SafeWork NSW v Aland B & W Pty Ltd

[2024] NSWDC 33

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Aland B & W Pty Ltd [2024] NSWDC 33

Hearing dates:

12 February 2024

Date of orders:

20 February 2024

Decision date:

20 February 2024

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1) The defendant is convicted.

(2) The appropriate fine for the offence is $300,000.00 and that will be reduced by 25% to reflect the plea of guilty.

(3) Accordingly, I order the defendant to pay a fine of $225,000.00.

(4) Pursuant to s 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 in the sum of $27,000.00.

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 – maximum penalties

COSTS – prosecutor’s costs

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Fines Act 1996 (NSW)
Work Health and Safety Act 2011 (NSW)

Cases Cited:

Bulga Underground Operations v Nash (2016) 93 NSWLR 338

Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610

Environmental Protection Authority v Barnes [2006] NSWCCA 246

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

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

Latoudis v Casey (1990) 170 CLR 534

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

Markarian v The Queen (2005) 228 CLR 357

Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117

Muldrock v The Queen (2011) 244 CLR 120

Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

Orbit Drilling v The Queen (2012) 35 VR 399

R v Cage [2006] NSWCCA 304

R v MA [2004] NSWCCA 92

R v Miria [2009] NSWCCA 68

R v MMK [2006] NSWCCA 272

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

SafeWork NSW vGrandcityConstructions Pty Ltd [2018] NSWDC 398

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

Veen v R (No 2) (1988) 164 CLR 465

WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700

WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Aland B & W Pty Ltd (Defendant)

Representation:

Counsel:
Mr D Nagle (for the Prosecutor)
Mr R Ranken (for the Defendant)

Solicitors:
Department of Customer Service (for the Prosecutor)
Sparke Helmore Lawyers (for the Defendant)

File Number(s):

2022/251309

JUDGMENT

1. On 24 August 2020 at 361-363 Bernera Road, Edmundson Park in NSW, Aland B & W Pty Ltd (‘the defendant’), being a person conducting a business or undertaking (‘PCBU’) who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (‘the WHS Act’), to ensure, so far as is reasonably practicable the health and safety of workers engaged by it while the workers were at work in the business or undertaking, did fail to comply with that duty and such failure exposed Mohammad Hoque to a risk of serious injury contrary to s 32 of the WHS Act.

2. The maximum fine for the offence is $1,766,130.00.

3. The defendant entered a plea of guilty to an Amended Summons on 10 July 2023.

4. The Prosecutor tendered a Prosecutor’s Sentence Tender Bundle (‘PSTB’) which became exhibit A. The Prosecutor also tendered an affidavit of Natalie Martin of 8 February 2024 which became exhibit B.

5. The defendant tendered an affidavit of Charbel Nahkle of 8 February 2024 which became exhibit 1.

6. The Prosecutor handed up a document containing the details of the WHS Project Order which the Prosecutor seeks, which was Marked for Identification ‘1’. The defendant consents to the making of the order, and accordingly I made the order on 12 February 2024.

7. The Agreed Statement of Facts sets out the arrangements as between the head contractor and the other entities and sub-contractors engaged for the Project. The summary below sets out the parts relevant to this defendant and the offence charged.

Background

8. The defendant’s business involved the construction of residential and commercial buildings, and was the principal contractor of a project called ‘Project Costello’ (‘the Project’) which involved the construction of 135 residential units at premises located at 361-363 Bernera Road in Edmondson Park, New South Wales (‘the Site’).

9. Alex Meoushy (‘Mr Meoushy’) was engaged by the defendant to supervise the construction of the units at the Site and had complete or partial control of the site. The defendant’s safety manager, Greg Moffat (‘Mr Moffat’) reported to Mr Meoushy.

10. Form Group NSW Pty Ltd (‘Form Group’) carried on a business or undertaking involving the supply of concrete construction services (formwork) and the defendant engaged Form Group to construct, install and dismantle formwork at the site including wall framing systems known as Dincel.

11. Form Group engaged GRD Group Pty Ltd (‘GRD’) as a subcontractor to provide it labourers to install Dincel at the site. Mohammad Hoque (‘Mr Hoque’) was employed by GRD and deployed to Form Group to install Dincel at the Site. Mr Hoque was 58 years old at the time of the incident. He commenced working at the Site on 20 August 2020.

12. Alpha Crane Management Pty Ltd (‘Alpha Cranes’) carried on a business or undertaking involving the provision of crane services. The defendant engaged Alpha Cranes to provide crane services at the Site, including labour, being crane operators and dogmen. Glenn Page (‘Mr Page’) was engaged by Alpha Cranes to undertake dogging work at the Site. As at the time of the incident, Mr Page had approximately 3-4 years’ experience as a dogman.

