SafeWork NSW v AKA Civil Australia Pty Limited

[2020] NSWDC 48

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v AKA Civil Australia Pty Limited; (No. 3) [2020] NSWDC 48

Hearing dates:

9 March 2020

Date of orders:

16 March 2020

Decision date:

16 March 2020

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   The offender AKA Civil Australia Pty Limited is convicted.
(2)   The appropriate fine is $200,000 but that will be reduced by 20% to reflect the plea of guilty.
(3)   Order the offender AKA Civil Australia Pty Limited to pay a fine of $160,000.
(4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
(5)   Order the offender AKA Civil Australia Pty Limited to pay the prosecutor’s costs.

Catchwords:

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

 

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty

 

COSTS – prosecution costs

  OTHER – collapse of brick wall during demolition work – bricks, scaffolding and power lines fell onto main road – no adequate risk assessment, demolition plan or supervision

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
Fines Act 1996 (NSW), ss 6, 122
Occupational Health and Safety Regulation 2001 (NSW), cll 320, 325
Work Health and Safety Act 2011 (NSW), ss 3, 19, 32,
Sch 18B

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51
Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Wilkinson (No. 5) [2009] NSWSC 432
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:

Australian Standard AS 2601-2001 “The Demolition of Structures”
Safework NSW “Guide for applicants for demolition licences and notifications” (December 2015)
NSW WorkCover “Demolition Code of Practice” (July 2015)
Safework Australia “Managing the Risks of Plant in the Workplace” Code of Practice (July 2014)

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
AKA Civil Australia Pty Limited (Defendant)

Representation:

Counsel:
T. Hammond (Prosecutor)
S. McIntosh (Defendant)

  Solicitors:
SafeWork NSW (Prosecutor)
HWL Ebsworth (Defendant)

File Number(s):

2017/379759

Judgment

1. AKA Civil Australia Pty Limited (AKA) has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19(2) of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed other persons to a risk of death or serious injury contrary to s 32 of the Act.

2. In par 12 of the Amended Summons dated 16 December 2019 the prosecutor pleaded that AKA failed to take one or more of the following reasonably practicable measures to eliminate or minimise the risk to health and safety in relation to the demolition site:

“(a)   Prior to commencement of demolition of the Building, undertaking an adequate risk assessment to identify the reasonably foreseeable risks and hazards associated with the demolition of the front facade masonry wall and to identify the risk control measures to address the risk, including but not limited to the measures set out at paragraphs 12(b) to (d).

(b)   Developing, implementing and enforcing, a system of work for the demolition of the front facade masonry wall prior to commencing demolition of the front facade masonry wall which was to:

i.   demolish the second storey of the front facade masonry wall in a safe manner after proper and appropriately documented consideration of alternative methods such as hand demolition, in whole or in part, using hand held tools, for example picks and/or sledge hammers.

(c)   Developing, implementing and enforcing a detailed demolition work plan which complies with clauses 2.3 (d), (e), (f), (h), (i), (j) and (I) and clause 3.1.2 of the Australian Standard 2601 - 2001 ‘Demolition of Structures’ in relation to the demolition work and demolition activities prior to commencement of demolition.

(d)   Confirming that a qualified and experienced nominated demolition supervisor, who is named on the Restricted Demolition Licence, is present at the demolition site during demolition work.

(e)   Providing, adequate verbal instruction to those workers involved in demolition work and associated demolition activities, in particular in the operation of the demolition equipment inclusive of the excavator in the processes and procedures identified at paragraph 12(a), (b) and (c) above, in particular site specific guidance.”

3. The maximum penalty for the offence is a fine of $1,500,000.

Background

4. The parties presented an Agreed Statement of Facts and this material is summarised below.

5. Mr Michael Abou Antoun was the sole director and shareholder of AKA and Mr Andre Abou Antoun (Mr Antoun) was the General Manager of AKA.

