SafeWork NSW v Page

[2024] NSWDC 133

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Page [2024] NSWDC 133

Hearing dates:

5 February 2024; 24 April 2024

Date of orders:

24 April 2024

Decision date:

24 April 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Glenn Page is convicted.

2   I impose a fine of $6,000.

3   The offender is to pay the prosecutor’s costs of the proceedings, agreed in the sum of $10,000.

4 I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

Catchwords:

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

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine

SENTENCING PRINCIPLES - no record of previous convictions – good character - good prospects of rehabilitation - remorse - plea of guilty

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Work Health and Safety Act 2011 (NSW)

Cases Cited:

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

Jahandideh v R [2014] NSWCCA 178

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Glenn Page (Offender)

Representation:

Counsel:
D Nagle (Prosecutor)
I Todd (Offender)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Zahr Partners (Offender)

File Number(s):

2022/251236

Publication restriction:

None

Judgment

Introduction

1. Glenn David Page (the offender) appears for sentence after pleading guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (the Act), in that he failed to comply with the health and safety duty he owed pursuant to s 28(b) of the Act and thereby exposed Mohammad Hoque to a risk of death or serious injury.

2. The maximum penalty for the offence is a fine of 1,730 penalty units ($176,460.00).

Facts

Background

3. Aland B & W Pty Ltd (Aland) was the principal contractor for the construction of a 5-storey residential development consisting of 135 units and two basement floors in three buildings at 361-363 Bernera Road, Edmondson Park, NSW (the site). The area between the three buildings was referred to as the “Laneway”. Aland commenced work at the site on about 17 July 2020. Alex Meoushy was engaged by Aland to supervise the construction work at the site, including the activities of contractors and sub-contractors.

4. On 22 July 2020 a 14-tonne luffing crane (the crane) was installed and commissioned on the site by Strictly Cranes Pty Ltd.

5. Alpha Crane Management Pty Ltd (Alpha) was engaged by Aland to provide cranage services at the site, including the provision of a crane driver and a dogman. The offender and Mohammad Zoulfikar were engaged by Alpha to work at the site. The offender held a high-risk work licence (HRWL) authorising him to act as a dogman.

6. On or about 20 August 2020, bundles of 6m steel reinforcement bars were delivered to the site but could not be moved with the crane to where they were required because of the wind conditions.

The incident

7. At about 7.00am on 24 August 2020, Mr Meoushy instructed the Alpha workers to move the reinforcement bars from the ground to an elevated deck about 2m off the ground. The load weighed between 2 and 4 tonnes.

8. At the relevant time, a concrete boom placement truck was parked in the laneway at the direction of Mr Meoushy. Mr Hoque, a form worker, had been instructed to continue installing a Dincel wall system in the laneway by his supervisor, Maher Mansour.

9. At about 7.30am the offender hooked up the load. At the time he did not see any workers in the laneway. He then communicated with Mr Zoulfikar to commence the lift. The offender then looked up and saw Mr Hoque in the laneway. He yelled out to Mr Hoque to move out of the way. At this time, Mr Zoulfikar lost control of the load and it swung in a pendulum motion striking Mr Hoque on the right side of his torso, lifting him off the ground and pinning him to a formwork deck for 10-60 seconds before he was pulled to the ground by other workers.

10. Eventually, Mr Hoque was taken by ambulance to Liverpool Hospital and admitted. He sustained multiple segmental fractures to his right ribs, a torn rotator cuff that required surgical repair, a lower back injury and an internal injury causing there to be blood in his urine. He was discharged on 29 August 2020. As at 13 May 2021, Mr Hoque was still receiving medical treatment and unfit to return to work in any capacity. From about December 2023, Mr Hogue had some limited capacity for work of three hours per day for two hours per week.

Systems of work before the incident

11. At the time of the incident there was no adequate exclusion zone in place. Workers, including Mr Hoque, were working in the area where the exclusion zone should have been.

12. Prior to the incident, exclusion zones were established and maintained by the dogman verbally instructing workers to keep clear.

