SafeWork NSW v G&Z Form Group Pty Ltd

[2023] NSWDC 177

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v G&Z Form Group Pty Ltd [2023] NSWDC 177

Hearing dates:

09 May 2023

Date of orders:

01 June 2023

Decision date:

01 June 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   G&Z Formwork Pty Ltd is convicted.

2   I impose a fine of $100,000.

3   The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

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

Catchwords:

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

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty

SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999.

Fines Act 1996

Work Health and Safety Act 2011

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
G&Z Form Group Pty Ltd (Defendant)

Representation:

Counsel:
N Read (Prosecutor)
I Taylor SC/R Wathukarage (Defendant)

Solicitors:
Office of the Director of Public Prosecutions (Prosecutor)
Law Corp (Defendant)

File Number(s):

2022/123138

Publication restriction:

None

JUDGMENT

1. G&Z Form Group Pty Ltd (the offender) appears for sentence after pleading guilty to an offence under s 32 of the Work Health and Safety Act 2011 (the Act), that it failed to comply with the health and safety duty it owed pursuant to s 19(1) of the Act and thereby exposed Nader Arnaout to a risk of death or serious injury.

2. The maximum penalty for the offence is a fine of $1.5 million.

Facts

3. The parties tendered an Agreed Statement of Facts that can be summarised as follows.

4. At all material times, Richard Crookes Constructions Pty Ltd (RCC) was the principal contractor for the construction of an aged care facility at 169 Forest Way, Belrose (the project). The project was for the design and construction of a 102-bed facility across four levels, as well as a lower ground carpark and facilities area. The project involved construction of four separate 600 square metre buildings, which were to be linked together by bridges (the link bridges).

5. RCC engaged a number of workers to manage and oversee the construction work at the site. The RCC employees included Carl Jones, Site Manager and Hamish Kearns, Site Foreman.

6. RCC engaged a number of subcontractors to undertake the construction works, including G&Z Form Group Pty Ltd (G&Z), who were engaged to complete formwork and steel fixing.

7. Prime Construction Solutions Pty Ltd (Prime) were engaged to provide crew to operate the tower crane. Prime engaged Ahmed Mourad (director), Bilal Mourad (crane operator) and Nader Arnaout (dogman).

8. On or around 27 February 2020, G&Z commenced work at the site. Before that, the formwork at the site was done by a different formwork contractor. G&Z workers commenced installing formwork at the site using conventional methods, which involved erecting timber joists and bearers and laying plywood formwork decks (the conventional method).

9. The design of the building required columns to be formed at certain places, including in proximity to the link bridges.

10. After completion of the column formwork, the penetrations created in the formwork deck for installation of the columns, were protected using plywood covers secured with nails. The penetration covers were then marked with spray paint to indicate the presence of a penetration. The penetration covers were removed in preparation for steel reinforced columns to be installed.

11. In early April 2020, G&Z commenced using a modular formwork system manufactured by Peri Australia called “Skydeck”.

12. Skydeck is an aluminium slab formwork system consisting of props and square and rectangular shaped panels. The panels are six different sizes, with the largest measuring 1500mm x 750 mm x 120 mm. The panels vary in weight from 5kg to 15kg. The panels clip into the erected props (brace frames) to form a formwork deck.

13. On 2 April 2020, G&Z provided RCC with a construction drawing for the Skydeck Panel Slab Formwork. The drawing indicated areas which were to be infilled around columns using conventional formwork. The notations on the drawing included the statement that, “All conventional formwork handrails and infills are the responsibility of the contractor and must comply with all relevant Australian Codes.”

14. From around April 2020, G&Z workers used unclipped and flipped Skydeck panels in areas of the deck where columns were to be installed. The flipped panels were used as temporary covers for penetrations to allow the column formwork to be constructed from underneath the deck and shuttering the penetration with plywood. The flipped panels were not marked to indicate their purpose as a penetration cover.

