SafeWork NSW v Meoushy

[2023] NSWDC 498

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Meoushy [2023] NSWDC 498

Hearing dates:

25 October 2023

Date of orders:

17 November 2023

Decision date:

17 November 2023

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1) The defendant is convicted.

(2) The appropriate fine for the offence is $6,000.00, and that will be reduced by 25% to reflect the plea of guilty.

(3) Accordingly, I order the defendant to pay a fine of $4,500.00.

(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.

Catchwords:

CRIMINAL LAW – failure to notify the regulator of a notifiable incident

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

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

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

Muldrock v The Queen (2011) 244 CLR 120

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

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

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

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

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Alex Meoushy (Defendant)

Representation:

Counsel:
Mr D Nagle (for the Prosecutor)
Ms E James (for the Defendant)

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

File Number(s):

2022/251278

Publication restriction:

Nil

JUDGMENT

1. On 24 August 2020, at 361-363 Bernera Road, Edmundson Park NSW (‘the site’), Alex Meoushy (‘the defendant’), being a person with management and control of a workplace at which a notifiable incident occurred involving Mohammad Hoque (‘Mr Hoque’), had a duty under s 39(1) of the Work Health and Safety Act 2011 (NSW) (‘the WHS Act’) to ensure, so far as was reasonably practicable that the site where the incident occurred was not disturbed until an inspector arrived at the site or as directed by an inspector at any earlier time.

2. The offence is recorded in the Amended Summons filed 19 June 2023.

3. At the time of the offence the maximum penalty for the offence was $11,729.80.

4. The prosecutor tendered the Prosecutor’s Sentence Tender Bundle (‘PTB’) which became exhibit A. The defendant tendered character references from Steven Louie Zahos dated 21 September 2023, Matthew J Fahd dated 5 October 2023, and an undated reference from Richard Felice, which all became exhibit 1. The defendant also tendered the SafeWork NSW Factual Inspection Report dated 21 September 2020 by Inspector Nigel Wood, which became exhibit 2.

Background

5. The defendant was a person with management or control of the site. On 24 August 2020, Mr Hoque, whilst undertaking tasks associated with the work of installing Dincel (a type of walling block), was struck by bundles of steel reinforcement bars being moved by a crane.

6. As a result of the incident Mr Hoque sustained serious injuries within in the meaning of s 36 of the WHS Act, including multiple segmental fractures to his ribs and a torn right rotator cuff. Mr Hoque required immediate treatment of his injuries, was admitted to hospital and underwent surgical repair of his right rotator cuff.

7. Mr Meoushy was made aware of the incident within approximately 5 minutes of the incident occurring.

Particulars of the Defendant’s failure to comply with the duty under s 39(1) of the WHS Act

‘6.   On 24 August 2020, a notifiable incident occurred at the site, in that:

Whilst he was in the laneway undertaking tasks associated with the work of installing Dincel, Mr Hoque was struck by bundles of steel reinforcement bars being moved by the crane; and

As a result of the incident, Mr Hoque sustained a serious injury within the meaning of section 36 of the WHS Act, including multiple, segmental fractures to his ribs and a torn rotator cuff.

Mr Hoque required immediate treatment of his injuries.

Mr Hoque required immediate treatment as an in-patient in a hospital.

Mr Hoque underwent surgical repair of his rotator cuff.

7.   The defendant was made aware of the incident within approximately 5 minutes of the incident occurring.

8.   Following the incident and prior to an inspector arriving at the site, the incident scene was disturbed in that crane work and concrete pumping resumed and the form work deck where Mr Hoque was pinned/crushed was rebuilt, such that the area where Mr Hoque was injured was moved or disturbed.

9.   The defendant failed to ensure, so far as is reasonably practicable, that the site where the incident occurred was not disturbed until a SafeWork NSW inspector arrived at the site, or any earlier time that a SafeWork inspector directed, in that the defendant failed to ensure that the area where Mr Hoque was injured, was not moved or disturbed.'

8. Following the incident, the defendant failed to ensure that the site where the incident occurred was not disturbed until a SafeWork inspector arrived. As set out in the Amended Summons, the defendant failed to ensure that the site was not disturbed, in that crane work and concrete plumbing resumed and the formwork deck where Mr Hoque was pinned/crushed was rebuilt. Thus the area where Mr Hoque was injured was disturbed. It is an agreed fact that the defendant was in fact an individual who directed such works to continue thereby disturbing the site where the incident occurred: Statement of Agreed Facts (‘SOAF’) [32-33].

