SafeWork NSW v Synergy Scaffolding Services Pty Ltd

[2022] NSWDC 584

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Synergy Scaffolding Services Pty Ltd [2022] NSWDC 584

Hearing dates:

21 November 2022

Date of orders:

25 November 2022

Decision date:

25 November 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1 Synergy Scaffolding Services Pty Ltd is convicted.

2 The appropriate fine is $2.2 million that will be reduced by 10% to give effect to the plea of guilty.

3 I impose a fine of $2 million.

4 The offender is to pay the prosecutor’s costs as agreed or assessed.

5 I order that pursuant to section 122(2) of the 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 - death of worker

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors –appropriate penalty

SENTENCING PRINCIPLES - no record of previous convictions - remorse - plea of guilty - assistance to law enforcement authorities

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Work Health and Safety Act 2011

Cases Cited:

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

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

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)
Synergy Scaffolding Services Pty Ltd (Defendant)

Representation:

Counsel:
J Agius SC with P Boncardo (Prosecutor)
S Meehan (Defendant)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Hanna Legal (Defendant)

File Number(s):

2021/90338

Publication restriction:

None

JUDGMENT

1. Foreword

2. Christopher Cassaniti died at work, two days after he celebrated his 18^th birthday with his best mate and extended family. He proudly drove his new car to work on the day, a building site where his mother also worked. He was a first year formwork apprentice. He was keen and eager to learn and a young worker any employer would have been proud to have. Khaled Wehbe was working with Christopher when a large scaffold structure collapsed pinning both of them underneath it, and a large amount of building materials that had been stored on it. Mr Wehbe suffered severe injuries but was conscious when he saw Christopher die. The impact of his injuries and the horror of that moment continue to affect him. Another five workers narrowly escaped death or serious injury. The collapse of the scaffolding caused panic amongst the other workers who made desperate attempts to rescue their two workmates. When the police arrived, the workers were prevented from trying to free Christopher and Mr Webhe, because it was unsafe to do so. Mrs Cassaniti was not at work on the day but was told that there had been an accident at the site. When she could not raise Christopher on the phone, she hurried to the site. She was kept away from the scene. She was told Christopher was breathing, but then that he had died. Christopher’s parents, brothers, family and friends continue to suffer immense heartache, grief and loss.

3. The collapse of the scaffold was caused by a culmination of events. These proceedings deal with the scaffolding contractor’s culpability for the incident, but the collapse was contributed to by many other workers on the site, including for example the workers who removed ties to the building to do their own work, when they were unauthorised and unqualified to do so. This case should serve as a telling reminder that unsafe acts on a building site can and do lead to catastrophic consequences. Workers contemplating such unsafe acts should pause to consider what they might say to the people whose lives are torn apart by the possible consequences of their actions.

Introduction

4. Synergy Scaffolding Services Pty Ltd (the offender) appears for sentence after it pleaded guilty to an offence contrary to section 31 of the Work Health and Safety Act 2011 (the Act) for breaching its health and safety duty and thereby exposing Christopher Cassaniti, Khaled Wehbe, David McKenzie, Mathew Stubbs, Nematalla Menhem, Tryfonas Ecomonides and Christian Young to a risk of death or serious injury.

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

6. Facts

7. The parties tendered an Agreed Statement of Facts which, due to the complexity of the matter is necessarily lengthy. I have taken the entirety of the document into account in coming to the appropriate penalty. What follows is a summary of the facts necessary to understand the penalty imposed.

8. The offender was engaged by the construction company GN Residential Construction Pty Ltd (GN) (the “Ganellen Group”) to design, protect, maintain, and then dismantle scaffolding for a construction project in Macquarie Park.

9. Over several months, the scaffolding structure tied to Building L1 (the Scaffold) was gradually dismantled under the direction of the offender and GN. By 1 April 2019, most, if not all, of the ties to Building L1 had been removed, yet the Scaffold was still in use by workers on the site. As at 1 April 2019, the Scaffold was grossly overloaded.

10. Mr Cassaniti, a form worker at the site, was killed when the Scaffold collapsed and crushed him. His co-worker, Mr Wehbe, was also trapped underneath the Scaffold and suffered serious crush injuries.