15. The process for installing columns in the area using the Skydeck system differed from previous areas using conventional formwork because it involved working with larger penetrations and modular panels of a set size. Conventional formwork was used to shutter around a column where the column reached the overhead deck. Once a Skydeck panel was removed, it created penetrations up to 1500mm x 750mm which required protection until the columns were installed. The penetration remained open for a period to allow shuttering around the column from underneath and from the deck after completion of the column formwork. Once the panels were removed and flipped, both the upper-level deck and the lower-level deck were formwork-only areas which ought to have been adequately marked to separate those areas from the other trades on the site.

16. Prior to the incident on 29 April 2020, the Skydeck system had been used by G&Z on Level 1 between Buildings 2 and 3.

17. From around 27 April 2020, formwork was being constructed in three different areas of the site, including an area in proximity to the Level 2 link bridge (the incident area), where the Skydeck system was being used.

18. The Level 2 link bridge connected Buildings 2 and 3. Prior to 27 April 2020, the incident area had been used as a deck for landing loads of formwork material from the tower crane. G&Z provided information to RCC in relation to what formwork material was to be lifted and to what location at the site, including the incident area. Prior to 27 April 2020, the incident area had been used as a deck for landing loads of formwork material from the tower crane. G&Z provided information to RCC in relation to what formwork material was to be lifted and to which location at the site, including the incident area.

19. On or around 27 April 2020, G&Z workers laid Skydeck panels in the incident area, where columns were to be installed. The area was fully closed with no gaps or voids.

20. On 29 April 2020, G&Z formworkers removed and flipped panels in the incident area covering the penetration in preparation for the installation of columns.

29 April 2020

21. On the morning of 29 April 2020, RCC completed a Safe Work Method Statement (SWMS) Monitoring Form in relation to the works undertaken by G&Z. The form recorded the Skydeck system needed to be incorporated into G&Z’s high risk work SWMS, as the SWMS only dealt with conventional formwork. The Form recorded that no non-conformances were issued as a result of the inspection.

22. On 29 April 2020, the incident area contained two penetrations, each measuring 1500mm x 750mm. The penetrations were inadequately covered by flipped Skydeck panels. Each penetration was covered by two flipped panels placed lengthways across the penetration. The flipped panels were not marked to indicate their purpose as a penetration cover. The precise time that the panels were flipped is not able to be determined on the evidence.

23. The incident area was separated from the incomplete formwork deck under construction by a yellow timber handrail. The purpose of the handrail was to prevent trades, other than authorised formworkers, to access the incomplete deck.

24. On 29 April 2020, the Prime crane crew were assisting loading materials onto the formwork decks. RCC also permitted G&Z to have use of the crane for certain periods to undertake formwork lifts under the oversight of RCC.

25. At approximately 1:15pm, Bilal Mourad was operating the tower crane using the handheld remote. Mr Arnaout was acting as a dogman.

26. Mr Arnaout was instructed by Mr Kearns, RCC Site Foreman, to unload a truck with Skydeck materials.

27. Mr Arnaout had been previously asked by a G&Z formworker to collect a stack of props that had been stripped and move them to the deck in the incident area. Mr Arnaout had been told there was a platform ready where he could put the props down, but that he should not go onto the main deck which was cordoned off by timbers.

28. Mr Arnaout hooked up the stack of formwork props, as requested by the G&Z formworker. Mr Arnaout gave Mr Mourad the coordinates for where the load was to be landed. Mr Arnaout commenced directing the load to its intended destination, the incident area.

29. Mr Arnaout walked to the incident area via a set of scaffold stairs, which had been erected in the gap between the two buildings under construction. The incident area was accessible by walking across the concrete slab of Level 2. The incident area was not separated from other working areas of the site. There were no barriers preventing access to the incident area or signs indicating that formwork was in progress in the area.

30. As Mr Arnaout was attempting to land the load in the incident area, he felt something give way underneath his foot.

31. Mr Arnaout fell through an inadequately protected penetration that was covered by the flipped Skydeck panels. He fell approximately 2.9m and was impaled by a steel reinforcing bar through his left shoulder.

32. NSW Fire and Rescue attended the site and cut Mr Arnaout free from the steel bar. Mr Arnaout was conveyed to Royal North Shore Hospital by Ambulance.

