SafeWork NSW v Mars Commercial Pty Ltd

[2023] NSWDC 531

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Mars Commercial Pty Ltd [2023] NSWDC 531

Hearing dates:

21 November 2023

Date of orders:

01 December 2023

Decision date:

01 December 2023

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   The defendant is convicted.

(2)   The appropriate fine for the offence is $550,000 and that will be reduced by 25% to reflect the plea of guilty.

(3)   Accordingly, I order the defendant to pay a fine of $412,500.

(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, as agreed or assessed.

(6) Pursuant to s 241 of the Work Health and Safety Act 2011 (NSW) the defendant is to arrange for Eleftherios Gavriilidis and two other senior employees who engage in or are likely to be engaged in supervisory work, to complete a Certificate IV in Work Health and Safety by 21 November 2024.

(7)   The defendant is the provide the prosecutor with evidence as to the completion of the above order as soon as practicable and at the latest by 30 November 2024.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – maximum penalties
COSTS – prosecutor’s costs

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Fines Act 1996 (NSW)
Work Health and Safety Act 2011 (NSW)

Cases Cited:

Bulga Underground Operations v Nash (2016) 93 NSWLR 338

Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610

Environmental Protection Authority v Barnes [2006] NSWCCA 246

Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384

Haynes v CI & D Manufacturing (No 2), Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455

Kirk v Industrial Commission of New South Wales [2010] HCA 1

Latoudis v Casey (1990) 170 CLR 534

Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464

Markarian v The Queen (2005) 228 CLR 357

Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117

Muldrock v The Queen (2011) 244 CLR 120

Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

Orbit Drilling v The Queen (2012) 35 VR 399

R v Cage [2006] NSWCCA 304

R v MA [2004] NSWCCA 92

R v Miria [2009] NSWCCA 68

R v MMK [2006] NSWCCA 272

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398

SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632

Saunders Civil Build Pty Limited v SafeWork NSW [2023] NSWCCA 261

Veen v R (No 2) (1988) 164 CLR 465

WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700

WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Mars Commercial Pty Ltd (Defendant)

Representation:

Counsel:
Mr M Scott (for the Prosecutor)
Mr M Cahill (for the Defendant)

Solicitors:
Department of Customer Service (for the Prosecutor)
Sparke Helmore Lawyers (for the Defendant)

File Number(s):

2022/334579

JUDGMENT

1. Mars Commercial Pty Ltd (‘the defendant’), entered a guilty plea to an offence contrary to s 32 of the Work Health and Safety Act 2011 (NSW) (‘the WHS Act’), being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the WHS Act to ensure, so far as was reasonably practicable, the health and safety of workers whilst the workers are at work in the business or undertaking, did fail to comply with such duty and that failure exposed workers, in particular Martin Comiskey (‘Mr Comiskey’) and Gavin Reidy (‘Mr Reidy’) to a risk of death or serious injury contrary to s 32 of the WHS Act.

2. The prosecutor tendered a Prosecution Sentence Tender Bundle (‘PSTB’) which became exhibit A. The prosecutor also tendered a Victim Impact Statement from Mr Comiskey dated 7 November 2023 which became exhibit B.

3. The defendant tendered an affidavit of Eleftherios Gavriilidis (‘Mr Gavriilidis’) affirmed 16 November 2023 which became exhibit 1 and an affidavit of Daniel Jesus Cejas (‘Mr Cejas’) affirmed 16 November 2023 which became exhibit 2.

Background

4. The defendant was at all material times the principal contractor of a refurbishment project (‘the Project’) being undertaken at 238 Castlereagh Street in Sydney, New South Wales (‘the Site’).

5. Mr Gavriilidis was the sole director of the defendant. The defendant employed eight persons including:

1. David Sakr (‘Mr Sakr’) as its Site Supervisor. Mr Sakr was a qualified builder and had been licensed since 2006. The Project was being undertaken under Mr Sakr’s building license. Mr Sakr had overall supervision of the Project at the Site and carried out ‘safety walk-arounds’ each day.