11. Mr Economides and Mr Young were on level 9 of the scaffold when it started to collapse. They managed to jump from the Scaffold onto the building.

12. Mr McKenzie, Mr Stubbs and Mr Menham were working near Building L1 and had to run to avoid the collapsing Scaffold.

13. Background

14. The offender is a company that designs, installs, maintains and removes scaffolding in the construction industry.

15. In January 2017, GN was engaged by the developer Greenland (Sydney) to design and construct a mixed-use residential and commercial development in Macquarie Park known as “Lachlan’s Line” (the project). The project was to be constructed at 25-27 Epping Road, Macquarie Park, New South Wales (the site). The project involved construction of seven major structures, including Building L1.

16. On 18 October 2017, GN entered into a written agreement with the offender to design, erect, protect, maintain and dismantle scaffolding in the project. The offender had a permanent presence at the site, having workers on the site every working day and its own shed.

17. The following entities were also engaged by GN to perform work at the site:

1. Titan Cranes & Rigging Pty Ltd (Titan) was engaged to design, erect, maintain and dismantle hoists at the site.

2. Brobrik NSW Pty Ltd (Brobrik) was engaged to install brick facades at the site.

3. Future Form Group Australia Pty Ltd (Future Form) was engaged to build formwork at the site.

4. Fresh Landscapes and Gardens Pty Ltd (Fresh Landscapes) was engaged to provide gardening and landscape services.

18. The following persons were employees of the offender with managerial responsibility in relation to the project:

1. Rob Zaider was the operations manager for the offender. Mr Zaider handled the logistics of scaffold work from off site, including checking in with site supervisors in the project.

2. Hussein Mehri was Site Project manager and was involved in the design of the Scaffold plan for Building L1.

3. Paul Montgomery was the offender’s site supervisor on the project. His role involved organising material for the jobs to be undertaken by the offender’s workers at the project, organising and allocating jobs to be performed at the site and liaising between the offender and GN.

4. Isaac Wihongi was the leading hand at the site. He had received no training as a supervisor or a leading hand. He had 15 years’ experience in scaffolding.

5. Jordan Ocran was the second in charge at the site with respect to scaffolding. He performed predominantly paper-based work, drove a forklift and was a health and safety representative.

6. Remi Gasologa, Daelle Sisley-Peri, Desmond Ngaheu, Iehu “Steve” Kokiri and Rhys Apo were engaged by the offender as part of the scaffolding crew to perform work at the project in the lead up to the scaffolding collapse.

19. Original scaffold design

20. The offender designed the Scaffold. It was a steel modular scaffold, comprised of two components:

1. a full perimeter façade scaffold approximately 13 levels high (perimeter scaffold);

2. a hoist/loading platform to carry workmen and materials which was about 9 levels high and stood approximately 28 metres tall (hoist/loading platform scaffold).

21. GN stipulated in its subcontract with the offender that the design needed to include a “2 tonne scaffold loading bridge” (the Bridge) adjacent to the hoist/loading platform scaffold. The offender did not inform GN what it understood to be the Bridge, nor did it seek clarification as to what it was. GN employees generally understood that the offender had supplied a scaffold rated to support a load of 2 tonnes on each level of the hoist loading platform.

22. On 27 February 2018, Mr Mehri supplied the offender with plans that included the requested Bridge. The plans were signed off by the offender’s structural engineer. The plans did not specify a load rating for each level of the Bridge, contrary to industry practice. There was conflicting evidence regarding the capacity of the Scaffold. The offender rated the Scaffold as heavy-duty and capable of holding 675 kilograms, however a duty category simply relates to a single working platform and does not indicate that every platform within the scaffold has the same duty category. The plans did not specify the load rating for each level of the requested the Bridge.

23. At the time of the incident, it was found that there was a live load of 17,905 kilograms stored on the Scaffold.

24. Systems of work

25. The offender had a Safe Work Method Statement (SWMS) in place relating to “Erect, Alter and Dismantle Scaffold” dated 8 December 2017. The SWMS did not address the risks of working under scaffolding, collapsing scaffolding or unauthorised alterations to scaffolding. It also did not address the risk of overloading scaffolds or placement of scaffold ties. With respect to the risk of falling from scaffolding, the SWMS directs the reader to the Australian Standard titled “Guidelines for Scaffolding”.

