SafeWork NSW v NonAbel Concrete Pump Pty Ltd; SafeWork NSW v Bilal Hamdan

[2020] NSWDC 65

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v NonAbel Concrete Pump Pty Ltd; SafeWork NSW v Bilal Hamdan [2020] NSWDC 65

Hearing dates:

19 March 2020

Date of orders:

30 March 2020

Decision date:

30 March 2020

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

In the s 32 proceedings against NonAbel Concrete Pump Pty Limited (2019/95612):

 

(1)   The offender NonAbel Concrete Pump Pty Limited is convicted.
(2)   I take into account the Victim Impact Statement.
(3)   The appropriate fine is $500,000 but that will be reduced by 25% to reflect the plea of guilty.
(4)   Order the offender NonAbel Concrete Pump Pty Limited to pay a fine of $375,000.
(5) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
(6)   Order the offender NonAbel Concrete Pump Pty Limited to pay the prosecutor’s costs.

 

In the s 27 proceedings against Bilal Hamdan (2019/95634):

 

(1)   The offender Bilal Hamdan is convicted.
(2)   I take into account the Victim Impact Statement.
(3)   The appropriate fine is $50,000 but that will be reduced by 25% to reflect the plea of guilty and further reduced to reflect the offender’s reduced capacity to pay.
(4)   Order the offender Bilal Hamdan to pay a fine of $10,000.
(5) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
(6)   Order the offender Bilal Hamdan to pay the prosecutor’s costs.
(7) Order pursuant to s 241 of the Work Health and Safety Act 2011 that Bilal Hamdan:

 (a)   undertake within the next 6 months a work health and safety risk management course for supervisors and managers, conducted by a Registered Training Organisation;
(b)   undertake within the next 6 months due diligence training for senior managers and company directors, conducted by a Registered Training Organisation; and
(c)   provide written evidence to the prosecutor of the satisfactory completion of such courses.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

 

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty

 

COSTS – prosecution costs

  OTHER – concrete pumping and placement business – foreseeable risk – compressed air wrongly used to blast out cement from pump hose – concrete hose whipped around and struck worker present in danger zone in the head – use of dangerous coupling – failure to anchor hose – hose too long – no exclusion zone – lack of proper instruction and supervision

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
Work Health and Safety Regulation 2011 (NSW) cl 34 - 38, 214

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51
Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153
Ku-ring-gai Council v John David Chia (No 16) [2019] NSWLEC 184
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Morris McMahon and Co Pty Ltd v SafeWork NSW [2019] NSWCCA 36
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Rahme (1989) 43 A Crim R 81
R v Wilkinson (No. 5) [2009] NSWSC 432
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:

Australian Standard 2550.15: 1994, “Cranes - Safe use - Concrete placing equipment”, Standards Australia

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
NonAbel Concrete Pump Pty Limited (Defendant)
Bilal Hamdan (Defendant)

Representation:

Counsel:
C Magee (Prosecutor)
R Reitano (Defendants)

  Solicitors:
SafeWork NSW (Prosecutor)
Takchi & Associates (Defendants)

File Number(s):

2019/956122019/95634

Judgment

1. On 27 March 2017 Mr Souhayb Jamal was a worker holding a concrete hose on a construction site. Compressed air was being used to clear a blockage from the hose. The hose whipped about under pressure and a metal coupling on the end of the hose struck Mr Jamal in the head. He suffered serious injuries resulting in death.

2. NonAbel Concrete Pump Pty Limited (NonAbel) has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed Mr Jamal to a risk of death or serious injury contrary to s 32 of the Act.

3. The maximum penalty for the offence is a fine of $1,500,000.

4. Mr Bilal Hamdan has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 17 of the Act he failed to exercise due diligence to ensure that NonAbel complied with its duty under the Act and thereby exposed Mr Jamal to a risk of death or serious injury contrary to s 32 of the Act.