The work

13. The defendant commenced work at the Site on or around 17 July 2020. On 20 July 2020, a 14-tonne luffing crane tower, Model LR 132, serial number 14273 (‘the crane’) was installed and commissioned on the Site by Strictly Cranes Pty Ltd (‘Strictly Cranes’).

14. Approximately four days prior to the incident, bundles of 6 metre steel reinforcement bars (‘the load’) were delivered to the Site but could not be moved to their required location on the Site due to windy conditions. As such, Mr Meoushy instructed Mr Page and crane operator Mohammad Zoulfikar (‘Mr Zoulfikar’) to delay the lift until the wind had eased.

The incident

15. At approximately 7:00am on 24 August 2020, a concrete boom placement truck (‘concrete truck’) arrived at the Site and was parked in the laneway at the Site at the direction of Mr Meoushy. The concrete truck was parked in an ‘L’ shaped area of the laneway approximately two metres from Building A.

16. Mr Hoque also arrived at the Site at 7:00am and was instructed by Maher Mansour (‘Mr Mansour’) a site foreman/supervisor engaged by Form Group, to resume work he had been undertaking the previous day alongside two other workers: Mohammad Osmand (‘Mr Osmand’) and Mike Abasen (‘Mr Abasen’). Mr Hoque, Mr Osmand and Mr Abasen were continuing with the construction of a Dincel wall system in the laneway along the boundary of Building C under the supervision of Mr Mansour.

17. On the same morning, Mr Page and Mr Zoulfikar were instructed by Mr Meoushy to move the load from the ground level to an elevated deck, approximately two metres above the ground. The load weighed between 2 and 4 tonnes.

18. At approximately 7:30am, Mr Page hooked up the load. Mr Page states that he did not observe any workers in the laneway at that time. Communicating via radio, Mr Page directed Mr Zoulfikar to commence the lift. Mr Zoulfikar lifted the load slowly and ensured it travelled at a walking pace. Mr Page had one hand on the load in order to avoid scratching the concrete truck behind him. A moment later, Mr Page states that he looked up and saw Mr Hoque standing in front of a formwork deck in font of Building C. Mr Page yelled and Mr Hoque to get out of the way, at which time Mr Zoulfikar lost control of the load.

19. The load swung in a pendulum motion and struck Mr Hoque on the right side of his torso, lifting him off the ground and pinning him against the adjacent formwork where he was suspended for approximately 10 to 60 seconds until nearby workers were able to pull him to the ground.

Post incident events

20. Following the incident, Mr Hoque was placed on the ground on top of a pile of steel reinforcement bars.

21. At approximately 7:36am, the defendant’s safety officer Mr Moffat, called emergency services to request that an ambulance attend the Site. Mr Moffat then called Mr Meoushy who made his way to where the incident had occurred and saw Mr Hoque lying on the steel bars.

22. Mr Meoushy formed the view that, based on the fact that Mr Hoque had no visible signs of injury, he had not been seriously injured and therefore did not require an ambulance.

23. Subsequently it became apparent that Mr Hoque was experiencing pain and having trouble breathing, and the workers carried Mr Hoque on a makeshift stretcher to the Site’s first aid shed. Mr Meoushy then made the decision that an ambulance should be called, which Mr Moffat did at 9:05am. An ambulance arrived at the Site approximately 25 minutes later.

24. After Mr Hoque had been transferred to the first aid shed, Mr Meoushy directed the work to commence, including crane work, concrete pumping and formwork activities. The formwork deck against which Mr Hoque had been pinned was rebuilt.

25. Police arrived at approximately 10:30am and observed that the formwork deck had been rebuilt and therefore that the incident site had not been preserved. At approximately 11:16am, Mr Moffat notified SafeWork NSW of the incident, which he reported occurred around 9:00am.

Injuries

26. Mr Hoque was admitted to Liverpool Hospital on 24 August 2020 and discharged on 29 August 2020, and sustained the following injuries:

• Multiple segmental fractures in his right 8^th to 12^th ribs;

• Haematuria;

• Torn rotator cuff which required surgical repair;

• Lower back injury.

27. As at 13 May 2021, Mr Hoque was still receiving treatment for his injuries and was declared unfit to return to work in any capacity by his General Practitioner.

