SafeWork NSW v Modco Homes Pty Ltd

Case •

[2024] NSWDC 565

•

02 December 2024

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: SafeWork NSW v Modco Homes Pty Ltd [2024] NSWDC 565
Hearing dates: 30 July 2024
Date of orders: 2 December 2024
Decision date: 02 December 2024
Jurisdiction:Criminal
Before: Strathdee DCJ
Decision:

(1)   In each proceedings, Modco Homes Pty Ltd is convicted.

(2) The appropriate fine for the offence under s 19(1) in file 2023/198178 which relates to the first incident is $80,000 and that will be reduced by 25% to reflect the plea of guilty.

(3)   Accordingly, in that matter, I order the defendant to pay a fine of $60,000.

(4) The appropriate fine for the offence under s 19 (1) in file 2023/198186 which relates to the second incident, the appropriate fine is $80,000 and that will be reduced by 25% to reflect the plea of guilty.

(5)   Accordingly, in that matter, I order the defendant to pay a fine of $60,000.

(6) The appropriate fine for the offence under s 19 (1) in file 2023/198199 which relates to the third incident, the appropriate fine is $80,000 and that will be reduced by 25% to reflect the plea of guilty.

(7)   Accordingly, in that matter, I order the defendant to pay a fine of $60,000.

(8) The appropriate fine for the offence under s 38 (1) in file 2023/198229 which relates to the second incident, is $20,000 and that will be reduced by 25% to reflect the plea of guilty.

(9)   Accordingly, in that matter, I order the defendant to pay a fine of $15,000.

(10) The appropriate fine for the offence under s 39(1) in file 2023/198236 which relates to the first incident is $20,000 and that will be reduced by 25% to reflect the plea of guilty.

(11)   Accordingly, in that matter, I order the defendant to pay a fine of $15,000.

(12) The appropriate fine for the offence under s 39(1) in file 2023/198240 which relates to the second incident is $20,000 and that will be reduced by 25% to reflect the plea of guilty.

(13)   Accordingly, in that matter, I order the defendant to pay a fine of $15,000.

(14) In each matter, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed.

(15) In each matter, pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

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), ss 3A, 21A, 22,

Fines Act 1996 (NSW), s 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 31, 32, 35, 37, 38, 39

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37

Capral Aluminium Ltd v WorkCover Authority(NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71

Environmental Protection Authority v Barnes [2006] NSWCCA 246

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

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

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

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

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

Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61

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

Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82

R v Cage [2006] NSWCCA 304

R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92

R v Miria [2009] NSWCCA 68

R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Youkhana [2004] NSWCCA 412

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

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

Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465

WorkCover Authority of NSW vSarjameStorage Pty Ltd [2015] NSWDC 151

WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142

Texts Cited:

SafeWork NSW Code of Practice – Managing the Risk of Falls at Workplaces, August 2019

Category:Sentence
Parties: SafeWork NSW (Prosecutor)
Modco Homes Pty Ltd (Defendant)
Representation:

Counsel:
M Scott (Prosecutor)
S McIntosh (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Marsdens Law Group (Defendant)
File Number(s): 2023/198178, 2023/198186, 2023/198199, 2023/198229, 2023/198236, 2023/198240
Publication restriction: Nil

JUDGMENT

Background

  1. Modco Homes Pty Ltd (ACN 162 155 893) (the defendant) was a registered corporation with its principal place of business at Unit 104, 38 Atchison Street, Wollongong NSW. The defendant employed approximately 16 workers.

  2. The defendant, being a person conducting a business or undertaking (PCBU) was engaged by Segco Pty Ltd to carry out construction work of a multistorey building located within the Wollongong CBD precinct at 38-42 Atchison Street, Wollongong (the Site). The Site is located on the western side of Atchison Street and is bounded on either side by dwellings and commercial businesses.

