Safework NSW v Emu Group Pty Limited

[2019] NSWDC 537

District Court

New South Wales

Medium Neutral Citation:

Safework NSW v Emu Group Pty Limited [2019] NSWDC 537

Hearing dates:

2 October 2019

Date of orders:

04 October 2019

Decision date:

04 October 2019

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Emu Group Pty Limited was convicted on 2 October 2019.
(2)   The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty.
(3)   Order Emu Group Pty Limited to pay a fine of $180,000.
(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 Emu Group Pty Limited to pay the prosecutor’s costs agreed in the amount of $24,000.

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 – fall through unprotected void on construction site

Legislation Cited:

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

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
Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313
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
Safework NSW v Ru Dong Li [2018] NSWDC 189
Smith v Broken Hill Pty Co Ltd [1957] HCA 34; (1957) 97 CLR 337
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/New Zealand Standard 1576.1:2010 Scaffolding, Part 1: General Requirements
Managing the Risk of Falls at Workplaces (March 2015)
Managing the Risk of Falls at Workplaces Code of Practice (April 2016)

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Emu Group Pty Limited (Defendant)

Representation:

Counsel:
T Hammond (Prosecutor)
M Scott (Defendant)

  Solicitors:
SafeWork NSW (Prosecutor)
Kekatos Lawyers (Defendant)

File Number(s):

2018/253107

Judgment

BACKGROUND

1. On 16 September 2016 Mr Rzkar Kareem Hamasaeed was working as a painter at 17-21 The Crescent, Fairfield, New South Wales (the workplace). He fell through an unprotected stair void onto a concrete floor and suffered serious injuries.

2. By an Amended Summons dated 3 June 2019 it was alleged by the prosecutor SafeWork NSW that Emu Group Pty Limited (Emu Group), being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the Act) to ensure so far as is reasonable practicable the health and safety of workers while the workers were at work in the business or undertaking, did fail to comply with that duty and the failure to comply with that duty exposed Mr Hamasaeed to a risk of death or serious injury contrary to s 32 of the Act.

3. Emu Group entered a plea of guilty to the charge in the Amended Summons on 3 June 2019 and appeared for sentence on 2 October 2019 when a conviction was recorded.

AGREED FACTS

4. The parties presented a Statement of Agreed Facts (PX1) which is summarised below.

5. Emu Group was a person conducting a business or undertaking (PCBU) as a property developer at the workplace. The workplace was a property development project, which involved the construction of a seven-storey residential apartment complex. Construction commenced in about August 2015.

6. Emu Group was the principal contractor at the workplace. Mr Alaa Alameri, the sole director of Emu Group, was the principal supervisor at the workplace.

Contractors

7. Emu Group engaged Stallion Industries (Aus) Pty Ltd (Stallion) as a contractor to provide painting services at the workplace. Stallion engaged Calm Painting Services (Calm) as a subcontractor to provide painters to conduct painting services. Mr Hamasaeed was employed by Calm as a painter. Mr Hamasaeed was directed by Calm to attend the workplace and conduct painting activities under the direction and supervision of Emu Group.

Supervision

8. Emu Group engaged Mr Budwee Antoun of CRBC Constructions Pty Ltd as foreman to undertake co-ordination and supervision of subcontractors and to liaise with architects and engineers at the workplace. Mr Antoun was required to report to Mr Alameri daily.

9. Emu Group engaged Mr Elaf Faris, a concreter, as a foreman to assist Mr Antoun. Mr Faris was being trained by Mr Antoun to be a supervisor and had no supervisory experience. Mr Faris was required to report to Mr Alameri daily.

10. Neither Mr Antoun nor Mr Faris had the authority to make substantial decisions relating to health and safety.

Open Access to Level Four and Open Penetration at the Stair Voids

11. By 16 September 2016, construction of the seven-storey residential apartment complex had reached level seven. However, considerable work was still required to be done on the lower floors.

12. Level four included six two-storey units that extended from level three to level four. Each unit was connected through an internal stair void.

