SafeWork NSW v Keks Projects Pty Ltd

[2024] NSWDC 141

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Keks Projects Pty Ltd [2024] NSWDC 141

Hearing dates:

18 April 2024

Date of orders:

1 May 2024

Decision date:

01 May 2024

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Keks Projects Pty Ltd is convicted.

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

(3)   Order Keks Projects Pty Ltd 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 Keks Projects Pty Ltd to pay the prosecutor’s costs.

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 into an excavation – unsecured temporary fencing – fence gave way – failure to prevent access to exclusion zone – failure to install fence capable of withstanding force of person leaning or falling

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E

Fines Act 1996 (NSW), ss 6, 122

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

Work Health and Safety Regulation 2017 (NSW) cll 78, 305

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

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

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

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

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

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

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

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

Texts Cited:

SafeWork NSW Code of Practice – Excavation Work, January 2020

SafeWork NSW Code of Practice – Managing the risk of falls at workplaces, August 2019

SafeWork NSW Code of Practice – Managing the risk of falls in housing construction, August 2019

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Keks Projects Pty Ltd (Defendant)

Representation:

Counsel:
A Mykkeltvedt (Prosecutor)
M Whitbread (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Morris Legal (Defendant)

File Number(s):

2022/281976

Judgment

1. On 23 September 2020 while working as a contractor on a building site Mr Iziah Cleal fell approximately 4.5 metres through a temporary fence into an excavation. He sustained a fractured ankle and several pelvic fractures.

2. Keks Projects Pty Ltd (Keks) 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 WHS Act) it failed to comply with that duty and thereby exposed Iziah Cleal to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. The maximum penalty for the offence is a fine of $1,766,130.

The Risk

4. The risk described in par 24 of Annexure A of the Amended Summons is as follows:

“The risk was of workers, in particular Mr Cleal, suffering serious injury or death as a result of falling from a height into the excavation pit (the risk).”

Reasonably Practicable Measures

5. Paragraph 25 of Annexure A of the Amended Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the WHS Act as follows:

“The defendant failed to ensure so far as is reasonably practicable the health and safety of workers, in particular Mr Cleal, in that it failed to take one or more of the following reasonably practicable measures to eliminate or, alternatively minimise, if it was not reasonably practicable to eliminate, the risk:

(a) Providing adequate training, instruction and supervision to ensure workers were aware of the location of the exclusion zones and/or unauthorised access areas on the site and that they did not access such areas.

(b) [I]nstalling secure fencing absent of gaps to prevent access to exclusion zones and/or unauthorised access areas (in particular, the Incident Area);

(c) Verifying that installed fencing on the Southern edge of the excavation was sufficient in strength to withstand the force of someone leaning or falling against it and, if it was not, improving the fencing surrounding the excavation so that it was able to withstand such a force.”

Background

6. The parties presented an Amended Statement of Facts and this material is summarised below. There are two workers with the surname Cleal who were involved in this incident. I will refer to them, without meaning any disrespect, by their first names Iziah and Ropata.

7. Keks conducted a business or undertaking that involved undertaking commercial construction projects.

8. Terra Ferma Pty Ltd (Terra Ferma) conducted a business or undertaking that involved undertaking construction project management. At the time of the incident Terra Ferma were no longer involved in the project at a site at 284-286 Taren Point Road, Caringbah NSW (the site).

9. Compserv Pty Ltd trading as L.T. Diamond Drilling NSW (Compserv) conducted a business or undertaking that involved undertaking concrete cutting and core drilling services.

10. Square Civil Pty Ltd trading as Chauloui (Chauloui) conducted a business or undertaking that involved undertaking general construction work including excavation and temporary fencing installation.

11. On 17 August 2020 Keks took over the principal contractor role at the site from Terra Ferma.

12. Compserv was engaged by Keks to undertake concrete cutting. That work was scheduled to take place on 23 September 2020.

13. At all material times, Iziah and Ropata were employed by Compserv as concrete cutters.

The Works

14. Keks was engaged to undertake construction of 29 residential units consisting of two blocks; block A at the front of the site and block B at the back of the site.

15. By September 2020 the existing buildings on the site had been demolished. The excavation for the two new buildings had been completed by Chauloui. The work performed by Chauloui included the supply and installation of temporary fencing around the excavation site.