5. The maximum penalty for the offence is a fine of $150,000.

Background

6. The parties presented an Agreed Statement of Facts and this material is summarised below.

7. The primary business or undertaking of NonAbel was the provision of concrete pumping and placements services.

8. NonAbel owned and operated a Callaghan Concrete Pump CCP40X model concrete pumping truck which was fitted with a delivery boom and ancillary equipment including a concrete delivery hose, pipe line components and accessories (Concrete Pump Truck). This was in use at 62-64 Wrentmore Street, Fairfield in the state of New South Wales (the worksite). 

9. Mr Hamdan was the sole director, secretary and shareholder of NonAbel. He was one of NonAbel’s two employees.

10. The only other employee Mr Jamal was engaged by NonAbel as a labourer and concrete pump linesman. Mr Jamal was a 27 year old Lebanese national who was in Australia on a bridging visa, which allowed him to work while his application for a protection visa was under consideration. Mr Jamal had been employed by NonAbel for between three and seven days before the incident.

11. It is not clear whether Mr Jamal had attended the worksite before the date of the Incident. However, the “daily sign in sheet” dated 27 March 2017, listed Mr Jamal as being “new" on site.

12. Ware Building Pty Ltd (Ware) was the principal contractor at the worksite. It engaged S.E.P. Formwork Solutions Pty Ltd (SEP) as a subcontractor to provide concreting works at the worksite, including formwork, reinforcement fixing and concrete pours. S.E.P. engaged NonAbel as a subcontractor to provide concrete pumping and placement services at the worksite.

The worksite and incident location

13. The worksite consisted of a five-storey residential apartment block under construction which was surrounded by scaffolding.

14. On 27 March 2017, NonAbel was using the Concrete Pump Truck to place concrete on the level 5 formwork deck. The truck was parked at the front of the building, with its boom extending beyond the top of the building and resting on scaffolding. A white metal pipe was attached to the delivery boom of the Concrete Pump Truck. A 10.2 metre black rubber concrete delivery hose with a diameter of 100 millimetres was attached to the end of the white metal pipe. The end of the hose was fitted with a metal coupling which had a diameter of 80 millimetres.

15. The identification plate on the Concrete Pump Truck specified that the “max end hose length” was “4 m”. The use of a delivery hose measuring 10.2 metre was thus in excess of the maximum length of the delivery hose that was recommended by the manufacturer of the Concrete Pump Truck.

Prior to the incident

16. At 5.00am on 27 March 2017, Mr Jamal arrived at the worksite. At 6:00am, Mr Hamdan arrived at the worksite and began setting up the concrete placing equipment.

17. At 6:30am Mr Franco Vellar, who was employed by Ware as Site Manager, started work. Mr Vellar had the responsibility for running the site, co-ordinating sub-contractors on site and inducting new contractors on site. When he arrived at the worksite Mr Vellar observed that the concrete placement equipment was on site but that the boom and pump had not yet been set up. He went to level 5 to see if the area was ready for the pour, before coming back down to the ground level at 7.10am.

18. While Mr Vellar was on the ground floor, he saw NonAbel’s pumping equipment and noticed that Mr Hamdan was not wearing a hard hat. Mr Vellar went over to Mr Hamdan and gave him a yellow hard hat, and said words to the effect of “Wear the fucking hat or I’m going to super glue it on”. Mr Hamdan put the hard hat on.

19. Mr Vellar then went to the worksite office. At this time, Mr Vellar saw Mr Jamal standing near the concrete pump and realised that he had not seen him before at the worksite. He came out of his office and went to speak with Mr Jamal. He tried to have a conversation with Mr Jamal but it was apparent to him that Mr Jamal’s English was poor. Mr Jamal responded, “with pump, work with pump”.

20. Mr Vellar then attempted to induct Mr Jamal. Mr Vellar had partially completed an induction form for Mr Jamal. Mr Vellar was unable to complete the induction, as he received a call over the two-way radio from Mr Nicholas Price, who was employed by Ware and performed the role of Project Manager, to discuss some technical issues with the preparations for the slab on level 5. Mr Vellar needed to go to level 5.