  3. As the builder and principal contractor, the defendant engaged Sydney Hoist and Scaffolding Pty Ltd (SHS) to undertake scaffolding work at the Site. On 12 July 2021 the defendant had control of a tower crane (the Tower Crane) in place at the Site. The defendant had employed Samuel Wiri (Mr Wiri) to operate the Tower Crane. Mr Wiri was a qualified crane operator and had approximately four years of experience in crane operation.

  4. The Tower Crane was owned by Tower Cranes Pty Ltd trading as TCI Group (TCI). The Tower Crane had been provided to the defendant for use at the Site in the course of the construction work.

  5. The Tower Crane was first erected at the Site on 22 April 2020.

  6. Two incidents occurred at the Site on 12 July 2021, and a third incident on the following day, as detailed below.

First Incident

  1. Prior to 12 July 2021, Mr Wiri had operated the crane safely and without incident.

  2. Prior to 12 July 2021, the defendant had trained Mr Wiri in the Modco Crane Operations Safe Work Method Statement (SWMS) dated 14 April 2021 (Crane Operation SWMS). The intended effect of the Crane Operation SWMS was to, amongst other things, prohibit an operator from leaving a crane unattended without first properly securing the crane and the remote control device (remote control).

  3. On 12 July 2021 the Tower Crane was being operated at the Site by Mr Wiri. He was operating it by use of a remote control device at ground level.

  4. At approximately 1.40pm that day, immediately after having completed a lift using the Tower Crane, the defendant’s employee, Mr Wiri, contrary to the defendant’s Crane Operations SWMS, left the Tower Crane and the remote control unattended to go to the toilet. He did not lift the hook block of the Tower Crane high enough, to clear the building, before leaving it unattended.

  5. While Mr Wiri was on his break at approximately at 1.42pm, the Tower Crane slewed in an anti-clockwise direction from the roadside causing the hook block, lifting chain and hoist rope to strike and cause damage to the northeastern façade of the Site on Levels 16, 17 and 18 (the First Incident). No one was beneath the Tower Crane and no persons were injured during the First Incident.

  6. After Mr Wiri was informed of the First Incident by a co-worker, he informed the Site Manager, Ben Malafu (Mr Malafu).

  7. The defendant did not prevent the Site from being disturbed following the First Incident and until an inspector of SafeWork NSW arrived.

Second Incident

  1. Prior to 12 July 2021, the defendant had trained its workers in its procedure for inspecting machinery prior to use. The intended effect of this was that after an uncontrolled event, such as the First Incident, machinery was to be inspected by a competent person before being used again.

  2. At approximately 3.00pm on the same day, Mr Wiri instructed the defendant’s Site Foreman, Mr Charlie Seghabi, to lift two skip bins from the ground at the rear of the Site to Level 8. Mr Wiri connected the skip bins and commenced the lift. At approximately 3.10pm, the crane hoist rope failed, causing the skip bins and crane hook block to fall five storeys, landing on Level 2 of the Site (the Second Incident). No persons were injured during the Second Incident.

  3. Immediately following this incident the defendant contacted TCI and arranged for an inspection and repair of the Tower Crane.

  4. The defendant did not inform the Regulator, nor take steps to prevent the Site from being disturbed following the Second Incident and until an inspector of SafeWork NSW arrived.

Third Incident

  1. Prior to and on 13 July 2021, the defendant had in place a policy and procedure that prohibited workers working near unprotected edges without fall protection or fall arrest equipment. The defendant had trained Mr Wiri in this procedure.

  2. On 13 July 2021, the Site was disturbed when Mr Wiri, contrary to the defendant’s procedures, commenced receiving the hook block from the skip bins that had fallen onto Level 2. While Mr Wiri was doing this, he stood on the unprotected edge of the balcony and did not utilise any fall protection devices or fall arrest equipment (the Third Incident).

Notification to SafeWork NSW

  1. On 13 July 2021 SafeWork NSW received two anonymous notifications regarding the Second Incident and safety concerns at the Site.