2. Andrew Calcagno (‘Mr Calcagno’) who had supervisory responsibilities at the Site, including primarily in relation to progressing the Project toward completion.

6. The defendant contracted with North South Carpentry and Joinery Pty Ltd (‘North South’) to provide carpentry works at the Site pursuant to an agreement dated 5 November 2020. North South employed the following persons at the Site:

1. Christopher McLoughlin (‘Mr McLoughlin’) as its Project Manager at the Site.

2. Mr Reidy as the Supervisor at the Site for North South’s workers. Mr Reidy was a qualified carpenter and had approximately 17 years’ experience in trades. Mr Reidy held nationally recognised competencies in relation to working at heights.

7. North South entered into a subcontract with Mr Comiskey of Comiskey Construct Pty Ltd to provide carpentry services at the Site. Mr Comiskey was a qualified carpenter and had approximately 20 years’ experience in trades in both Australia and Ireland.

8. Shore Hire Pty Ltd (‘Shore Hire’) was engaged by the defendant to dismantle temporary propping of the building’s facade at the Site.

The incident

9. On 19 November 2020, Mr Comiskey and Mr Reidy were working on level 3 at the Site where a mezzanine had been constructed.

10. Prior to 19 November 2020, persons including Mr Reidy and Mr Comiskey had installed rafters into a metal roof structure located over a section of level 3 of the building at the Site. Part of the work being undertaken on 19 November 2020 involved the removal of some of those rafters to create a portal for ongoing crane deliveries to the Site.

11. It is an agreed fact that the removal of the rafters was unscheduled and out of sequence: Statement of Agreed Facts (‘SOAF’) at [19].

12. Mr Reidy dealt directly with Mr Sakr in relation to the removal of the rafters. Mr McLoughlin was not advised about the removal of the rafters by either Mr Reidy or Mr Sakr.

13. The metal roof structure, above the north-western side of level 3, into which the rafters were fixed, was located adjacent to a void in the building for a lift that extended to the ground level (‘the void’). A section of the western edge of the mezzanine was next to an edge of the void.

14. It is an agreed fact that the defendant did not undertake, or arrange to have undertaken, a high risk work assessment immediately prior to the commencement of these works: SOAF at [25].

15. Mr Reidy was removing the rafters using a mobile scaffold. At the same time, Mr Comiskey was performing work from the mezzanine.

16. Immediately prior to the incident, Mr Reidy received a phone call requiring him to descend to the ground level to accept a delivery. Mr Comiskey’s last known location was on the deck of the mezzanine level, immediately adjacent to the eastern side of the point at which Mr Comiskey and Mr Reidy had removed a rafter from the metal roof structure.

17. At approximately 10:41am, Thomas Lehmann who was a subcontractor to North South (‘Mr Lehmann’) observed Mr Comiskey falling through the void on level 2 of the site and hitting the scaffolding which had been erected in part of the void. Other workers who were present moved some additional planks underneath Mr Comiskey to stop him falling further.

18. It is an agreed fact (SOAF at [29]) that Mr Comiskey had fallen approximately 7 to 8 metres down the void and struck the side of the void as he fell. It was apparent that he would have fallen further had he not landed on the planks which partially closed the void on level 2.

19. A number of emergency services personnel attended the Site and secured Mr Comiskey before he was extracted from the void and conveyed to hospital for immediate treatment.

20. Mr Comiskey’s injuries as a result of the fall were substantial. He suffered a level C6 to level CB spinal injury resulting in no movement below his chest, multiple skull fractures and post traumatic amnesia. Mr Comiskey required extensive surgery to repair lacerations on his head and for the insertion of 2 rods in his back and plates in both forearms.

Systems of work prior to the incident

21. There were no fall restraint mechanisms on the mezzanine level or the mobile scaffold on level 3 at the Site, including attachment points for harnesses, rails or barriers around the edge of the mezzanine or mesh or other material covering the void. The mobile scaffold had been assembled in a way such that there was no handrail between the work platform and the void.

