SafeWork NSW v JD Projects (NSW) Pty Ltd

[2024] NSWDC 422

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v JD Projects (NSW) Pty Ltd [2024] NSWDC 422

Hearing dates:

23 August 2024

Date of orders:

16 September 2024

Decision date:

16 September 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   JD Projects (NSW) Pty Ltd is convicted.

2   I impose a fine of $180,000.

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

4 I order that 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

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

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147

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

Jahandideh v R [2014] NSWCCA 178

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
JD Projects (NSW) Pty Ltd (Offender)

Representation:

Counsel:
N Read (Prosecutor)
M Baroni (Offender)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Barry Nilsson Lawyers (Offender)

File Number(s):

2023/23744
2023/23682

Publication restriction:

None

JUDGMENT

Introduction

1. JD Projects (NSW) Pty Ltd (the offender) appears for sentence after pleading guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (the Act) in that it failed to ensure the health and safety of workers at work in the business or undertaking, pursuant to s 19(1) of the Act and thereby exposed 12 workers to a risk of death or serious injury (principal offence).

2. The maximum penalty for this offence is a fine of 17,315 penalty units ($1,766,130).

3. The offender also asks the Court to take into account an additional offence, that being an offence under s 32 of the Act for a breach of s 19(2) of the Act on a Form 1 when dealing with the principal offence.

4. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147.

Facts

5. The parties have presented an Agreed Statement of Facts. I have taken the entirety of this document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

Background

6. The offender was appointed as principal contractor of a construction project at 137-139 Alexander Street, Crows Nest (the project). The scope of the works included demolition of two existing commercial buildings and construction of a new four storey building with two basement level carparks.

7. Immediately to the south of the site was a three-level commercial office building with a single basement level at 133-135 Alexander Street, Crows Nest (the adjacent building). The adjacent building was occupied by other persons. The adjacent building comprised masonry brickwork external walls and reinforced concrete strip foundations. The strip foundations were supported by load bearing brick wall footings.

8. The initial stages of the project works involved demolition and site establishment followed by shoring and excavation.

9. The offender engaged several workers to undertake the construction project and oversee the project works, including:

1. Joe Chehade, Senior Project Manager;

2. Petar Kastopil, Project Engineer/Contracts Administrator. Mr Kastopil reported to Mr Chehade and Dany Shalala, a director of the offender;

3. Nazar Mallak, Site Manager.

10. In order to undertake the project works, the offender engaged:

1. STS GeoEnvironmental Pty Ltd (STS), as geotechnical engineers. On or around 27 November 2020 STS was replaced by JC Geotechnics Pty Ltd (JCG).

2. From 27 November 2020, JCG as geotechnical engineers. The scope of JCG’s work included drilling boreholes and the preparation of various geotechnical reports.

3. Cubitic Pty Ltd (Cubitic), as structural engineers. The scope of Cubitic’s work included structural design and documentation of shoring walls and retaining walls, and the issuing of design and adequacy certificates.

4. Mercon NSW Pty Ltd (Mercon) to undertake demolition, excavation and permanent shoring work at the direction of the offender’s workers.

Relevant geotechnical and structural engineering advice

11. In May 2019 STS provided a Geotechnical Investigation Report to the offender for the proposed development. Based on the results from borehole 1 (closest to the adjacent building), the report stated that:

Particular care would be required during the excavation to ensure that the buildings on adjacent properties were not damaged when excavating the rock as structures on the adjacent properties may be founded directly onto the rock.

12. The STS report also provided that where “the structures in adjoining properties are within the zone of influence of excavation, it will be necessary to adopt K₀ conditions”, which allow for the geostatic stress. This may include using anchors or props to provide support. These anchors should be installed into the weathered rock.

13. Cubitic designed the structural support for the site which consisted of a perimeter soldier pile wall around the border of the site with a contiguous capping beam.

