SafeWork NSW v Elcorp Commercial Pty Ltd & Salvatore Treffiletti

[2022] NSWDC 198

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Elcorp Commercial Pty Ltd & Salvatore Treffiletti [2022] NSWDC 198

Hearing dates:

13 April 2022

Date of orders:

7 June 2022

Decision date:

07 June 2022

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   The defendants are convicted.

(2)   The appropriate fine for Elcorp is $400,000.00 and that will be reduced by 25% for the utilitarian value of the plea.

(3)   Accordingly, I order Elcorp to pay a fine of $300,000.00.

(4)   The appropriate fine for Mr Treffiletti is $30,000.00 and that will be reduced by 25% for the utilitarian value of the plea.

(5)   Accordingly, I order Mr Treffiletti to pay a fine of $22,500.00.

(6) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fines imposed are to be paid to the prosecutor.

(7) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, agreed in the sum of $40,000.00.

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 – previous convictions - appropriate sentence – Fines Act 1996 (NSW)

OTHER – s 19(1) of the Work Health and Safety Act 2011 (NSW)

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Fines Act 1996 (NSW)

Work Health and Safety Act 2011 (NSW)

Work Health and Safety Regulation 2017 (NSW)

Cases Cited:

Bulga Underground Operations v Nash (2016) 93 NSWLR 338

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

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

Kirk v Industrial Court (NSW) (2010) 239 CLR 531

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

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 v Grandcity Constructions Pty Ltd [2018] NSWDC 398

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

SafeWork NSW v Poletti Corporation [2019] NSWDC 491

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)
Elcorp Commercial Pty Limited and Salvatore Treffiletti (Defendants)

Representation:

Counsel:
Mr M Scott (for the Prosecutor)
Mr B Hodgkinson SC (for the Defendants)

Solicitors:
Department of Customer Service (for the Prosecutor)
Gillis Delaney (for the Defendants)

File Number(s):

2021/00033135 and 2021/00033160

Judgment

1. On 13 December 2021, Elcorp Commercial Pty Ltd (‘Elcorp’) entered a plea of guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (‘the Act’), being a person conducting a business or undertaking who had a duty under s 19(1) of the Act, to ensure, so far as 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, including Mr Sergio Campos (‘Mr Campos’), to a risk of death or serious injury.

2. On 13 December 2021, Salvatore Treffiletti (‘Mr Treffiletti’) entered a plea of guilty to an offence that being an officer of Elcorp, who had a work health and safety duty under s 27(1) of the Act, to exercise due diligence to ensure that the company complied with its duty under s 19(1) of the Act, failed to comply with his duty and the failure to comply with that duty exposed workers, in particular Mr Campos, to a risk of death or serious injury contrary to s 32 of the Act.

3. Having entered those pleas, Elcorp and Mr Treffiletti are taken to have admitted the particulars set out in Annexure A to the respective Amended Summonses.

BACKGROUND

4. Mr Treffiletti started his own formwork business on 6 January 1982 called ‘Trazmet Pty Ltd’, which operated in Glebe. The company carried out formwork and employed workers on construction companies. The name of the company was changed to ‘Treffiletti Holding Pty Limited’ on 7 June 2000.

5. Mr Treffiletti went on to create other companies which tendered for construction jobs, managed trade creditors, paid accounts and employed workers on the companies’ offsite construction projects. There were a number of other companies that were created to handle other aspects of sub-contracting in the formwork business. These are set out in Mr Treffiletti’s affidavit (Exhibit 1). For convenience, I will refer to this group of companies as the ‘Trazmet Group’.

6. On 31 October 2013, Mr Treffiletti registered Elcorp as a labour hire company for the formwork business. The company employed staff and yard workers at Smeaton Grange. Elcorp is the company that employed Mr Campos as at 7 February 2019.

7. The Trazmet Group employed, off and on, about 200 people. It would also engage sub-contract labour to assist as needed. The nature of the Trazmet Group was to supply, install and remove formwork for major building companies.

8. The Trazmet Group employed workers that worked on construction sites and had work health and safety systems implemented on those construction sites. I accept that this involved the preparation of a WHS management plan outlining the specific tasks that employees were required to carry out at the construction site. This was submitted for review to the building company who approved it or sought amendments. The Trazmet Group also had a site safety officer allocated to the offsite construction project who would implement the WHS management plan, conduct toolbox talks and daily site visits.