22. On 24 August 2020, SafeWork NSW Inspector Daniel Lawler (‘Inspector Lawler’) had attended the Site and issued two improvement notices for the management of risk of falls on levels 2 and 3 at the Site as follows:

1. Improvement Notice 7-381128 – Workers may be exposed to a risk to their health or safety as there is no system in place to prevent a person falling approximately 2 metres due to no mid rails on Level 2 stair void.

2. Improvement Notice 7-381131 – Workers are exposed to a risk to their health and safety due to falling approximately 2 metres due to no mid rails on handrails on level 3.

23. The defendant promptly rectified the risks identified by Inspector Lawler by installing mid-rails to the handrails on levels 2 and 3. Having been satisfied that the defendant had dealt with the risk identified in the improvement notices, Inspector Lawler discharged both of them.

24. On the day of the incident, two safe work method statements (‘SWMS’) were in place dealing with the risks associated with working at heights. The SWMS were both prepared by North South, titled ‘General Carpentry SWMS’ and ‘Working at Heights SWMS’ respectively and both were dated 11 August 2020. The SWMS provided that workers were to use personal protective equipment or fall arrest equipment when working within 2 metres of an unprotected edge. However, there were no attachment points for a harness to be connected to on the mezzanine or mobile scaffold.

25. Mr Reidy, as North South’s Site Supervisor, inducted workers engaged by North South into the Site (including Mr Comiskey) into its SWMS. The signed copies of the SWMSs were kept on site in the North South site box and were available to be referred to by the workers as and when required. However, no SWMS produced to SafeWork NSW by either the defendant or North South was signed or otherwise provided evidence that workers (including Mr Comiskey) had received training or understood the SWMS.

26. The defendant inducted workers onto the Site, including Mr Reidy on 26 October 2020 and Mr Comiskey on 5 November 2020. The induction forms acknowledged that they had been inducted but they did not refer to working at heights.

27. North South had a Health and Safety Handbook which included a short section on working at heights, however the information was general in nature and did not refer to edge protection for voids. Mr Comiskey’s induction form indicated that he had read and understood this document.

28. Although the defendant had an operative WHS Management Plan, it did not address the risk of falls from height.

29. On 2 November 2020, Mr Calcagno conducted a toolbox talk on behalf of the defendant, which Mr Reidy attended. That toolbox talk covered the following topics:

‘All PPE to be worn at all times

Scaffolding to be checked by Andrew [Calcagno] or a Mars Supervisor prior to working on it

All tools/leads to be tagged

Harness to be work when working at heights’

30. It is an agreed fact that the removal of the rafters on level 3 from the mezzanine and the mobile scaffold was high risk construction work: SOAF at [41]. However, no high risk work assessment was performed, nor was a SWMS prepared in relation to the removal of the rafters: SOAF at [43].

Guidance material

31. The NSW Code of Practice titled Managing the Risks of Falls at Workplaces (August 2019) (‘COP’) is an approved code of practice applying to all workplaces where there is a risk of falls by persons from one level to another that is reasonably likely to cause injury. The COP stated:

1. At section 3.2 ‘Identifying the hazards’, that you must inspect the workplace and identify all locations and tasks that could cause injury due to a fall. Key things to look for include edges requiring protection for open edges of floors, working platforms, walkways, walls or roofs. Additionally, tasks that are those carried out near a hole, shaft or pit into which a worker could fall need to be given particular attention when identifying hazards.

2. At section 5.2 ‘Perimeter guardrails’, that guardrails may be used to provide effective fall prevention at the edges of roofs, at the edges of mezzanine floors, walks, stairways, ramps and landings.

32. It is an agreed fact that no effort was made by the defendant to eliminate or mitigate the risk of falls on the mezzanine level: SOAF at [46].

33. The NSW Code of Practice Work Health and Safety Consultation, Co-Operation and Co-Ordination (December 2011) relevantly provided that duty holders who have a health and safety duty over the same matter should engage in consultation in order to plan and manage health and safety.