26. When alteration of the Scaffold was required, the relevant GN foreman would make a request to the offender’s leading hand. The task would then be allocated to one of the offender’s scaffolders. Depending on the urgency of the alteration and other work being undertaken at the time, this task could take anywhere between a few hours and a few days to complete.

27. The subcontract between the offender and GN required the offender to perform monthly reviews of the scaffolding at the site and to sign them off. These reviews resulted in the issue of a handover certificate by the offender and a “scaff tag” update identifying that the Scaffold was safe for use. Monthly handover certificates were provided by the offender for the Scaffold with a heavy duty 675-kilogram rating. However, the perimeter scaffold was later dismantled before the hoist/loading platform scaffold, and the offender did not clarify whether this changed the rating of the hoist loading platform scaffold which was still in use.

28. From about October 2018 an issue involving tampering with the scaffolding was identified and it was agreed between the offender and GN that the offender would try to undertake weekly inspections of the scaffolding on site, including the Scaffold.

29. Initially, Mr Ocran performed inspections of the Scaffold on behalf of the offender monthly. However, in at least the three weeks leading up to the incident, no safety walks or inspections were performed by Mr Ocran. During this period, the offender’s employees were on the Scaffold attending to its maintenance on the hoist/loading platform scaffold. The offender did not perform an inspection of the Scaffold on 1 April 2019 before workers were permitted to use it.

30. GN had weekly safety walks of the entire project, including Building L1, involving union delegates and representatives from all trades, including the offender. The offender’s non-attendance on these walks was an ongoing issue and in 2018 the offender was issued a Non Conformance Report by GN.

31. Circumstances leading up to the incident

32. One year prior to the incident, a number of reports were received and discussed between GN and the offender indicating that scaffold ties had been removed and not replaced.

33. In or about September 2018 GN commissioned an inspection and report by Sam Ebeid of EA Associates Consulting Engineers Pty Ltd (EA Associates) following the bowing of the Scaffold. Mr Ebied’s report, which was emailed to the offender on 3 October 2018, stated that the bowing occurred because there were insufficient ties for the load that the Scaffold was holding.

34. Between mid-October and the end of November 2018 ledgers and hop ups were removed from the Scaffold.

35. As of 22 January 2019, the offender was aware that the Scaffold would be pre-loaded with bricks prior to the hoist’s removal.

36. Between 28 January 2019 and 28 February 2019 there were emails between Mr Montgomery, Mr Hanna, the site engineer and Patrick Wark, an engineer from EA Associates, in relation to bowing of scaffolding at Building L3. Mr Wark attributed this bowing to insufficient ties.

37. Between 1 and 5 March 2019 most of the perimeter scaffold had been dismantled. As at 5 March 2019 there was no vertical bracing on the Scaffold.

38. On 5 March 2019 Mr Ocran completed an inspection of the remainder of the Scaffold. Mr Ocran went to every level on Building L1 and verified that the ties were installed correctly. He issued a handover certificate stating the rating as heavy duty 675kg. This was the last safety walk conducted by Mr Ocran prior to the incident. The offender’s other workers and trained workers from GN, were responsible for attending to the maintenance of the Scaffold in the lead up to the incident.

39. On 12 March 2019 removal of the hoist commenced, leaving a T-shaped portion of the Scaffold. The hoist had been removed by the time the Scaffold collapsed. The hoist ties remained on the Scaffold.

40. On or around 12 March 2019, Daniel Lando, GN’s Project Manager, and Ewan Clark, GN’s Site Manager, asked Mr Mehri whether the hoist ties could be ratchet strapped to the ledgers at one end whilst the ‘feet’ of the hoist ties were still attached to Building L1. This was because the hoist ties were obstructing installation of three remaining shelf angles in preparation for brickwork. Each hoist tie weighed approximately 500 kilograms. Mr Mehri recalls informing Mr Lando that they could not rest the hoist ties on the Scaffold. During a conversation between Mr Wihongi and Mr Montgomery it was agreed that during the hoist dismantling, employees of the offender would be present to make sure the hoist ties were being correctly suspended.