33. Mr Arnaout underwent emergency surgery to excise the steel bar. Mr Arnaout suffered traumatic injuries to his left shoulder/brachial plexus, right femur, lower back and left wrist, thumb and fingers. Mr Arnaout’s injury completely transected his musculocutaneous nerve within the muscle belly corabrachialis. Mr Arnaout underwent further surgery in the form of a reconstruction of his musculocutaneous nerve with a double Oberlin nerve transfer.

34. Mr Arnaout continues to suffer from neuralgia and numbness in his left shoulder, together with lower back pain. As a result of his injuries, Mr Arnaout developed chronic pain syndrome, post-traumatic stress disorder and severe levels of depression and anxiety. Mr Arnaout was certified as having no work capacity from 29 April 2020 to 6 April 2021.

Systems of Work Prior to the Incident

35. Prior to commencing work at the site, G&Z had provided RCC with two SWMSs, a non-high-risk SWMS dated 27 February 2020 and a high-risk SWMS dated 28 February 2020. Both SWMSs were for conventional formwork, not for a modular system such as the Skydeck system.

36. G&Z’s non-high-risk SWMS identified the risk of fall from heights and noted that all penetrations were to be secured, covered and barricaded, and signed as penetrations. The person responsible for implementation of the control was the site foreman.

37. The high-risk SWMS was for the work activity of “Formwork and Formwork stripping”. In respect of the task of erection of formwork frames and installation of decks, the SWMS identified the risk of falls from height and “unsecured penetrations”. The control measures to reduce the risk included the following:

1. That “danger zones[s] and area[s]” be isolated, with warning signs displayed.

2. That all penetrations be secured, covered and barricaded, and signed as penetrations.

3. All penetrations greater that 250 x 250 or 250 diameter to have a “mesh case in”.

38. On or around 1 April 2020, G&Z provided RCC with a “Method Statement” for the installation of the Skydeck system.

39. The Method Statement included a generic “Risk assessment and safe work procedure” dated 2013. The Method Statement had been obtained from the manufacturer of the Skydeck system and had not been amended prior to G&Z providing it to RCC. The Risk Assessment component of the Method Statement did not identify or address the risk of a fall through a penetration in the deck but stated that it was to be used in conjunction with the builder/client’s safe method statements and procedures.

40. Prior to the incident, G&Z did not undertake a risk assessment on the risks associated with the installation of the Skydeck system and how the risks were to be managed. In particular, G&Z did not consider how penetrations in the Skydeck system were to be protected after the change at the site from the use of conventional formwork to the modular formwork system. Prior to, and at the time of the incident, there was no clear methodology for how the larger penetrations would be secured in the Skydeck system. It was intended by G&Z that the panels would only be flipped immediately prior to the forming up of the columns below the panel and the penetration would be shuttered thereafter.

41. As at 29 April 2020, there was no formal process in place for handing over the formwork decks which required G&Z to inspect the decks for hazards, such as inadequately protected penetrations. There was a verbal handover process for decks that were not complete and were to be used for landing loads from the tower crane.

42. Prior to the incident, G&Z had verbally handed over some decks to RCC. However, the handover process did not require completion of a documented handover certificate which verified that the deck was safe for use by other trades.

43. G&Z did not comply with its own SWMSs, which required the penetrations in the formwork decks to be secured, covered and barricaded, and signed as penetrations. The method of work used by G&Z of placing unsecured and unparked flipped Skydeck panels did not provide adequate protection from the hazard for the period of time up until the shuttering around the column was completed.

44. G&Z did not isolate the incident area as a “formwork only” exclusion zone using physical barriers, safety tape and/or warning signs. The incident area was accessible from the Level 2 slab. The timber handrail separated the incident area from the incomplete deck.

45. G&Z did not provide adequate supervision to its workers to ensure penetrations were covered, secured and marked, or that the columns and shuttering took place immediately after the removal and flipping of the Skydeck panels, and that exclusion zones were established in areas where formwork activity was taking place.

46. G&Z had regular toolbox talks and informed the builder of planned works each morning. Through these meetings, workers were informed that they were not to access formwork areas that were cordoned off using physical barriers. However, the incident area was not cordoned off prior to the incident.