21. Mr Vellar said that before he left Mr Jamal he gave him clear instructions to remain seated in the site office on the ground floor. Mr Vellar then went up to level 5. Shortly after, Mr Jamal left the worksite office and went to level 5.

The Incident

22. Mr Hamdan was setting up and preparing the boom for concrete pumping and was supervising Mr Jamal, who was holding the rubber concrete delivery hose. The metal coupling fixed to the end of the 10.2 metre hose could have been used to connect an extension hose also measuring 10.2 metres. The concrete delivery hose was not secured or anchored while it was used on level 5 of the worksite.

23. At 7:30am, Mr Hamdan started to pump concrete using the remote control for the pump. Sometime between 7:43am and 7:55am, Mr Hamdan discovered there was a blockage in the concrete delivery hose. He stopped the pumping and asked Mr Chady Charchouch, who was employed by Ware as a crane operator, to render assistance. A piece of the concrete delivery hose was detached from the fixed pipe on the delivery boom. Mr Charchouch lifted the concrete delivery hose using the crane while Mr Hamdan and Mr Jamal attempted to clear the blockage by hitting the hose with a hammer. Mr Charchouch observed some material come out of the concrete delivery pipe.                  

24. Mr Hermann Fluechter, a labourer employed by Ware who was working on level 5, observed the attempts to clear the blockage from the concrete delivery hose and saw pieces of hardened concrete fall out of the hose after it was hit by a hammer. Mr Fluechter stated that he thought that the concrete delivery hose had not been cleaned properly after previous use.

25. Mr Hamdan then reattached the concrete delivery hose to the fixed pipe on the delivery boom and went back to get the remote to operate the Concrete Pump Truck. Mr Jamal walked back to the end of the concrete delivery hose, stood with the concrete delivery hose between his legs and picked up the end of the hose with his hands.

26. Mr Fluechter was in the immediate vicinity of Mr Jamal when he picked up the concrete delivery hose. Mr Fluechter observed Mr Hamdan perform a blowout to clear the blockage in the concrete delivery hose. A blowout is a procedure in which air pressure is built up to clear the blockage. Mr Fluechter also observed that, at the time of performing the blowout, Mr Jamal was holding the end of the concrete delivery hose between his legs. Mr Fluechter observed that Mr Jamal was not wearing a safety helmet.

27. A short time later, Mr Fluechter heard a massive ‘boom’ and saw the concrete delivery hose whip around and strike Mr Jamal in the head, causing him to flip over and land on the ground. Mr Fluechter was standing about 5 metres away from Mr Jamal at that time. Mr Fluechter was never told by anyone that he could not work in the area while the blowout procedure was being undertaken.

28. Mr Charchouch heard a popping noise and saw Mr Jamal fall down. He also saw two objects that looked like bits of concrete fly over the top of the scaffolding on level 5.

29. Mr Price, the Project Manager, was also located on Level 5 but did not see the incident. He was standing 6-8 metres away and had his back to Mr Jamal when he “heard a gunshot like sound”. However, he had seen Mr Jamal immediately before the incident and noticed that he was holding the concrete delivery hose.

30. Mr Vellar was standing with Mr Price at the time of the incident. He heard a loud bang behind him. He then heard someone say, “Man down, he’s hurt”. He turned around but could not see anyone, as his view was blocked by a lift shaft. As he walked towards the lift shaft he saw “two projectiles shoot out of the concrete hose”. He subsequently saw Mr Jamal lying down on the ground with the concrete delivery hose between his legs. He observed blood coming out of Mr Jamal’s mouth, nose and ears. He realised that Mr Jamal was the same worker that he had earlier commenced to induct in the site office.

31. Mr Arnaout, the director of SEP, was on level 5 with Mr Price when the incident occurred. He became aware of the incident when he “heard a big strike noise”. He turned and looked behind the lift shaft and saw Mr Jamal lying on the reinforced steel, bleeding from the side of his head.