13. The staircases were scheduled to be installed in the internal stair voids on Monday, 19 September 2016. As a result, during the preceding week the formwork around the level three and level four internal stair voids was being removed in preparation for the delivery and installation of the staircases. The removal of the formwork around the internal stair voids created six open penetrations each approximately 0.95 metres wide by 2.9 metres high.

14. The open penetrations at the stair voids did not have:

1. any fall prevention device installed, such as temporary work platforms

2. any control measures installed, such as barriers (or edge protection) or perimeter guard rails

3. any securely fixed covers installed or

4. any self-closing gates at points of access to stairways or ladders

to prevent persons working around the stair voids from inadvertently falling through the open penetrations.

The Incident

15. On 16 September 2016 at approximately 9.30am, a toolbox meeting was held between Mr Faris and all workers, including Mr Hamasaeed. Mr Alameri and Mr Antoun were not present at the toolbox meeting. Mr Antoun left the workplace before 12 noon.

16. At the toolbox meeting, Mr Faris informed the workers, including Mr Hamasaeed, that gyprock was to be installed on level four and that the painters were not required to work on level four. Mr Faris informed the painters, including Mr Hamasaeed, that they would only be working on level three of the workplace.

17. Mr Faris further informed the workers, including Mr Hamasaeed, that the removal of the formwork on level three and level four would continue throughout the day and that as a result there would be open penetrations at the stair voids. Mr Faris impressed upon the workers that the main safety concern at level three and level four was the risk of protruding nails in the timber works. He did not raise the open penetrations as a safety concern.

18. After the meeting and up to 12pm, Mr Faris, with the assistance of other workers, continued to remove the formwork on level three and level four and applied danger tape across the open penetrations at the stair voids.

19. After the meeting and up to 12pm, Mr Hamasaeed and other workers were moving between level three and level four using the fire stairs to gain access to the higher levels of the workplace. Level four had not been blocked off to prevent access to the open penetrations at the stair voids.

20. By 12pm, open penetrations at the stair voids on four of the six units on level four had been taped with danger tape. However, two open penetrations at the stair voids, being the voids outside unit 425 and the adjoining unit, were not taped with danger tape.

21. After 12pm, workers were continuing to move between level three and level four using the fire stairs to gain access to the higher levels of the workplace. Level four was not blocked off to prevent access to the open penetrations at the stair voids.

22. After 12pm, Mr Hamasaeed proceeded to level four to spray paint the corridor outside unit 425.

23. While spray painting outside unit 425, Mr Hamasaeed fell backwards approximately 2.9 metres, through the open penetration at the stair void, onto the concrete floor on level three.

Injuries

24. As a result of the incident, Mr Hamasaeed suffered serious injuries including a broken arm, fractured skull, fractured eye socket, fractured jaw and a laceration to his face. Mr Hamasaeed has not returned to work.

Systems of Work before the Incident

25. As principal contractor, Emu Group authorised the removal of formwork around the level three and level four internal stair voids before 16 September 2016 in preparation for the delivery and installation of the staircases.

26. As principal contractor, Emu Group did not conduct any risk assessment for working from heights or working near open penetrations at stair voids. In addition, Emu Group did not have a safe work procedure at the workplace for working from heights or working near open penetrations at stair voids and did not conduct a site induction which dealt with working from heights.

27. Stallion provided a Safe Work Method Statement (SWMS) to their workers. Mr Hamasaeed signed the SWMS on 27 July 2016, after he commenced work at the workplace. Stallion provided the SWMS to Calm and Emu Group.

28. The SWMS covered general painting procedures, but did not include spray painting procedures or risks from working near open penetrations at stair voids. It contained no control measures to reduce such risks. Stallion and Calm relied on a site specific SWMS to be provided by Emu Group, and on a site induction by Emu Group, which would focus on site specific issues, such as working from heights or working near open penetrations at stair voids.

