SafeWork NSW v Abdul El-Hawly

[2025] NSWDC 74

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v Abdul El-Hawly [2025] NSWDC 74

Hearing dates:

27 February 2025

Date of orders:

21 March 2025

Decision date:

21 March 2025

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   The defendant is convicted.

(2)   The appropriate fine is $80,000 and that will be reduced by 25% to reflect the plea of guilty.

(3)    Accordingly, I order the defendant pay a fine of $60,000.

(4) Pursuant to Section 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition

COSTS – prosecutor’s costs

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22

Criminal Procedure Act 1986 (NSW), s 257B

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19(1), 31, 32

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37

Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71

Environmental Protection Authority v Barnes [2006] NSWCCA 246

Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384

Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82

R v Cage [2006] NSWCCA 304

R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92

R v Miria [2009] NSWCCA 68

R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Youkhana [2004] NSWCCA 412

SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632

SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398

Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465

WorkCover Authority of NSW vSarjameStorage Pty Ltd [2015] NSWDC 151

WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142

Texts Cited:

Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work (July 2016)

SafeWork NSW Woodchipper Guide

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Abdul El-Hawly (Defendant)

Representation:

Counsel:
R Rodger (Prosecutor)
P Barry (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Sydney Law Practice (Defendant)

File Number(s):

2023/255557

Publication restriction:

Nil

JUDGMENT

1. Mr Abdul El-Hawly, trading as Bell Tree Lopping (the defendant) being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health and Safety Act2011 (WHS Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, did fail to comply with that duty and the failure to comply with that duty exposed workers, in particular Mr Abd Al Rahman Kadour (Mr Kadour), to a risk of serious injury or death contrary to s 32 of the WHS Act.

2. The prosecutor tendered a Prosecution Sentence Tender Bundle which became exhibit A. The defendant tendered an affidavit of Abdul El-Hawly sworn 14 February 2025 which became exhibit 1.

Background

3. The defendant holds a Certificate III in Arboriculture and at all material times was a sole trader carrying out a business which trades as Bell Tree Lopping, which involves landscaping and tree removal services. The business has been operating for around 15 years.

4. The defendant’s work consists of managing the business, cutting trees and grinding tree stumps. The defendant often does small jobs and works solely but engages contractors when he requires assistance.

The Plant

5. As part of his business, the defendant owned and operated a Vermeer BC1800XL Wood Chipper (Wood Chipper), which was used to convert tree limbs and branches into wood chips or mulch, and a stump grinder which was used to remove tree stumps from the ground.

Events Leading up to the Incident

6. The defendant was engaged to carry out tree removal work at a vacant lot located at 25 Durbar Street Kirrawee NSW (the site), by Australian Chermside Custodian Pty Ltd, trading as Typhoon Demolition and Excavation, which undertakes work in demolition and excavation of residential, commercial and industrial structures.

7. The work included cutting down one cypress pine tree and one jacaranda tree at the site. The defendant engaged his nephew, Mr Kadour who was 28 years old at the time of the incident, as a labourer to assist with the tree removal work at the site. Mr Kadour had not performed tree removal work before but had experience in machine operation. He was engaged to assist with removal of tree stumps but not to assist with cutting down trees. The defendant agreed to pay Mr Kadour a $250 daily rate.

8. The defendant also engaged Mr Victor Sitienei (Mr Sitienei) and one other unidentified worker who travelled to the site in the defendant’s Utility vehicle, towing the stump grinder. These two workers were tasked with assisting the workers.

The Risk

9. The risk was the risk of workers, and in particular Mr Kadour, suffering serious injury or death as a result of becoming drawn into the Wood Chipper.

Events of 23 August 2021

10. Mr Kadour and Mr Sitienei commenced work for the defendant on 23 August 2021. On the morning of 23 August 2021, the defendant and Mr Kadour went to Dundas and Granville to quote for jobs. They arrived at the site at around 11.30am-12.00pm.