14. On or around 2 November 2020, the offender commenced the project works.

15. On 5 November 2020, Cubitic issued a Structural Report (Revision 1), attaching structural drawings. This report confirmed that provided the excavation and construction were carried out in accordance with the geotechnical recommendations and Cubitic’s designs, there “should be no impact on the adjacent building”. Under the heading “Recommendations” the Structural Report stated that all excavation works needed to be carried out strictly in accordance with the drawings and the STS report to ensure there was no damage to adjoining properties.

16. Cubitic’s Structural Report also contained a Shoring and Bulk Excavation Plan, which set out a Work Method Statement.

17. On 1 December 2020, Bishoy Beshay, Senior Structural Engineer at Cubitic, conducted a site inspection. Following the inspection, he sent an email to Mr Mallak confirming the depth of the excavation was to be a minimum of 150mm above the adjacent building’s footing.

18. On 9 December 2020, JCG issued the offender an Additional Geotechnical Investigation Report. Under the heading “6.6 Stability of Basement Excavation”, the report stated that “a suitable retention system, such as anchored/propped pile walls, with concrete infill panels, will be required to support the excavation” and that “the use of a more closely spaced shoring system is recommended”. This report also confirmed that test pits should be conducted to confirm the details of the footings of the adjacent building and that excavation “must not” extend below the base of any such footings.

19. On 15 December 2020, Mr Beshay attended the site to undertake an inspection. Following this inspection, Cubitic issued a Structural Adequacy Certificate.

20. On 18 December 2020, the offender’s project team and Dr Michel Wasef, Cubitic’s Principal Structural Engineer, met to discuss the excavation and shoring works. Dr Wasef confirmed the work along the boundary of the property of the adjacent building must be limited to 150mm above the bottom of the adjacent building’s footings.

The site preparation and shoring work

21. On 7 January 2021, the offender commenced the site preparation and permanent shoring work. The offender applied the following method:

1. the site was levelled using an excavator;

2. piles were installed around the perimeter of the site;

3. elevations were excavated or “benched” using an excavator to the depth of the capping beam (800mm); and

4. the capping beam was fixed to the piles, formed up and poured.

22. From 7 January 2021 to 12 January 2021, the offender benched out Elevations C and D (along the northern and eastern boundaries of the site) and installed seven piles. Work of this nature continued between 13 January 2021 to 20 January 2021 along all elevations, save for Elevation A, positioned alongside the adjacent building.

23. As at 13 January 2021 the foundation slab of the adjacent building was visible but the toe of the foundation was not exposed.

24. On 15 January 2021, Cubitic issued a revised drawing for Elevation A. The revised drawings showed that the capping beam was to be constructed to wrap around the piles, as opposed to sitting on top of the piles. This meant the offender would be required to excavate below the adjacent building’s footing to construct the capping beam.

25. From 18 January 2021 to 20 January 2021, the offender incorrectly installed the piles along Elevation A, in that they were poured 200-400mm below and 250-300mm away from the toe of the adjacent building’s footings, not in accordance with the structural plans.

21 January 2021

26. Following advice from JCG to conduct test pits prior to any excavation commencing, Adithya Manjunath a Geotechnical Engineer from JCG, attended the site on 21 January 2021 to conduct test pits for the neighbouring boundary.

27. While at the site, Mr Manjunath observed that the piles along Elevation A had been poured below the level of the adjacent building.

28. Mr Manjunath returned to the JCG office and discussed the matter with Joseph Chaghouri, Principal Technical Engineer.

29. Mr Manjunath had a telephone conversation with Mr Mallak, informing Mr Mallak that excavating the elevation would be very risky and the structural engineers should confirm how the excavation was to proceed.

30. Mr Chaghouri also spoke with Mr Mallak via telephone. During this conversation, Mr Mallak told Mr Chaghouri that he wanted to excavate for the capping beam in one section rather than in a series of sections as this would be quicker. Mr Chaghouri told Mr Mallak that excavating in one section would give rise to a risk of damage to the adjacent building and asked what the structural engineers had instructed. Mr Chaghouri agreed with the advice of the structural engineers to excavate and build the capping beam in sections.