  2. At approximately 10.30am on that day, SafeWork NSW manager Derek Prior (Mr Prior) contacted Mr George Seghabi, Director of the defendant, to enquire about what had occurred at the Site. Mr Prior subsequently received an email from the defendant that afternoon, containing a report about the First Incident and the Second Incident which had occurred the prior day.

Post-Incident Events

  1. SafeWork NSW inspectors attended the Site the following morning, 14 July 2021, and issued various notices to the defendant regarding the three incidents.

  2. The defendant subsequently had the Tower Crane repaired and reviewed its SWMS and subsequently reported the incidents to SafeWork NSW on 14 August 2021.

Available Guidance Material

  1. Prior to the incidents SafeWork NSW had published its Code of Practice – Managing the Risk of Falls at Workplaces dated August 2019, and various other relevant NSW Codes of Practice, Australian Standards and Safe Work Australia Guides.

Systems in Place at the Time of the Incident

  1. The defendant had a Crane Operation SWMS in place for the operation of the Tower Crane, which pre-dated the incidents. However, it was not followed in respect of the First Incident in that it failed to isolate the Tower Crane and prevent its slew during the First Incident.

  2. The defendant also had a procedure in place for notifying SafeWork NSW of notifiable incidents, being Modco Homes WHS Management System, dated 13 December 2012. However, it was not followed after the First Incident or the Second Incident.

  3. The defendant had no system or procedure in place at the time of the incidents for ensuring that the Site was preserved after a notifiable incident occurred. It did have a process in place for protecting workers when working at edges where there was a risk of falling from height, contained in the Modco Homes WHS Management System. This process was not followed by Mr Wiri in respect of the Third Incident. The defendant had not adequately, at the time of the Third Incident, directed workers not to work at unguarded edges where there was a risk of falling from a height, without having falls arrest or fall prevention equipment in place and available for use at the Site. Following the incidents the defendant revised its safe work procedures applicable at the Site and arranged for the Tower Crane to be taken out of use until it had been inspected and repaired by a competent person.

Procedural History

  1. On 20 June 2023, SafeWork NSW instituted proceedings alleging eight contraventions of the Work Health and Safety Act 2011 (NSW) (WHS Act) arising from the events of the First Incident, the Second Incident and the Third Incident.

  2. On 6 May 2024, I dismissed the Summonses for two of the eight alleged contraventions with no order as to costs. On the same day, I granted leave to the prosecutor to file in court an Agreed Statement of Facts (ASOF) and Amended Summonses (AS) for the remaining six contraventions:

  1. File number 2023/198178 relating to the First Incident, being the failure of the defendant with a duty under s 19(1) of the WHS Act to ensure, so far as reasonably practicable, the health and safety of workers, and this failure exposed workers to a risk of death or serious injury or illness contrary to s 32 of the WHS Act.

  2. File number 2023/198186 relating to the Second Incident, being the failure of the defendant with a duty under s 19(1) of the WHS Act to ensure, so far as reasonably practicable, the health and safety of workers, and this failure exposed workers to a risk of death or serious injury or illness contrary to s 32 of the WHS Act.

  3. File number 2023/198199 relating to the Third Incident, being the failure of the defendant with a duty under s 19(1) of the WHS Act to ensure, so far as reasonably practicable, the health and safety of workers, and this failure exposed workers to a risk of death or serious injury or illness contrary to s 32 of the WHS Act.

  4. File number 2023/198229 relating to the Second Incident, being the failure of the defendant with a duty under s 38(1) of the WHS Act to ensure the Regulator was notified immediately after becoming aware that a notifiable incident arising out of the conduct of its business or undertaking had occurred.

  5. File number 2023/198236 relating to the First Incident, being the failure of the defendant with a duty under s 39(1) of the WHS Act to ensure the site where a notifiable incident occurred was not disturbed until an inspector arrives at the site.