6. AKA conducted a business or undertaking in demolition, bulk excavation and civil works. AKA held a restricted demolition licence number AD210280. The following individuals were listed as “nominated supervisors” on the demolition licence:

1. Louis Christopher Grand Paul

2. Antoun Abou Antoun

3. Michael Abou Antoun

4. Laurance Abou Antoun

5. Katia Abou Antoun

7. The demolition licence contained the following notation regarding Licence Holder Obligations:

“A nominated supervisor must be on site at all times while restricted demolition licensed work is carried out... The licence holder must notify WorkCover NSW in writing of any changes in licence or supervisor details within 14 days.”

8. Tepazo Pty Ltd (Tepazo) was the owner of premises located at 390 to 398 Pacific Highway, Lane Cove (the site). The site was approximately 40 metres by 60 metres in size and contained three two-storey buildings located side by side with the front facades facing east onto the Pacific Highway, Lane Cove. On the northern boundary of the site was a commercial building and on the southern boundary were residential and commercial buildings.

9. Tepazo engaged Prime Constructions Pty Ltd (Prime Constructions) as the principal contractor for the Lotus Lane Cove Apartments project, which consisted of a proposed seven-storey residential building with three basement levels.

10. On 26 November 2015 a Subcontract for Demolition and Groundworks (Contract) was entered into between Prime Constructions and AKA with respect to the demolition of the three buildings located on the site.

11. In accordance with the Contract, AKA was engaged to perform demolition work, conduct general site preparation, waste management and disposal (the demolition work) at the site.

12. The Contract specified that Prime Constructions would take possession of the site once the demolition work was completed by AKA. As at 7 January 2016 AKA retained control of the site.

Scope of AKA Works

13. AKA commenced work at the site in November 2015.

14. On 25 November 2015 AKA lodged with SafeWork NSW a notice of intent to commence demolition work with SafeWork NSW (Notice of Intent). The Notice of Intent specified the following individuals as demolition supervisors for the purpose of conducting the demolition work:

1. Mr Michael Abou Antoun

2. Mr Laurance Abou Antoun

3. Mr Louis Christopher Grand Paul.

15. As at 7 January 2016 AKA had in place a demolition plan dated December 2015 in respect of the demolition work (the Original Demolition Plan). In accordance with the Original Demolition Plan, the demolition work involved demolishing the three two-storey buildings on the site.

16. The building located at 390-392 Pacific Highway (the affected building) was the first of the three buildings to be demolished, starting at the back of the building, in accordance with the Original Demolition Plan.

17. The affected building was a two-storey former office building. The front facade of the affected building spanned across 390 and 392 Pacific Highway and was a double brick masonry wall with brick ties which secured the inner brick layer to the outer brick layer of the wall. The front facade had shop front entry doors that faced onto the pedestrian footpath on the Pacific Highway. Asbestos cement sheet was present within the south western and north western areas of the affected building.

18. Located next to the affected building, at 394-396 Pacific Highway, Lane Cove was a two-storey office building formerly used as the Prime Constructions head office (the middle building). The middle building had a steel and concrete frame construction with metal roof cladding, masonry walls, aluminium framed windows and shop front entry doors leading onto the footpath.

19. Separating the front facades of the affected building and the middle building from the footpath was a Class B Hoarding Overhead Protective Structure (Structure), which was 2 metres wide, 2.8 metres high and 42 metres long. The front fascia was constructed with 17 vertical poles (bays) each 2.5 metres apart. The gap between the Structure and the front facade of the affected building was not being accessed by workers on 7 January 2016.

20. The footpath underneath the Structure remained accessible by the public during the demolition work.

21. The Contract specified that AKA was responsible for the placement of scaffolding on top of the Structure. AKA sub-contracted the scaffolding erection and management to Hemisphere Projects Pty Ltd (Hemisphere). Between 11 December 2015 and 14 December 2015, Hemisphere erected scaffolding on top of the Structure running along the length of the affected building and the middle building. The scaffold was 6.5 metres high and 11 bays long. Each bay measured 2.4 metres.