Injuries and death

32. After the incident occurred, Mr Jamal was breathing but was non-responsive. He was given first aid at the scene by Mr Fluechter before ambulance personnel arrived.

33. NSW Ambulance received the call to attend the site at 7.56am and arrived at 8:08am. Ambulance records noted that the patient was “not wearing helmet” and had sustained “major blunt force trauma to forehead” and was “unconscious”. An ambulance officer, Mr John Brotherhood, stated that it was likely that the patient was wearing a baseball cap at the time of the incident, as the “buckle from a hat was imbedded into his forehead”.

34. Police arrived on site at approximately 8:20am and spoke with relevant witnesses. They did not see or locate a hard hat in the vicinity of the incident location. A baseball cap was subsequently found on the ground close to where the incident occurred.

35. Mr Jamal was transported to hospital and admitted to the intensive care unit. In view of the severity of the injuries he sustained, he was placed on palliation. He was certified as brain dead at 1:00pm on 28 March 2017 and declared dead at 6:30pm on 29 March 2017.

36. An autopsy report for the Coroner confirmed that Mr Jamal died from the head injuries. The report noted that as a result of the incident, Mr Jamal suffered massive right side skull fractures of the frontal, temporal, parietal and occipital bones, extensive intracranial haemorrhages present and pulmonary oedema with possible aspiration.

Systems of Work before the Incident

37. NonAbel was subcontracted by SEP to provide concrete placing services at the worksite. The contract between SEP and NonAbel was not documented. NonAbel attended the site to perform concrete placement services, or related services, on 7 occasions in the period between January and March 2017.

38. NonAbel had the following documents with respect to the concrete placement activities at the worksite:

1. a SafeWork Method Statement (SWMS) for concrete pumping;

2. Mr Hamdan held a high-risk work licence for concrete placing booms, issued by WorkSafe Victoria on 29 May 2015; and

3. Mr Jamal held a NSW Work Health and Safety Construction Induction Card.

Knowledge of the Risk

SWMS for Concrete Pumping

39. NonAbel’s SWMS for concrete pumping identified a number of risks associated with the task. These included “contact with fluid under pressure” during the stages of “planning”, “preparation”, “operation” and “line cleaning”. “Personal injury” was noted as a consequence of these risks. An identified control measure relevant to line cleaning was to remove the rubber hose at the end and to secure all parts to prevent accidental movement. The SWMS further identified the removal of non-essential persons from the work area, especially at the discharge end. Mr Jamal had not signed the SWMS.

Operator’s Guide for the Concrete Pump

40. The Operator’s Guide (the Guide) for the concrete pump was available to NonAbel. The NonAbel SWMS stated that it was necessary to follow the “manufacturer’s instructions". The Guide contained guidance on the risk of death and serious injury arising from being struck by a concrete hose. The Guide also said that the end hoses were not to be fitted with dangerous devices, such as couplings, and warned against the use of air pressure to clean hoses.

41. The Guide specifically stated:

1. “Never attempt to blast out blockages with compressed air. There is a lethal danger as the delivery line might burst.”

2. “End hoses may not be fitted with any extension coupling, outlet shoes or other dangerous outlet fitting.”

3. “There is a risk of injury in the area around the end hose if the end hose strikes out when starting to pump, after blockage has been cleared or during washing out. This zone is twice the end hose length in diameter.”

Guidance Material

Work Health and Safety Regulation 2011

42. NonAbel was required under clauses 34 - 38 of the Work Health and Safety Regulation 2011 (the Regulation) to:

1. identify reasonably foreseeable hazards that could give rise to a risk to health and safety;

2. eliminate identified risks so far as is reasonably practicable;

3. if it is not reasonably practicable to eliminate the risk, then minimise the risk so far as is reasonably practicable by implementing control measures in accordance with the hierarchy of control;

4. maintain implemented control measures so that they remain effective; and

5. review, and if necessary, revise risk control measures so as to maintain, so far as is reasonably practicable, a work environment that was without risks to health and safety.