9. Elcorp as of 7 February 2019 carried out the role of preparing and storing formwork frames for use on various construction projects. These activities were conducted at Elcorp’s premises at 35 Anzac Avenue, Smeaton Grange in NSW (‘the site’).

10. Mr Treffiletti, as at 7 February 2019, was the sole director and owner of Elcorp.

11. Elcorp’s vehicles would attend its premises for the purpose of having, amongst other things, formwork screens loaded onto them for transport to construction sites or, alternatively, would arrive at the premises carting formwork screens for the purpose of unloading the screens. The screens were moved onto and off the stacks by use of a tower crane. The details of the tower crane are set out in paragraph [16] of the Agreed Statement of Facts (‘ASOF’) for Elcorp.

12. The storage of the screens involved them being stacked one upon the other.

13. On the afternoon of 7 February 2019, the tower crane was being used to move a number of screens. This work involved Mr Antonio Coelho (‘Mr Coelho’) and Mr Campos. Mr Treffiletti was on site and directed Mr Evangelos Chrisos (‘Mr Chrisos’) that some screens should be moved using the tower crane, and asked him to wait to do the task until Mr Campos returned. Mr Chrisos directed Mr Coelho to move the screens using the tower crane.

14. Mr Coelho was a truck driver and held no qualifications regarding the operation of the tower crane. Mr Campos was also a truck driver, and he held no qualifications as a dogman.

15. Mr Chrisos then directed Mr Campos to help Mr Coelho move four screens. Mr Campos started to assist Mr Coelho, who was operating the crane using a remote control from the ground. He then climbed up a pile of screens and stood on the left stack to direct Mr Coelho in the movement of the screens. In the course of so doing, Mr Campos fell between the stacks of screens and screamed for help.

16. Mr Nick Karnavas (‘Mr Karnavas’) ran from the workshop and climbed the stack of screens to assist Mr Campos. It is apparent to me that he did this as this was the way that access to the area above the screens had been previously done, that is climbing, and Mr Karnavas did this to help his workmate.

17. The incident is set out in detail at paragraphs [20]–[35] in both of the defendant’s ASOF.

18. The injuries sustained by Mr Campos were significant. Medical records from Liverpool Hospital (Tab 27 of the Agreed Tender Bundle) describe Mr Campos’ injuries as follows:

‘complex open fracture of the distal tibia and fibula associated with distal tibiofibular diastasis. Comminuted distal fibular fracture with anteromedial angulation and posterior displacement of the lateral malleolus. Several loose bony fragments are within the soft tissue of the calf. Medial malleolus avulsion fracture with medial displacement of the proximal tibia which is exposed externally. Medial malleolus fracture fragment is between the displaced tibia and talus. Left Fibula head non-displaced fracture. Left knee joint effusion. Small haematoma and soft tissue oedema at the lateral aspect of the knee joint.’

19. Mr Campos underwent a surgical procedure on 7 February 2019 and was discharged from hospital on 11 February 2019.

20. On 1 June 2019, Mr Campos returned to work for Elcorp in a part-time capacity and on light duties. He was restricted to a 10kg lifting capacity. He was only allowed to stand for 45 minutes and then rest for a subsequent 5 minutes. He was not allowed to bend or twist and was restricted in his ability to squat. As at 14 months post-incident he was still unable to perform normal duties.

21. Mr Campos made a written victim impact statement dated 1 April 2022. This was tendered in the proceedings and became Exhibit B. It is clearly apparent that Mr Campos has suffered and continues to suffer from significant pain and suffering.

22. His life before the accident was one in which he enjoyed good health and many physically demanding activities and these have been taken from him. Mr Campos has also suffered emotionally by the effects of the accident.

23. Mr Campos has had to undergo further surgical procedures, with little success. This has severely diminished his capacity to earn and this financial burden has impacted his whole family, who are now having to survive on a much tighter budget.

24. Prior to the accident, Mr Campos was the primary carer when outdoors for his son who has a moderate intellectual disability and autism. His ability to do so now is virtually nil, and the family need the assistance of friends and even strangers when outdoors.

25. The effect of this incident has catastrophically changed the life of Mr Campos and his family.

RISK

26. The risk is described in Annexure A of the Amended Summonses in the following terms:

‘The risk was the risk of workers, in particular Mr Campos, suffering serious injury or death by falling from height from a stack of formwork screens and/or being struck by falling or sliding formwork screens while undertaking the task.’