Workers

22. Mr Tony Mitchell was employed by the defendant as a supervisor to manage the site generally and oversee work at the site. He commenced working with AKA in May 2015, had 20 years excavation experience and held a general construction induction training card licence.

23. Mr Taylor Neale commenced working with AKA in November 2015 as an excavator operator. Mr Neale had 6 years experience in excavation and reported to Mr Mitchell.

24. On 7 January 2016 Mr Neale was appointed by AKA as the junior site supervisor, as Mr Mitchell was on leave and not due to return until 11 January 2016.

25. As at 7 January 2016 Mr Mitchell and Mr Neale were not nominated supervisors in respect of the demolition licence nor were they listed as supervisors on the Notice of Intent. Mr Neale and Mr Mitchell did not hold individual demolition licences. None of the nominated supervisors recorded on the demolition licence were on site.

26. Four AKA workers were on site on 7 January 2016. On 7 January 2016 these workers were directed by Mr Neale.

The Incident

27. On 7 January 2016 Mr Neale commenced work at the site at approximately 7.00am.

28. At approximately 10.00am on 7 January 2016 Mr Neale started operating a CAT 349EL 50 tonne excavator (the excavator) from within the site to demolish the front facade of the affected building. Mr Neale was using an excavator bucket measuring 1.6 metres wide by 1.5 metres high attached to the excavator.

29. Mr Neale was operating the excavator and excavator bucket to remove the facade’s inner brick layer from the second storey in sections. He raised the excavator bucket to the front facade wall and used the excavator bucket to separate the inner brick layer from the outer brick layer and pull the inner brick layer back into the site.

30. During this process workers were positioned on the Pacific Highway as “spotters”. The workers stopped demolition works when cars or people were passing by notification through radio (the spotter system). Two spotters were located on the side of the Pacific Highway where demolition was taking place and two were on the other side of the road.

31. At approximately 11.00am, having removed a component of the inner brick layer of the front facade masonry wall of the affected building, Mr Neale raised the excavator bucket toward the remaining outer layer of the second storey component of the affected building’s facade at the end closer to 392 Pacific Highway. The outer layer of the second storey of the front facade of the affected building then collapsed in the direction of the Pacific Highway.

32. The first storey of the affected building also partially collapsed in the process. Some building material and debris fell within the site between the front facade of the affected building and the Structure.

33. With the collapse of the facade wall, the scaffolding located next to the second storey of both the affected building and the middle building collapsed together with some components of the top balustrading of the Structure.

34. The outer layer of the second storey facade wall of the affected building, building material debris and scaffold components fell forward over the Structure and onto two lanes of the Pacific Highway, north bound, closest to the front facade. Included in the building debris were loose brick ties and scaffolding mesh.

35. In the process of the collapse live overhead power lines fell across all four lanes of the Pacific Highway, and there was a disconnection of electrical supply to nearby commercial properties.

36. No persons were injured. At the time of the incident cars and pedestrians had access to the Pacific Highway in front of the workplace. No workers were injured.

37. NSW Police arrived on site to divert traffic at 11.14am. Ausgrid attended to the fallen power lines. At 12.30pm SafeWork NSW arrived at the site. At the time of SafeWork’s attendance the excavator was situated approximately six metres from the collapsed front facade wall of the affected building and the excavator bucket was in a lowered position resting on building debris on the ground within the affected building.

38. Following the incident Mr Alessi, on behalf of Alessi Consulting, inspected the Structure for Total Hoardings Pty Ltd. Mr Alessi determined that in order to bring the hoarding back to a compliant standard the following rectification works would be necessary:

1. The bottom fence would need to be reattached in places once the brick rubble was cleared from behind it.

2. The top balustrade would need to be replaced in sections where it was missing or badly damaged.

3. The columns at the north end of the hoarding would need to be straightened and one column would need its base plate reinstalled.

