SafeWork NSW v J and CG Constructions Pty Limited

[2020] NSWDC 614

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v J & CG Constructions Pty Limited [2020] NSWDC 614

Hearing dates:

6 October 2020

Date of orders:

16 October 2020

Decision date:

16 October 2020

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   J & CG Constructions Pty Limited was convicted on 6 October 2020.

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

(3)   Order J & CG Constructions Pty Limited to pay a fine of $180,000.

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

(5)   Order J & CG Constructions Pty Limited to pay the prosecutor’s costs agreed in the amount of $48,000.

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 – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – fall from height over unprotected edge – risk of the dangers posed by the void were known – failure to adequately implement work health and safety management system plan – inadequate fall protection – absence of exclusion zones to prevent or restrict access to risk areas – failure to ensure scaffolds, catch decks and adequate handrails were installed before incident – failure to use individual fall arrest systems prior to the incident

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 30A, 30B, 30E

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32

Work Health and Safety Regulation 2011, cll 78, 79, 300

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

DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566

R v Wilkinson (No. 5) [2009] NSWSC 432

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Safework NSW v Orbit Formwork Pty Limited [2019] NSWDC 685

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316

WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125

Texts Cited:

Australian Standard AS 4494, Temporary Edge Protection

SafeWork Australia, Guide for Formwork and Falsework, July 2014

SafeWork Australia, Guide to Formwork, July 2014

SafeWork Australia, Managing the risk of falls at workplaces Code of Practice, April 2016

WorkCover NSW, Formwork, Code of Practice 1998

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
J & CG Constructions Pty Limited (Defendant)

Representation:

Counsel:
P McEniery (Prosecutor)
M Shume (Defendant)

Solicitors:
SafeWork NSW (Prosecutor)
Seyfarth Shaw Australia (Defendant)

File Number(s):

2019/95601

Judgment

1. On 23 March 2017 Mr Ali Jabur, a 26 year old formwork labourer, suffered multiple fractures, lacerations and muscular injuries after falling six metres from the unprotected edge of a concrete slab floor in a building under construction.

2. J & CG Constructions Pty Limited (Constructions) has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed Ali Jabur to a risk of death or serious injury contrary to s 32 of the Act.

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

Background

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

5. Constructions conducted a business or undertaking which provided specialist construction services for residential developments, multi-storey apartments, commercial construction, and public works.

6. Constructions was the principal contractor for the construction of a 39-room boarding house at 66-68 Barker Street, Kingsford (the Site).

7. As at 23 March 2017 Constructions had 14 direct employees.

8. Mr Mark Santos Guerreiro was the sole director of Constructions. Mr Guerreiro also occupied the formal position of General Manager for the purposes of the Worker Health and Safety Management Plan (the WHSM Plan) for the Site.

9. In accordance with the WHSM Plan, Mr Guerreiro had primary responsibility for the Worker Health and Safety (WHS) management systems which included the following:

1. Maintaining standard documentation, Work Instructions, WHS Procedures, Management System Manuals, Company Policies and any other appropriate documentation;

2. Reviewing organisational relationships as they affected quality, environment, WHS and developing proposals for improvement.

3. Developing, maintaining and reporting on the effectiveness of the WHS management system in place.

4. Assisting with the resolution of all matters associated with quality, WHS and environment.

5. Ensuring that all company activities are carried out in accordance with the applicable statutes, codes of practice and business ethics.

6. Allocating sufficient human, technical and financial resources to enable the company to operate in accordance with the WHS management system and associated procedures, including the appointment of a WHS Co-ordinator who would be responsible for communicating all health and safety requirements to all personnel attending the Site.

7. Reviewing the control of risks and hazards.

8. Chairing and positively contributing to WHS Management Review meetings.

10. Mr Guerreiro visited the Site about once a week.

11. Mr Andrew Pengly was employed by Constructions as the Safety Officer. Mr Pengly was based at another job, and had limited involvement and interaction with the Site where the incident occurred.

12. Mr Phillip Anastassiou was employed by Constructions as the Construction Manager.

13. Mr Reza Ramjerdi was employed by Constructions as its Project Manager at the Site. He was at the Site three to four times each week, for two to three hours at a time. His duties included:

1. maintaining overall safety for the project.

2. managing the design process throughout the duration of the project.

3. managing the tendering process of trades and suppliers for the project.

4. managing the overall budget and cashflow for the project.