41. On 21 March 2019 the Scaffold was stripped down to level 10 of Building L1. These strip works were performed by Mr Wihongi. Later that same week, Swoomate employees installed shelf angles to the edges of the balconies of Building L1. Some shelf angles were placed in locations where scaffold tie points would have otherwise been. Three shelf angles could not be installed as hoist ties were in the way.

42. On 30 March 2019 five transoms were removed from the base of the Scaffold so that the final 15 metres of the upturn wall could be completed by Future Form. These transoms supported planks that formed a platform on the Scaffold. Ciaran Dunne, GN’s general foreman, had sent an image of the transoms via text message to Mr Wihongi at around 10.00am. Mr Wihongi responded and said that the transoms could be taken out.

43. At the time of its collapse, the Scaffold was approximately 13 lifts high at the façade section and 8–9 lifts high at the hoist loading platform section. The highest platform was approximately 28m high and the structure was 30m high.

44. The incident

45. On 1 April 2019 there were approximately 20 Synergy workers present on site when the Scaffold collapsed including Mr Wihongi and Mr Ocran.

46. Mr Wihongi performed a toolbox talk in the morning with the offender’s workers and told them where they would be working that day. No scaffolding work was scheduled to occur on the Scaffold on that day.

47. That morning, Mr Ngaheu informed Mr Sisley-Perry that they had been due to strip the Scaffold that day but had been given other work to do due to the amount of material stored on the Scaffold.

48. Mr Cassaniti and Mr Wehbe, Future Form workers, were instructed to finish constructing the final 15m of the blade wall underneath the Scaffold.

49. Mr Economides and Mr Young, Brobrik bricklayers, were instructed to install brickwork to the façade of the balconies of Building L1 using the Scaffold. Lewis Sultana and Christopher Fenech, Swoomate installers, were also using the Scaffold to install the remaining three shelf angles. They completed this job prior to lunch and left the site.

50. After returning from lunch, Mr Economides and Mr Young were at level 9 of Building L1. They observed there were no ties connecting the Scaffold to Building L1. Mr Economides and Mr Young both stated that the Scaffold felt shaky upon returning from lunch.

51. At approximately 12.00pm, the Scaffold collapsed.

52. Mr Economides and Mr Young managed to jump from level 9 of the Scaffold into Building L1 as it began collapsing.

53. Mr McKenzie, Mr Stubbs and Mr Menhem, landscapers from Fresh Landscapes, were working on the podium level and were required to run to avoid falling debris after the Scaffold began collapsing.

54. Mr Cassaniti and Mr Wehbe had been working directly underneath the Scaffold and were trapped by the rubble and debris. They both suffered crush injuries.

55. Mr Cassaniti was calling for help from underneath the rubble for 20 minutes before his injuries proved fatal. Mr Wehbe suffered a broken pelvis, shoulder, leg, ribs and severe bruising.

56. The investigation

57. SafeWork NSW Inspectors arrived on site at approximately 1.30pm. A scaffolding report dated 8 July 2020 was prepared by SafeWork NSW Inspector Joshua Kent.

58. Between 2 April and 8 May 2019 SafeWork NSW conducted numerous inspections of the wreckage before and during the removal process. It was revealed that:

1. no obvious ties were observed to still be connected to the collapsed Scaffold or on the façade of Building L1; and

2. loose ties and potential tie components were observed amongst the wreckage.

59. A range of tie anchorages were observed during inspections. These tie anchorages were not damaged, consistent with ties not being in use at the time the incident. Further, many anchorages were obstructed, for example by glazing. There was one hole observed by SafeWork inspectors on the level 10 dincel wall, consistent with a tie anchorage that was tied to the Scaffold being torn from the wall when the Scaffold collapsed. This suggests that there was at most one tie securing the Scaffold to Building L1.

60. After being removed, the Scaffold wreckage was weighed by GN after being removed under the supervision of SafeWork NSW. This process took approximately 11 days to complete. Scaffold components were weighed separately to other material in order to determine the weight of material stored on the Scaffold. Scaffold components were weighed separately to other material in order to determine the weight of material stored on the Scaffold.

61. It was found that there was a minimum live load of 17,905kg on the Scaffold consisting of items such as bricks, formwork and other stored material, but excluding factors such as persons working on the Scaffold or wind force. This was in excess of the maximum capacity of the 675kg heavy duty rating, or the intended 2 tonne loading platform.