39. Two lanes of traffic were blocked off north bound while the clean-up process took place. The Pacific Highway was reopened north bound at approximately 1.15pm but the footpath running alongside the site was still undergoing further clean-up.

Systems of Work prior to the Incident

40. The Demolition Scope of Works located within the Original Demolition Plan (Plan) contained a methodology which stated: “Part of the front facade need to be demolished by hand (manually)”. The Plan did not specify the process or methodology for hand demolition.

41. Clause 11 of the Plan stated that the contractor AKA would have a senior representative on site at all times to ensure compliance with the safety guidelines and agreed work methods.

42. Prior to preparing the Plan Mr Laurance Abou Antoun (a nominated AKA Demolition Supervisor) and Mr Mitchell inspected and investigated the site and the buildings on the site which were to be demolished.

43. The Plan did not include details on the structural integrity of the affected building, its structural support systems or the principal materials of its construction.

44. A Safe Work Method Statement for “Demolition, Piling, Earthwork” dated 2 December 2015 (SWMS) was created by AKA. The SWMS was not adequate.

45. The SWMS lists Michael Zaidan and Tony Mitchell on behalf of AKA as the site supervisors.

46. Neither the Plan nor the SWMS consider the effect of brick ties in the front facade masonry wall of the affected building upon the demolition method to be adopted.

47. The assessment in place for workers to use machinery on site was conducted in-house by Mr Mitchell on behalf of AKA.

48. Prior to the incident on 22 November 2015 Mr Neale underwent in-house excavator operator competency training assessed by Mr Mitchell.

49. AKA had in place a Work Health and Safety Policy dated 1 January 2016. In that policy the following was stated: “We recognise that the overall responsibility to provide a safe workplace rests with management, who will be accountable for the implementation of this policy. These responsibilities include ensuring that all WHS policies and procedures are implemented...’’.

50. AKA held toolbox talks with workers and orally discussed the SWMS and demolition methodology. Mr Neale conducted a toolbox talk with the workers on the morning of 7 January 2016. The toolbox meeting record refers to the topic of “demo of front buildings” with the details of the discussion recorded as “traffic and pedestrian control, radio contact”. Mr Antoun had also undertaken site visits prior to 7 January 2016.

51. AKA prepared a Project Management Plan in respect of the demolition work.

Post Incident System of Work

52. Following the incident SafeWork NSW issued the following notices:

1. Prohibition Notice 001174 to cease the demolition of the front facades of the remaining buildings immediately and to investigate appropriate controls for preventing falling objects.

2. Improvement Notice 7-285975 requiring the site to be secured to prevent unauthorised access when construction work is carried out.

3. Improvement Notice 7-285976 requiring the elimination of the risk associated with falls from height on the western side of the site.

53. After these notices were served, AKA arranged for DB Group to reinstate the fallen scaffolding. DB Group installed 10 bays measuring 3 metres wide with raker ties to the gantry and a 4 metre top working platform. DB Group issued a handover certificate to AKA in relation to the new scaffolding on 11 January 2016.

54. In compliance with Improvement Notice 7-285975, AKA also installed barriers along boundaries to the site to prevent unauthorised access.

55. AKA conducted an investigation into the cause of the incident. During the course of that investigation AKA concluded that the scaffolding was unstable and “the brick on the old prime building that was being demolished was found to be extremely weak and brittle, this caused large pieces to fall off together”.

56. The outcome of the investigation was to require further measures including netting, ensuring the scaffolding was secure at all times, and the hand demolition of the front wall.

57. AKA prepared a revised demolition plan dated 11 January 2016 and provided it to Prime Constructions (Revised Demolition Plan). The Revised Demolition Plan included:

“●    The demolition of 390 Pacific Hwy will primarily be done by hand through tools such as sledgehammers, crow bars, jack hammers, etc.

●   The demolition of the wall on 390 Pacific Hwy facing 388 Pacific Hwy above the roofline will have a boom lift going from the front of 388 Pacific Hwy on the footpath reaching to the wall to be demolished by hand, having all the rubble going into the site.