16. On the northern side of the excavation and the site, the temporary fencing was adjacent to an access pathway that had been established to allow workers to safely travel down to work in the basement level of the excavation. On the southern side of the excavation the temporary fencing was established approximately one metre from the edge of the excavated pit. Between that temporary fence and the outer boundary of the site (which was a fence between the site and the neighbouring property) there was a tract of land approximately 1.5 metres wide.

17. After Keks assumed control of the site from 17 August 2020, Keks identified that some of the temporary fencing installed by Chauloui required additional work to secure it properly. In particular, some areas of fencing were secured to metal star pickets lodged into the ground using only plastic cable ties.

18. Keks undertook works to improve the temporary fencing using steel tie-wires in addition to the cable ties. These works were only carried out on the northern side of the excavation and site. No such works were carried out on the southern side of the excavation.

19. At the time these works were carried out on the northern side of the excavation:

1. There was no access pathway on the southern side of the excavation. Some workers, in particular an electrician, were permitted to access the area from time to time. Workers did not need to proceed through the southern side to access the basement level where works were carried out.

2. Keks otherwise restricted access to:

1. the rear of the excavation, on the eastern side of the site; and

2. the southern side of the excavation and the tract of land between the southern side temporary fence and the fence which comprised the outer boundary of the site (the incident area).

20. In the incident area, the following control measures were established to restrict workers from accessing the area:

1. Workers were advised during safety inductions that there were non-authorised/isolated parts of the site (which were identified with signage), and they were told not to access them (including the incident area) unless they had the express authorisation of Keks to do so. Iziah and Ropata, who were engaged by Compserv, stated that they did not receive such an instruction. The site supervisor, Vernon Phillips, stated that he told Iziah and Ropata that there was no entry to the incident area.

2. Workers, in particular an electrician, who were from time to time permitted to access the incident area, required approval from the site manager.

3. Site barricade fencing was erected in front of the incident area. This fencing was not secured against the fence on the southern boundary of the site and upon inspection after the incident there was a gap of approximately 0.4 metres between this fence and the southern boundary fence.

4. A safety sign was placed on the site barricade fencing at chest height at the southern end of the fence, which read “DANGER – NO ENTRY AUTHORISED PERSONNEL ONLY”.

5. There were bins placed in the vicinity of the fencing on the southern side of the excavation, being a large metal skip bin and several large plastic garbage bins, some of which were filled with scrap metal and heavy items, making them difficult to move.

21. The gap in the barricade, the sign and the bins can all be seen in Photograph 3 in PX 1, Tab 6.

22. These control measures did not prevent Iziah from accessing the incident area between the excavation and the boundary fence on the southern side of the excavation on the day of the incident.

The Incident

23. On 23 September 2020 Iziah and Ropata attended the site and undertook an induction with Keks’ site supervisor, Mr Phillips.

24. According to Mr Phillips, during the induction:

1. Iziah expressed an unwillingness to undertake the induction, stating that if he was required to spend his time on the induction it would “cost” Mr Phillips (and Keks) in that Keks would be charged for Iziah’s time. Mr Phillips insisted that Iziah and Ropata undertake the safety induction and explained that they would not be allowed on-site unless they completed the induction.

2. The site-specific induction booklet contained a direct instruction that workers must “observe and comply with all warning signs” and that they must comply with all directions and instructions given by Mr Phillips and Keks and with each applicable Safe Work Method Statement (SWMS).

3. After going through the site-specific induction booklet, Iziah and Ropata each completed a questionnaire in the induction booklet and in doing so ticked boxes on the questionnaire confirming that:

1. They had discussed workplace safety rules.

2. That they had been taken through the relevant SWMS for the work to be performed.

4. Iziah and Ropata both signed the site-specific induction booklet confirming that they would comply with its requirements.

5. Mr Phillips stated that he verbally explained and warned Iziah and Ropata that there were “non-authorised areas” on the site and that such areas were sign-posted as such and that they were not authorised to enter such areas.

6. Mr Phillips stated that he gave a description of the site layout and pointed to the southern side of the excavation incident area as an example of a “non-authorised area” which was sign-posted as such.

25. Iziah denies that he was unwilling to undertake the induction or that he informed Mr Phillips that Keks would be charged for his time to undertake the induction.

26. Iziah and Ropata stated that they were not told anything about non-authorised areas in their induction.

27. Hassan Hashem, a formworker who witnessed the incident, stated that he was not told anything about accessing the incident area during his induction a few days prior to the incident. Mr Hashem said that he was told to use the access pathway on the northern side of the excavation to get to the basement of the excavated area at the site where he was working.