31. Mr Chaghouri also told Mr Mallak that excavating in one section was not safe particularly if it rained and that excavating 800mm below the footing would reduce the soil bearing capacity and undermine the adjacent building. He suggested that the offender speak with Cubitic to devise an alternative approach.

32. The offender did not share the information provided to it by JCG with Cubitic.

33. In his record of interview with SafeWork NSW, Mr Mallak said he did not recall the conversation with Mr Chaghouri.

22 January 2021

34. On 22 January 2021, Mr Beshay attended the site to inspect the works. Mr Mallak and Mr Kastropil were both on site.

35. Mr Bashay observed the following:

1. that no excavation had commenced along Elevation A;

2. there was one excavation point which had exposed the bottom of the footings of the adjacent building; and

3. the pile that was next to that excavation point was approximately 100mm to 150mm below the bottom of the adjacent building’s footing.

36. Whilst on site Mr Beshay contacted Dr Wasef to discuss his observations. Dr Wasef advised that the offender must “top up” the piles to the level specified in the engineering plans and consider the need for a temporary shoring system. These instructions were communicated to Mr Mallak. Mr Beshay also instructed Mr Mallak that a written inspection report from a geotechnical engineer and a survey plan for the piles would be required to be provided to Dr Wasef for approval.

37. At approximately 11:00am, Dr Wasef had a telephone conversation with Mr Chehade during which Mr Chehade questioned why Mr Beshay overrode the geotechnical engineer advice. Dr Wasef confirmed that a written confirmation from a geotechnical engineer that a site inspection had taken place and a report on the stability of the footings of the adjacent property would be required as Cubitic believed that temporary shoring was required for Elevation A.

38. In response to Dr Wasef’s request for a copy of the geotechnical engineer’s inspection report and for a registered survey of the piles to be organised, Mr Chehade told him that a survey report had been sent the day before. The report that had been sent was not from a registered surveyor and could not be relied upon.

39. A further telephone conversation took place at around 11:20am, during which Dr Wasef told Mr Chehade that he had not received the requested reports relating to Elevation A, but that work could proceed on the three other elevations at the site.

40. Based on information provided to Mr Mallak by Mr Chehade following the conversations with Dr Wasef, Mr Mallak created an entry in the Site Diary which recorded that Cubitic had given “verbal confirmation” by phone that the Elevation A capping beam could now be benched and poured continuously.

41. The offender did not provide the requested reports to Dr Wasef or send a report of the outcome of the test pit inspections to Cubitic.

42. At approximately 2:20pm on 22 January 2021, the offender directed Mercon to bench out the elevation, advising Mercon that the adjacent property was self-supporting.

43. The elevation was benched out to the depth of the capping beam (800mm) in one go over several hours. The toe of the adjacent building’s footings was exposed, and the foundations were within the zone of influence of the excavation. In some places soil fell away from under the toe of the adjacent building with the effect of extending the excavation beyond the boundary. No temporary retention system or shoring was installed.

23 January 2021

44. On 23 January 2021, there were approximately 10 workers on site, including formworkers, Mercon labourers and steel fixers, undertaking work involving detailing benching for the installation of the capping beam along the elevation.

25 January 2021

45. On 25 January, the offender continued detailing the benching and commenced installing the capping beam along the elevation.

46. On this day there were approximately 29 persons at work in the adjacent building. Fourteen of the 29 persons were situated in offices on the northern aspect of the adjacent building in proximity to the construction site. Penelope Flanagan, the building manager, was also in the building.

47. At approximately 9:36am the Mercon labourers were undertaking cleaning and detailing work around the piles along the elevation. The steel fixers commenced works associated with the capping beam along the piles.

48. At approximately 2:50pm the workers completed detailing the last of the piles in the south-eastern corner of the elevation. Approximately one quarter of the capping beam along the elevation had been constructed by the steel fixers.

