been virtually eliminated, and at the very least, minimised. A proper inspection and an appropriate risk assessment would have clearly identified the risks, and were easy and inexpensive measures that the defendant could and should have taken to eliminate or at least minimise the risk.

74. As the defendant remains in the business and is continuing to contract to do similar work, in my view the defendant needs to be deterred from this course of conduct by a significant fine. I am of the view that the offence falls within the high range of objective seriousness.

AGGRAVATING FACTORS

78. The fatal injuries sustained by Mr DaSilva is an aggravating factor.

MITIGATING FACTORS

79. The defendant entered a plea of guilty at an early stage and is entitled to a discount of 25% based on the utilitarian value of the plea (s 21A(3)(e) of the CSP Act).

80. The defendant does not have any antecedents (s 21A(3)(e) of the CSP Act).

81. The defendant co-operated with the SafeWork investigation (s 21A(3)(m) of the CSP Act).

82. The defendant through its director and Mr Kola himself has shown some remorse and I accept that as genuine, and has accepted some responsibility for its actions (s 21A(3) of the CSP Act).

83. I accept that the defendant was of good character prior to the incident (s21A(3)(f) of the Act).

84. I note that the defendant has taken some steps to ensure the safety of workers. The director Mr Arrilucea is considering developing an app and/or website to help with safety training. The defendant has introduced a safety officer into the business, albeit in relatively recent times, and his training has not been provided to the court.

THE NATURE OF THE DEFENDANT’S UNDERTAKING

85. I accept that the size and nature of the defendants business is something that I should have regard to and I do so.

86. The defendant’s submissions state the following at paragraph 110:

‘Sapform is a relatively small business. It continues to operate in the formwork industry. It employs 23 workers. It is essentially operated by Mr Arrilucea and his family. The impact of any fine that is imposed will be borne directly by Mr Arrilucea and his family, and will result in significant financial strain on a business which faced significant financial challengers and set-backs in recent years.’

87. Mr Arrilucea’s affidavit states as follows at paragraph 59:

‘When my previous accountant permanently left Australia in 2017, I discovered in May 2018 that the Defendant owed $872,240.00 to the Australian Taxation Office (ATO). On 6 July 2018, the ATO commenced proceedings against the Defendant. I was in ongoing discussions with the ATO in an attempt to resolve the matter. In September 2018, and agreement was reached with the ATO. The proceedings by the ATO against the Defendant were dismissed on 18 September 2019. A payment plan was put in place with the ATO for a period 12 October 2019 to 12 July 2020. A copy of the payment plan with the ATO is located at Tab 7 of “LA-1”’.

88. The affidavit also makes reference to the COVID-19 and its economic consequences.

89. Again, this to my mind stands out as they director seeking to blame someone else for his precarious financial circumstances, namely his accountant. The submission and paragraphs from the affidavit do not entice me to give a discount for the matters raised. A company employing 23 people can hardly be described as a small family company, and a liability to the ATO is not something that I consider ought entitle the defendant to a discount in the fine that I impose, nor should the COVID-19 situation.

PENALTY

90. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine would be $600,000.00 and that will be reduced by 25% to reflect a plea of guilty.

3. I accordingly order the defendant to pay a fine of $450,000.00.

4. 50% of the fine imposed is to be paid to the prosecutor.

5. The defendant is to pay the prosecutors costs as agreed or assessed.

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Amendments

15 April 2020 - coversheet and [90] - removed "0" from order (3)

Decision last updated: 15 April 2020