5. managing the overall program for the project.

6. managing and maintaining overall quality for the project.

14. Mr Nima Asadi was employed by Constructions as its Site Manager at the Site. He was at the Site at all times, and his duties included:

1. managing and overseeing the day-to-day activities undertaken by sub-contractors and suppliers.

2. providing inductions to all workers commencing work at the Site.

3. managing and maintaining overall on-site safety.

4. managing and maintaining activity sequencing and programs.

5. managing and maintaining overall quality.

15. Mr Anastassiou and Mr Ramjerdi reported directly to Mr Guerreiro. Mr Pengly reported to Mr Anastassiou and Mr Ramjerdi. Mr Asadi reported to Mr Ramjerdi. In addition to this formal reporting structure, there were informal communications between each of these personnel.

Sub-contract with Orbit Formwork Pty Ltd

16. On 26 November 2016, Constructions engaged Orbit Formwork Pty Ltd (Orbit) to undertake the installation of formwork, steel-fixing, concrete placement and finishing at the Site. The sub-contract sum was $390,500 plus GST.

17. Orbit provided formwork, steel-fixing and concreting services for residential, commercial, industrial, civil works and government projects. Mr Mohamad Hamdan was the sole director of Orbit. Mr Hamdan also supervised work undertaken by Orbit when he visited the Site once or twice a week.

18. Mr Wael Omar was employed by Orbit as its Supervisor at the Site and shared supervisory duties with Mr Hamdan.

19. Mr Ali Jabur was employed by Orbit on a casual basis as a formwork labourer. While Mr Jabur held a White Construction Card prior to being employed by Orbit, he had no previous experience as a formworker.

20. Mr Jabur had previously worked for Orbit on one other job site. His first day working at the Site was 23 March 2017. The main duties assigned to Mr Jabur on that day included the stripping of formwork columns.

21. Mr Jabur was a native Arabic speaker, who had very limited English.

The Scaffold

22. Constructions engaged Showcase Hire Pty Ltd (Showcase Hire) to supply and erect temporary scaffolding at the Site. The original planning and design of the scaffold required it to be installed in the return of the building.

23. On 2 February 2017, Showcase Hire undertook an inspection of Levels 1 and 2 of the scaffold, and supplied Constructions with a signed “Handover Inspection of Scaffold” certificate.

24. On 6 March 2017, Showcase Hire undertook an inspection of Level 3 of the scaffold, and supplied Constructions with a signed “Handover Inspection of Scaffold” certificate.

25. Mr Omar noticed that there were parts of the scaffold that were incomplete or insufficient. On 13 or 14 March 2017, Mr Omar took photographs of the scaffold at Level 2 of the building, where there was a gap of 1.17 metres between the return of the building and the adjacent scaffold.

26. Mr Omar raised his concerns about the lack of scaffolding in the return of the building in meetings with Mr Ramjerdi and Mr Asadi on 13 and 14 March 2017. Mr Omar also discussed his concerns about the voids with Mr Hamdan.

27. By an email dated 15 March 2017 Mr Ramjerdi for Constructions requested Mr Pickett of Showcase Hire to provide chain wire and conduct a safety check at the Site. Mr Guerriero, Mr Anastassiou and Mr Asadi of Constructions were copied into that email.

28. In spite of the fact that the exposed edges and lack of scaffolding in the return on Level 2 had been identified, and were known by Orbit as well as Constructions management, work was carried out on Level 2 of the Site by Orbit on the day of the incident.

29. At some point Orbit erected handrails around the return on Level 2. The handrails consisted of a timber beam that was nailed to the formwork column. This was installed about two days before the formwork columns were poured on Level 2.

The Incident

30. On 23 March 2017 at 7.00am, Mr Jabur arrived at the Site to commence work. He was not provided with a site induction.

31. After he arrived, he met with Mr Omar (who could speak Arabic) and discussed the work he would be undertaking at the Site that day. Mr Omar told him that he would be involved in stripping formwork columns on Level 2. Neither Mr Asadi nor Mr Ramjerdi were aware that Orbit would be stripping columns on Level 2 on the day of the incident.

32. As at 23 March 2017, Level 2 of the Site was a concrete slab with formwork columns laid. Level 2 had the following significant features:

1. A return was located at the northern end of the concrete slab. The return, which was a void, measured approximately 2.3 metres in length along the southern side and 1.8 metres in length along the western side.