11. The defendant informed Mr Kadour that his role at the site was to operate the stump grinder to remove tree stumps, and to drive the truck to the tip when it became full of mulch. The defendant did not establish or enforce an exclusion zone around the Wood Chipper, nor did it ensure that no ropes were on the ground in the work area.

12. At around 3.00pm, as Mr Kadour was working on the stump grinder, he saw one of the defendant’s other workers climbing a tree which was at the back of the job site. The worker tied a rope to the tree, approximately three metres off ground level. The other end of the rope was tied to the rope attached to the hook of the winch, which was connected to the Wood Chipper. The conjoined rope was loose, and part of it touched the ground. Both ropes were the colour beige.

13. The worker who had climbed the tree climbed back down, and then assisted the defendant to feed branches, which had been cut from another tree, into the mulcher.

14. The defendant asked Mr Kadour to move the stump grinder, so that it would not be in the way when the tree at the back of the site was being cut. As Mr Kadour moved the stump grinder backwards, the defendant and another worker were feeding branches into the Wood Chipper. Mr Kadour became entangled in a rope which was fed into the Wood Chipper.

15. The defendant then saw the rope being chewed by the Wood Chipper, screamed “rope”, ran towards Mr Kadour, and pushed him away from the machine. Mr Kadour and the defendant landed on the ground to the side of the Wood Chipper. The defendant was briefly knocked unconscious.

16. Mr Sitienei ran to the Wood Chipper and saw the defendant and Mr Kadour lying on the ground, and observed that a rope was tangled around Mr Kadour’s neck and body and that his feet had been amputated. Mr Kadour was transported to St George hospital and underwent emergency surgery.

17. Around 5.25pm on 23 August 2021, Inspector Michael Preston of SafeWork NSW attended the site and conducted an inspection. He made the following observations at the site:

1. A white ISUZU truck (registration number XN03RC) was parked at the front boundary of the site, protruding through the gates.

2. A yellow coloured “Vermeer BC1800XL” Wood Chipper was attached to the toeball at the rear of the ISUZU truck.

3. Adjacent to the rear of the Wood Chipper on the ground was a rope.

4. The trailer of the truck was approximately 50% full of wood chips and fragments of rope were visible.

5. There was a large tree in the north-western corner of the rear boundary with an orange-coloured paint mark.

6. There was a stump grinder located approximately seven metres towards the rear of the site adjacent to the wood chips and tree debris.

Injuries

18. As a result of the incident, Mr Kadour sustained right foot amputation, right knee dislocation requiring surgical amputation at the right knee, extensive degloving injury to the left foot, left ankle crush injury, open dislocation of left knee, multiple open fractures of left leg requiring surgical amputation above the left knee; traumatic brain injury, right arm and back friction burn injuries, and pancreatic confusion.

19. Mr Kadour underwent multiple surgeries during his admission at St George Hospital, including amputations at the right knee and above the left knee.

Relevant Legislation and Guidance Materials

Vermeer

20. Section 10 of the Vermeer BC 1800XL Brush Chipper Operator’s Manual provides: “Warning: Read Operator’s Manual and safety signs and watch the operations and safety video before operating machine… Warning: Keep Spectators away”. Section 40 refers to operator qualifications and provides a warning that only properly instructed individuals should operate the machinery, that the work area should be clear from any other workers while work is in operation, and that no work should be done near the brush chipper unless the engine is shut off and the cutter drum is stopped.

21. The Vermeer Brush Chipper Operation and Safety Video states: “Make sure lines, vines and ropes are not in the brush being fed. These materials and anything attached to them will be pulled in at high speed. Death or serious injury is possible if you are stuck, entangled or pulled into the machine”.

Safe Work Australia

22. The Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work (July 2016) (the Safe Work Australia Guide) provides information regarding the handling of the machinery, managing risks and noting foreseeable injuries should caution not be taken in relation to the warnings/instructions provided.