43. NonAbel was required, under clause 214 of the Regulation, to manage risks to health and safety associated with plant colliding with any person or thing or mechanical failure of pressurised elements of plant that may release fluids that pose a risk to health and safety.

Australian Standard AS 2550.15-1994

44. Part 15 of Australian Standard AS 2550.15 sets out the requirements for the use and operation of concrete placing equipment. It includes guidance on the foreseeability of “accident types” including “whip hose detachment.”

Failures of due diligence by Mr Hamdan

45. Mr Hamdan did not provide sufficient resources and processes to NonAbel to ensure that it complied with its duty under section 19(1) of the Act.

46. Mr Hamdan did not provide resources and processes to ensure that NonAbel had safe plant and equipment for undertaking the task of concrete placement. He failed to have NonAbel develop, implement and enforce a safe system of work that required the concrete delivery hose not to be:

1. fitted with devices that were dangerous, such as metal couplings;

2. fitted with any extension couplings and extension hoses, when starting to pump, or during an attempt to clear a blockage from the delivery hose;

3. longer than four metres in length.

47. Mr Hamdan did not ensure that the NonAbel SWMS was implemented and used by workers when undertaking work for NonAbel. Mr Hamdan did not exercise due diligence to ensure that NonAbel had and enforced a safe system of work for the task of unblocking blockages in the concrete delivery hose.

47. At the worksite on the day of the incident, Mr Hamdan did not direct Mr Jamal:

1. to move to a location that was outside the danger zone surrounding the end of the delivery hose;

2. not to hold, or be in the vicinity of, the end of the delivery hose, when starting to pump or during an attempt to clear a blockage from the delivery hose.

Systems of Work Following the Incident

49. Following the incident, NonAbel was excluded from the worksite and another concrete placement company was engaged to perform the concrete placing work at the worksite. It used a static delivery line to reduce or eliminate the risk of hose whip. The use of a static line was identified by both Ware and SEP as a control measure for future pours at the worksite.

The offender’s evidence

50. Mr Hamdan swore an affidavit on 11 March 2020. In addition to himself, NonAbel currently employs two other people – Mr Omar Hamdan (on a casual basis) and Mr Haysam Hamdan (on a full-time basis), who assists in running the company when Mr Jamal is not present.

Remorse and acceptance of responsibility

51. Mr Hamdan, personally and also on behalf of NonAbel, acknowledged that he and the company failed to comply with the duty to ensure the health and safety of its workers. Mr Hamdan expressed deep regret and offered an apology for the failures that led to the incident. Prior to this incident, neither he nor NonAbel had breached the Act. In his affidavit, Mr Hamdan details the significant personal impacts that the incident has had on his health and family life, including suffering from depression and anxiety, experiencing recurrent nightmares relating to the incident, sleep and concentration issues, and relationship impacts.

52. In par 21 of his affidavit Mr Hamdan says:

I have read the particulars of the failures of the company and myself as set out in the amended summons filed in each proceeding. I accept that both the company and I failed in the ways described in those documents.

Actions taken prior to the Incident

53. In May 2015 Mr Hamdan completed a Safework Victoria course for high risk work in relation to the use and operation of a concrete placing boom vehicle. Completion of this course allowed Mr Hamdan to obtain a licence to perform high risk work.

The Incident

54. At par 15 of his affidavit Mr Hamdan makes three “comments” upon material which is set out in the Agreed Statement of Facts:

1. He says that the hoses used on the day of the incident were new and had not been used prior; the suggestion that the hoses had not been cleaned properly after earlier use is incorrect;

2. He says that Mr Jamal was holding the hose with both hands in front of his body, not between his legs;

3. He says that Mr Jamal was wearing a hardhat which he had provided.

Actions taken after the Incident

55. NonAbel responded to its breach by taking several steps, including:

1. supporting Mr Jamal’s family following the incident – Mr Hamdan attended Mr Jamal’s funeral and offered both non-financial and financial support during March and April 2017;

2. consulting with supervisors and managers in the concrete pumping industry to develop a better WHS plan, policy and procedures;