34. It is agreed (SOAF at [47] – [48]) that Shore Hire raised concerns with the defendant about an unguarded void caused by the unexpected removal of a lift. The defendant requested that Shore Hire remedy the situation by providing temporary edge protection. Accordingly, Shore Hire installed temporary edge protection to the extent relevant to the works it was contracted to perform.

Post incident actions

35. Following the incident, SafeWork NSW issued the following four prohibition notices to the defendant:

‘Prohibition Notice 47071 - (1) cease all work on level 3 immediately, (2) you must provide a safe system of work to prevent persons falling through unprotected voids on level 3, (3) you must not undertake any further productive work, unless advised by the inspector who issued the notice.

Prohibition Notice 47072 - (1) cease all work on level 2 immediately, (2) you must provide a safe system of work to prevent persons falling through unprotected voids on level 2, (3) you must not undertake any further productive work, unless advised by the inspector who issued the notice.

Prohibition Notice 47073 - (1) cease all work on level 1 immediately, (2) you must provide a safe system of work to prevent persons falling through unprotected voids on level 1, (3) you must not undertake any further productive work, unless advised by the inspector who issued the notice.

Prohibition Notice 47074- (1) cease all use of mobile scaffold on site. Level 1 and Level 3, (2) you must have the mobile scaffold dismantled or erected as per manufacturers specifications, (3) you must contact the inspector who issued the notice, who will determine compliance with the notice.’

36. In response to the prohibition notices, the defendant took the following actions:

1. Erected temporary fencing around the unprotected void in the southwest corner of the building which was bolted down and set back from the penetration levels 2 and 3 of the Site.

2. Replaced the wooden temporary handrails with orange barrier fencing around the penetration which was bolted down.

3. Roof mezzanine area had temporary timber handrails installed around the roof area and orange mesh to ensure no tools could be dropped from heights.

4. Allocated a specific supervisor to level 3 to oversee works being conducted on that level.

5. Obtained the services of an appropriately qualified and experienced scaffolding contractor who dissembled and reassembled, the mobile scaffolding in accordance with the instruction of the relevant manufacturers and tested and tagged the mobile scaffolds as compliant.

37. The duty

38. The defendant had a duty under s 19(1) of the WHS Act, to ensure, so far as was reasonably practicable, the health and safety of workers, in particular Mr Comiskey and Mr Reidy, while they were at work in the business or undertaking.

39. The duty requires the identification of risks in the workplace, so far as is reasonably practicable. The duty requires the identification of risks in the workplace and the adoption of measures to eliminate or minimise them, so far as is reasonably practicable: Kirk v Industrial Commission of New South Wales [2010] HCA 1 at [34]. The duty is positive, nondelegable and requires duty holders to search for, detect and eliminate, so far as is reasonably practicable, risks to safety.

The risk

40. The risk relevant to this offence is described in Annexure “A” to the Summons in the following terms:

‘The risk was the risk of workers, in particular Mr Comiskey and Mr Reidy, suffering death or serious injury as a result of falling through an unprotected void and/or penetration’

Sentencing

41. The penalty to be imposed must be one which will give overall effect to the policy of the WHS Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the WHS Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the WHS Act.

42. The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’) which include:

1. Section 3A which sets out the purpose of sentencing;

2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and

3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.

43. The Court is to approach a sentencing exercise on the basis of it being one of ‘instinctive synthesis’: Markarian v The Queen (2005) 228 CLR 357.

44. The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way:

‘The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement.’

Objective seriousness of the offence

45. The primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120 at [27]:

‘…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 offending.’

46. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474–5.

47. The duty of the defendant requires that it ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

46. The gravity of the offence is determined by the extent of the duty holder’s failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) (1988) 164 CLR 465.

47. The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 (‘Capral Aluminium’) at [81].

48. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117.

49. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31].

50. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 (‘Nash v Silver City’). His Honour Justice Basten, under the heading ‘Assessment of Risk’ said at [34]:

‘The sentencing judge commenced his consideration with the proposition that ‘[g]reater 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 upon an assessment of all those factors.’