Legal Obligations, Codes of Practice and Guidance Material

29. At the time of the Incident, Emu had legal obligations under:

1. Cl 299 of the Work Health and Safety Regulation 2011 (the Regulation). This provided that if a PCBU is carrying out high risk construction work, then before such work commences, it must ensure that a safe work method statement for the proposed work is prepared. Cl 300 of the Regulation requires that the PCBU must put arrangements in place to ensure that high risk construction work is carried out in accordance with the safe work method statement;

2. Cl 34 of the Regulation which required that a duty holder, in managing risks to health and safety, must identify reasonably foreseeable hazards that could give rise to risks to health and safety;

3. Cl 35 of the Regulation which required that a duty holder, in managing risks to health and safety, must eliminate risks to health and safety so far as is reasonably practicable, and if it is not reasonably practicable to eliminate risks to health and safety, minimise those risks so far as is reasonably practicable; and

4. Cl 79(3) of the Regulation which said that, if it is not reasonably practicable to eliminate the risk of falls, a person provides adequate protection against the risk of a fall if the person provides and maintains a safe system of work, by:

1. providing a fall prevention device if it is reasonably practicable to do so, or

2. if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system.

Examples are provided in cl 79(3) for fall prevention systems, such as providing temporary work platforms, providing training in relation to the risks involved in working at the workplace, and providing safe work procedures.

30. Guidance materials providing advice regarding any work involving the risk of a fall was readily accessible and available in the public domain. Such guidance materials included:

1. SafeWork Australia: Managing the Risk of Falls at Workplaces (March 2015) which outlined several ways to control the risk of falls, including implementation of control measures that can minimise a risk of a fall and therefore maintain a safe work environment. These measures included the provision of a fall prevention device (for example, installing perimeter guard rails) if it is reasonably practicable to do so.

Chapter 3.2 recommended that barriers be provided to eliminate the likelihood of a fall, saying:

"Barriers (or edge protection) to prevent a person falling over edges and into holes should be provided on relevant parts of a solid construction. These include:

● the perimeters of buildings or other structures

● mezzanine floors

● openings in floors

● the open edge of a stair, landing, platform or shaft opening."

2. SafeWork NSW: Managing the Risk of Falls at Workplaces Code of Practice (April 2016) (Code of Practice). The Code of Practice said that a PCBU has specific obligations under law to manage the risk of a fall by a person from one level to another, including requirements to:

• ensure, so far as is reasonably practicable, that any work involving the risk of a fall is carried out on the ground or on a solid construction

• provide safe means of access to and exit from the workplace

• minimise the risk of falls so far as is reasonably practicable by providing a fall prevention device, work positioning system or a fall arrest system.

The Code of Practice provided that if a cover is used as a control measure for holes, penetrations and openings, it must be made of a material that is strong enough to prevent persons or objects falling through. The cover must also be securely fixed to prevent any dislodgement or accidental removal.

3. Australian/New Zealand Standard 1576.1:2010 Scaffolding, Part 1: General Requirements, clause 3.10.3 which stated:

"Openings in edge protection at points of access to stairways or ladders shall be adequately protected with gates, or shall be sufficiently distant from working platforms to prevent persons working on such platforms from inadvertently falling through the opening. Gates shall be self-closing and shall not open away from the platform. Gates shall be designed and located to adequately perform the function of the replaced guardrail. Where a gap is temporarily exposed to allow work to proceed, such as loading of materials, cladding, rendering, window fixing, it shall be closed up as soon as practicable."

Systems of Work after the Incident

31. All the open penetrations at the workplace were securely covered with fixed covers. Furthermore, a top rail was installed to protect the open void where Mr Hamasaeed had fallen through.

32. This rectification work took approximately three hours and used materials that were readily available at the workplace.