  6. File number 2023/198240 relating to the Second Incident, being the failure of the defendant with a duty under s 39(1) of the WHS Act to ensure the site where a notifiable incident occurred was not disturbed until an inspector arrives at the site.

  1. The defendant subsequently entered a plea of guilty pursuant to the six AS and the matter was set down for a sentence hearing on 30 July 2024.

Evidence

  1. The prosecutor tendered a Prosecution Sentence Tender Bundle which became Exhibit A.

  2. The defendant tendered an affidavit of George Seghabi sworn 25 July 2024 which became Exhibit 1, as he is the Director of the defendant.

Sentencing

  1. 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.

  2. 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.

  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.

  1. 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; [2005] HCA 25.

  2. 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

  1. 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; [2011] HCA 39 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.”

  1. Subjective factors play a subsidiary role:  Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at pp 474-475.

  2. The duties of the defendant require that they ensure the health and safety of workers as far as is 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.

  3. 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 Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465.

  4. 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; [2000] NSWIRComm 71 (Capral Aluminium) at [81].

  5. 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; [2005] NSWIRComm 61.

  6. 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; [2000] NSWIRComm 142 at [31].

  7. 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; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 (Nash v Silver City Drilling). 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.”

  1. 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.”

  1. 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) 145 A Crim R 434; [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) 164 A Crim R 481; [2006] NSWCCA 272.

  2. 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).

  3. 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 of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).

  4. 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 Drilling 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 materialise:  Nash v Silver City Drilling at [34].

  2. The availability of steps to eliminate or minimise the risk:  Nash v Silver City Drilling at [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 Drilling at [34] and [53].

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

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

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

  1. However, I accept that it is the risk that I am assessing the seriousness of, and not its manifestation. In Nash v Silver City Drilling, his Honour Justice Basten dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying at [53]:

“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.”

Matters that are Relevant to the Determination of the Culpability of the Defendant

  1. There were three incidents that occurred in a very short space of time, all of which exposed workers/persons to a risk of serious harm.

The First Incident

  1. The First Incident is referred to at pars 12-20 of the ASOF which involved Mr Wiri. Mr Wiri was employed by the defendant to operate the Tower Crane. He was a qualified crane operator and had approximately four years of experience in crane operation. It is an agreed fact that he left the Tower Crane and the remote control unattended to go to the toilet. He did not lift the hook block of the Tower Crane high enough to clear the building before leaving it unattached.

  2. It is an agreed fact (ASOF par 16) that the Tower Crane was unattended and that at approximately 1.42pm, the Tower Crane slewed in an anti-clockwise direction causing the hook block, lifting chain and hoist rope truck which caused damage to the Site. No one was beneath the crane when this occurred and it is noted that the defendant did have exclusion zones as part of its work health and safety policies.

  3. The defendant was aware that the crane was unsecured and unattended, and that in accordance with their own Crane Operation SWMS, that constituted a risk. The defendant was further aware that leaving the Tower Crane in a position below the top of the building could cause damage to the building and the Tower Crane.

  4. The risk manifested when the Tower Crane slewed and caused a glass panel to fall a number of storeys, damaging the building. However, it was a breach that occurred during a short space of time and as most of the construction was completed, there were few workers on the Site who were exposed to the risk.

  5. It is an agreed fact (ASOF par 19) that that the site supervisor, Mr Malafu was notified of the malfunction. Mr Wiri inspected the Tower Crane and did not identify any damage to it.

The Second Incident

  1. The Second Incident occurred on the same day as the First Incident at approximately 3.00pm when Mr Wiri was instructed by Mr Charlie Seghabi to use the Tower Crane to lift two skip bins from the ground level to Level 8 (ASOF par 23).