28. Iziah and Ropata were instructed by Mr Phillips to cut expansion joints at the basement level of the excavation site. Mr Phillips showed them the marked sites in the basement where the joints were to be cut, along with the location of the power boxes in the basement they could use to power their tools.

29. Iziah and Ropata were also asked to prepare core holes. To undertake this task additional tools were required. Iziah left the excavation and went to a work van to collect the additional tools and an electrical lead.

30. Having done so, Iziah accessed the incident area between the excavation and the southern boundary of the site, apparently to access a different power box that was in that area (on the ground level above the excavation).

31. Upon accessing the incident area Iziah proceeded to the power box above the southern edge of the excavation, plugged an electrical lead into the power box and threw the other end into the excavation pit.

32. Mr Phillips saw that Iziah was in the incident area and called out to Iziah that he should not be there, that he should return, and that there was a power box at the basement level within the pit.

33. Iziah could not hear Mr Phillips properly, so he walked towards the fence. Iziah placed his hands on the temporary edge protection along the side of the excavation pit and leant onto the fence to hear Mr Phillips and to look where Mr Phillips was indicating.

34. The fencing gave way and caused Iziah to fall into the excavation. The floor level of the excavation was approximately 6.5 metres below the incident area, but Iziah landed on an area of moulded dirt that was some distance above the floor level of the excavation. Iziah fell approximately 4.5 metres.

35. As a result of the incident Iziah sustained a fractured right ankle and several fractures to his pelvis. Further details regarding the consequences of his injuries were the subject of a Victim Impact Statement (PX 2) which is discussed below.

36. As at 26 October 2020 Iziah had not been able to return to pre-injury duties.

Guidance Material

37. Clause 78 of the Work Health and Safety Regulation 2017 (NSW) (the WHS Regulation) provides that duty holders must manage the safety risks associated with a fall, including openings through which a person could fall.

38. Clause 78(4) states that a person conducting a business or undertaking (PCBU) must provide a safe means of access to and exit from the workplace and any area within the workplace.

39. Areas within the workplace specified in cl 78(2) are:

“(a) in or on an elevated workplace from which a person could fall, or

(b) in the vicinity of an opening through which a person could fall, or

(c) in the vicinity of an edge over which a person could fall, or

(d) on a surface through which a person could fall, or

(e) in any other place from which a person could fall.”

40. Clause 78(5) refers to a “solid construction” as an area that has:

“(a) a surface that is structurally capable of supporting all persons and things that may be located or placed on it, and

(b) barriers around its perimeter and any openings to prevent a fall, and

(c) an even and readily negotiable surface and gradient, and

(d) a safe means of entry and exit.”

41. Clause 79(5) provides that “fall prevention devices” include a secure fence or edge protection.

42. Clause 305 of the WHS Regulation provides:

“(1) A person conducting a business or undertaking must manage risks to health and safety associated with excavation work, in accordance with Part 3.1.

Note—

WHS Act—section 19 (see clause 9).

(2)  The risks this clause applies to include the following—

(a)  a person falling into an excavation …

(3)  In complying with subclause (1), the person must have regard to all relevant matters, including the following—

(a)  the nature of the excavation,

(b)  the nature of the excavation work, including the range of possible methods of carrying out the work,

(c)  the means of entry into and exit from the excavation, if applicable.”

43. SafeWork NSW (SafeWork) Code of Practice – Managing the risk of falls at workplaces, August 2019 provides that guardrails should incorporate a top rail 900mm to 1100mm above the working surface, a mid-rail and a toe-board. The guardrail systems, method of attachment, and the supporting structure should be capable of withstanding the loads that will be applied. The required load resistance will depend on the momentum of a falling person.

44. The SafeWork Code of Practice – Excavation Work, January 2020 provides that a PCBU who proposes to excavate a trench at least 1.5 metres deep must ensure, so far as is reasonably practicable, that the work area is secured from unauthorised access, including inadvertent entry. In securing a trench or excavation, a PCBU is required to consider:

1. Risks to health and safety arising from unauthorised access to the work area.

2. The likelihood of unauthorised access occurring.

45. The SafeWork Code of Practice – Managing the risk of falls in housing construction, August 2019 (Housing Code) provides that the most effective control measure is to eliminate the risk of a fall so far as is reasonably practicable. This is achievable by working on the ground or from a solid construction. According to the Housing Code:

“A solid construction has barriers around its perimeter and any openings.”