23. The Safe Work Australia Guide informs workers about controlling risks associated with wood chipping machines, such as: ensuring there is sufficient clearance on or near the work area where the machines are operating, reading and adhering to the machine’s instructions manual, ensuring that operating teams consist of at least two people competent in the use of the machines, ensuring the machines are not left unattended, and, ensuring no dangerous material is thrown into the machine to prevent it from functioning correctly.

SafeWork NSW

24. The SafeWork NSW Woodchipper Guide (the SafeWork NSW Guide) also notes various risks to be aware of in relation to the machines, including but not limited to: being drawn into the machines, coming into contact with the blades, and becoming entangled in the branches or attached ropes and drawn into the Wood Chipper.

25. The SafeWork NSW Guide also notes that a competent person should ensure the safe setup of the work site, ensuring that: relevant procedures are followed, the machine’s danger zone is set up, hazards are identified and controlled, no foreign debris enters the danger zone, which could potentially end up in the machine, and ensuring that the machine is not left unattended while operating.

26. Furthermore, the SafeWork NSW Guide points out the danger of persons becoming entangled by ropes, clothes, or other materials, which poses the danger of them being drawn into the cutting blades.

27. The SafeWork NSW Guide includes a quote which states: “Hawkesbury - While doing tree work at a property Wilberforce, a rope caught on a tree branch was pulled into a wood chipper. The rope was also looped around a worker’s leg and caused a serious leg injury.”

System of Work Prior to the Incident

28. The defendant had a Safe Work Method Statement (SWMS) for “Use of Wood Chipper” in place prior to the incident. The SWMS provided information in relation to: feeding material manually into the Wood Chipper, part of body being caught up in ropes attached to the feed, visitors who are unaware of the operational hazards, the importance of toolbox talks, and the use of barriers and signs to establish the exclusion zones.

29. The defendant did not provide the SWMS to Mr Kadour as he did not intend for Mr Kadour to operate the Wood Chipper.

System of Works After the Incident

30. Following the incident, SafeWork NSW issued a Prohibition Notice (No.7-403471) to the defendant, which required the defendant to stop using the Wood Chipper and undertake a review of work procedures for tree lopping involving the use of the Wood Chipper to identify any risks associated with current work practise.

Statement Made by the Defendant

31. After the incident, the defendant provided a statement in relation to an insurance claim in which he made the following statements:

1. He agreed to pay Mr Kadour a daily rate of $250 in cash or via EFT.

2. He was aware that Mr Kadour had not done tree removal work before.

3. He was using a rope to pull down a tree, when he saw the rope had caught around a branch that was about to be chewed by the Wood Chipper.

Sentencing

32. The court is to approach a sentencing exercise on the basis of it being one of “instinctive synthesis”:  Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

33. The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way:

“The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement.”

Objective Seriousness of the Offence

34. The primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]:

“…The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of offending.”

35. Subjective factors play a subsidiary role:  Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474-475.

36. The duties of the defendant require that they ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

37. The gravity of the offence is determined by the extent of the duty holder’s failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety:  Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465.

38. The objective degree of foreseeability is a matter for the court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71 (Capral Aluminium) at [81].

39. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible:  Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61.

40. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142 at [31].

41. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 (Nash v Silver City Drilling). His Honour Justice Basten, under the heading “Assessment of Risk” said at [34]:

“The sentencing judge commenced his consideration with the proposition that ‘[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely.’ However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors.”

42. His Honour further observed at [42]:

“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, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent’s responsible officers knew or ought to have known.”

43. I accept that s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), (Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272.

44. The court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature:  R v Cage [2006] NSWCCA 304 at [17]-[18] (Latham J).

45. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence:  WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).

46. The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31-32 of the WHS Act: Nash v Silver City Drilling at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include:

1. The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize:  Nash v Silver City Drilling at [34].

1. The availability of steps to eliminate or minimise the risk:  Nash v Silver City Drilling at [34].

2. Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious:  Nash v Silver City Drilling at [34] and [53].