  2. Whilst the skip bins were being lifted across the Site, the crane hoist rope failed, which caused the hook block and the skip bins to fall approximately five storeys. The skip bins and hook landed on the edge of a garden bed located on Level 2 of the Site. Fortunately, no one was beneath the Tower Crane and no persons were injured in the Second Incident.

  3. Whilst it is apparent that the defendant had trained the workers in the procedure of lifting sheets, as the Tower Crane had suffered damage at approximately 1.42pm, it should not have been used until someone with the appropriate level of competency, and training in excess of Mr Wiri’s training, had the opportunity to inspect it. The intended effect of the defendant’s safety procedures included that after an uncontrolled event, machinery was to be inspected by a competent person before it was used again, and this procedure applied to the use of the Tower Crane.

  4. It was only after the events of the Second Incident (described at ASOF par 24) that TCI was contacted.

  5. Thus, the culpability of the defendant continued during the use of the Tower Crane after the First Incident, creating an obvious risk. The fact that it happened one and a half hours after the First Incident is indicative of the risk. Clearly having a crane drop its load creates a significant risk of injuring of any workers who were in the vicinity of sustaining injury.

  6. The pleas of guilty represent an acknowledgment of the defendant’s failures which are detailed in the respective Amended Summonses.

  7. I accept that the defendant was cognisant of the risks of working at height and with the use of cranes – it had in place a system to protect its workers. However, it did not ensure that such systems were enforced on the Site. I further accept that this is not a defendant who knew of the risks and ignored them, but a defendant that failed to ensure that its systems were followed and enforced at any time that its workers were working on the Site.

  8. I accept that the measures to which the plea has been entered were measures that were suitable, available, and were able to be implemented by the defendant during the relevant period and, had they been so, the risk would have been eliminated or minimised.

  9. The gravity of the potential risk to safety flowing from the breach is relevant to the assessment of the gravity of the breach and the culpability of the defendant.

  10. Although the damage or injury caused by the breach does not if itself dictate the seriousness of the offence or penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis from a breach unlikely to have such consequences.

  11. The risks existed over a period of two days, despite the defendant’s knowledge of the risks and the availability of the measures available to address the risks which were neither expensive nor difficult to implement.

  12. There can be no suggestion that the situation that existed was not a dangerous incident as defined in s 35(c) of the WHS Act, and that a failure or malfunction of any plant is a dangerous incident pursuant to s 37 of the WHS Act.

  13. The obligation imposed by s 38(1) of the WHS Act is that the PCBU must notify the Regulator immediately, and by the fastest possible means – WHS Act s 38(2). The obligation in s 39 of the WHS Act is that the person with management and control of the site must not disturb the site until representatives of the Regulator have attended for an inspection.

  14. This did not occur on each occasion, and the notification to the Regulator was made by anonymous persons, not anyone from the defendant.

  15. Whilst I accept that no harm occurred, and thankfully the outcome was not as bad as it could have been, had the Regulator been notified after the First Incident, then the Tower Crane would have been stood down, and the Second Incident would not have occurred.

  16. I do accept however that the defendant did have quite comprehensive work health and safety policies in place in which the workers had been trained. On that basis this matter can be distinguished from circumstances where there are no systems in place at all with regard to the tasks at hand to ensure the safety of the workers.

  17. I further accept that the specific failures are administrative errors as there was no appropriate nor adequate enforcement and inspection of the work that was being performed. Mr Wiri was a qualified and experienced worker and had, up until these three incidents, been a safe worker, and I think it is not unreasonable to assume that he was aware of the prohibition against leaving the Tower Crane unattended. However, on this occasion the Crane Operator SWMS and safety policies were not followed.

  18. I also accept that for the Third Incident to occur, Mr Wiri had to make a positive decision to do what he did, thus placing himself at risk, despite the WHS policies that he had been inducted in.

  19. For the above reasons I find that the offending was objectively serious.

Deterrence

  1. 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.

  2. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court is 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).