●   The remaining demolition of 394 Pacific Hwy will occur as follows:

◦   The roof of the building be demolished by hand

◦   Front facing concrete panel above windows will be saw cut at the points adjacent to the window panel, pulverised, then any excess rubble will be removed by hand.

◦   The panels on the right and left will then be removed through pulverization and bucket excavators, and rubble will fall into the site.

◦    The front facing facade will have two concrete panels on the left and right of the windows, they will be pulverised down and pulled back into site.”

58. AKA also increased the use of traffic spotters in public areas.

59. Prime Constructions conducted a site inspection post incident. The demolition work at the site was scheduled to be completed approximately 12 weeks after commencement.

Guidance Material

Regulations

60. Schedule 18B Savings and Transitional Provisions of the Work Health and Safety Regulation 2011 provides that Chapter 10 (Licensing of certain businesses) of the Occupational Health and Safety Regulation 2001 (NSW) (OHS Regulation) (except cl 319 (2)) continues to apply as if it had not been repealed in respect of demolition work and restricted demolition work.

61. In accordance with Schedule 18B Savings and Transitional Provisions of the Work Health and Safety Regulation 2011 (NSW) and cl 325 of the OHS Regulation, it is a condition of the demolition licence that, during the carrying out of the licensed work, a person holding appropriate qualifications in relation to the licensed work must supervise the work.

62. In accordance with Schedule 18B Savings and Transitional Provisions of the Work Health and Safety Regulation 2011 and cl 320 of the OHS Regulation, nominated supervisors and site supervisors must have successfully completed SafeWork NSW recognised training with a registered training organisation (RTO). A copy of the certificate or transcript or statement of attainment showing successful completion of the training is required to be submitted with the application.

63. A copy of the Safework NSW “Guide for applicants for demolition licences and notifications” dated December 2015, which contains reference to the matters identified above, was available prior to the incident.

64. AKA did not comply with the above requirements.

Australian Standard

65. Australian Standard AS 2601-2001 “The Demolition of Structures” was available online prior to the incident. Part 9 of the Original Demolition Plan refers to the Australian Standard and states that: “AKA Civil Pty Ltd will ensure the demolition of the building will be conducted in a manner to company with the AS 2601 standard”.

66. Clause 2.1 of the Australian Standard states that:

“Before the commencement of any stripping or demolition work, an initial investigation of the structure and the site shall be carried out in accordance with clause 1.6 and clause 1.7.2.5.

On the basis of this investigation, in conjunction with investigation of the structure and site, a work plan shall be prepared and documented in accordance with Clause 2.3 and submitted for approval.”

67. Clause 2.2.2 of the Australian Standard states that an investigation of the structure shall include “... details of the structure regarding its strength, construction or contents which will influence the selection of demolition procedure given in the work plan”.

68. Clause 2.3 of the Australian Standard states that a work plan shall be prepared by a competent person and shall include, but not be limited to, documentation inclusive of the items contained in clause 2.3. Clause 2.3 also states that “the competent person shall ensure that the proposals contained in the work plan comply with the requirements of this Standard”.

69. Clause 3.1.2 of the Australian Standard states that: “The structure to be demolished and all its components shall be maintained in a stable and safe condition at all stages of the demolition work.... Temporary bracing, guys, shoring or any combination of these, shall be added for stability where necessary... Masonry walls are inherently unstable and controls need to be implemented to effect the removal of the wall without affecting the stability of the remaining wall returns”.

70. Clause 3.4.1.2 of the Australian Standard states that “demolished material shall not be allowed to fall freely outside the structure, unless it is confined within a chute or similar enclosure”.

71. Appendix A of the Australian Standard contains a Demolition Check List for use prior to and during the commencement of demolition work.