3. Whether the risk was known or ought reasonably to have been known to or identified by the offender.

4. Whether the risk was an obvious or clear one.

5. The vulnerability of the workers exposed to the risk:  SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398 at [55] (Russell SC DCJ).

47. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of.  In Nash v Silver City Drilling, his Honour Justice Basten dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying at [53]:

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.”

Matters are Relevant to Determining the Culpability of the Defendant

48. Mr Kadour was 28 years of age, and the defendant’s nephew as at the date of the incident and was employed as a labourer to assist with the tree removal at the site. He was engaged to remove tree stumps and was not engaged to assist with the cutting down of any trees. He had not performed tree removal work before the incident but had experience in machine operation. This was his first day on the job.

49. The defendant asked Mr Kadour to move the stump grinder, so as it would not be in the way when the tree at the back of the site was being cut. As Mr Kadour moved the stump grinder backwards, he became entangled in a rope which was fed into the Wood Chipper. The defendant saw what was happening and yelled “rope” and tried to dive between his nephew and the Wood Chipper, where he was knocked briefly unconscious.

50. There was a range of guidance material available to the defendant prior to the incident which addressed the risk associated with using wood chippers generally and the risks of entanglement specifically.

51. Having regard to the work practices in place at the subject work site:

1. The defendant did not establish an exclusion zone around the Wood Chipper, or ensure that no ropes were on the ground in the work area.

2. The defendant had in place a SWMS for the “Use of Wood Chipper” in place prior to the incident.

3. The defendant did not provide the SWMS to Mr Kadour as he did not intend for Mr Kadour to operate the Wood Chipper.

52. The defendant accepts that the risk as pleaded was foreseeable.

53. The defendant submits that the likelihood of the risk eventuating may have been low or high, as it accepts that irrespective of the degree of likelihood, the consequence to a worker, should the risk materialise, was very serious, as was the gravity of the risk to safety. I agree with those propositions.

54. Further, the defendant accepts that the control measures as detailed in par 10(a)-(e) of the Amended Summons were reasonably practicable. I agree with the submission of the prosecutor on this point that the objective seriousness of the offending conduct will also be aggravated by the ease with which the mitigating steps could have been taken.

System Enhancements Following the Incident

55. Following the incident the defendant improved its approach to safety (both generally and in relation to the pleaded risk) in a variety of ways. This included:

1. Use of different coloured ropes for tree lopping services.

2. Increased level of site inspections.

3. Removal of unused ropes in and around the work area.

4. The establishment of an exclusion zone by use of cones and signage notifying others of the existence of that exclusion zone.

5. Isolation of machinery.

6. Greater adherence to documented procedures.

56. The construction industry is a notoriously dangerous industry in part because it involves the interaction of humans with large and heavy machinery and items. These present circumstances highlight the need for caution on construction sites, including the obvious need to ensure people are not put in harm’s way when moving heavy items around a site.

Deterrence

57. In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.

58. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace:  Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).

59. When examining matters of deterrence, both specific and general deterrence apply:  R v Miria [2009] NSWCCA 68.

60. The Court of Criminal Appeal in Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 (Bulga) at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]-[75] which said:

“[74] … 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, 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.

…

“[75] … 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.”

61. General deterrence must be a significant feature of the sentence imposed upon the defendant. It can be appropriately used to direct the industry’s attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with the removal or pruning of large trees and disposal of the cut branches, involves the mixing of people and dangerous machinery, which the industry itself would be described as hazardous.

62. 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 WHS Act very seriously.

63. 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 other factors.

64. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.

Aggravating Factors

65. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act. In order for this aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing).

66. I am satisfied beyond reasonable doubt that this harm is more deleterious than may ordinarily be expected, and as such is an aggravating factor pursuant to s 21A(2)(ib) of the Sentencing Act.

Mitigating Factors

67. In Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench held the following:

“We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record.

Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question.”

68. The defendant has never been subject to a prior conviction under work health and safety law: s 21A(3)(e) of the Sentencing Act, and as such is entitled to the leniency which might ordinarily apply to a defendant with previous convictions.