3. working with Mr Nur Farhat to develop the NonAbel Safety Management Plan to address all worksite safety risks;

4. NonAbel no longer uses the 10-metre rubber hose and does not join multiple hoses together as a concrete line;

5. NonAbel now only uses 4-metre hoses;

6. employees are required to undertake inductions for each job site and wear full safety equipment;

7. a SWMS is prepared for each project and updated as required;

8. conducting daily safety inspections of the concrete pumping equipment, performing all necessary checks, cleaning and maintenance;

9. ensuring concrete pumps undergo a six-yearly inspection and certification process conducted by Callaghan Concrete Pumps;

10. maintaining log books for the concrete pumps;

11. training employees in relation to the operation of the concrete pumps;

12. providing employees with a copy of the company’s WHS policy and procedures and ensuring that they read it;

13. ensuring continuous direct supervision of job sites.

56. The affidavit of Mr Hamdan also dealt with the financial position of the company and himself. These matters are summarised below in relation to capacity to pay.

Consideration

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

Objective seriousness of the offence

58. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

59. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

60. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson(No. 5) [2009] NSWSC 432 at [61].

61. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

62. 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 judgment without any attempt to state precisely how any given factor has influenced the judgment.

63. The Court of Criminal Appeal has recently examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. His Honour Justice Basten at par 34, under the heading “Assessment of Risk” said:

“The sentencing judge commenced his consideration with the proposition that ‘greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely’. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.”

64. Further at par 42 his Honour continued:

“The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the 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 little, if any, costs.”

65. At par 53 his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying:

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

66. My findings about the NonAbel’s level of culpability are based upon the following:

1. The risk was foreseen and should have been foreseen by both offenders. There was ample warning of the risk in NonAbel’s own SWMS, the Operator’s Guide and the Guidance Material.

2. There was a significant likelihood of the risk occurring any time compressed air was used to blast out the cement hose, something which the offenders had been informed should NEVER be done.

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

4. Steps were easily available which would have eliminated the risk (never using compressed air) or minimised the risk (length of hose, exclusion zone, not using a coupling, anchoring the hose, proper instruction and proper supervision). As previously recited, Mr Hamdan acknowledged in his affidavit that he and NonAbel could and should have taken each and every one of these steps.

5. The burden or inconvenience of these steps was negligible. They involved doing the task in a different and safer way, not the expenditure of money.

6. The death of Mr Jamal was the direct result of the criminal conduct of the offenders.

7. The maximum penalty for NonAbel for the offence is a fine of $1,500,000 which reflects the legislature’s view of the seriousness of the offence. The maximum penalty for Mr Hamdan for the offence is a fine of $150,000.

8. Mr Jamal was an inexperienced and vulnerable worker. On the evidence it seems that the offenders did nothing to protect him from the risk which they knew about.

67. I find that NonAbel’s level of culpability is in the high end of the mid range.

68. I find that Mr Hamdan’s level of culpability is in the high end of the mid range.

Deterrence

69. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

70. The penalty must reflect the need for specific deterrence. NonAbel is still conducting a concrete pumping and placement business. Its operations involve the use of concrete pumps and delivery hoses and the continuing engagement of workers. Mr Hamdan is still the principal of NonAbel. The steps which have been taken thus far to improve the safety system have not gone far enough. This is dealt with below in relation to whether the offenders are unlikely to reoffend.

Aggravating factors

71. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating factors

72. Neither offender has any previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

73. The offenders are otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. NonAbel has been in business for 5 years.

74. It was submitted that the offenders are unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. I do not accept that submission. As was pointed out by counsel for the prosecutor, the new WHSM Plan of NonAbel was only created in January 2020, nearly three years after the death of Mr Jamal. Further, that Plan did not adopt the measures which the offenders have accepted should have been in place years ago to eliminate or minimise the risk. For this reason alone I will make training orders under the Act.

75. The offenders have good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The training orders which I propose to make will assist this process.