46. The Housing Code then sets out a temporary barrier checklist. The checklist provides, inter alia, that:

“The guardrail system should be of robust design and able to withstand the force of someone falling against it.”

Work Health and Safety Management Plans and Systems of Work

47. Prior to Compserv and its workers attending the site to perform works, Keks had adopted a range of work health and safety (WHS) management plans and processes which collectively recorded Keks’ Safety Management System (SMS).

48. Keks’ SMS included:

1. A site-specific WHS management plan forming a part of the broader SMS.

2. A site-specific WHS Environmental Management Plan.

3. A site-specific Contractor Management Plan.

4. A site-specific induction booklet (used to conduct safety inductions with contractors and workers prior to them entering the site).

5. Plans for subjects and matters to be discussed at weekly toolbox talks and safety meetings with workers.

49. The SMS contemplated that before subcontractors such as Compserv performed works on site, a specialised SWMS would address potential WHS risks arising from their anticipated works and set out control measures to address those risks.

50. Prior to Compserv’s workers performing works on 23 September 2020, the following SWMSs were prepared:

1. A SWMS for “Hand Sawing” prepared by Compserv and signed by Iziah and Ropata on 14 September 2020.

2. A SWMS for “Core Drilling” prepared by Compserv and signed by Iziah and Ropata on 14 September 2020.

3. A SWMS for “Flat (Floor) Sawing” prepared by Compserv and signed by Iziah and Ropata on 14 September 2020.

4. A SWMS for “General Site Activities” prepared by Keks (Keks SWMS).

51. A risk of “falls from heights” was expressly identified in the Keks SWMS and on the various Compserv SWMSs.

52. In the Keks SWMS the risk of “falls from heights” was to be controlled by workers being “trained on site specific conditions when working near an edge” and “site induction to include falls from heights unskilled workers to be monitored [sic]”.

53. Every day after Keks took over as principal contractor on the site, a Keks worker undertook a walk of the site to conduct a safety assessment and inspect for potential risks to workers’ health and safety. This assessment and its results were recorded in daily safety checklists. These daily site safety assessments were usually performed by Keks’ site manager, Mr John Iskander.

51. Before the incident Keks had site fencing approximately 1.8 metres high installed at the front of the excavation (in addition to the shorter fencing directly around the excavated area).

52. This fencing was not properly secured in all areas. While the base of the fencing was connected in secure footings, there were not in all instances metal “clips” holding this fencing together at the top of each panel.

53. There was also a gap between this site fencing and the boundary fence on the southern side of the excavation. This gap between the site barrier fencing in front of the incident area, was the gap through which Iziah passed to access the incident area.

54. The fencing present at the site did not prevent workers accessing the incident area. The warning sign that read “DANGER – NO ENTRY AUTHORISED PERSONNEL ONLY” discouraged workers from accessing the incident area.

55. Temporary edge protection was installed along the side of the excavation where Iziah fell. The edge protection consisted of mesh wire panels each approximately 1 metre high and 2.4 metres long, joined with star pickets and secured with cable ties at the top and bottom of each star picket. This fencing ran from the site fencing at the front of the excavation to the rear (eastern) boundary fence.

56. Temporary edge protection was installed on the opposite side of the excavation, which was similar in appearance to the fencing where Iziah fell. However, on this side of the excavation, the star pickets were secured with cable ties and tie-wire.

57. A sign that read “DANGER – NO ENTRY AUTHORISED PERSONNEL ONLY” was attached to the temporary site fencing on the front (western) side of the fence, near the southern boundary.

58. At the time of the incident the fencing in place did not prevent access to the area between the excavation and the boundary fence on the southern side of the excavation.

59. Keks had a site inspection checklist dated 28 August 2020 that included an entry, that was ticked, labelled “[a]dequate fencing and signage in place to isolate work area”.

60. The induction booklet signed by Iziah and Ropata made no mention of exclusion zones.

61. The Keks SWMS relating to “general site activities” included a section relating to “temporary fencing around the perimeter”. The control measures identified in relation to that matter related to risks associated with the installation of fencing. The Keks SWMS did not address:

1. Exclusion zones in the incident area or in respect of the risk of falls from heights.

2. The type of fencing required to be installed on the site.

Steps Taken After the Incident

65. SafeWork attended the site on 23 September 2020 and issued Prohibition and Improvement Notices in relation to:

1. Site security and unauthorised access.

2. Fall prevention, safe access and exit, and preparation of a SWMS.

66. Following the incident and in response to the SafeWork notices Keks:

1. Installed water filled barriers and secured the front of the excavation.

2. Upgraded the fencing and barricading at a cost of $6,426. This included installing water-filled barriers and securing the front of the excavation area.