Relevant legislation and guidance material

28. Section 46 of the WHS Act provides:

Duty to consult with other duty holders

If more than one person has a duty in relation to the same matter, each person with the duty must, so far as is reasonably practicable, consult, cooperate and coordinate activities with all other persons who have a duty in relation to the same matter.

29. Referring to s 46 of the WHS Act, the SafeWork NSW Code of Practice ‘Construction Work’ (August 2019) states at page 14:

‘Since various contractors and subcontractors work on the same construction site, their activities are likely to overlap and interact with each other. They each have a duty to protect the health and safety of workers and other persons at the workplace and must therefore consult, cooperate and coordinate activities to ensure each person is made aware of what the others are doing, to identify the hazards and risks and decide who is best placed to take action to control the risks.’

30. The Australian Standard 2550.1.11: Crane, hoists and winches - Sale Use (AS2550.1.11) states at 6.9:

‘Personnel should not approach a crane when it is operating or travelling as there is a danger that they may be struck by the crane or load ... barricades or guarding shall be provided where necessary (page 18).

When loads have to be handled in the vicinity of persons ... the crane operator shall be alert to the possibility of persons being trapped and injured by the movement of the crane or load and exercise caution ... (page 19)’

31. SafeWork Australia's, General Guide for Cranes, dated December 2015, states at page 12:

‘Exclusion zones should be established around cranes and adjoining areas to stop people entering the area and risk being injured by the crane or falling objects. The size of the exclusion zone should be based on a risk assessment.’

Systems of work before the incident

32. At the time of the incident there was not an exclusion zone in place around the crane that was marked out with physical barriers or markings. Workers including Mr Hoque, Mr Osman and Mr Abasen were not informed, prior to commencing working on 24 August 2020, that the crane would be lifting loads in the area in which they were working.

33. On the day of the incident, the defendant relied on an informal system of work based on Dogmen establishing and maintaining exclusion zones by verbally instructing other workers to move out of the crane area.

34. Although the defendant had a subcontractor agreement (‘the subcontractor agreement’) with Alpha Cranes requiring Alpha Cranes to ensure an exclusion zone was in place for every load carried out at the site, it failed to verify that Alpha Cranes had done so.

35. The defendant reviewed and accepted a Safe Work Method Statements (‘SWMS’) submitted by Alpha Cranes, which failed to refer to, or require the use of, exclusion zones.

36. The defendant conducted toolbox talks every Tuesday covering operational and safety topics including ‘Be aware cranes are working overhead’. However, Mr Hoque was not working at the site on any day a toolbox talk was held by the defendant. In any event, the talks were delivered in English. Mr Hoque spoke Bengali and had limited understanding of written or spoken English.

37. The defendant provided site induction and training to workers which were conducted in English. Workers were required to sign a Site Induction Form confirming that they had read and understood site specific SWMS and that they would comply with Site WHS rules and emergency procedures.

38. Mr Hoque states that he was told by the defendant to sign the induction form notwithstanding that he did not understand the contents due to his limited proficiency in English. He further states that the contents of the documents were not explained to him.

39. The defendant did not ensure a formal risk assessment of the task was undertaken by its subcontractors.

40. Alpha Cranes, in accordance with the subcontractor agreement, was required to ensure that an exclusion zone was in place for every lift. Alpha Cranes failed to do so on the day of the incident.

41. Mr Page was inducted by the defendant on 20 August 2020, which confirmed that he had understood the Site’s WHS rules and that he had read the SWMS.

42. Mr Page was also inducted into Simply Crane’s SWMS, which identified a number of hazards including ‘impact with moving plant and machinery’ and provided various control measures including ‘ensure the use of barriers and signage’.

43. The SWMS also identified the following control measures when ‘working around concrete placing booms’ as follows:

When concrete pumps are being operated, ensure work zones are demarcated and barriers are erected according to the site specific needs and tasks undertaken.

Where practicable, crane should not be operated whilst concrete pumping is occurring. If this is not practicable or considered necessary, then the crane spotter/dagger should maintain visual contact with the concrete pump operator and the pour area Communication mechanism (2 way radio) to be in place with the crane operator and spotter.

44. It is agreed in the Agreed Statement of Facts (‘ASOF’) at [61] that Form Group did not enforce its SWMS at the Site. A copy of the SWMS was not provided to Mr Hoque, nor did Form Group provide Mr Hoque with any training notwithstanding that he was under their direct supervision at the time of the incident, that is by Mr Mansour, a Form Group supervisor.

Systems of work after the incident

45. On 24 August 2020, SafeWork NSW issued a Prohibition Notice to the defendant requiring that they cease all crane operations until a safe system of work was developed, that ensured the establishment of an appropriate exclusion zones to prevent unauthorised entry into the crane load risk area.