76. Both offenders have shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. They have provided evidence that they accept responsibility for their actions and have acknowledged that the death of Mr Jamal was caused by their actions.

77. Both offenders entered pleas of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that an offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give both offenders a 25% discount for an early plea.

78. Both offenders gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. They co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to pay a fine

79. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

80. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

81. The Court must reduce the appropriate fine penalty by reason of capacity to pay only if the evidence persuades it to do so: Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153 at [16]; R v Rahme (1989) 43 A Crim R 81 at [86]. If the evidence presented by the defendant proves to be not helpful or insufficient, then there is to be no reduction: Ku-ring-gai Council v John David Chia (No 16) [2019] NSWLEC 184 at [66]-[71]. On the other hand, if the evidence of the offender’s financial circumstances indicates that what would otherwise be an appropriate penalty would place a significant burden to the point of bankruptcy or beyond, then that must be considered: Morris McMahon and Co Pty Ltd v SafeWork NSW [2019] NSWCCA 36 at [93].

82. It was submitted that both offenders had a reduced capacity to pay. Mr Hamdan annexed to his affidavit (DX1) copies of NonAbel’s financial statements and tax returns for 2017, 2018 and 2019. In the 2019 tax year NonAbel had gross receipts of $795,139.29. Expenses were $639,113.05 leaving a taxable profit of $156,080.24. NonAbel is a small but successful business.

83. In 2019 it had a net asset position of $151,208.52 on its balance sheet, a great improvement on the 2018 tax year when it had a deficiency of liabilities over assets of $4,871.72. Between 30 June 2018 and 30 June 2019 it reduced its non-current liabilities from $700,862.96 to $265,336.57, a reduction of $435,526.39. How that remarkable turnaround was achieved was not explained. The funds to reduce non-current liabilities could have come in part from collection of Receivables which were $181,531.23 in the 2018 balance sheet but nil in 2019. The balance of the reduction does not appear to have been funded from cash flow, sale of an asset or an increase in current liabilities. The dramatic improvement in the balance sheet does demonstrate that NonAbel somehow has a significant capacity to earn, and thus to meet the fine which will be imposed. While financial documents have been put into evidence, the story which they tell is of a company which is in quite good financial health.

84. The 2019 profit and loss statement for NonAbel contains a line item for “Wages” of $148,345.50. In his affidavit (DX1 par 38) Mr Hamdan explained how this amount was made up, including his own wages of $25,000. There is also a line item of $250,179.20 for “Subcontractors”. In par 37 of his affidavit Mr Hamdan said that this expense was incurred “due to the work offered to the company that it could not undertake”, presumably unless it engaged those subcontractors. A company which has so much work that it needs to spend a quarter of a million dollars on subcontractors is a company which is travelling well financially.

85. No material has been tendered to show the financial position of NonAbel since 30 June 2019. Nor was any explanation provided as to the absence of such material. At the very least, some evidence could and should have been given about cash flow, income, wages, subcontractors and other expenditure.

86. For those reasons I find that NonAbel has not discharged its onus to persuade the court that it should exercise its discretion to limit the amount of the fine. Further, a substantial fine is warranted because of the seriousness of the offence and the need for general deterrence.

87. Mr Hamdan also annexed to his affidavit copies of his personal tax returns for 2017, 2018 and 2019. Mr Hamdan is only paid a wage of $25,000 per annum by the company. Mr Haysan Hamdan, another employee, is paid $110,000. He assists Mr Hamdan in running the company. Mr Hamdan deposed that he spent $300 per week on rent and $50 per week for school fees, leaving only $150 per week for the support of himself, his wife and his three children. One could wonder how the family survives on such a meagre income. One could also wonder why Mr Hamdan runs this company when on his own evidence he would clearly be much better off working for someone else. However he swore that such financial matters were true, and he was not cross-examined about them, so I see no alternative but to accept his evidence as to his personal financial circumstances. I find that Mr Hamdan has discharged his onus to convince the court that it should exercise its discretion to limit the amount of the fine to be imposed upon him personally.