3. Updated the applicable SWMS in relation to the training in relation to working near edges, signage, and the restriction of access to high-risk areas.

4. Engaged an external consultant to work on documentation, training, and inspections, at a cost of $10,750.

5. Engaged additional personnel to assist with safety management and contractor management at the site. These personnel cost $76,650 per annum and $120,000 per annum, respectively.

6. Undertook a toolbox talk on 30 September 2020 in which personnel were advised that they were not to access any closed areas on site and that a fine would be applied to any contractor or worker who accessed such areas.

Evidence for the Defendant

67. Mr Karim Shaker affirmed two affidavits dated 5 April 2024 (first affidavit) (DX 1) and 18 April 2024 (second affidavit) (DX 3). Mr Shaker is the sole director of Keks and is employed by Keks in the position of Construction Manager.

Mr Shaker’s First Affidavit

68. Mr Shaker has been involved in the construction industry since 2006.

69. Mr Shaker completed a Certificate IV in Building Studies at TAFE in 2007 and in 2011 completed a Bachelor of Construction Management with Honours. During Mr Shaker’s construction management studies, he worked with various building companies to gain experience.

70. Mr Shaker created Keks in 2015. Keks engages sub-contractors and suppliers to undertake construction work on projects managed by Keks.

Background to the Incident

71. Mr Shaker recounted Keks taking over the head contractor position from Terra Ferma at the site.

72. Upon assuming control of the site Mr Iskander, Mr Shaker and Keks’ project manager Mr Kamal Fares, physically inspected the site to identify hazards.

73. Before the site inspection Terra Ferma’s project manager informed Mr Shaker that Terra Ferma used Chaloui to install fencing at the site.

74. During the inspection Mr Shaker, Mr Iskander and Mr Fares identified that the incident area was fenced off as no works were being, or were required to be, conducted in the area.

75. On assuming control of the site, Keks adopted WHS policies that Terra Ferma had implemented at the site, including:

1. A site-specific WHS Management Plan.

2. A site-specific induction booklet used to conduct safety inductions for all contractors and workers before entering and commencing work at the site.

3. A SWMS.

4. Weekly toolbox talks and safety meetings with employees and contractors at the site.

5. Daily safety checklists used to ensure compliance with the SWMS.

6. A daily sign-in register which all contractors and employees entering the site signed.

76. Copies of the above WHS policies are annexed to Mr Shaker’s affidavit (DX 2).

The Incident

77. On 23 September 2020 Iziah signed a site-specific induction booklet before commencing work. A copy of this booklet is in DX 2.

78. Before Compserv commenced work at the site they provided Keks with a SWMS for hand sawing, core drilling and flat sawing. A copy of the SWMS submitted to Keks by Compserv and signed by Iziah on 14 September 2020 is in DX 2.

79. Mr Shaker recalled receiving a call from Mr Fares saying that there had been an incident at the site. Mr Shaker immediately attended the site, where police, ambulance and SafeWork officials were already present. Mr Fares informed Mr Shaker that Iziah was seriously injured.

80. Mr Shaker stated that he had never been involved in a workplace incident and was “very upset that a contractor engaged by Keks had been seriously injured”.

81. Mr Shaker said that the site was “immediately closed down by SafeWork” and that on 23 September 2020 SafeWork issued Keks with six Improvement Notices and three Prohibition Notices.

82. Before the incident Keks had never received a SafeWork Prohibition or Improvement Notice.

83. Mr Shaker instructed Mr Fares to immediately attend to complying with the Notices.

84. On 29 September 2020 Mr Michael Holder, a SafeWork inspector, issued an Inspection Report confirming that all Improvement and Prohibition Notices had been complied with. Mr Holder’s Inspection Report is in DX 2.

85. Mr Shaker’s affidavit said that he was informed by Mr Fares that Mr Holder told Mr Fares that Keks had been “highly proactive in responding” to the Notices and “had ensured compliance in record time”.

Action Taken by Keks After the Incident

86. Mr Shaker annexed to his first affidavit a schedule he prepared, setting out the actions and costs of the actions taken by Keks in response to the SafeWork Notices.