53. His Honour further observed at [42]:

‘The culpability of the respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent’s responsible officers knew or ought to have known.’

54. I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272.

55. The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]–[18] (Latham J).

56. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).

57. The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31–32 of the WHS Act: Nash v Silver City at [54]–[56]. The matters relevant to objective seriousness for a s 32 offence include:

1. The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Nash v Silver City [34];

2. The availability of steps to eliminate or minimise the risk: Nash v Silver City [34];

3. Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Nash v Silver City [34] and [53];

4. Whether the risk was known or ought reasonably have been known to or identified by the offender;

5. Whether the risk was an obvious or clear one; and

6. The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ).

58. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA 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 failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring 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 materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.’

59. The following matters are relevant to determining the culpability of the defendant:

1. The defendant was the principal contractor on the site and had developed and put in place a site specific Work Health and Safety Plan (SOAF at [40]) and the defendant had engaged experienced Leading hands for the site: SOAF at [4] – [7];

2. The defendant had also engaged experienced contractors to carry out specialist construction work at the site, and appointed Mr McLoughlin as a specific project manager for the site: SOAF at [9];

3. It is an agreed fact that the removal of the rafters from the metal roof frame involved the reversal of carpentry work, which was unscheduled, and was originally performed by Mr Reidy and Mr Comiskey: SOAF at [17]-[18].

4. The risk in this instance was clearly foreseeable and paragraphs [44] and [45] of the SOAF refer to clear and applicable advice from the NSW Code of Practice for managing the Risk of Falls in the Workplace (August 2019);

5. The absence of any type of fall restraint in the area where Mr Reidy and Mr Comiskey were directed to perform work on the day of the incident are set out at paragraphs [33] to [36] of the SOAF;

6. It is an agreed fact that no risk assessment was conducted on the day: SOAF at [25];

7. The fact that the Mars Management Plan behind Tab 12 of the PSTB provides at page 25, that the defendant will monitor the worksite with regular safety inspections and that site safety inspections will be undertaken “as required”. However, no such inspection took place when the out of sequence work was required to be done by Mr Reidy and Mr Comiskey. One would suspect that even a cursory inspection of the third level, the state of the mobile scaffolds and the lack of fall protection on the mezzanine level would have occasioned corrective action to be taken by the defendant;

8. Several months prior to the incident, the defendant was on notice in relation to the risk of falls at the Site (and its statutory responsibility to manage such risks) as a result of two improvement notices issues by a SafeWork Inspector on 24 August 2020.The improvement notices were as follows:

1. Improvement Notice 7-381128 – Workers may be exposed to a risk to their health and safety as there is no system in place to prevent a person falling approximately 2 metres due to no mid rails on the Level 2 stair void.

2. Improvement Notice 7-381131 – Workers exposed to a risk to their health and safety due to falling approximately 2 metres due to no mid rails on handrails on level 3.

9. Upon receipt of the improvement notices, the defendant rectified the fall risks identified by the Inspector by installing a mid-rail to the handrail on the Level 2 stair void, and installing mid-rails to the handrails on level 3 of the site.

10. Upon satisfaction that the defendant had dealt with the issues raised in the Improvement Notices, the Inspector discharged each of the notices.

11. I accept that these notices arose in circumstances different to the matters the subject of these proceedings.

12. The defendant accepts that the risks were known and should have been addressed by it and concedes that the risk was obvious and generally known in the industry. The defendant also admits that the risk was recognised, but they did not take sufficient steps to protect workers from the risk.

13. In response to this incident, SafeWork issued four prohibition notices to the defendant which are set out at [50] of the SOAF.

14. The responses by the defendant are set out at [51] of the SOAF.

15. The defendant was able to rectify the identified risks quickly which demonstrates that I can infer that it was reasonably practicable for those steps to have been taken prior to the incident: Saunders Civil Build Pty Limited v SafeWork NSW [2023] NSWCCA 261 at [268].