Systems of work after the incident

47. After the incident, RCC and G&Z decided to cease using the Skydeck system and to return to using conventional formwork for the project.

48. G&Z, in consultation with RCC, developed and implemented a formal deck handover process for both complete and partially completed decks. The purpose of the partial deck handover process was to ensure the deck was safe for other trades using it as a temporary platform, such as the crane crew.

49. G&Z developed a “Deck Handover Checklist” after the incident, including checking:

1. Whether penetrations were covered with plywood, secured and appropriately marked.

2. Whether column openings were covered.

3. Whether there was a designated area to land materials.

4. Whether there were any areas that needed to be isolated within the area to be handed over, e.g., large penetrations, dangerous or incomplete localised areas.

50. On 30 April 2020, G&Z revised its SWMS for “Formwork and Formwork Stripping” to incorporate the new deck handover process. The revised SWMS incorporated the following relevant controls in respect of unsecured penetrations and other hazards associated with incomplete formwork decks:

1. Steel fixers and all other trades to work only on secured decks where full protections are installed and the formwork decks are handed over.

2. No trades are allowed on the formwork deck before handing over without formwork supervisor supervision.

3. A partial handover can be obtained using the same procedures.

4. A written handover should be submitted by G&Z to RCC before allowing any other trades on formwork decks.

51. In respect of the task of installation of the Skydeck system, the SWMS included the following controls:

1. Labourers installing the system to follow the Method Statement.

2. All voids and leading edges to be secured before handing over the deck to other trades or RCC.

3. All voids to be secured properly by timber and plywood nailed on top.

4. No loose plywood or panels to be lifted on top voids without being nailed.

52. On 30 April 2020, G&Z conducted a toolbox talk where it provided information and instruction to its workers in the revised systems of work.

Offender’s Case on Sentence

53. The offender tendered the following documents:

1. affidavit of Lorraine Dagher (director of G&Z) dated 2 May 2023; and

2. affidavit of Charbel Dagher (general manager of G&Z) dated 4 May 2023.

54. The following is a precis of the evidence relied upon by the offender.

55. G&Z is a family-run business that was started in 2003 by Mr Dagher’s brother and sister-in-law. In 2006, Mr Dagher was promoted to general manager and Ms Dagher began assisting the company with the accounts. The company was incorporated in 2014 and Ms Dagher has been the sole director of the company since then.

56. G&Z is engaged across a wide variety of projects, including residential, commercial and aged care projects for the government and Lendlease. The value of the projects ranges between $500,000 to $5,000,000.

57. The company has nine employees. Of these nine employees, four are family members. The total payroll expenditure for all nine staff was $854,216 for the financial year. Ms Dagher was paid $73,500 for the 2022 financial year and $75,518 from 1 July 2022 to 19 April 2023. Mr Dagher was paid $103,684 for the 2022 financial year, and $90,678 from 1 July 2022 to 29 April 2023.

58. In addition, the company engages the services of 70-80 subcontractors as required. Some of these subcontractors have been regularly engaged by G&Z for the last 15 years.

59. Ms Dagher wrote that there is a strong sense of community within the company.

The project

60. When G&Z commenced work at the site in February 2020, it was using the conventional method for installing formwork. However, at the request of RCC, G&Z began using Skydeck, which was more expensive. The Skydeck system used panels that clip into a modular framing system to create formwork decks, including in the areas of the deck where columns were to be installed. G&Z used modular Skydeck panels which were clipped and secured in place as a deck.

61. The formwork for columns is placed from underneath the formwork deck. The column measurements are marked at the top of the formwork deck and then cut. With the Skydeck system, a panel has to be removed and replaced with timber or joists so that the panels can be cut for the column. Once a column cut-out has been made, it has to be secured with plywood, which is nailed into the top of the existing formwork deck.

62. Mr Dagher set out in his affidavit the seven stages of formwork using the Skydeck system, which are as follows:

1. From underneath the deck, panels are placed facing down. After an exclusion zone is established above, the panels are flipped in the infill area.