RELEVANT LEGAL OBLIGATIONS & GUIDANCE MATERIALS

27. There was an abundance of guidance material available to Elcorp and Mr Treffiletti. This material is set out in detail in the ASOF, and relies significantly on the Work Health and Safety Regulation 2017 (NSW) (‘WHS Regulation’). Much information can be found online on the SafeWork NSW web page, SW NSW Resource Library the SafeWork ‘Guide to Tower Cranes’, ‘General Guide for Cranes’, and the SafeWork Australia web page.

28. The work carried out was ‘high risk construction work’ within the meaning of clause 291 of the WHS Regulation. As such, the duty holders were required to prepare a Safe Work Method Statement (‘SWMS’) for the work that specifies hazards relating to the high-risk construction work and risks to health and safety associated with those hazards, describes the measures to be implemented to control the risks, and describes how the control measures will be implemented, monitored, and reviewed (clause 299 of the WHS Regulation).

29. Licences were required to carry out high risk work, dogging and tower crane operation.

SYSTEMS OF WORK PRIOR TO THE INCIDENT

30. Details as to the scene at the premises following the incident are set out in the factual inspection report (Tab 3 of the Tender Bundle). In that inspection report, paragraphs [14] and [19] contain the photographs of the screens and the stack of screens relevant to the injuries sustained by Mr Campos.

31. Paragraphs [39]–[96] of the ASOF for Elcorp and paragraphs [39]–[103] of the ASOF for Mr Treffiletti set out the work of Elcorp before the incident and the lack of corrective action taken by Mr Treffiletti.

32. Prior to the incident Mr Coelho was performing dogging duties in that he hooked up and slung the load and inspected the lifting gear. He did not hold a licence to perform dogging work in accordance with s 43 of the Act and clause 81 of the WHS Regulation.

33. At the time of the incident, Mr Campos was undertaking dogging work in that he was directing Mr Coelho in the movement of the load of screens. He did not hold a licence to perform dogging work in accordance with s 43 of the Act and clause 81 of the WHS Regulation.

34. As the work being performed was high risk construction work, it therefore required a risk assessment and a SWMS to be developed. There was neither a risk assessment nor a SWMS.

35. It would appear that it was a routine matter for persons working at the site to climb up the stacks of formwork frames as that method of ascent and descent was considered to be most efficacious. There were no fall restraints or other control mechanisms for working at height provided. Persons performing the work were not trained in working at height.

36. There was no identified system for the performance of the work. Instructions were given by Mr Treffiletti to the yard supervisor, who was qualified and had the appropriate licences to do the work. Mr Treffiletti knew that there were qualified persons to perform the work, but he also knew that there were unqualified people onsite who may have been asked to do the work.

37. It is an agreed fact at paragraph [64] that Elcorp reported that workers at the site were given verbal directions regarding their daily activities and procedures were handed down verbally from previous yard managers. Elcorp reported that workers relied on previous experience and knowledge gained over the years in the daily conduct of their duties. It is that system of work that constitutes part of the breach.

38. Elcorp did not provide workers with a safe means of accessing the stacks and screens and performing the tasks required (ASOF [83]). The system used at the time of the incident required workers to:

1. climb the stacks like a ladder without fall protection;

2. work at heights on top of the stack of screens without fall protection;

3. work underneath a suspended load; and

4. work while the tower crane was in operation in an area where they could be trapped or hit with a falling or sliding object.

39. The ASOF states as follows:

‘[86]   According to Mr Karnavas, he routinely climbed up the stack of screens to conduct work on the stacks, including to assist with a load or to unhook the crane chains from the load when it landed. He used the screens as a ladder and everyone did the same. He climbed up there approximately 3 times a month, depending on the job or project he was working on. He reported that he had been doing it this way for the last 10 years.

1. Similarly, Mr Campos reported that climbing up on the existing bundle of screens was the only way to get the job done and it was the way that it was always done in the past.

2. Mr Christos also confirmed that climbing up the existing bundle of screens was the only way to land screens up high with what they had at the time of the incident.’

STEPS TAKEN AFTER THE INCIDENT

40. SafeWork NSW issued two improvement notices in response to the incident.

41. As a consequence, Elcorp made changes to the business by engaging Construct Safe Pty Ltd to conduct a risk assessment and to develop and implement new procedures, which are set out in detail at paragraph [98] of the ASOF. The changes were extensive and went directly to the issues raised in the summonses.

SENTENCING

42. The penalty to be imposed must be one which will give overall effect to the policy of the 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 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 Act.

43. 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.

44. 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.

45. 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

46. The duty of the defendants require that they ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the defendants had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

47. The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474–5. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offences: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31].