87. Mr Shaker affirmed that he and Keks were “not satisfied with only attending to the Prohibition Notices” but that he “wanted to ensure that no similar risks or incidents occurred again on any Keks site”.

88. Mr Shaker engaged Clear Cut Compliance and Business Services (Clear Cut) to review Keks’ WHS processes. After Clear Cut’s review the following occurred:

1. A new “Integrated Management Plan” for the site was created. A copy of the Integrated Management Plan is in DX 2.

2. Clear Cut developed and implemented an Integrated Management Plan for all of Keks’ sites.

3. Keks’ SWMSs were amended to remedy the deficiencies identified by SafeWork, particularly in relation to site-specific risks, falls from heights, working near an excavation, access to temporary power boards, working near a roadway, materials storage, and erecting scaffolding. A copy of the amended SWMS is in DX 2.

4. Keks’ “Record of Toolbox Talks” was amended to rectify the deficiencies identified by SafeWork. A copy of the amended Record of Toolbox Talks is in DX 2.

5. Clear Cut performed site inspections on all of Keks’ sites on a weekly and fortnightly basis from November 2020 to December 2022 and issued an audit report of their findings to ensure compliance with various WHS issues.

6. In November and December 2020 Clear Cut trained Mr Iskander, Mr Phillips, Mr Fares and Mr Shaker on: the new Integrated Management Plan and SWMSs developed by Clear Cut; how to conduct toolbox talks; how to conduct new employee and contractor inductions; and how to identify hazards during site inspections.

7. In November 2020 Clear Cut observed a toolbox talk and provided advice about ways in which Keks could improve safety discussions during toolbox talks.

89. Mr Shaker decided that Keks required additional resources to manage WHS issues. Consequently, on 16 November 2020 Mr Shaker employed a site engineer, on a $76,650 per annum salary, and allocated the site engineer the WHS duties Mr Iskander and Mr Phillips had been performing.

90. The site engineer is now principally responsible for WHS duties at the site. These duties include daily site inspections, conducting new employee, contractor and site visitor inductions, and ensuring that all contractors sign the appropriate documentation before commencing work at the site.

91. On 4 January 2021 Keks also employed an additional site foreman on a $120,000 per annum salary. The site foreman’s duties include assisting Mr Iskander to monitor the sub-contractors’ work at the site and assisting the site engineer in monitoring WHS issues.

Prior Record

92. Keks has no previous convictions under the WHS Act.

93. Before this incident Keks had never received a SafeWork Improvement or Prohibition Notice.

Contrition

94. Mr Shaker stated that he and all of Keks’ employees at the site “were extremely upset” about Iziah’s injury.

95. Mr Shaker organised flowers to be sent to Iziah in hospital, “to wish him well and a speedy recovery”.

96. Mr Shaker described requesting that Mr Fares and Mr Phillips contact Compserv “on several occasions” to inquire about Iziah’s health. However, Keks ceased contact with Iziah after being advised by their legal representative to cease communications because there was an ongoing SafeWork investigation, and because Iziah had separately commenced legal proceedings against Keks.

Mr Shaker’s Second Affidavit

97. Mr Shaker affirmed a second affidavit with one annexure (Annexure A) on 18 April 2024.

98. Annexure A to Mr Shaker’s second affidavit are balance sheets showing Keks’ financial position with respect to assets, receivables and liabilities as at 30 June 2022, 30 June 2023 and 31 March 2024.

99. Mr Shaker’s second affidavit and Annexure A complement Keks’ profit and loss statements in DX 2, going to the issue of Keks’ capacity to pay a fine. Keks’ capacity to pay is dealt with below.

100. Mr Shaker’s second affidavit described Keks’ charitable donations in recent years to St Mary & St Merkorious Coptic Orthodox Church in Rhodes (the Church), and to charitable causes in Egypt organised by the Church.

101. In addition to Keks’ donations, approximately six months ago Keks built a new kitchen for the Church. Mr Shaker arranged for Keks to perform this work and Keks paid for the labour and material costs. Mr Shaker estimates the value of the labour and materials involved in building the kitchen to be approximately $38,000.

102. Mr Shaker has also used his wages and profits distributed by Keks to make personal donations to the Church for its charitable aims.

Consideration

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

Objective Seriousness of the Offence

104. 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].

105. 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].

106. 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.”

107. 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].

108. 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.

109. 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.

110. The Court of Criminal Appeal has examined the sentencing process with regard to the WHS 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.”