2. A cement column on the western side of the return ran from the floor to the ceiling. The column was about 835mm from a metal formwork prop that was 500mm from the edge of the void of the return.

3. Positioned to the north of the return was scaffolding that ran along the front of the building. The gap between the form deck and the scaffold was 1.17 metres.

4. The drop from the Level 2 lower floor to the basement level was approximately six metres.

33. Mr Omar did not check whether Mr Jabur had been provided with a site induction.

34. Mr Omar did not provide Mr Jabur with any information or training about how to strip the columns. In particular, he did not provide any information about the formwork column on Level 2 which was adjacent to the unprotected edge.

35. Due to his limited English communication skills and relative lack of experience, Mr Omar paired Mr Jabur to work alongside another Arabic speaking worker, Mr Mohamed Akram. Mr Akram usually worked as a truck driver and was not an experienced formworker.

36. Between approximately 7.00am and 9.15am, Mr Jabur worked alongside Mr Akram on Level 2. Together, they stripped five formwork columns during that time.

37. At approximately 9.15am they started stripping the sixth column. This particular column was the one adjacent to the unprotected gap between the return on the building and the scaffold.

38. The column had timber beams supporting it and was fixed to the lift shaft. As Mr Jabur was removing the supporting timber beams, he fell off the unprotected edge and landed on a concrete slab on the lower ground floor more than six metres below.

Injuries

39. Mr Jabur was transported to St Vincent’s Hospital, having sustained major trauma injuries caused by the fall including multiple fractures, lacerations and muscular injuries.

Systems of Work Before the Incident

40. Since the date when the gap between the scaffold and the edge of the building was identified (about 9 or 10 days before the incident), Constructions did not:

1. Prohibit work in the area of the gap until the risk of a fall from height was controlled.

2. Put an exclusion zone or barricades in place to prevent access to the area.

3. Instruct workers not to work in the vicinity of the gap.

4. Fix the erected scaffold so that there was no longer a gap.

5. Put appropriate fall protection in place.

41. Constructions had developed the WHSM Plan for the job at the Site. The WHSM Plan outlined the risk management processes to be used to identify and control risk. It specified that the Project Manager (Mr Ramjerdi) was responsible for inspecting the Site and conducting risk assessments.

42. Neither Mr Ramjerdi nor anyone else on behalf of Constructions undertook a written risk assessment for the management of the risk of falls for work being carried out at the Site.

43. The WHSM Plan also specified that the Site Manager (Mr Asadi) was responsible for ensuring that sub-contractors complied with their Safe Work Method Statement (SWMS), by monitoring actual activities against those set out in the SWMS. Neither Mr Asadi nor anyone else on behalf of Constructions took steps to assess whether or not Orbit complied with its SWMS.

44. Mr Jabur was not provided with the information and instruction contained in either the Orbit SWMS, or the WHSM Plan.

45. When Mr Jabur fell, he was working in an area where there was a risk of falling more than two metres and there was no fall prevention system in place. It would have been reasonably practicable for Constructions to have ensured that a fall prevention system was in place by:

1. Extending, modifying or moving the existing scaffold so that there was no gap between the scaffold and the building from which a person could fall from height.

2. Putting in place edge protection, fencing or a steel mesh barricade in the area where the erected scaffold did not meet the slab of the building.

3. Installing a catch platform in the area where the erected scaffold did not extend to the slab of the building.

4. Installing individual fall arrest systems, if any of the other measures above did not adequately manage the risks of a fall from height.

Guidance Material

46. Guidance material was available to Constructions advising how to control the risks arising from falling from height while formwork activities were undertaken on the Site. The following guidance material was published and available on the SafeWork NSW website.

Work Health and Safety Regulation 2011 (NSW)

47. Clause 78 “Management of risk of fall” specifically states that a person conducting a business or undertaking at a workplace must manage risks to health and safety associated with a fall by a person from one level to another that is likely to cause injury to the person or any other person.

48. Clause 79 applies where it is not possible to eliminate the risk of a fall to which cl 78 applies. Subclause 3 says that a person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by:

(a)    Providing a fall prevention device if it is reasonably practicable to do so, or

(b)   If it is not reasonably practicable to provide a fall prevention device, providing a work positioning system, or

(c)    If it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable.