72. AKA did not comply with the Australian Standard.

Code of Practice

73. The contract between Prime Constructions and AKA stated that “Codes of Practice are to be strictly complied with”.

74. The NSW WorkCover “Demolition Code of Practice” (Code of Practice) dated July 2015 was in place at the time of the incident and was available online. The Code of Practice states that workers in a supervisory role (for example, a leading hand or foreman) should be experienced and trained in the type of demolition being carried out to ensure the work is carried out in accordance with the SWMS.

75. Clause 2.1 of the Code of Practice states that “the first step in the risk management process is to identify the hazards associated with demolition work. Examples of demolition hazards include unplanned structure collapse and falling objects”. When assessing the risks associated with demolition work cl 2.2 states that consideration should be given to the structure to be demolished and its structural integrity and the method of demolition including its sequencing.

76. Clause 3.1.2 of the Code of Practice states that masonry walls are inherently unstable and controls need to be implemented to effect the removal of the wall without affecting the stability of the remaining wall returns.

77. Clause 4.1 of the Code of Practice states that the building or structure to be demolished and all its components should be maintained in a safe and structurally stable condition so as to prevent the unexpected collapse of part or all of the structure.

78. Clause 5.2 of the Code of Practice states that when plant is used to demolish vertical features such as columns or walls, the columns or walls should not be so high as to create a risk of debris falling onto the plant or operator.

79. AKA did not comply with the Code of Practice.

Managing the Risks of Plant in the Workplace Code of Practice

80. The Safework Australia “Managing the Risks of Plant in the Workplace” Code of Practice dated July 2014 was in place as at the date of the incident. Clause 2.1 of that Code of Practice states that:

“When identifying hazard you should think about all the activities that may be carried out during the life of the plant at your workplace... for each of these activities you should consider whether the plant could:

●    Cause injury due to entanglement, falling, crushing... ”.

External Opinion

81. On 21 November 2017 Mr Robert Brady, a demolition expert, provided an opinion as to the cause of the incident and the correct method of demolition.

82. Mr Brady’s opinion was that by removing one skin of the masonry front wall at a time, the remaining skin of the brickwork became even more unstable. Mr Brady opined that by using this method the risk of an uncontrolled collapse is increased.

The Offender’s Evidence

83. Mr Antoun swore an affidavit on 28 February 2020. He was the General Manager of AKA until his resignation in November 2016. He is AKA’s internal representative in this matter. AKA’s sole director, Mr Michael Abou Antoun, was overseas at the time of the incident and resides overseas at present.

84. Mr Antoun, on behalf of AKA, expressed deep remorse and an unqualified apology for the incident that occurred on 7 January 2016 and for breaching the Act. Mr Antoun accepted on behalf of himself, the sole director and AKA that AKA was responsible for exposing members of the public who were in the vicinity of the demolition site between 10.00am and 11.15am on 7 January 2016 to a health and safety risk.

Nature of AWA activities

85. In his affidavit, Mr Antoun states that no demolition work has been performed by AKA from 20 June 2017 onwards. Prior to this, AKA specialised in both bulk earthworks and demolition work.

Systems of work prior to the Incident

86. Mr Antoun’s affidavit details several safety elements that were incorporated in AKA’s safety system prior to the incident, including risk assessments, induction training, supervisor-employee meetings and the “spotter” system. His affidavit states that an in-person risk assessment was undertaken of the site during December 2015 by Mr Antoun, Mr Laurance Antoun and Mr Mitchell and the pre-incident demolition plan was prepared by both Mr Antoun and Mr Laurance Antoun.

Actions taken after the Incident

87. After the incident, AKA took the following steps:

• Cleared rubble from the Pacific Highway to allow for traffic flow and pedestrian access to recommence.

• Engaged DB Group to reinstate the fallen scaffolding so that it complied with relevant standards, as stated above.

• Developed a revised demolition work plan providing that the demolition works of the remaining buildings and all demolition work was to be done by hand labour using equipment such as sledgehammers, crow bars, jack hammers.

• Increased the use of traffic spotters.