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

  4. The Court of Criminal Appeal in Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338 (Bulga); [2016] NSWCCA 37 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 says:

“[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.”

  1. 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 use of crane and working at heights.

  2. 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.

  3. 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.

  4. 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.

Aggravating Factors

  1. 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). This feature does not apply as there were no injuries sustained by any person.

Mitigating Factors

  1. In Haynes v CI & D Manufacturing Pty Limited (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.”

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

  2. I accept that the defendant is a corporate citizen of good character and has made significant charitable donations and contributions to the community: s 21A(3)(f) of the Sentencing Act (see George Seghabi affidavit sworn 25 July 2024 at [58] of exhibit 1).

  3. I accept that the defendant is unlikely to reoffend as it has undertaken significant changes and is even more focused than before on the health and safety of its workers: s 21A(3)(g) of the Sentencing Act. This is not a defendant that had no regard to safety at all – it had systems in place to protect its workers, but there was no enforcement of such policies at the relevant times. I further note that the defendant does not currently have any employees and that it does not intend to continue in the business.

  4. I accept that the defendant has demonstrated its remorse and accepted responsibility for the offence: s 21A(3)(i) of the Sentencing Act. This is borne out in the affidavit of George Seghabi (exhibit 1), and in his oral evidence before me.

  5. I accept the defendant co-operated with SafeWork NSW during its investigations: s 21A(3)(m) of the Sentencing Act.

  6. The defendant entered guilty pleas at an early point in time. Such a plea of guilty demonstrates remorse, and 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; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and s 21A(3)(k) and s 22 of the Sentencing Act.

Costs

  1. 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] HCA 59; (1990) 170 CLR 534 at 543 (Mason CJ).

  2. 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 them, and I have taken this into consideration.

  3. 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

  1. I make the following orders:

  1. In each proceedings, Modco Homes Pty Ltd is convicted.

  2. The appropriate fine for the offence under s 19(1) in file 2023/198178 which relates to the first incident is $80,000 and that will be reduced by 25% to reflect the plea of guilty.

  3. Accordingly, in that matter, I order the defendant to pay a fine of $60,000.

  4. The appropriate fine for the offence under s 19 (1) in file 2023/198186 which relates to the second incident, the appropriate fine is $80,000 and that will be reduced by 25% to reflect the plea of guilty.

  5. Accordingly, in that matter, I order the defendant to pay a fine of $60,000.

  6. The appropriate fine for the offence under s 19 (1) in file 2023/198199 which relates to the third incident, the appropriate fine is $80,000 and that will be reduced by 25% to reflect the plea of guilty.

  7. Accordingly, in that matter, I order the defendant to pay a fine of $60,000.

  8. The appropriate fine for the offence under s 38 (1) in file 2023/198229 which relates to the second incident, is $20,000 and that will be reduced by 25% to reflect the plea of guilty.

  9. Accordingly, in that matter, I order the defendant to pay a fine of $15,000.

  10. The appropriate fine for the offence under s 39(1) in file 2023/198236 which relates to the first incident is $20,000 and that will be reduced by 25% to reflect the plea of guilty.

  11. Accordingly, in that matter, I order the defendant to pay a fine of $15,000.

  12. The appropriate fine for the offence under s 39(1) in file 2023/198240 which relates to the second incident is $20,000 and that will be reduced by 25% to reflect the plea of guilty.

  13. Accordingly, in that matter, I order the defendant to pay a fine of $15,000.

  14. In each matter, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed.

  15. In each matter, pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

******

Amendments

04 December 2024 - Amended date of judgment and orders

Decision last updated: 04 December 2024

Actions
Download as PDF Download as Word Document
Most Recent Citation
Agius v Hannaford [2025] ACTMC 19
Cases Citing This Decision

2

Agius v Hannaford [2025] ACTMC 19
Agius v Hannaford [2023] ACTMC 5
Cases Cited

23

Statutory Material Cited

3

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