48. The gravity of the offence is determined by the extent of the duty holders’ 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.

49. 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].

50. 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.

51. The Court of Criminal Appeal examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 (‘Nash v Silver City’). Justice Basten at [34], under the heading ‘Assessment of Risk’ said:

‘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.’

52. 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.’

53. 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.

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

55. The defendants’ duties required them to identify risks at the site and to adopt measures to eliminate or minimise them: s 17 of the Act: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [34] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

56. The following matters are relevant to determining the culpability of the defendants:

1. The risks involved in the workers climbing up stacks of formwork screens, balancing on the top of those stacks and directing a crane driver as to the placement of loads are obvious and serious.

2. That risk is plainly exacerbated and made more obvious when the workers in question are not qualified to carry out the particular tasks of controlling the crane and dogging the load.

3. The potential consequences of the risk were catastrophic and included a risk of death.

4. An adequate risk assessment would have identified the gravity of the risk and the need to implement controls and protection against it.

5. The defendants concede there was no identified system for the performance of the work. Despite the work being high risk construction work, and thus requiring a risk assessment and a SWMS, none were created. The methodology utilised for the operating of the cranes was not properly addressed, and that created the risk.

6. Persons performing the work were not trained in working from heights.

7. The likelihood of the risk materialising was reasonably high in circumstances where it was not adequately controlled. There was also a substantial chance that workers could trip when climbing up the stacks of sheets.

8. The extent of Mr Campos’ injuries were significant and he continues to suffer greatly as a result of the injuries sustained in the accident.

9. Mr Treffiletti was the sole director of Elcorp and had an active role in the business, and visited the work sites every day.

10. Whilst the defendants, by their pleas, have accepted their respective breaches and admit that there was no appropriate documentation for WHS at the yard, it is apparent that through the Trazmet Group, the other sites upon which the workers were required to work had significant safety procedures in place. However, this did not extend to the yard at Smeaton Grange where Mr Campos was injured.

57. Mr Treffiletti in addition was the sole director and shareholder of Elcorp, but also of a number of companies in the Trazmet Group which were also involved in the construction industry. The work, health and safety planning and management provided by companies other than Elcorp is typified by the document behind Tab 11 of the Tender Bundle.

58. That document is a WHD Management Plan for a construction project in Queensland. That document demonstrates attention to matters such as risk management, legal requirements including codes of practice, the need for consultation, cooperation and coordination, induction and training including site-specific induction, plant operator competency and working at heights.

59. The contrast between what is set out in that document and what was applied to the site at Smeaton Grange could not be more stark. Therefore, I accept that Mr Treffiletti well knew his obligations pursuant to s 27(1) of the Act.

60. Unfortunately, it seems to me that the Trazmet Group’s work sites were adequately and appropriately complying with the relevant WHS duties. This however, was not the case in the yard at Smeaton Grange. This may have been the situation because there had never been an incident at the yard, and minds had not been turned to the question of safety at the yard. Whilst this is no excuse, I can see how those circumstances arose.

61. Senior Counsel for the defendant made submissions with regard to the overlap between the breach by Elcorp and the breach by Mr Treffiletti. An analysis of the allegations in the Summons and the ASOF supports that submission.

62. I accept that the criminality of Mr Treffiletti and Elcorp is very similar, and I am careful to separate the breaches, so as to not punish Mr Treffiletti twice. Nonetheless, Mr Treffiletti as a director had an obligation to ensure that Elcorp did the things that Elcorp did not do with regard to the health and safety of workers on site which led to the breach.

63. I have taken these matters into consideration when coming to my determination.

64. Employers must take steps to protect workers against risks created by inadvertent conduct of workers in the course of their work, if it is reasonably practicable to do so: SafeWork NSW v Poletti Corporation [2019] NSWDC 491 at [88].

65. 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 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.’

66. 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).

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

• 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: Ibid [34];

• The availability of steps to eliminate or minimise the risk: Ibid [34];

• Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Ibid [34] & [53];

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

• Whether the risk was an obvious or clear one; and

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

DETERRENCE

68. 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.

69. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the Court is to ensure that 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).

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

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

72. General deterrence must be a significant feature of the sentence imposed upon the defendants. 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 working in an industry that necessitates the need to work at height and simultaneously carry out high risk work, dogging work and tower crane operation.

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

74. In relation to specific deterrence, the attitude of the defendants 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 of the defendants to reoffend.