49. At this time, Ms Flannagan notified Mr Mallak that visible cracks had started to appear in the adjacent building.

50. The adjacent building and the worksite were evacuated.

51. Over the next half an hour the cracks in the adjacent building increased in size and at approximately 3:20pm the north-eastern elevation of the adjacent building partially collapsed. Thirteen units in the adjacent building were subject to partial collapse.

Systems of work prior to the incident

52. Prior to the incident, the offender had a documented site-specific Construction Management Plan (CMP) dated 9 October 2020. The CMP provided that the offender was responsible for ensuring that the proposed excavation methods were safe, that underpinning of the main load carrying footing of the adjacent property may be required where footings were founded within existing residual soils fill and that considerations should be given to additional supports such as temporary anchoring as the excavation progressed.

53. The offender also had a documented Site Safety Management Plan (SSMP) dated 15 October 2020. The SSMP at Part 9.3 stated that the offender strived to capture and control all risks prior to the commencement of works on the project by developing a Project Risk Assessment (PRA) which was to be reviewed during the project’s progression. The PRA did not include potential collapse of adjacent structures during excavation.

54. Prior to the incident the offender was provided with information by the geotechnical and structural engineers that it was critical to maintain the stability of the adjacent building’s footings.

55. Prior to the incident the offender was also advised that a temporary support system would most likely be required to be designed and constructed along the elevation prior to excavation.

56. Prior to the incident, the offender received advice from both the geotechnical and structural engineers that excavation should not occur until proper investigations has been undertaken and a method of work devised.

57. Mr Chehade believed Dr Wasef had provided approval for the excavation and excavated the elevation in one section on 22 January 2021.

58. The offender did not wait for JCG to prepare a report on the result of the test pits. As a result, neither the geotechnical or structural engineers engaged by the offender, were able to adequately assess and advise how to safely proceed with the excavation. The risk could have been minimised or eliminated by excavating and constructing the capping beam in small sections (approximately 4m in length). The risk could have been further minimised by installing a support system under the footings of the adjacent building.

59. The offender commenced excavation without a suitable retention solution that was properly designed and documented by its geotechnical and structural engineers.

Steps taken by the offender after the incident

60. Following the incident, the adjacent building was assessed by NSW Public Works Authority, and it was determined that it was too risky to stabilise the remaining wall and its footing. Controlled demolition was the only option.

61. On 16 February 2021, the offender amended its SSMP to include a section on excavation in close proximity to existing structures. This included:

1. requiring a geotechnical inspection of the excavation area be completed before commencing excavation work;

2. requiring the geotechnical engineer to complete a test pit to confirm the ground conditions align with the findings of the geotechnical reports;

3. requiring a structural engineer to complete an onsite inspection prior to work on an adjoining property commencing; and

4. ensuring excavation beyond the depth of the existing neighbouring buildings not occur without written approval from the structural and geotechnical engineer.

The Offender’s Case on Sentence

62. The offender read and relied on the affidavit of Rene Mouawad affirmed 22 August 2024. Mr Mouawad was also called to give evidence and was cross-examined. The following is a summary of his evidence.

63. Mr Mouawad is a current director and secretary of the offender. He has been employed with the offender since 11 July 2021 and was appointed as a director and secretary on 1 July 2023.

64. Mr Mouawad has approximately 15 years’ experience in the building and construction industry. He previously held the position of a site manager with JD Projects Group (NSW) Pty Ltd.

Business (background)

65. The offender was registered on 30 March 2006. Since its inception, the offender has been a construction contractor specialising in a range of residential and non-residential construction projects.

66. Former directors and secretaries of the offender were as follows:

1. Danny Shalala was a director of the offender from 30 March 2006 to 7 April 2008 and from 1 January 2011 to 8 January 2024. Mr Shalala was also a secretary in the period 30 March 2006 to 7 April 2008;

1. John Nehme was a director and secretary from 7 April 2008 to 31 March 2023.

67. Mr Mouawad is the sole director of the offender. The offender does not currently employ any workers.

68. The offender has had no prior safety offences.

Systems the offender had in place prior to the incident

69. The offender had a SSMP for the project which was approved by the site manager, Mr Chehade and site supervisor Mr Mallak on 15 October 2020. The SSMP was also reviewed and approved by Messrs Chehade and Mallak on 27 October 2020.