33. Ten days after the fall, on 26 September 2016, Emu Group held a toolbox meeting with workers and discussed safety rules and safety around void areas at the workplace. At the toolbox meeting Emu Group stated:

1. Workers are not to access the fourth floor;

2. All open voids and penetrations must be securely covered with fixed covers and workers must report any unprotected voids and penetrations;

3. All workers must be inducted to the workplace;

4. All workers must wear appropriate personal protection equipment, including hard hat, boots and glasses; and

5. Any worker who disobeys the rules or puts themselves at risk of falling from heights will be dismissed.

Evidence for Emu Group

34. Emu Group tendered the affidavit of Mr Alameri sworn on 27 September 2019 (DX1). Mr Alameri is a qualified engineer. Prior to developing the site where the accident occurred, Emu Group had financed and developed five other smaller residential sites.

35. On 24 March 2015 Emu Group entered into a Design and Construction lump sum fixed price building contract for the development with Everlast Construction (NSW) Pty Limited (Everlast) and Crosspoint Pty Limited (Crosspoint). On 14 April 2015 Emu Group and Crosspoint entered into a project management Head Contract. The intention of the Head Contract was to delegate the control and management of the development project to Crosspoint.

36. Mr Alameri deposed that Emu Group expected that Everlast and Crosspoint would manage all the work health and safety requirements of the development. To assist in the management of the development by Everlast and Crosspoint, Emu Group engaged Mr Antoun and Mr Faris.

37. The affidavit of Mr Alameri exhibits over 250 pages of work health and safety documents created by Everlast for the project (part of DX2). There were no work, health and safety documents created by Emu Group in evidence.

38. Emu Group entered into a contract with Stallion for it to provide painting services. Mr Alameri’s expectation was that Stallion would engage a supervisor to manage the work health and safety of the parties whom they engaged. Emu Group also expected that painters would be managed by Everlast and Crosspoint, in the same manner as all other workers on site.

39. On the day of the accident, Mr Alameri was not on site. It was his practice to go to the site regularly to see what was happening, but not to provide daily direction. If during his attendance at the site he saw something which he thought was unsafe, then he had the authority to raise that and require that it be corrected. Mr Alameri was not personally aware of Mr Hamasaeed being on site, or the work he was doing, until the accident occurred.

40. The affidavit of Mr Alameri acknowledges that while Emu Group entered into contracts with Everlast and Crosspoint, responsibility in respect of work health and safety for Mr Hamasaeed was held by Emu Group. In his affidavit Mr Alameri sincerely apologised to Mr Hamasaeed for the injuries he suffered on the Emu Group site.

41. The affidavit concluded as follows:

“Emu Group is no longer involved in development activities. I am now retired and facing significant litigation with respect to a development. I am presently short on liquid cash and I face imminent issues with strata and other parties.”

42. Mr Alameri was cross-examined. The contract price for the project at Fairfield was $13,500,000. He was taken to the contracts with Everlast and Crosspoint. He was unable to identify any contractual term which imposed an obligation upon either Everlast or Crosspoint to carry out the work health and safety responsibilities of Emu Group. He was taken to the particular paragraphs of the contracts which he had identified in para 21 of his affidavit. It became plain during cross-examination that he had overstated the purported effect of those clauses. None of them said anything about work health and safety obligations, except that cl 11 of the Head Contract did refer to work health and safety matters, but only in the context of “pre-construction advice”. There was nothing in either contract about Everlast or Crosspoint being responsible for the work health and safety obligations of Emu Group.

43. I found Mr Alameri to be a most unsatisfactory witness. He prevaricated when asked direct questions about his affidavit. The answers he gave were evasive and self-serving. For example, when asked why he swore in para 21 of his affidavit that, in effect, Crosspoint and Everlast had “contractual responsibilities” to undertake all appropriate steps to responsibly manage the safety obligations of Emu Group, he launched into a speech about that being his expectation, but failed to refer to the contract or identify any paragraphs in either contract which imposed such obligations on those companies.

44. I accept the submission of counsel for the prosecution that:

1. there was no evidence that the contracts contained any term requiring Everlast or Crosspoint to take responsibility for the work health and safety obligations of Emu Group;

1. there was no evidence to ground an expectation that Everlast or Crosspoint would carry out the work health and safety obligations of Emu Group;

2. there was no evidence that Emu Group insisted that Everlast or Crosspoint should carry out the work health and safety obligations of Emu Group;

3. there was no evidence that Emu Group took any active steps in relation to work health and safety, and in particular, the risks posed by the voids.