13. The sub-contractor agreement between Alpha and Aland required Alpha to ensure the establishment and maintenance of an exclusion zone. The Safe Work Method Statement (SWMS) submitted by Alpha to Aland did not refer to the use of exclusion zones. Mr Meoushy did not require an exclusion zone to be established on the day of the incident, or before that.

14. On 20 July 2020 the offender signed the Strictly Cranes SWMS that provided for the establishment of an exclusion zone by using barriers and signage.

15. The offender failed to establish and maintain an exclusion zone where the lift was being undertaken.

Systems of work after the incident

16. On 25 August 2020 Alpha complied with an Improvement Notice by updating its SWMS to provide for exclusion zones using flags and barricades to delineate it.

Offender’s Case on Sentence

17. The offender relied on two affidavits of the offender sworn on 2 February 2024 and 11 April 2024, a signed reference letter of Kaled Elassaad, Operations Manager of Combined Labour Services Pty Ltd (Combined Labour Services), dated 2 February 2024 and an affidavit of Wasim Jabakhangi sworn 22 April 2024. The following is a summary of this evidence.

18. The offender was also called to give evidence and cross-examined. The offender gave his evidence in a forthright and straightforward manner and I accept his evidence.

19. The offender is 49 years old. He is a sole trader working full-time as a tower crane operator and is currently a subcontractor for Combined Labour Services.

20. He has worked as a tower crane operator and dogman for the last seven years and holds qualifications for both roles. He has been recognised by Mr Elassaad as being a highly competent, reliable and hardworking individual, with considerable skills as a crane driver.

Day of the Incident

21. The offender was working at the site on the day of the incident and agreed to be dogman while Mr Zoulfikar operated the crane to move the load from the laneway. He also recalled that he had scanned the laneway area and that it was clear prior to directing Mr Zoulfikar to bring the crane down to secure the load. It was when the load was in the air that the offender recalls seeing Mr Hoque standing approximately 5m away. He yelled to Mr Hoque to move out of the way twice before Mr Zoulfikar lost control of the load and it struck Mr Hoque.

22. The offender stated in his affidavit that he did not know how or when Mr Hoque had entered the area as he had not seen anyone in the laneway. He assumed that the safety officers conducing toolbox meetings had briefed labourers to avoid areas where heavy crane activity was taking place.

23. The offender further stated that exclusion zones were established and maintained by verbal instruction about where on the site the crane activity would take place. He also recalled that there was pressure from management to complete the job due to delays in the schedule.

24. Looking back at the day of the incident, the offender recognises his failure in setting up the exclusion zone correctly led to a situation where a communication breakdown resulted in Mr Hoque being seriously injured.

After the Incident

25. The offender ceased working as a dogman after the incident.

26. He successfully completed an intensive theory based and practical training course with High Skill Training Pty Ltd to refresh his skills as a crane operator.

Personal Circumstances

27. The offender is currently living with his fiancée, her 19-year-old daughter and his 20-year-old son from a previous relationship. The children are financially dependent on the offender and his fiancée.

28. The offender earns approximately $80,000 a year before tax and has significant debts, including:

1. $891,765.37 to PepperMoney for his mortgage;

2. $27,748.98 to Australian Motorcycle & Marine Finance for an Quintrex 530 Ocean Spirit Boat which has a market value of about $29,000;

3. $7,050.70 to the Australian Taxation Office (ATO); and

4. $5,249.87 to the Commonwealth Bank of Australia for his credit card account balance.

29. In or about January 2022 the offender and his fiancée purchased their house with the assistance of his mother who, to his understanding, was to contribute $200,000 to the purchase price as “his inheritance”. On 24 July 2023 his mother commenced proceedings to sell the property and to recoup her contribution to the purchase of it. The offender has subsequently paid $21,176 in legal fees relating to the defence of that claim and continues to incur legal fees.

30. The offender contributes to his household approximately $1,800 a month for the mortgage, $289 a month for the boat repayment, $500 a month to the ATO, $200 a month for his credit card payment, $120 a week in fuel, $100 a week for electricity, $25 a week for his phone bill and $450 a week for groceries.