16. In short, the risk was obvious, easily remedied, and entailed potential serious injury or death for both Mr Reidy and Mr Comiskey.

60. As a consequence of the matters set out above, I am of the view that this is an objectively serious offence. The seriousness of the foreseeable harm to a worker was significant, and the steps available to avoid the risk were straightforward and available to the defendant.

Victim Impact Statement

61. Mr Comiskey provided an Impact Statement which was dated 7 November 2023, which became exhibit B. The contents of it are harrowing.

62. Prior to the incident, Mr Comiskey was a very active, hands-on person and having grown up as a carpenter, his ego and pride revolved a lot around being a hard worker and getting things done. That ability was tragically ripped from him after the incident on 19 November 2020.

63. Mr Comiskey had dreamt of working towards owning and living on a small property and bringing up his children as he had been raised, living on a farm in Ireland and building or fixing things around the property.

64. He has not been able to return to Ireland since the accident, despite having returned every year prior to the accident, such is his mental distress, and he misses his family terribly.

65. In his statement he states as follows:

‘To be honest for the most part I stick my head in the sand in regard to how my injury is affecting my life. I’ve been told I’ve a positive attitude still and people tell me how strong they think I am.

Even though this is all an act on my behalf I find it helps me somewhat. Fake it to you make it they say!

Some people see a quadriplegic like me in a chair and think we can’t walk and this is our biggest problem. I’ve learned that this is only one of the many many physical problems that come with my injury. For example, my bowel and bladder symptoms and muscle spasms affect me greatly every day.

If I was trying to put into a few sentences how this has affected me. I would say it’s not taken away my hope for some sort of future. But definitely my passion.’

66. The strength that it must have taken Mr Comiskey to puts those words on paper is amazing. Clearly he has suffered immensely and is continuing to do so. I thank Mr Comiskey for his very moving statement, and hope that once these proceedings are finalised he may find some peace and further recovery.

Deterrence

67. In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.

68. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the Court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).

69. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.

70. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016)  93 NSWLR 338 (‘Bulga’) at [177]–[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]–[75] which said:

‘[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

…

[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.’

71. General deterrence must be a significant feature of the sentence imposed upon the defendants. It can be appropriately used to direct the industry’s attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with the construction industry.

72. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the WHS Act very seriously.

73. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors.

74. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.

75. Since the incident, the defendant has taken many appropriate and wide-reaching efforts to improve it’s safety at work. Immediately after the incident the defendant took the following steps:

1. Erected temporary fencing around the unprotected void in the back south west corner of the building which was bolted down and set back from the penetration levels 2 and 3 of the site;

2. Replaced the wooden temporary handrails with orange barrier fencing around the penetration which was bolted down;

3. The roof mezzanine area had temporary timber handrails installed around the roof area and orange mesh to ensure no tools could be dropped from heights;

4. Allocated a specific supervisor to level 3 to oversee works being conducted on that level; and

5. Obtained services of an appropriately qualified and experienced scaffolding contractor who dissembled and reassembled, the mobile scaffolding in accordance with the instruction of the relevant manufacturers and tested and tagged the mobile scaffolds as compliant.

76. The defendant took steps to improve its management of health and safety issues by engaging the services of professional WHS lawyers and consultants to provide presentations to workers, provided refresher training for working with heights, scaffolds, management of scaffolds and first aid.

77. The defendant has also introduced two web-based management programs/applications, Procore and SignOnSite which provide enhanced health and safety management on site and in real time. The ingenuity of these systems and the manner in which all workers on all sites are monitored, are very impressive and in my mind, go a long way to address the workplace issues of health and safety. These systems are explained in paragraphs [13]-[19] of Mr Cejas’ affidavit (exhibit 2) and I note that the defendant now uses SignOnSite at all of its worksites. This demonstrates to me a very serious commitment to the safety of workers that is now in place within the defendant’s organisation.

78. I accept that the prospects of rehabilitation of the defendant are very good, however, the need for an element of specific deterrence is still necessary in these circumstances, as the defendant remains working in the same industry.