75. Of importance is that, in Exhibit 1, Mr Treffiletti deposes to a number of matters relevant to specific deterrence. At paragraph [48] he states as follows:

‘I accept that Elcorp did not have documented work health and safety systems in place regarding work in the yard at Smeaton Grange at the time of Mr Campos’ incident and that the company should have had in place the same WHS management plan that the other Trazmet companies implemented on our offsite construction projects.’

76. The Trazmet Group are no longer engaged in any formwork or the formwork industry. A number of the Trazmet Group have been put into administration as they were no longer trading. The majority of the equipment that was based at Smeaton Grange yard including the crane, trucks, forklifts, pallet jacks, screens, formwork systems and componentry have been sold.

77. Elcorp is still registered but is no longer trading nor operating in the formwork industry. Mr Treffiletti intends that Elcorp will be put into administration following the conclusion of these proceedings, including the payment of any fine imposed.

78. Mr Treffiletti is personally no longer involved in the formwork industry and he has resigned from directorships in the Trazmet Group and is in the process of resigning from all directorships.

79. The chances of Elcorp or Mr Treffiletti re-offending are highly unlikely, and this is an important factor that I have taken into account in coming to my determination.

AGGRAVATING FACTORS

80. The injury, harm and loss caused by this offence was substantial: s 21A(2)(g) of the Sentencing Act. For an aggravating factor to be established, I must be satisfied beyond a 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)

81. It is not necessary that an injury occurred for the offence to be established, the creation of a risk is sufficient. In this circumstance, Mr Campos was seriously injured and has been left with significant impairments that will no doubt trouble him for the rest of his life. Mr Coelho was also exposed to the risk, but fortunately was not injured.

82. In Nash v Silver City Drilling NSW Pty Limited at [43], his Honour Justice Basten stated as follows:

‘Of the relevant aggravating factors, one is an offence which involves “a grave risk of death to another person or persons”. This factor is satisfied in the present case. However, as exposing an individual to risk of death or serious injury is an element of the offence, there are limited circumstances in which the aggravating factor can operate with respect to an offence under s 32 of the Work Safety Act. It is also an aggravating factor if “the injury… caused by the offence was substantial”. In this case the injury caused to Mr Kuypes was very substantial. Although the injury was a manifestation of the risk, it was a risk which was an essential element of the offence, and not its manifestation. Accordingly, it is appropriate to take the nature and extent of the injury into account as an important aggravating factor.’

83. There are no further aggravating factors.

MITIGATING FACTORS

84. The defendants co-operated with the SafeWork investigation: s 21A(3)(m) of the Sentencing Act.

85. The defendants have no previous convictions: s 21A(3)(e) of the Sentencing Act.

86. The defendants entered pleas of guilty on 13 December 2021, and as such these early pleas are a mitigating factor: s 21A(3)(k) of the Sentencing Act.

87. The defendants tendered the affidavit of Mr Treffiletti dated 5 April 2022, which became Exhibit 1. Mr Treffiletti was not required for cross-examination.

88. I accept that on the basis of what is contained in the affidavit, which is unchallenged, that the defendants are of good corporate character as evidenced by the extensive assistance given to charity and individuals: s21A(3)(f) of the Sentencing Act.

89. Similarly, having read Mr Treffiletti’s affidavit, I accept that the defendants have expressed genuine remorse and contrition: s21A(3)(i) of the Sentencing Act.

90. As set out in paragraphs [35] and [36] the defendants have taken sound steps to ensure safety at the remaining premises they operate. I accept that the defendant has good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.

91. The defendants entered pleas of guilty early, and the prosecutor submits it is open to me to find that the defendants are entitled to the maximum discount on that basis. Thus, I will allow the deduction of 25% for the utilitarian value of the pleas in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383: s 21A(3)(k) of the Sentencing Act.

92. The appropriate fine for Elcorp is $400,000.00. the appropriate fine for Mr Treffiletti is $30,000.00. Both defendants are entitled to a discount of 25% for the early pleas.

PENALTY

93. I make the following orders:

1. The defendants are convicted.

2. The appropriate fine for Elcorp is $400,000.00 and that will be reduced by 25% for the utilitarian value of the plea.

3. Accordingly, I order Elcorp to pay a fine of $300,000.00.

4. The appropriate fine for Mr Treffiletti is $30,000.00 and that will be reduced by 25% for the utilitarian value of the plea.

5. Accordingly, I order Mr Treffiletti to pay a fine of $22,500.00.

6. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fines imposed are to be paid to the prosecutor.

7. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, agreed in the sum of $40,000.00.

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Decision last updated: 07 June 2022