62. Inspector Kent’s report found that the design of the Scaffold was not typical and required assessment by a suitably competent person like a structural or temporary works engineer. Inspector Kent opined that the transom removal was a significant modification to an area of the scaffold that was highly loaded and should have been assessed by a suitably competent person like a structural or temporary works engineer and a new handover certificate issued.

59. After the incident

60. Mr Wark inspected other scaffolding located at the site at the request of GN and de-rated the remaining loading platforms. The scaffold on Building L4 was de-rated to medium duty 450 kilograms due to a blade wall being erected through the base of the scaffold in similar circumstances to that being erected by Mr Cassaniti and Mr Wehbe under the Scaffold.

61. During the SafeWork NSW investigation Mr Mehri, Mr Zaider and Mr Montgomery, in addition to Mr Hossieni, a structural engineer employed by the offender, stated that the removal of five transoms should have triggered a visual inspection by an engineer to assess whether they could be safely removed.

62. Mr Hossieni further stated that he would never determine the structural soundness of a scaffold only using photos and that a site visit was necessary. He also stated that an engineering design was “100% required” for a two-tonne rated hoist loading platform and he did no such design for this project.

63. Mr Ebeid, from EA Associates, stated that he would generally not take transoms and ledgers out at the base of a scaffold because it would need to be re-designed to confirm it could still hold the same capacity. He opined that a new handover certificate should have been issued and an engineer certification obtained. He stated he would not authorise removal of five transoms from the base of a scaffold based on a photograph and without seeing it in person. Similarly, Mr Wark stated that the removal of transoms at the base of a scaffold should not occur unless a strict set of site-specific conditions are met and agreed to beforehand. Mr Wark also stated that transoms should not be removed from a scaffold over two or three lifts or six metres high.

64. Mr Wark opined that a two-tonne scaffold always has to be specially designed and approved and would typically require special issue transoms. Mr Wark stated that the scaffold legs on a scaffold such as that at Building L1 would usually be double-legged and there would be bracing immediately beneath the working deck with extra diagonal and face bracing full height of the bays and extra ties.

65. Expert evidence

66. Engineering

67. Professor Kim Rasmussen and Dr Mike Bambach, both structural engineers, provided a joint report dated March 2021.

68. Professor Rasmussen and Dr Bambach opined that the Scaffold collapse was primarily caused by the following factors:

1. the magnitude of the live loads on the Scaffold; and

2. the fact that the Scaffold was not laterally restrained with vertical bracing.

73. They opined that the magnitude of the actual live load on the Scaffold in its actual configuration was such that the Scaffold was at a high risk of collapse, irrespective of the joint stiffness, wind, imperfections, ties and extra transom magnitudes. If the Scaffold had been vertically braced, it would not have been at risk of collapse, even with the magnitude of the live load.

74. They also agreed that adding ties would have reduced the risk of collapse and increased stability. In the analysis performed by Professor Rasmussen and Dr Bambach the ties increased collapse load factors by 14%, by providing increased resistance to buckling.

75. The removal of the five transoms increased the risk of collapse by approximately 9%.

76. Professor Rasmussen and Dr Bambach suggested that had a structural analysis of the Scaffold been undertaken, the conclusion would have been that the Scaffold was at a high risk of collapse.

77. Scaffolding

78. Douglas Crawford, an engineer, also provided an expert report in relation to the Scaffold. He stated that removal of five transoms vertically in any one bay would seriously reduce the load capacity of the previously joined standards and hence the integrity of the Scaffold. Mr Crawford stated that the removal should have been certified by an engineer prior to doing so.

79. Mr Crawford did not recognise the term “2 tonne” rated scaffold and stated that he did not know what that meant. He opined that one level only should be loaded to two tonnes and that the offender should have made it very clear to GN that the Scaffold as constructed could be loaded on one bay and one level only.

80. Offender’s Case on Sentence

81. The offender relied on an Affidavit of Mohamad El Jarrar sworn 16 November 2022. Mr El Jarrar was a founder of Synergy and a former director. He was involved in an investigation of the incident on behalf of the offender. The content of his affidavit can be summarised as follows.