69. I accept that the defendant is a corporate citizen of good character and has provided many free services to multiple organisations within the community in his local area: s 21A(3)(f) of the Sentencing Act

70. I accept that the defendant is very unlikely to reoffend as it has undertaken significant changes, and now is even more focussed than before on the health and safety of its workers: s 21A(3)(g) of the Sentencing Act.

71. I accept that the defendant has demonstrated a very strong commitment to workplace safety, and therefore has very good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.

72. The affidavit of the defendant which became exhibit 1 deposes to the enormous impact that this incident has had on him. He tried to throw himself into harm’s way to protect his nephew. Mr Kadour tragically suffered horrendous injuries.

73. I accept that the defendant has demonstrated its remorse and accepted responsibility for the offence: s 21A(3)(i) of the Sentencing Act. At pars 26-28 of exhibit 1 (incorrectly numbered in the affidavit) under the heading Expressions of remorse and contrition, the defendant states as follows:

“26   I acknowledge the seriousness of the offence and accept full responsibility for the failures that led to the incident.

27   I deeply regret the harm caused to my nephew Abdal Rahman Kadour and have expressed my sincere apologies to him and his family.

28   The incident involving my nephew was extremely traumatic for my entire family. As a result of this terrible event, a significant rift developed within the family, leading to a period where my sister, brother-in-law, and nephews were not speaking to me or my family. This separation was deeply painful and distressing for all involved.

25   Approximately four months ago, Abdul and my brother-in-law extended their forgiveness to me. Since then, we have reconciled and have begun to rebuild our familial bonds. We now visit each other’s homes 1 to 2 times per week, sharing meals and enjoying barbeques together.

26   These gatherings are precious to me, and I cherish the moments spent with my family.

27   the incident has had a profound impact on me personally and professionally. I have taken this matter very seriously and have committed to ensuring such an incident does not occur again.”

74. I accept that the impact of the incident on the defendant has been very significant, and I cannot imagine how he must feel knowing that Mr Kadour was so seriously injured on his first day working with the defendant. In these circumstances, I do not believe that specific deterrence is something that is appropriate in these circumstances, as the defendant has suffered enormously, and safety is now a priority for the defendant.

75. The defendant co-operated with SafeWork NSW during its investigations: s 21A(3)(m) of the Sentencing Act.

76. The defendant entered a plea of guilty to the Amended Summons at an early stage of the proceedings. Such a plea of guilty demonstrates remorse, and I will allow a deduction of 25% for the utilitarian value of the plea in accordance with the principles set out in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and s 21A(3)(k) and s 22 of the Sentencing Act.

77. The issuing of costs against a defendant in both criminal and civil proceedings is not punitive, but rather compensatory to the prosecution:  Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543 (Mason CJ).

78. However, given the objective seriousness of the offending and the requirement for general deterrence, the fine must be such that it satisfies all of the relevant sentencing considerations.

79. On the basis of the totality of the documents before me, I propose to exercise my discretion under s 6 of the Fines Act 1996 and afford the defendant some leniency.

80. The court is entitled to take into account the fact that the defendant will be liable to pay the prosecutor’s costs when considering any monetary penalty to be imposed on the defendant, particularly in circumstances where there is evidence of a limited capacity to pay a fine, and I have done so.  Costs payable to the prosecutor are the “normal” rule as the prosecutor has been successful, although there can be exceptions: see for example, Bulga.

81. The court can also have regard to the defendant’s own costs that it will have to bear as a consequence of a breach of the WHS Act, and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78].

Penalty

82. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine is $80,000 and that will be reduced by 25% to reflect the plea of guilty.

3. Accordingly, I order the defendant pay a fine of $60,000.

4. Pursuant to Section 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

5. Pursuant to Section 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, as agreed or assessed.

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Amendments

24 March 2025 - Amendments to Orders 2 and 3

Decision last updated: 24 March 2025