46. On 25 August 2020, the defendant complied with the Prohibition Notice by:

Updating its site specific WHS Project Management Plant to include a section on ‘Tower Crane Operations’ which documents the requirements that workers should adhere to while operating cranes, including a requirement to ‘establish and barricade off adequate exclusion zones around works where required’.

Conducting a toolbox talk with workers to remind them, inter alia, of the requirement not to enter exclusion zones.

47. The defendant also took the following actions following the incident:

1. Engaged a consultant to assist with WHS management.

2. Implemented a consultation process with contractors on site through the establishment of a WHS committee, comprised of representatives from different contractors on Site where any safety issues can be discussed and resolved. The committee was also tasked with conducting regular site inspections.

3. Ensured that Alpha Cranes reviewed and amended its SWMS to explicitly set out additional control measures to address the risks involved with lifting and moving loads. The defendant also arranged for Alpha Cranes to inform its workers of these amendments, and to ensure that all future work was carried out in accordance with these amendments.

4. Engaged a full time Head of Construction Compliance to manage safety compliance and improve safety outcomes.

5. Provided refresher training to the workers, in particular to Mr Meoushy and Mr Moffat, on incident management, including on what a notifiable incident is, as well as the WHS duties and obligations relating to notifiable incidents. This included delivering a WHS and due diligence presentation to its workers, officers and contractors.

6. Conducted regular seminars and briefings for its workers so that all workers are updated and kept informed of safety issues that may arise on site, or in the construction industry generally.

The Duty

48. The duty relevant to this offence is set out in Annexure ‘A’ to the Amended Summons in the following terms:

‘The defendant had a duty under section 19(1) of the WHS Act, to ensure, so far as was reasonably practicable, the health and safety of workers, in particular Mr Hoque, while they were at work in the business or undertaking.’

The risk

49. The risk relevant to this offence is described in Annexure ‘A’ to the Amended Summons in the following terms:

‘The risk was the risk of workers, in particular Mr Hoque, suffering serious injury or death as a result of being struck, or crushed, or otherwise coming into contact with, objects, namely steel reinforcement bars, being moved by the crane.’

Sentencing

50. The penalty to be imposed must be one which will give overall effect to the policy of the WHS Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the WHS Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the WHS Act.

51. The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’) which include:

1. Section 3A which sets out the purpose of sentencing;

2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and

3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.

52. 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.

53. 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

54. 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 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.’

55. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474–5.

56. The duties of the defendant require that it 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.

57. 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 v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) (1988) 164 CLR 465.

58. 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 (‘Capral Aluminium’) at [81].

59. 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.

60. 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 at [31].

61. 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 [2017] NSWCCA 96 (‘Nash v Silver City’). 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.’

62. 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.’

63. I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [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] NSWCCA 272.

64. The Court is obliged to make an assessment of where on the scale of criminality the offences lie referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]–[18] (Latham J).

65. 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 (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).

66. 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 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 [34];

2. The availability of steps to eliminate or minimise the risk: Nash v Silver City [34];

3. 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 [34] and [53];

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

5. Whether the risk was an obvious or clear one; and

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

67. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the WHS 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 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:

Foreseeability of risk

68. The risk was not simply foreseeable but was foreseen. It was referred to in much of the documentation with regard to this Project.

69. The defendant had a subcontractor agreement with Alpha Cranes, requiring that Alpha Cranes ensure an exclusion zone was in place for every load carried out at the site. Notwithstanding, the defendant reviewed and accepted a SWMS submitted by Alpha Cranes, which failed to refer to, or require the use of, exclusion zones.

70. Operating cranes including moving heavy loads around the site presented a clear danger to persons should they be struck by those loads as Mr Hoque was.

71. The construction industry is a notoriously dangerous industry in part because the industry involves the interaction of humans and large heavy machinery and materials. The circumstances of this offending highlights 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 the site.

Availability and feasibility of measures to control the risk

72. The offending conduct will be more serious if mitigating steps could easily have been taken to eliminate or minimise the risk: Nash v Silver City at [34] and [53].

73. Simple remedial steps were available which would have completely avoided the risk. Here, had an exclusion zone been implemented which could keep people out of the vicinity, the incident is unlikely to have occurred, and nobody would have been put at risk.

74. There was a paper system that called for an exclusion zone, however it was not checked and maintained, nor were the workers trained in its implementation. The defendant bears the obligation to ensure that what is written in the relevant papers is put into place.