49. Subclause 5 defines “fall prevention device” to include:

1. A secure fence.

2. Edge protection.

3. Working platforms.

4. Covers.

50. Clause 300 states that a person conducting a business or undertaking that includes the carrying out of high risk construction work must put in place arrangements for ensuring that high risk construction work is carried out in accordance with the SWMS for that work.

Formwork Code of Practice 1998, WorkCover NSW

51. While the 1998 Formwork Code of Practice was developed based on previous legislation, it is still current and can be relied on to instruct duty holders in how to meet their obligations in relation to formwork.

52. Section 3.2 of this Code of Practice outlines planning practices which a principal contractor should (in consultation with its contractor) employ before commencing formwork on a Site, including:

1. An assessment of the risks involved in carrying out the work.

2. Identifying the most appropriate methods to control any risk of injury. These include safeguards such as guardrail systems (including toeboards), perimeter safety screens and barriers, and fall arrest systems.

3. Providing suitable and safe access to and from the Site including each place of work.

4. Ensuring that all persons carrying out the work have received appropriate training and instruction.

53. Sections 4.1 to 4.3 refer to the prevention of falls, including appropriate methods of edge protection.

General Guide for Formwork and Falsework, SafeWork Australia, July 2014

54. This Guide states that a safe system of work should be followed in the erection of formwork, including:

1. A methodical work sequence where all component connections are secured and tightened as required before progressing.

2. Implementing all required fall and falling object risk control measures such as edge protection and work platforms.

55. At p 12 of the Guide, it is noted that the hazards that may increase the risk of a fall when erecting formwork include “Incomplete work platforms, scaffolds or loose components where work is being done”.

Guide to Formwork, SafeWork Australia, July 2014

56. This Guide refers to open penetrations and notes that these should be protected with edge protection such as handrails, or by securely covering them so no-one can fall through them.

57. It refers to edge protection on a formwork deck, and provides examples where edge protection should be installed:

1. When a leading edge is to be left unattended and entry onto the deck has not been barricaded off.

2. At openings in stairwells or lift shafts.

Managing the risk of falls at workplaces Code of Practice, SafeWork Australia, April 2016

58. Section 4 of this Code refers to “Fall Prevention Devices”. Section 4.1 states that one safety consideration relating to the use of scaffolds is edge protection (hand rails, mid-rails and toe boards) being provided at every open edge of a work platform.

59. At section 4.2 the use of perimeter guard rails is discussed, to provide effective fall protection at “the edges of mezzanine floors, walkways, stairways, ramps and landings” as well as “around openings in floor and roof structures”. It refers to the Australian Standard AS 4994 Temporary Edge Protection for the specifications for guard rails.

58. At section 10.3 the Code specifically refers to how the design and planning stage of construction of buildings or structures for larger projects should involve consultation, co-operation and co-ordination between the builder and other designers to ensure the safe interaction of the different design aspects.

59. The Code further states that this design and planning stage should include:

1. Reducing the risk for those working at heights, by the installation of guard rails to perimeter structural members prior to erection.

2. Sequencing of the work to be performed at heights.

Australian Standard AS 4494 Temporary Edge Protection

62. AS 4994, Temporary Edge Protection relevantly provides:

1. Clause 3.5 - edge protection must be designed so that the forces transferred to the equipment will not cause or enable the edge protection to become detached from the support structure thereby enabling a person to fall from the edge.

2. Clause 3.6.1 - edge protection must not include an opening through which a person can pass inadvertently.

3. Clause 3.6.1 - a barrier must include a top rail, mid-rail and bottom rail.

63. The handrails which Mr Omar for Orbit arranged to have erected on Level 2 around the return edge:

1. contrary to clause 3.5 were not designed so that the forces transferred to the equipment would not cause or enable the edge protection to become detached from the support structure thereby enabling a person to fall from the edge.

2. contrary to clause 3.6.1 included an opening through which a person could pass inadvertently.

3. contrary to clause 3.6.1 did not include a top rail, mid-rail and bottom rail.

64. Constructions did not comply with the available guidance material as there was no adequate fall protection or safe work sequence in place at the time of the incident.

Systems of Work Following the Incident

65. SafeWork NSW issued improvement and prohibition notices to Constructions following the incident. The notices had been complied with by 3 April 2017 when a follow-up visit by a SafeWork NSW Inspector occurred. As a result of those notices, the following actions were taken:

1. Installation of scaffolding, catch decks, handrails and steel mesh barricades to prevent falls from heights in the area where Mr Jabur fell.