70. The offender conducted regular on-site meetings during which the offender’s project manager, site supervisor, and project engineer/contracts administrator discussed the project and matters such as procurement of subcontractors, the site construction program, progress of the project and upcoming works.

71. The offender conducted site inductions for each project, which were recorded on a standard “Site Induction Form”. Site inductions consisted of the site supervisor explaining workplace polices to subcontractors. Upon the conclusion of the induction, each participating sub-contractor was expected to sign an induction sheet.

72. Whilst no task specific training in relation to risks of excavation was provided, there was an expectation that the offender’s workers would complete courses relating to:

1. the Value of Australian Standards, including compliance with the relevant legislative and regulatory framework; and

2. the Multidisciplinary Design Integration, including the steps involved in the design process and ensuring building integrity is maintained.

73. In respect of the project, the offender obtained geotechnical engineering reports from STS dated May 2019 and JCG dated 9 December 2020. The offender also obtained structural engineering reports from Cubitic, the most relevant being dated 10 December 2020. The relevant aspects of these reports are summarised above, and I will not repeat these matters.

74. Communication with the structural engineer and its approval regarding excavation methodology was commonly recorded in email correspondence with the engineer or by way of site inspection and site diary reports.

75. The offender had in place a demolition procedure for the project which provided step-by-step guidelines for undertaking measures of environmental control, setting up exclusion zones, ensuring adequate propping and safety requirements.

76. The offender would request from sub-contractors a Safe Work Method Statement (SWMS) including the sub-contractor’s procedures for demolition, excavation and piling on a particular project. The site manager regularly reviewed the SWMS and cross-checked the SWMS with the offender’s SWMS Review Checklist. The offender also reviewed the work of the subcontractors to ensure it was performed in accordance with the SWMS.

77. The offender had in place site-specific health and safety management plans for each project, consisting of weekly site safety walks, the results of which were recorded on a Weekly Site Safety Checklist.

78. The offender used a safety diagram on all its projects.

79. The site manager was required to keep records in a site diary on a daily basis reflecting on the progress of the works or any issues arising on site.

80. The offender had in place a Project Risk Assessment Register. This was a site-specific record of project risks which was updated as the project progressed.

Steps taken by the offender following the incident

81. Following the incident, as part of a review of existing safety systems, the offender implemented the following additional safety measures:

1. appointing an external provider to undertake a Workplace Health Safety Environment Inspection and provide a report;

2. updating its SSMP to specifically include relevant steps regarding excavation procedure in close proximity to existing structures;

3. providing an induction of all staff into the updated SSMP; and

4. ensuring that a strong emphasis on workers to stop if there is something that is not safe, is maintained.

82. The offender has worked on only one new project since the incident. This project has involved the comprehensive redevelopment of the site to enable construction of a senior living/aged care development at 5 Skyline Place, Frenchs Forest (Frenchs Forest Project). The offender will not be taking on any new projects in the future.

83. In addition to the offender’s existing policies and procedures, the offender introduced the following procedures at the Frenchs Forest Project:

1. conducting safety meetings on a weekly basis or as required by the safety management team;

2. conducting pre-start meetings for the purpose of discussing planned activities for the day, any site-specific hazards and/or risks arising in relation to particular activities to be performed on a day; and

3. holding Toolbox Talks on a weekly basis by each subcontractor and running site-wide Toolbox Talks by the offender’s site management team and documenting the outcome of discussions.

Remorse and Contrition

84. On behalf of the offender, its former directors and senior management, Mr Mouawad in his affidavit, expressed regret that the incident occurred. He further stated that the offender “unreservedly accepts” and acknowledges that it exposed workers to risks to their health and safety.

85. Mr Mouawad in his affidavit stated that the offender accepts that it failed to take the reasonable steps identified in the Amended Summons at paragraphs 16(a) to 16(d).