Consideration

45. 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.

Objective seriousness of the offence

46. 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].

47. 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].

48. 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].

49. 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.

50. 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.

51. 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 para 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.”

52. Further at para 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, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

53. At para 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.”

54. My findings about level of culpability of Emu Group are based upon the following:

1. The risk ought to have been known to Emu Group, as a fall through an open penetration on a building site is quite foreseeable and, alarmingly, is a not uncommon accident on building sites. Removal of the stairwell formwork and the lack of covering to protect the voids created obvious and foreseeable risks. Further, it is clear in the Regulations and the guidance material, which are readily available in the public domain, that there was a risk from falls from heights.

2. The likelihood of the risk occurring was quite high. People working at a height are obviously at a risk of falling unless there are measures taken, such as barriers or securely fixed covers installed, to prevent falls from occurring. Workers focussing on the task at hand, in this case painting, are at risk of taking a wrong step and falling through a void.

3. The risk was first created at 9.30am on the morning of the accident.

4. The risk was created directly by Emu Group as it was Mr Faris who removed the formwork in the stair penetrations, thus creating voids through which workers might fall.

5. The potential consequence of falling from a height onto a concrete floor below was the risk of death or the kind of serious injuries which were suffered by Mr Hamasaeed.

6. The available measures Emu Group could have taken to control or eliminate the risks were not difficult or expensive. Control measures to minimise the risk of a fall, such as the provision of perimeter guard rails, or covering holes, penetrations and openings with a material that is strong enough to prevent persons falling through, are not difficult or expensive.

7. The burden of the steps to be taken to control or eliminate the risks was not difficult or expensive. This was highlighted by the fixed covers and top rails to protect the open void being easily and quickly installed after the accident. The rectification work only took three hours.

8. The injuries sustained by the worker were substantial, with fractures of the arm, skull, jaw and eye socket. The consequences to the worker were significant as Mr Hamasaeed has not returned to work. I take into account the matters in his Victim Impact Statement (PX2).

9. 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.

55. Counsel for the defendant submitted that Emu Group had not ignored its statutory obligations, as it had engaged more experienced contractors to carry out the construction and manage the project. However, one of the agreed facts was that Mr Alameri, the sole director of Emu Group, was the principal supervisor at the workplace. Further, it was Emu Group which engaged Mr Antoun as a foreman to co-ordinate and supervise the subcontractors. Emu Group also engaged Mr Faris as a foreman to assist Mr Antoun.

56. I reject the submission that the engagement by Emu Group of Everlast and Crosspoint somehow reduces the objective seriousness of the offence committed by Emu Group. Subdivision 1 of Pt 2 of the Act sets out the principles that apply to duties. Section 14 provides that a duty cannot be transferred to another person. Section 16 provides that more than one person can concurrently have the same duty. Section 16(2) provides that each duty holder must comply with that duty to the standard required by the Act, even if another duty holder has the same duty. Section 16(3) provides that each person retains responsibility for their duty in relation to the matter and must discharge their duty irrespective of any agreement or arrangement purporting to limit or remove the capacity to influence or control the performance of the duty. The Act is thus designed to remove the prospect of a roundelay of finger-pointing and blame-shifting. In spite of the engagement of Everlast and Crosspoint, the obligation of Emu Group to perform the duty imposed by the Act was in no way diminished.

57. Further, nowhere in the contracts between Emu Group and Everlast or Crosspoint did either company undertake any responsibility for the safety obligations and duties of Emu Group.

58. Counsel for the defendant also submitted that the short duration of the presence of the risk (from 9.30am until the time the accident happened) was relevant to objective seriousness. I accept that submission. I take that matter into account in assessing objective seriousness.