2. Installation of catch platforms in the areas where the scaffold did not extend to the slab of the building.

3. Installation of scaffold within voids identified by SafeWork NSW Inspectors.

4. The use of suitable individual fall arrest systems as a final control if any of the other measures implemented did not adequately manage the risks of falls from heights.

5. Review of the SWMS for stripping formwork, with the inclusion of site-specific actions and controls, incorporation of visual aids including photos and further use of bilingual workers to communicate hazards, risks and controls contained within the SWMS.

Evidence for the Defendant

Affidavit of Mark Santos Guerreiro

66. Mr Mark Santos Guerreiro swore an affidavit on 28 September 2020. He has held the role of Managing Director of Constructions since 2007. Constructions is a business that was founded by Mr Guerreiro’s parents in 1994. Mr Guerreiro has worked in the construction industry since 2001 on various construction sites starting as a labourer and trainee while completing his Bachelor’s Degree in Building Construction Management. Mr Guerreiro holds a Certificate III in Occupational Health and Safety, a First Aid Certificate, a building licence and a tower crane licence. He has been involved in managing a diverse range of residential, commercial and public works.

Statement of contrition

67. On behalf of Constructions, and personally, Mr Guerreiro expressed deep regret and remorse for the failures that resulted in the injury and trauma suffered by Mr Jabur, as well as the impact the incident had upon Mr Jabur’s family and friends. He described the incident as one which Constructions considers to be “an unmitigated disaster” and which “has effectively undone most of the good work that my mother, father and myself and our key employees have put into J+CG over many years to establish a well-founded reputation for operating a safe workplace”.

68. He accepted that had the risk elimination or minimisation measures articulated in the Agreed Statement of Facts been taken by Constructions prior to the incident, the risk of serious death or injury to workers would have been prevented.

69. Mr Guerreiro also acknowledged that Constructions was aware of the risk of a fall from heights before the incident. He stated that while they had engaged an expert scaffolding sub-contractor and took a proactive approach to safety on Constructions project sites, the incident revealed that the measures in place to guard against the risk were inadequate.

70. Mr Guerreiro stated that the incident caused Constructions’ management and staff to take a serious look at what they do, how they do it and how it could be improved. He said that Constructions will strive to do what it can to prevent an incident occurring again.

Safety systems and events leading up to the incident

71. Mr Guerreiro was overseas when the incident occurred but he received regular updates. Before flying overseas, Mr Guerreiro said that he was not made aware of any specific problem. He believed that the Constructions site management team had completed scaffolding inspections and that there were some minor issues but they were not critical. He was not aware of the significant gap which created the void where the incident occurred. The agreed work program with Orbit did not reveal that anyone would be working on the floor where Mr Jabur was working on the day of the incident, as it did not include any work at Level 2, including the stripping work being undertaken by Mr Jabur on Level 2a. Constructions expected that no-one would be working on Level 2a until the concrete on Level 3a had set for approximately 21 days to allow the floor to strengthen. Mr Guerreiro said the fact that Mr Jabur was sent to do work on Level 2 without the Constructions team being aware of this, was a significant breach of the sub-contract.

72. Constructions required its sub-contractors to undertake risk assessments, complete Safe Work Method Statements, provide inductions to workers on each site and provide notification when such an induction occurred.

Response after the incident

73. The Site was secured, work was suspended, workers were sent home and SafeWork NSW was contacted. Constructions co-operated with SafeWork NSW’s investigation.

Changes to practices and processes

74. Mr Guerreiro deposed that he believes the changes that have been made following the incident should eliminate the risk on a Constructions worksite.

75. Mr Guerreiro said that there is a now a stronger emphasis placed upon safety in the planning and design of scaffolding and the consultation process with sub-contractors and project teams before construction work begins. There is now a requirement imposed by Constructions in all its sub-contracts that proprietary mobile and temporary metal handrails are to be installed on any leading edges generated during a project.

76. A third-party safety specialist was engaged to design the company’s new safety management system and to provide advice on an ongoing basis on health and safety.

77. Constructions now has a certified Integrated Management System (IMS) in place.

78. Mr Guerreiro said that the introduction of an IMS and the hiring of an IMS Manager to train employees and contractors on how to use the IMS has been very valuable in consolidating policies and procedures and ensuring compliance across the business. The system led to the introduction and implementation of a standing agenda item for safety at team meetings held weekly or fortnightly at the head office. Several topics are covered regularly including high risk works, policy and procedure updates, legislative updates and advancements. The IMS is audited annually.