• Increased training and communication to all staff members to ensure implementation of correct procedures and best practice.

• Conducted Toolbox Talk meetings, involving discussions of traffic management, appropriate protective equipment and machinery management, with all personnel on site to enhance site safety.

• Integration of the WhatsApp messenger service to streamline communications between different levels of management.

• Introduction of a camera live feed system costing approximately $500,000 to all plant and vehicles leased by AKA from about February 2016 to allow for proper supervision and monitoring of activities, risk minimisation identification and performance tracking on site.

• Implemented additional documentation procedures, such as sign in sheets and timesheets, to ensure that the people required for particular work tasks are present on site.

• Six months after the incident, AKA purchased an alcohol testing device and implemented mandatory testing for all persons operating plant machinery or equipment.

• One year following the incident, AKA hired a Transport Allocator/Safety Manager at a full-time annual salary between $90,000 and $120,000.

Community involvement and charitable works

88. AKA has a history of providing financial support and sponsorship of various charities, community organisations and local sport clubs.

Consideration

89. I have had regard to the objects in s 3 of the Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Objective seriousness of the offence

90. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

91. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

92. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson(No. 5) [2009] NSWSC 432 at [61].

93. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

94. 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 judgment without any attempt to state precisely how any given factor has influenced the judgment.

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

“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 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 on assessment of all those factors.”

96. Further at par 42 his Honour continued:

“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 little, if any, costs.”

97. At par 53 his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying:

“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 the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting 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 materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

98. My findings about the offender’s level of culpability are based upon the following:

1. AKA should have known of the risk by reason of Guidance Material.

2. It is impossible now to accurately assess the likelihood of the risk occurring. Suffice it to say that the risk was not insignificant, as the wall could have collapsed at any time without warning.

3. The potential consequences of the risk were very serious. Bricks and scaffolding falling across a busy highway, and live power lines were pulled down, created a very dangerous situation.

4. It would have cost very little to take appropriate steps to avoid the risk. The reasonably practicable measures set out in the Amended Summons were steps which should have been taken. Any cost would have been built into the price for the project.

5. There was no particular burden or inconvenience in taking the appropriate steps.

6. Fortuitously no person was harmed.

7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature’s view of the seriousness of the offence.

8. AKA did have a safety system in place. It operated in a potentially dangerous industry. Its demolition plan was deficient. It used the wrong method of demolition. These were all matters very properly conceded by AKA’s counsel. However there was no explanation provided as to why these shortcomings were present. Nor was there an explanation for the absence of a demolition supervisor, or even a proper site manager, on the day of the collapse.

99. I find that AKA’s level of culpability is in the mid-range.

Deterrence

100. The penalty imposed in relation to this offence must provide for general deterrence. Employers must 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 a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

101. The court must consider the need for specific deterrence. AKA is still conducting a business, but no longer performs demolition or excavation work. Its operations now involve a different industry, so specific deterrence is not relevant.

Aggravating Factors

102. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

103. AKA has no record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

104. AKA is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. AKA has been in business for 10 years.

105. AKA is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

106. AKA has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.

107. AKA has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the risk to other persons was caused by its actions.

108. AKA entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. The proceedings were commenced just over two years ago. There were 17 mentions of the matter before the plea of guilty was entered to the Amended Summons in December 2019. It is appropriate to give AKA a 20% discount for an early plea.

109. AKA gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

110. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

111. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

112. There was no submission about capacity to pay, so this issue does not arise.

Costs

113. The parties have agreed to an order that the offender is to pay the prosecutor’s costs.

Penalty

114. My orders are:

1. The offender AKA Civil Australia Pty Limited is convicted.

2. The appropriate fine is $200,000 but that will be reduced by 20% to reflect the plea of guilty.

3. Order the offender AKA Civil Australia Pty Limited to pay a fine of $160,000.

4. Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

5. Order the offender to pay the prosecutor’s costs.

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Decision last updated: 16 March 2020