31. The offender as at the date of his affidavit had $576.97 in savings.

32. He is living from pay to pay and struggling to pay his debts. His financial position is causing him stress and anxiety.

33. The offender expressed remorse to the Court and to Mr Hoque. He takes full responsibility for the incident which he recognises was a direct result of his failure to do his job in accordance with the law and guidelines.

34. He is committed to complying with the rules and regulations that govern the safety of job sites and stated in his affidavit that he has learnt from this unfortunate experience by ceasing to work as a dogman and undertaking further training.

Consideration

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

Objective seriousness

36. The risk posed to bystanders through the operation of the crane was obvious and known to the offender as an experienced and licenced dogman.

37. By his plea, the offender accepts that he should have established an exclusion zone using impassable barricades, signage and high visibility tape to prevent persons from entering the exclusion zone while the crane was in operation. The establishment of an exclusion zone was a relatively simple process to undertake and would have caused minimal inconvenience.

38. The likelihood of the risk coming home, if appropriate precautions were not taken, was moderate.

39. The risk included a risk of death.

40. The injuries sustained by Mr Hoque were serious and have impacted his ability to work.

41. I have taken into account the maximum penalty for the offence.

Deterrence

42. The penalty imposed in relation to this type of case must convey to workers the importance of complying with safety procedures and the potential consequences of not doing so. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

43. There is also a need for specific deterrence because the offender continues to work in a high risk occupation as a crane driver, but it is significantly reduced for the reasons that follow. The offender has not previously been involved in a safety breach. The offender has learnt from the experience and I am satisfied that he is unlikely to re-offend. He has been an advocate for safety in his workplaces. There were multiple failures on the part of other, more culpable, duty holders. The imposition of a large fine on the offender would be disproportionate to his comparative culpability.

Aggravating factors

44. The injury harm and loss caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the 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]. The offence does not require an injury to be sustained, but merely the creation of a risk of death or serious injury. The serious injuries sustained by Mr Hoque are sufficient to establish the aggravating factor.

Mitigating factors

45. The offender does not have any previous convictions: ss 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender is presently 49 years of age.

46. The offender was a person of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The offender has an impressive work history and his character referee holds him in high regard. The offender has worked in a high risk role for an extended period and has not previously come under notice.

47. The offender is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. The offender has ceased work as a dogman and taken steps to renew his training as a crane driver. I am satisfied that the incident has had a salutary effect on him and that as a result he has a new and much higher regard for safety. I am satisfied on the balance of probabilities that the offender is unlikely to re-offend.

48. The offender has good prospects of rehabilitation: s21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated that he has taken this matter seriously and has adapted his behaviour at work. He has voluntarily undertaken further training. I am satisfied he has good prospects of rehabilitation.

49. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender expressed remorse in his affidavit and accepted responsibility for his actions. I am satisfied that he is genuinely contrite.

50. The offender entered a plea of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. He is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.

Capacity to pay a fine

51. The Court is required to have regard to s 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, he or she 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: Jahandideh v R [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.

52. I am satisfied that the offender has established that he has a limited capacity to pay a fine. In fact, his financial position is precarious. His major asset is the subject of Supreme Court proceedings which are causing him to incur ongoing costs. He has very little equity in the property. He presently financially supports two adult children. I note that he has some discretionary lifestyle assets and engages in some discretionary spending. Whilst the offence is objectively serious, this is an appropriate case in which to reduce what would otherwise be the appropriate fine.

Penalty

53. Glenn David Page is convicted.

54. The appropriate fine is one of $8,000 which will be reduced by 25% to reflect the discount for the plea of guilty.

55. I impose a fine of $6,000.

56. The offender is to pay the prosecutor’s costs of the proceedings, agreed in the sum of $10,000.

57. I order that pursuant to s 122(2) Fines Act 1996, that 50% of the fine is to be paid to the prosecutor.

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Decision last updated: 24 April 2024