The elements of the offence

9. The elements of the offence to which the defendant has pleaded guilty are as follows:

1. The defendant was a person with management or control of a workplace;

2. A notifiable incident occurred at that workplace;

3. The defendant had a duty to ensure, so far as was reasonably practicable, that the site where the notifiable incident occurred was not disturbed until and inspector arrived at the site or any earlier time that an inspector directed;

4. The defendant failed to comply with that duty.

Sentencing

10. 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.

11. The Court must have consideration to the objects of the WHS Act under s 3 in particular, that which is set out in subsections (e) and (f) ensuring

12. 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.

13. 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.

14. 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

15. 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.’

16. The maximum penalty serves as a yard stick and a basis for the comparison between the case before the Court and the worst case. The penalty for a breach of s 39 is 115 penalty units, or $11,729.80 for an individual.

17. I accept that the maximum penalty indicates this offence is objectively less serious than breaches of other safety duties such as under ss 19 and 20 of the WHS Act, and that the penalty imposed should reflect that.

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

19. 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.

20. 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.

21. 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).

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

1. After being struck by the bundles of steel, Mr Hoque sustained serious injuries, was hospitalised and required surgery.

2. The incident site was disturbed in that crane work and concrete plumbing resumed and the formwork deck where Mr Hoque was injured was rebuilt, such that the area where Mr Hoque was injured was moved or disturbed.

3. It is agreed by both parties that the defendant was the individual who directed such works to continue thereby disturbing the site where the incident occurred: SOAF at [32]-[33].

4. The actions taken by the defendant before he directed the work in the laneway to recommence are not referrable to an element of the offence, and are only relevant to the circumstances in which the offending occurred.

5. The defendant was the holder of a current senior first aid certificate at the time, and having observed Mr Hoque for some 10-15 minutes after the incident formed the view that Mr Hoque’s injuries were not serious, and that he sent an ambulance away.

6. The defendant accepts that in forming that view, he made a significant error of judgment regarding the seriousness of Mr Hoque’s injuries, and that he then called an ambulance.

7. Such error is that after Mr Hoque had been transferred to the first aid shed, the defendant directed work in the laneway to continue.

8. Whilst the resumption of the crane work and concrete pumping may not have made a significant disturbance of the scene, the rebuilding of the formwork deck did.

23. As a consequence of the matters set out above, I am of the view that this is an objectively serious offence. 

Deterrence

24. 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.

25. 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 the integrity of any investigation by the Regulator is not compromised.

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

27. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 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 Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 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.’

28. General deterrence must be a significant feature of the sentence imposed upon the defendant. It can be appropriately used to direct the industry’s attention to failing to ensure that the site cannot be disturbed until a SafeWork Inspector arrives, is a breach of the legislation.

29. To achieve the purposes of the WHS Act, it is necessary that following a notifiable incident, SafeWork investigators be able to observe the site in a state that is undisturbed from how it was at the time of the incident.

30. 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. Not disturbing a site where an incident has occurred is crucial to allow the investigations by the Regulator to occur in an appropriate fashion.

31. The gravamen of the offending lies in what was lost by the failure to preserve the site. The defendant’s breach meant that SafeWork investigators lost the opportunity to examine and assess, in its undisturbed form, the area of the laneway where Mr Hoque was hit by the load.

32. 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.

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

34. 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.

Aggravating and mitigating factors

35. 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.'

36. The defendant has not been subject to any prior convictions under work health and safety law: s 21A(3)(e) of the Sentencing Act, which is a good record given that he works in the construction business, which is a high risk industry.

37. I accept that the defendant is of good character: s 21A(3)(f) of the Sentencing Act.

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

39. I accept that the defendant has good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.

40. I accept that the defendant has demonstrated remorse by providing evidence that he has accepted responsibility for the offence: s 21A(3)(i) of the Sentencing Act.

41. The defendant entered a plea of guilty early, 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.

Costs

42. 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).

43. 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].

Penalty

44. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine for the offence is $6,000.00, and that will be reduced by 25% to reflect the plea of guilty.

3. Accordingly, I order the defendant to pay a fine of $4,500.00.

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.

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Decision last updated: 17 November 2023