86. Mr Mouawad in his affidavit also stated that the offender offers an unqualified apology for its breach of the Act, and for exposing the workers on site to risks to their health and safety. The offender has treated and will continue to treat this prosecution and the breach of the Act as matters of upmost seriousness.

Cross Examination of Mr Mouawad

87. Mr Mouawad was not a director or employee of the offender at the time of, or prior to the incident. He became involved in the project later when it was being handed over at completion. It was apparent from his evidence that he had conducted minimal searches of the company records in order to give his evidence and he had limited discussions with others about the conduct of the offender before and leading up the incident. Much of his evidence conveyed his understanding of what the ordinary procedure would have been at the earlier time.

88. Mr Mouawad gave evidence that the offender was not presently trading because he is dealing with some personal issues. He acquired the shares of the offender, in lieu of a bonus payment that he had been promised. He gave evidence that the offender has established connections with suppliers, and he understood that this would entitle the offender to preferential pricing with those suppliers.

89. The fact that Mr Mouawad has acquired the offender with the contingent financial liabilities of this proceeding hanging over it, may result in it becoming insolvent. It was submitted on behalf of the offender, that even subject to those financial liabilities, that Mr Mouawad may have considered the acquisition of the offender as a benefit to him.

Consideration

90. 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 of the Crimes (Sentencing Procedure) Act 1999.

Objective seriousness

91. The risk of damage to the adjacent building as a result of the excavation at the site was an obvious risk to the offender and well known in the industry. The offender had access to expert structural engineering advice and geotechnical engineering advice, as to how to minimise the risk coming home. Despite the existence of that advice the offender chose to ignore the advice and proceed in a way that was the quickest and cheapest option.

92. The likelihood of the risk coming home was high.

93. The potential consequences of the risk coming home included a risk of death or serious injury to multiple individuals, being the workers on site at the time of the collapse. Fortunately, the collapse occurred slowly and progressively and whilst there was a risk to the workers, it was easily avoided.

94. The steps that could have been taken to avoid the risk were simple and not inconvenient.

95. The damage to the adjacent building was significant and the incident caused the residents of the adjacent building to be seriously inconvenienced, but that is not the type of loss and damage that the Act is in place to prevent. In the circumstances, I am not satisfied beyond reasonable doubt that these losses are an aggravating feature of the offence.

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

Deterrence

97. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses 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].

98. I am not sure that there is much need for specific deterrence in this sentence. The offender has been acquired by a third party after the incident. Mr Mouawad comes across as a capable construction professional. It appears more likely than not that the offender will not continue to trade.

Aggravating factors

99. There are no relevant aggravating factors.

Mitigating factors

100. The offender does not have any previous convictions: ss 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender was incorporated in 2006.

101. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. If the offender continues to be operated by Mr Mouawad, I am satisfied that he will conduct it safely and in that sense it has good prospects of rehabilitation.

102. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Mouawad has accepted responsibility for the offence on behalf of the offender and expressed remorse for the incident. I have reduced the weight to be applied to this mitigating factor because Mr Mouawad was not involved with the offender at all, prior to or at the time of the incident.

103. 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%.

Capacity to pay a fine

104. The Court is required to have regard to s 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, he or she 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: Jahandideh v R [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.

105. The offender does not put its capacity to pay a fine in issue in this case, but I note that it is not trading at present.

106. The objective seriousness of the offence and the need for general deterrence in this case mitigates against the reduction of the fine on the basis of a limited capacity to pay. The responsible workers of the offender ignored the engineering advice to save time when they had been told that to excavate the length of the capping beam was very risky. The penalty imposed needs to demonstrate the seriousness of that type of conduct.

Penalty

107. JD Projects (NSW) Pty Ltd is convicted.

108. The appropriate fine is one of $240,000 which will be reduced by 25% to reflect the discount for the plea of guilty.

109. I impose a fine of $180,000.

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

111. I order that 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: 16 September 2024