59. Counsel for the defendant also submitted that Mr Hamasaeed had been instructed not to work on level four, and further that workers including Mr Hamasaeed had been informed that the formwork was being removed and thus voids would be created. That is so, but I find that it does not reduce the objective seriousness of the offence. As counsel for the prosecutor submitted, a defendant must have regard not only for the ideal worker but for one who is careless, inattentive or inadvertent – Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320. If there is a foreseeable risk of injury arising from the employee’s negligence in carrying out his or her duties then this is a factor which the employer must take into account – Smith v Broken Hill Pty Co Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343.

60. Counsel for the defendant also emphasised that Mr Hamasaeed had fallen through one of the two remaining voids which had not yet been taped with danger tape. I reject the submission that this matter reduces the objective seriousness. To put tape across a void is a completely inadequate precaution. Anyone can step backwards and fall through tape. Taping a void does not comply with any of the prevention methods recommended in the Regulation or the guidance materials referred to above.

61. I find that the level of culpability of Emu Group is in the mid-range.

Deterrence

62. 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].

63. In my decision in Safework NSW v Ru Dong Li [2018] NSWDC 189 I listed 22 judgments of this court, delivered since the start of 2016, which involved a fall from height. Further research, and more recent cases added to that list, show that since the start of 2016, the District Court has delivered sentence in 42 cases involving a fall from height. I repeat what I said at paragraph [47] of my previous decision:

“In the light of that troubling litany of death and serious injury, general deterrence is a very important factor in this case.”

64. Many of the sentences delivered in cases which involve a fall from height involve a traumatic brain injury, often to a young worker. Such injuries are completely preventable. The court must place appropriate emphasis upon general deterrence in cases involving falls from heights.

65. Part of the sentencing process, and one of the objects of sentencing, is to prevent crime by deterring the offender and other persons from committing similar offences – s 3A(b) Crimes (Sentencing Procedure) Act 1999. The District Court publishes on Caselaw each and every sentencing judgment under the Act. Thus the industrial community is informed of the significant penalties imposed for offences under the Act, which in theory should have a deterrent effect on persons other than the offender. Further, additional purposes of sentencing include to denounce the conduct of the offender, and to recognise the harm done to the victim of the crime and the community – s 3A(f) and (g) Crimes (Sentencing Procedure) Act 1999.

66. The penalty must reflect the need for specific deterrence. While Emu Group is presently not conducting a business, it remains registered.

Aggravating factors

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

68. The injuries suffered have already been recited. The Victim Impact Statement of Mr Hamasaeed (PX 2) said that he came to Australia in 2006 and worked for 10 years as a commercial painter until the accident occurred. After the fall through the void he remained in the Liverpool Hospital Brain Injury Unit for six weeks. He had not been able to return to work, do the things he liked such as playing soccer or going to the gym, or do any housework or look after himself properly. He has become socially withdrawn and he is no longer able to meet his responsibilities as a husband or father. He is unfit for all forms of manual employment and he and his family are suffering greatly financially, as they are struggling to survive on reduced workers compensation benefits. The accident has caused him to feel depressed and anxious. He feels worthless and frustrated at being unable to enjoy any aspect of his daily life.

Mitigating factors

69. Emu Group has no record of previous convictions: s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999.

70. Emu Group has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Hamasaeed was caused by its actions. However, there was no evidence that Mr Alameri took any steps to support Mr Hamasaeed or even contact him after the accident.

71. Emu Group 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. It is appropriate to give the offender a 25% discount for an early plea. This is a matter agreed upon by both parties.

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

Capacity to pay a fine

73. 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.

74. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 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.”

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

Costs

76. The parties have agreed to an order that the offender is to pay the prosecutor’s costs agreed in the amount of $24,000.

Penalty

77. My orders are:

1. Emu Group Pty Limited was convicted on 2 October 2019.

2. The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty.

3. Order Emu Group Pty Limited to pay a fine of $180,000.

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 Emu Group Pty Limited to pay the prosecutor’s costs agreed in the amount of $24,000.

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Decision last updated: 04 October 2019