111. 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.”

112. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the WHS 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.”

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

1. The risk was known to and foreseen by Keks. Further, there was ample guidance material available to Keks making the risk foreseeable.

2. Falls from height in the construction industry are depressingly common. There was a significant likelihood of the risk occurring because verbal instruction, even if given, did not physically prevent access to the incident site.

3. The potential consequences of the risk were death or serious injury.

4. There were simple and effective steps available to eliminate or minimise the risk. The fence on the northern side of the excavation had been adequately strengthened, but the fence on the southern side was inadequate. Steps were taken immediately after the incident to fix the fence and restrict access to the incident site.

5. There was no great burden or inconvenience involved in those steps being implemented.

6. The serious injuries suffered by Mr Iziah Cleal were a manifestation of the risk.

7. The maximum penalty for the offence is a fine of $1,766,130 which reflects the legislature’s view of the seriousness of the offence.

114. I find that the level of culpability of Keks is in the lower half of the mid range. This was the submission made by both counsel, and it is also my own view.

Deterrence

115. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS 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].

116. The penalty must reflect the need for specific deterrence. Keks is still conducting a business. It operates in the construction industry and continues to engage workers.

Aggravating Factors

117. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act.

Mitigating Factors

118. Keks has no previous convictions: s 21A(3)(e) CSP Act.

119. Keks is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident demonstrate this. Keks has been in business for 9 years.

120. Keks is unlikely to re-offend: s 21A(3)(g) CSP Act.

121. Keks has good prospects of rehabilitation: s 21A(3)(h) CSP Act. 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 incident occurred.

122. Keks has shown remorse for the offence: s 21A(3)(i) CSP. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Iziah Cleal was caused by its actions.

118. Keks entered a plea of guilty: s 21A(3)(k) CSP Act. 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) CSP Act. It is appropriate to give Keks a 25% discount for an early plea.

119. Keks gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. It cooperated at all times with the prosecutor and provided all documents.

Capacity to Pay a Fine

125. 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.

126. 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.”

127. Mr Karim Shaker is the sole director of Keks. He affirmed an affidavit on 5 April 2024 (DX 1) and a second affidavit on 18 April 2024 (DX 3).

128. In the 2021 financial year Keks had a total trading income of approximately $7.4 million and a nett profit of approximately $176,000. In the 2022 financial year Keks had a total trading income of approximately $6.9 million and a nett profit of approximately $406,000. In the 2023 financial year Keks had a total trading income of approximately $5.2 million and made a nett loss of approximately $291,000. In the 2024 financial year to the end of March 2024, Keks had a total trading income of approximately $4.1 million and made a nett loss of approximately $97,000. Mr Shaker provided summaries of the financial statements of Keks, prepared by its accountants.

129. In his second affidavit Mr Shaker gave evidence about the balance sheets from 30 June 2022 to the present date. The nett assets of Keks over that period have reduced from approximately $685,000 to approximately $269,000. The balance sheet as at 31 March 2024 shows that Keks had approximately $30,000 cash in the bank. That same balance sheet also shows that current assets are $1,355,104.79 and current liabilities are $1,131,409.87. If all of the receivables can be collected, this shows that for the nine month period ended 31 March 2024 Keks should have income of approximately $200,000 over and above expenses.

130. The same balance sheet also shows that the company has a total equity of approximately $269,000. Of this amount, approximately $116,000 consists of fixed assets such as motor vehicles, plant and equipment which are necessary to run the construction business.

131. It is obvious from the financial material provided by Mr Shaker annexed to his affidavits that the financial position of Keks has been deteriorating. Nevertheless, it remains in business with a substantial turnover. Counsel for the defendant submitted that the imposition of a large financial penalty would have significant ramifications for the ongoing financial viability of the company. Due to my finding that the objective seriousness of this offence is in the lower half of the mid range, the penalty imposed will not be one which threatens the financial viability of the company. It may well need to borrow funds to pay a fine, but the most recent balance sheet of Keks shows that it has a current bank loan of approximately $51,000 and a non-current loan from Mr Shaker of approximately $17,000. The most recent balance sheets suggests that Keks has the cashflow to service greater borrowings. I will not moderate the penalty as I find that Keks will have the ability, either from its own resources, or from borrowings, to pay the fine which the court imposes.