2. From beneath the deck, panels are laid facing down until the timber joists are laid.

3. From beneath the deck, timber joists are laid.

4. From above the deck, plywood sheets are fixed on top.

5. From above the deck, a small opening is cut for the column and secured with penetration mesh.

6. From above the deck, cover strips are placed on the gaps between the panels.

7. From above the deck, the edge boards are formed.

63. On 2 April 2020, PERI Australia Pty Ltd provided mandatory supervised training and each formwork employee was signed off on a Training Register. After the initial training session, representatives from PERI attended the site on approximately four to six occasions to observe the equipment being used and to ensure that it was being used properly and answer any questions from the workers.

Work Health and Safety Policies and Procedures Prior to Incident

64. Mr Dagher and Mohamad Elkshabab (Construction Manager) oversaw safety on the site.

65. Mr Dagher attended the site every few days to ensure that the safety policies and procedures were being adhered to. When he was not on the site, Mr Elkshabab was responsible for this.

66. RCC site managers hosted compulsory weekly toolbox talks on site to ensure compliance with the SWMSs. These toolbox meetings were always attended by G&Z employees. In addition, G&Z would also hold weekly toolbox talks and a record of these talks containing the signatures of G&Z workers was annexed to Mr Dagher’s affidavit.

67. In addition, G&Z employees had talks every morning from the site manager or site supervisor about relevant safety procedures and exclusionary zones for the day. These talks ranged from 20–30 minutes each morning.

68. At the time of the incident, the incident area was under G&Z’s exclusive control and an attempt had been made by G&Z to create an exclusion zone through tape, yellow safety handrails and red safety scaffolds. Mr Dagher acknowledged that this was not adequate demarcation of the exclusion zone.

69. On the day of the incident, Mr Dagher was supervising at the site. He had attended a safety walk about one hour before the incident occurred and at this time, he did not notice any flipped and unsecured Skydeck panels in the incident area. He was not aware that any of G&Z’s workers had given instructions to the crane crew to move any props from the incident area.

70. Neither G&Z nor its predecessor company has ever had a major safety incident other than the current one. Mr Dagher stated that G&Z prides itself on safety and annexed an email from Lendlease dated 11 September 2018 commending G&Z for its dedication to safety.

Systems of work after the incident

71. G&Z no longer use Skydeck formwork.

72. Handovers are now written rather than oral, including partial handovers for loading purposes.

73. Toolbox talks now include instructions on how to cover the penetrations, with emphasis upon ensuring that an exclusionary zone is created with clear safety signs.

74. G&Z now lays an extra three timber panels inside the penetration, so that if the penetration covers are lifted, the extra panels offer additional protection against someone who is walking on the penetration falling through.

Capacity to pay

75. Prior to the 2021 financial year, G&Z was able to turn a profit from its usual business activities, with its ordinary revenue being between $7.8-8.5m per year.

76. In the financial year ending 30 June 2021, the company recorded a loss of $45,765 after taxes and total equity was $318,206, which was profit retained from previous years. This was caused by the COVID-19 lockdowns and travel restrictions and the difficulty in finding subcontractors, which meant that the company was unable to take on as many projects as previous years.

77. In the financial year ending June 2022, G&Z made a loss of $837,135, with negative $518,929 in total equity. In this current financial year, there has been little improvement, with G&Z’s accountants expecting that it’s total equity will again be negative at the end of this financial year. The company has made a loss of $510,000 to 31 March 2023.

78. G&Z has had to refinance the company cars, take out loans to cover the costs of the business, delay paying contractors and put in place payment plans to pay off debt to different companies and delay debt payments, including those owed to the Australian Taxation Office. A list of G&Z’s debts and the requisite contributions were set out in Ms Dagher’s affidavit. The total monthly contributions were estimated by Ms Dagher to amount to $63,033.68 per month.

79. The principal asset held by G&Z is the plant and equipment used in the process of completing formwork projects, valued at $1,003,505 in the 2022 financial year. The plant and equipment are essential to G&Z’s operation.

80. Mr and Ms Dagher have also personally invested money into the company. They are experiencing financial strain in their personal lives, with their house currently mortgaged and four dependent children. Further, Mr Dagher’s brother and wife and their child are also currently living with them and providing no financial assistance. Mr and Ms Dagher also financially support family members overseas.