75. If the exclusion zone had been done by way of physical barriers such that nobody could get into that area, the risk would have been eliminated. This, in my view is a very simple and inexpensive remedial measure that the defendant failed to take.

76. I accept that this is not a defendant who had no systems in place at all, but the systems that were in place did not specifically refer to cranes. I also accept that there was no deliberate conduct by the defendant to ignore its obligations, and that it did have SWMS in place, but there was a failure on the part of Alpha Cranes to implement the appropriate exclusion zones, and the defendant failed to ensure that they were in place.

77. Nonetheless, the defendant cannot rely on Form Group or Alpha Cranes to take the appropriate steps to guard the safety of workers. This is a non-delegable duty: s 14 of the WHS Act.

78. There is reference to the injuries that Mr Hoque sustained at [41] of the ASOF. The discharge summary from Liverpool Hospital (behind tab 12 in the PSTB) and the Certificate of Capacity (behind tab 13 of the PSTB) suggest that the main injuries were to Mr Hoque’s ribs, and I accept that to be the case. I also accept that Mr Hoque suffered serious injuries, but note that I am only to assess the risk to which he was exposed for the purpose of sentencing.

79. The reasonably practicable measures pleaded against the defendant in the Amended Summons at [13], and accepted by the defendant as part of its plea, would have involved little effort and minimal cost, and this is a factor that increases the objective seriousness of the offences by the defendant.

80. As a consequence of the matters set out above, I am of the view that this is an objectively serious offence. The seriousness of the foreseeable harm to a worker was significant, and the steps available to avoid the risk were straightforward and available to the defendant.

Deterrence

81. 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.

82. 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).

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

84. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016)  93 NSWLR 338 (‘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.’

85. 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 high risk work that is regularly performed in the building industry. Where it is required that work is performed in the vicinity of cranes, the industry must understand that this heightens their responsibility to ensure the safety of workers in such a high-risk environment.

86. 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.

87. 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.

88. 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.

89. Immediately after the incident the defendant undertook very extensive steps to remedy the circumstances in which Mr Hoque had been injured. These are set out at [64] – [66] of the ASOF. The defendant has also consented to the Project Order in the terms submitted by the Prosecutor (MFI ‘1’), which also demonstrates a serious commitment to safety.

90. However, as the defendant continues to operate in the construction industry and employs more than 100 workers, and ‘continues to engage a substantial number of contractors’ (see exhibit 1 at [17]), accordingly specific deterrence should be given significant weight in my determination of the appropriate penalty.

Aggravating factors

91. 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).

92. Ms Hoque suffered serious injuries, and this is an aggravating factor.

93. The defendant’s offending conduct exposed a person or persons to a grave risk of serious injury or death: s 21A(2)(ib) of the Sentencing Act.

94. The Prosecutor submits that Mr Hoque was a vulnerable worker, as English was not his first language, however I note that the ASOF does not disclose his capacity to read and understand English, and I do not view this as an aggravating factor.

Mitigating factors

95. In Haynes v CI & D Manufacturing (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.'

96. The defendant has not been subject to any prior convictions under work health and safety law: s 21A(3)(e) of the Sentencing Act.

97. I accept that the defendant is a corporate citizen of good character and has made significant charitable donations and contribute to the community: s 21A(3)(f) of the Sentencing Act.

98. I accept that the defendant is reasonably unlikely to reoffend (s 21A(3)(f) of the Sentencing Act) as the extensive steps and remedial measures that the defendant has taken after the incident demonstrate its commitment to improving its WHS systems. In particular, the introduction of the SiteOnSite system gives me some comfort that the defendant is reasonably unlikely to reoffend. Mr Nahkle in his affidavit (exhibit 1) at [39] – [58] explains in detail the working of the digital platform.

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

100. I accept that the defendant have demonstrated their remorse and accepted responsibility for the offence: s 21A(3)(i) of the Sentencing Act.

101. The defendant entered a plea of guilty which demonstrates remorse, and the prosecutor submits it is open to me to find that the defendant is entitled to the maximum discount on that basis. Further the defendant entered the plea at an early stage. Thus, 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 & Houlton (2000) 49 NSWLR 383 and ss 21A(3)(k) and 22 of the Sentencing Act.

Costs

102. 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) 170 CLR 534 at 543 (Mason CJ).

103. 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 them, and I have taken this into consideration.

104. 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

105. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine for the offence is $300,000.00 and that will be reduced by 25% to reflect the plea of guilty.

3. Accordingly, I order the defendant to pay a fine of $225,000.00.

4. Pursuant to s 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 in the sum of $27,000.00.

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Decision last updated: 20 February 2024