Victim Impact Statement

88. Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with by the District Court where the offence results in the death of, or actual physical bodily harm to, any person – s 27(2)(a). By s 28(2) a family victim in relation to an offence may prepare a Victim Impact Statement that contains particulars of the impact of the primary victim’s death on the family victim or other members of the primary victim’s immediate family. Members of a primary victim’s immediate family include children and grandchildren of the deceased – s 26.

89. A Victim Impact Statement may be tendered to the court only by the prosecutor – s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division – s 30B.

88. A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate – s 30E(1).

89. A Victim Impact Statement of a family victim may also be taken into account by the court in connection with the determination of punishment for the offence, on the basis that the harmful impact of a primary victim’s death on family victims is an aspect of harm done to the community – s 30E(3). Such statements can only be taken into account on punishment if the prosecutor applies for this to occur, and the court considers it to be appropriate. In the present instance the prosecutor applied for this to occur and I determine that it is appropriate to take the statement into account.

90. A written Victim Impact Statement dated 03 March 2020 by Ms Mayssoun Jamal, the sister of the deceased victim, was tendered (PX 4).

91. Before the incident Mr Jamal was living with and supporting Ms Jamal and her children both personally and financially. Ms Jamal explained that her brother was her only form of familial support and that he provided a sense of safety for herself and her children. He had come to Australia from overseas for the specific purpose of supporting Ms Jamal and her family. Since the death of Mr Jamal, the only financial support Ms Jamal receives is via Centrelink as she cannot work due to a pre-existing health condition.

92. The death of her brother has had a highly traumatic impact on Ms Jamal and her children. In her statement, Ms Jamal explains that her son was in particular affected by the death of Mr Jamal and needed psychological and counselling services following the death of his uncle. Ms Jamal thinks about her brother all the time and visits the cemetery regularly with her children.

Costs

95. The parties have agreed to an order that the offender is to pay the prosecutor’s costs.

Training Order for Mr Hamdan

96. For reasons set out above I find that it is appropriate to make the training order sought by the prosecutor. Mr Hamdan consented to such order and informed the court that he had already enrolled in one suitable course.

97. I decline to make the s 239 WHS Undertaking Order sought by the prosecutor. There was no evidence to suggest that Mr Hamdan needed supervision over the next 12 months. It will be up to the regulator to check that the training order has been complied with. As discussed in oral submissions, any failure to comply with the training order would itself be a criminal offence under s 242 of the Act.

Penalty

98. My orders in the s 32 proceedings against NonAbel Concrete Pump Pty Limited (2019/95612) are:

1. The offender NonAbel Concrete Pump Pty Limited is convicted.

2. I take into account the Victim Impact Statement.

3. The appropriate fine is $500,000 but that will be reduced by 25% to reflect the plea of guilty.

4. Order the offender NonAbel Concrete Pump Pty Limited to pay a fine of $375,000.

5. Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

6. Order the offender NonAbel Concrete Pump Pty Limited to pay the prosecutor’s costs.

99. My orders in the s 27 proceedings against Bilal Hamdan (2019/95634) are:

1. The offender Bilal Hamdan is convicted.

2. I take into account the Victim Impact Statement.

3. The appropriate fine is $50,000 but that will be reduced by 25% to reflect the plea of guilty and further reduced to reflect the offender’s reduced capacity to pay.

4. Order the offender Bilal Hamdan to pay a fine of $10,000.

5. Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

6. Order the offender Bilal Hamdan to pay the prosecutor’s costs.

7. Order pursuant to s 241 of the Work Health and Safety Act 2011 that Bilal Hamdan:

1. undertake within the next 6 months a work health and safety risk management course for supervisors and managers, conducted by a Registered Training Organisation;

2. undertake within the next 6 months due diligence training for senior managers and company directors, conducted by a Registered Training Organisation; and

3. provide written evidence to the prosecutor of the satisfactory completion of such courses.

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Decision last updated: 30 March 2020