79. Mr Guerreiro has also introduced a mobile app called “Assignar” to communicate important information to the whole workforce regarding projects, policies and procedures. The “WhatsApp” messaging app has also been used to allow for instantaneous communication between workers and supervisors regarding project issues.

80. Mr Guerreiro set out the financial investment made by Constructions to improve safety following the incident:

1. Development and implementation of an IMS by Benchmark: $12,210.

2. Engagement of Australian Workplace Management safety consultants: $10,175.

3. Salary paid to IMS Manager from 17 July 2017 to 18 May 2018: $90,000.

4. Salary paid to Safety Manager from 1 July 2017 to 4 May 2018: $123,500.

5. Cost of subscription for the Assignar app for 2017 and 2018: $11,145.42.

Affidavit of Joseph Karam Nicolas

81. Mr Joseph Karam Nicolas swore an affidavit on 28 September 2020. Mr Nicolas has been the Constructions Business Development and Operations Manager since January 2019 and has also assumed responsibility for finance and accounts management since March 2020. He holds tertiary qualifications in Commerce and Financial Services. His affidavit primarily deals with financial matters. As will be explained later in this judgment, counsel for the defendant ultimately withdrew the submission made about capacity to pay. It is thus not necessary to summarise the evidence contained in the affidavit of Mr Nicolas.

Consideration

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

Objective Seriousness of the Offence

83. 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].

84. 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].

85. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

86. 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].

87. 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.

88. 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. 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.

89. The Court of Criminal Appeal has 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. Justice Basten at [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.”

90. Further at [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 [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

91. At [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.”

92. My findings about the defendant’s level of culpability are based upon the following:

1. The risk of workers falling from heights on construction is well known. There was ample guidance material available that set out the risks associated with workers undertaking formwork at heights. The risk of a fall from height for any individual working in the vicinity of a void, in the absence of adequate protection such as a catch platform, is obvious and clearly foreseeable.

2. The likelihood of the risk occurring was significant.

3. The potential consequences of the risk were severe and included death and serious injury. It was a six meter fall over the edge of the platform.

4. There were simple and effective steps that Constructions as the principal contractor could have taken to eliminate or minimise the risk. It should have ensured that an appropriate risk assessment was undertaken, prohibited workers from undertaking work on Level 2 until adequate fall protection was in place, undertaken an inspection of the relevant site and ensured that exclusion zones had been set up to prevent or restrict access to areas that posed the risk of a fall.

5. There was no particular burden or inconvenience involved in taking appropriate steps to minimise the risk. There was no evidence that the process of stripping of the formwork would have been hindered if the appropriate protection and controls had been installed. Constructions took several steps after the event to install scaffolds, catch decks and handrails to prevent falls within voids, and use individual fall arrest systems as a final control.

6. The injuries to Mr Jabur were serious, necessitating a lengthy stay in hospital, and later operations.

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

93. I find that Constructions’ level of culpability is in the mid range.

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 Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

95. The penalty must reflect the need for specific deterrence. Constructions is still conducting a business. Its operations involve residential, commercial and public work sector construction requiring the continued engagement of workers in a high risk sector.

Aggravating factors

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

Mitigating factors

97. Constructions does not have any previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

98. Constructions is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. Constructions has been in business for 26 years.

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

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

101. Constructions has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Jabur was caused by its actions.

102. Constructions 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 Constructions a 25% discount for an early plea.

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

Parity

104. Orbit was also prosecuted for a breach of its health and safety duties arising under the Act, relating to the same incident in which Mr Jabur was injured. The penalty imposed was a fine of $180,000, after a discount of 25% for an early guilty plea – Safework NSW v Orbit Formwork Pty Limited [2019] NSWDC 685.

105. Where two or more offenders are involved in the same criminal conduct or enterprise the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences: Green v R [2011] HCA 49; (2011) 244 CLR 462 at [30].

106. The principle operates in the nature of a “check” required of the sentencing court: DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [31]. The court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [139] Justice Campbell said:

“An essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence.”

107. The court should not use a co-offender’s sentence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v The Queen at [32]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.

108. It is appropriate for the court to consider the respective contributions of Orbit and Constructions. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 at [241].