Aggravating factors

79. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act. In order for this aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing).

80. Mr Comiskey suffered very serious injuries and remains clearly disables and distressed, and is an aggravating factor.

81. The defendant’s offending conduct exposed a person or persons to a grave risk of death: s 21A(2)(ib) of the Sentencing Act.

Mitigating factors

82. In Haynes v CI & D Manufacturing (No 2), Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench held the following:

'We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record.

Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question.'

83. The defendant has not been subject to any prior convictions under work health and safety law: s 21A(3)(e) of the Sentencing Act.

84. I accept that the defendant is a corporate citizen of good character and has made significant charitable donations as an active contributor to and sponsor of its community: s 21A(3)(f) of the Sentencing Act.

85. I accept the defendant is unlikely to reoffend: s 21A(3)(g) of the Sentencing Act.

86. I accept that the defendant has demonstrated a very strong commitment to workplace safety, has very good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.

87. I accept that the defendant has demonstrated its remorse by providing evidence that it has accepted responsibility for the offence and has acknowledged the injury, loss and damage caused by the offence: s 21A(3)(i) of the Sentencing Act. I accept that the defendant has done this in part by implementing many measures to minimise the risk since the incident, at a significant cost.

83. These steps, to my mind, demonstrate the defendant’s acceptance of its breach, and has put in place a set of procedures to ensure that it complies with its duties under the WHS Act.

84. The defendant co-operated with SafeWork NSW during its investigations: ss 21A(3)(m) of the Sentencing Act.

85. The defendant entered a plea of guilty on 18 September 2023, which of itself demonstrates remorse, and the prosecutor submits it is open to me to find that the defendant is entitled to the maximum discount on that basis. Thus, I will allow a deduction of 25% for the utilitarian value of the plea in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383 and ss 21A(3)(k) and 22 of the Sentencing Act.

86. The Prosecutor requests an order that Mr Gavriilidis and two other senior employees who are likely to be engaged in supervisory work, to Complete a Certificate IV in Work Health and Safety by 21 November 2024, pursuant to s 241 of the WHS Act. The defendant has agreed to that course and Mr Gavrilis, Mr Cejas and Mr De Barros will all do so.

Costs

92. The issuing of costs against a defendant in both criminal and civil proceedings is not punitive, but rather compensatory to the prosecution: Latoudis v Casey (1990) 170 CLR 534 at 543 (Mason CJ).

93. The Court is entitled to take into account the fact that the defendant will be liable to pay the prosecutor’s costs when considering any monetary penalty to be imposed on the defendants, particularly in circumstances where there is evidence of a limited capacity to pay a fine, and I have done so. Costs payable to the prosecutor are the ‘normal’ rule as the prosecutor has been successful, although there can be exceptions: see for example, Bulga. 

94. The Court can also have regard to the defendant’s own costs that it will have to bear as a consequence of a breach of the WHS Act, and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78].

Comment

95. The offending in this instance is objectively serious and in determining the appropriate fine, I have considered many matters referred to in this judgment, or in the oral and written submissions from Counsel for the prosecutor and Counsel for the defendant. But for a very strong subjective case the appropriate fine to my mind would be $750,000. However, based on the material put before me as previously detailed, the appropriate fine is $550,000.

Penalty

96. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine for the offence is $550,000 and that will be reduced by 25% to reflect the plea of guilty.

3. Accordingly, I order the defendant to pay a fine of $412,500.

4. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

5. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, as agreed or assessed.

6. Pursuant to s 241 of the Work Health and Safety Act 2011 (NSW) the defendant is to arrange for Eleftherios Gavriilidis and two other senior employees who engage in or are likely to be engaged in supervisory work, to complete a Certificate IV in Work Health and Safety by 21 November 2024.

7. The defendant is the provide the prosecutor with evidence as to the completion of the above order as soon as practicable and at the latest by 30 November 2024.

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Decision last updated: 01 December 2023