Victim Impact Statement

132. The defendant was convicted at the sentence hearing on 18 April 2024.

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

134. By s 28(1) a primary victim may prepare a statement that contains particulars of the following suffered as a direct result of the offence:

1. Any personal harm.

2. Any emotional suffering or distress.

3. Any harm to relationships with other persons.

4. Any economic loss or harm that arises from any matter referred to in (1) – (3) above.

135. 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. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement – s 30D(1).

136. 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).

137. The prosecutor tendered a Victim Impact Statement by Mr Iziah Cleal (PX 2). Mr Iziah Cleal attended court with his partner and two children. He did not wish to read his statement aloud to the court.

138. Mr Iziah Cleal described the incident and consequential events as “harrowing”, leaving “physical and permanent scars”.

139. Mr Iziah Cleal expressed the “crippling and imprisoning feeling of not being able to fulfil the basic requirements as a man, partner and a father”. Mr Iziah Cleal felt that his “sense of duty and core responsibilities” were ripped away “violently”, causing “the most embarrassing and worthless feeling” he had to endure.

140. After the incident Mr Iziah Cleal’s life “took a painful change in course”, as he described becoming a “disabled, dependent grown man”. Mr Iziah Cleal said that he became “paralysed in grief” which was “dark” and “scary”.

141. When the incident happened Mr Iziah Cleal’s son was an infant. After the incident Mr Iziah Cleal could not hold his son for long periods, nor comfort his crying. Mr Iziah Cleal described being “helpless in supporting” his daughter and “incapable” of showing affection to his partner. Mr Iziah Cleal felt like “a burden and a failure” having to “helplessly watch” his family struggle.

142. Mr Iziah Cleal experienced depression and “spent days sobbing”, wishing the “embarrassment and stabbing pain would cease.” Mr Iziah Cleal described “venting [his] frustration, embarrassment, incapabilities and hurt” onto his partner and children which “drove a painful wedge” between them.

143. Mr Iziah Cleal recounted becoming a “risk” to himself and those he loved. He suffered extreme mental anguish and developed a serious psychiatric condition which necessitated hospital treatment.

144. Mr Iziah Cleal became “absorbed” by his “anger and sorrow” and felt “forgotten by justice as time dragged on”.

145. Despite experiencing “daily sharp pains”, Mr Iziah Cleal “felt forced to return to work”. However, Mr Iziah Cleal struggled finding work because he “was unfavourable having sustained an injury on a work site”. This caused Mr Iziah Cleal to feel “worthless”, especially as his skills previously received recognition in the construction industry.

146. Mr Iziah Cleal described being “looked down upon as an incompetent man” which was an “overwhelmingly defeating” sensation. These feelings impacted “every aspect” of Mr Iziah Cleal and “every corner” of his life.

147. Mr Iziah Cleal has returned to work and said that “there are now more good days then [sic] bad”. However, his body “frequently reminds” him of his “physical constraints”.

148. Mr Iziah Cleal is “slowly regaining some independence and slowly accepting the new norm”. However, Mr Iziah Cleal is “constantly battling with separating the capable man” he once was from the man he feels he is now.

149. Rehabilitation to return to employment was provided to Mr Iziah Cleal but he felt “lost in the sense of rehabilitating back into” his family and relationships.

150. The “unknown future” is what Mr Iziah Cleal believes will “demand the most strength”, with new injuries that will “surface earlier than expected” and with the “fear of reliving the previous trials” haunting him.

151. Mr Iziah Cleal expressed sorrow for the years that cannot be returned to his young son and daughter and the “turmoil” caused to his partner. Mr Iziah Cleal said that he “cannot accept” that his children have been impacted by the incident and that it “is not what any parent would wish for their children to experience”, nor “any man for his family”.

152. Mr Iziah Cleal conveyed despondency for the “decline” in his mental health and “the embarrassment endured as a cripple”.

153. Mr Iziah Cleal reported waiting “every minute since the accident for this opportunity to express the price” he has paid and will continue paying for his “injuries and scars sustained from the fall” but that “words are just not enough”.

154. Mr Iziah Cleal said that he “will never forget the suffocating pain or days barely surviving, nor can [he] forgive those responsible for the adversities endured”.

Costs

155. There will be an order for the defendant to pay the prosecutor’s costs.

Penalty

156. My orders are:

1. Keks Projects Pty Ltd was convicted on 18 April 2024.

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

3. Order Keks Projects Pty Ltd 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 Keks Projects Pty Ltd to pay the prosecutor’s costs.

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Decision last updated: 01 May 2024