109. It is often the case that a sub-contractor who is a direct employer is found to be more culpable than a principal contractor on a construction site. Such a finding takes into account: the nature of the duty of an employer to a direct employee; the fact that the employer is often a specialised contractor which has appropriate safety systems in place; and the reduced opportunity for a principal contractor to take effective action where there is a casual act by an employer in breach of a duty imposed by the Act.

110. This case is different. Orbit raised concerns about the dangerous state of the scaffold on two occasions. It first raised concerns 10 days before Mr Jabur fell. It provided photos of the gap. It was Constructions which had engaged the scaffolder Showcase Hire. It was Constructions which had the power and the duty to get the scaffolder back on site. The submission was put that Constructions could not force the scaffolder to come back to rectify the defect. If that proved an issue, Constructions could have engaged a new contractor to come to the Site to rectify the problem. No doubt it could have charged the expense of that back to Showcase Hire.

111. I have considered the respective contributions of Constructions and Orbit. In the circumstances I see no reason to adjust the penalty for Constructions because of parity considerations.

Capacity to Pay a Fine

112. 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.

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

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

114. While the issue of capacity to pay was the subject of affidavit evidence, after cross-examination of the deponents, counsel for the defendant very sensibly and properly abandoned the submission. In the end result, this issue does not arise.

Victim Impact Statement

115. The defendant was convicted at the sentence hearing on 6 October 2020.

116. Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with by the District Court where the offence results in the death of, or actual physical bodily harm to, any person – s 27(2)(a).

117. A Victim Impact Statement may be tendered to the court only by the prosecutor – s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division – s 30B.

118. A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate – s 30E(1).

Statement of Mr Ali Jabur

119. Mr Jabur provided a Victim Impact Statement to the court. He was born in Iraq in 1991 and came to Australia in late 2014 from Syria. Arabic is his first language.

120. Following his fall, Mr Jabur remembers waking up the next day at St Vincent’s Hospital and being advised that he had suffered fractures to his left clavicle, left hand, sternum, and right knee, a left shoulder dislocation, and multiple lacerations to his left leg. He was in hospital for a fortnight.

121. In 2017 Mr Jabur had several operations to his hands which were unsuccessful. In 2018 he underwent shoulder stabilisation reconstruction surgery to address persistent left shoulder pain, muscle wasting and weakness. Mr Jabur still cannot lift his left arm above his head or carry anything heavy but has found that with physiotherapy and pain medication his range of motion has increased post-surgery. In 2019 Mr Jabur underwent right knee surgery to deal with swelling, weakness and pain. Since this surgery he still experiences difficulty standing or walking for moderate periods of time.

122. Prior to the extensive injuries sustained in the incident, Mr Jabur did not suffer from any physical conditions and was able to complete all daily tasks. Today, he continues to suffer from the following physical and mental health issues as a result of the injuries arising from the incident: significant scarring; constant left shoulder pain; restricted left shoulder range of motion; right shoulder consequential pain; tenderness, weakness and restricted range of motion in left hand; constant pain, regular swelling and restricted range of motion in right knee and leg; chest pain, tightness and difficulty breathing; aggravation of pain in cold weather; numbness from his hip to his knee on his right side; occasional pain in left knee; walking with a limp favouring his left side; blurry vision; frequent headaches and migraines; feeling faint, weak and light-headed; difficulty walking and standing; difficulty negotiating stairs and uneven surfaces; difficulty bending, twisting, kneeling, squatting, stooping and lugging; difficulty driving for more than 15 minutes; difficulty carrying moderate to heavy objects; difficulty carrying objects above shoulder height; difficulty pushing and pulling items; stress; anxiety; frustration; depression; rumination; concentration loss; broken sleep patterns; lethargy; reclusive habits; loss of self-esteem and confidence.

123. Due to his injuries, Mr Jabur has been unable to return to his pre-accident employment. He has lost career opportunities and independence. He has no formal tertiary education and his poor English skills make it difficult to find a job outside of labouring work. He used to love playing sports and attending the gym but now he can no longer engage in such activities.

Costs

124. There will be an order that the defendant is to pay the prosecutor’s costs, which have been agreed in the amount of $48,000.

Penalty

125. My orders are:

1. J & CG Constructions Pty Limited was convicted on 6 October 2020.

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

3. Order J & CG Constructions Pty Limited to pay a fine of $180,000.

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

5. Order J & CG Constructions Pty Limited to pay the prosecutor’s costs agreed in the amount of $48,000.

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Decision last updated: 16 October 2020