81. Ms Dagher deposed that, if the Court imposes a substantial fine, she and Mr Dagher will have to sell their house and find alternate rental accommodation. They have previously had to do this when they could no longer afford the repayments on their mortgage and this adversely impacted the family. They re-purchased the home when they were in the financial position to do so and have resided in the property since.

82. Ms Dagher has had stress related to her own health in the last year. In May 2022, she was diagnosed with thyroid cancer and Hashimoto’s disease. In July 2022, Ms Dagher underwent surgery in which her thyroid was removed, followed by a course of radiation therapy. She is concerned that stress related to selling the family home will have adverse impacts on her health.

Remorse    

83. The offender has, through Ms Dagher, expressed remorse and accepted responsibility for its non-compliance with its duty and the injury to Mr Arnaout.

Consideration

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

Objective seriousness

85. The offence is objectively serious.

86. The risk of a worker falling through an unprotected penetration was well known to the offender and referred to in its SWMS. It had only recently been introduced to the Skydeck system and it was not incorporated into its SWMS. This was drawn to its attention immediately before the incident. The workers had received training on the Skydeck system from its supplier. The requirement to use the Skydeck system was required by the principal contractor, RCC. The SWMS for conventional formwork was not otherwise deficient in relation to the protection of penetrations.

87. It is unclear from the evidence as to how long the flipped panels were covering the penetration, but it was not a long time. I am satisfied on the balance of probabilities that the danger was created shortly before the incident in order to form up the columns.

88. The offender accepts by its plea that it failed to:

1. conduct a risk assessment for the Skydeck system,

2. adequately cover the penetration;

3. adequately barricade and sign post the work area from other trades;

4. provide adequate supervision of its workers;

5. prohibit entry to the work area until it was safe to hand over;

6. train its workers on an appropriate handover procedure.

89. The steps that the offender could have taken were relatively simple, inexpensive and involved minimal inconvenience. I accept that the features of the Skydeck system and how problems could be remedied were not as well known in the industry as ordinary formwork methods. I accept that some steps were taken, but they proved to be inadequate.

90. The likelihood of the risk coming home was moderate if appropriate steps were not taken.

91. The risk to workers included a risk of death.

92. The injuries suffered by Mr Arnaout were serious. He has continued to suffer pain and disability as a result of the fall. As at 6 April 2021, he had no capacity for work.

93. I have taken into account the maximum penalty for the offence.

Deterrence

94. 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 Ltd v Nash [2016] NSWCCA 37 at [180].

95. There is also a need for specific deterrence. The offender continues to operate a business that poses risks to the health and safety of its workers. I am satisfied that the offender has taken the incident seriously and taken some steps to ensure that a similar incident does not occur in the future.

Aggravating Factors

96. The injury, harm and loss caused by the s 32 offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.  In order for the 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]. The offence does not require an injury to be sustained but only the creation of a risk. In this case, the injuries sustained by Mr Arnaout are sufficient to establish the aggravating factor.

Mitigating Factors

97. The offender did not have a record of prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender’s business has been in operation by the family since 2003, but the offender was only incorporated in 2014.

98. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender took significant steps and worked with RCC after the incident to improve its safety systems at the site.

99. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. I accept the evidence of Ms Dagher and find that the offender has accepted responsibility for its actions and is truly contrite.

100. The offender entered a plea of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. It is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.

101. The offender co-operated with the SafeWork investigation: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

102. I am satisfied on the evidence that the offender has a reduced capacity to pay. The offender’s financial position seems precarious. It has a significant level of borrowings and it seems that Mr and Ms Dagher have contributed all of their available funds into it as working capital. However, the offender still has some capacity to pay a fine over time. It continues to have work and a significant turnover. It has structured its finances to make loan repayments each month and I am confident that it will be able to pay off an appropriate fine over time.

Penalty

103. G&Z Formwork Pty Ltd is convicted.

104. The appropriate fine is one of $240,000 which will be reduced by 25% to reflect the plea of guilty. I will further reduce that fine by reference to the limited capacity to pay.

105. I impose a fine of $100,000.

106. The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

107. I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

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Decision last updated: 01 June 2023