82. Throughout the course of the project the offender warned the principal contractor that there had been repeated examples of tampering with the scaffolding including through the removal of ties to the building. The offender now appreciates that it should have issued a stop work order, restricted access to the scaffold until the issues were addressed and notified SafeWork and the CFMEU of its concerns.

83. The offender now recognises that it should have completed daily safety walks prior to the commencement of work. Prior to the incident, safety walks were to be completed weekly, which was more than the 28 day requirement provided for by the regulations.

84. The offender’s leading hand authorised the removal of the transoms in the days before the incident, without seeking authority from the offender’s engineer or senior management, who would have required certification by a suitably qualified engineer.

85. After the incident, the offender provided support to its staff through counselling and paid bereavement leave.

86. Following the incident, the offender instigated safety walks on every job it had going. It identified issues on a site in Randwick on which GN was the principal contractor. It took steps to reinstate the scaffolding to the required standard. The following day it was discovered that 4 ties had been removed. The offender shut down the site and removed the access stairs from the scaffolding to prevent entry to it.

87. The offender has commenced weekly safety inspections of all of its scaffolding, involving representatives from all of the trades working on a site. The outcome of the safety inspections is documented and a copy provided to relevant parties.

88. The offender also conducted an audit of all of its erected scaffolding to ensure that it was safe and compliant with the Australian Standard, including checks for vertical bracing, load capacities and the attachment of ties.

89. The offender has included in its daily toolbox talks an increased emphasis on safety, particularly relating to the dangers of tampering with scaffolding.

90. The offender apologised to the Cassaniti family and Mr Wehbe for the hurt, pain and suffering caused by the incident. A representative visited Mrs Cassaniti shortly after the incident and there were a number of staff members at Christopher’s funeral.

91. The offender co-operated with the SafeWork NSW investigation by making its workers available for interviews and responding to s 155 notices.

Consideration

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

Objective Seriousness

93. The offence is of the utmost objective gravity.

94. The objective seriousness must be considered within the gradation of the offences provided for by the Act, of which this offence is the most serious: Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 at [45].

95. The risk that the Scaffold could collapse if it was improperly constructed, inadequately maintained or overloaded was actually known to the offender. The offender was engaged as the scaffolding contractor and knew that the scaffolding was being relied on to provide safe access for the workers on the site.

96. The offender supplied plans for the Scaffold that did not specify the load rating of any level of the Bridge. It did not tell GN that it was not capable of supporting the 2-tonne load per level, as requested by GN. The plans did not provide any relevant information to GN about the load rating of the Bridge. The offender constructed the Bridge with a load rating of 675kg on one level.

97. The offender constructed the Scaffold without vertical bracing in contravention of its own design and the Australian Standard. The offender had actual knowledge of the requirements of the Australian Standard.

98. The offender knew that there had been a history of the unauthorised removal of ties and alteration of the Scaffold at the site.

99. Between 5 March and 1 April 2019, the offender knew that the Scaffold was grossly overloaded with building materials and the weight of the hoist ties.

100. The almost complete absence of ties to the building would have been obvious if a visual inspection of the Scaffold had been conducted. The offender did not inspect the Scaffold after 5 March 2019, even though it had undertaken to conduct weekly inspections.

101. The offender permitted the removal of the transoms on or about 30 March 2019 without obtaining the approval of a suitably qualified engineer.

102. The offender failed to warn GN of the risk of collapse of the Scaffold.

103. The overloading of the Scaffold, the lack of vertical bracing, the removal of the ties and the removal of the transoms made the likelihood of the risk occurring so high that it was almost certain.

104. By its plea of guilty, the offender accepts that it foresaw the possibility of the risk to an individual of death or serious injury through its conduct but continued on regardless.

105. The potential consequences of the risk were catastrophic and included a risk of death to a number of workers using or proximate to the Scaffold. A number of workers were put in significant peril when the Scaffold collapsed.

106. The extent of the harm caused by the offence was substantial. Mr Cassaniti was tragically killed. Mr Wehbe was seriously injured.

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

Deterrence

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

109. The penalty imposed must also provide for specific deterrence. The offender continues to operate on a large number of sites potentially exposing a large number of workers to the risks involved in the use of scaffolding erected and maintained by it. The steps taken by the offender to improve its safety systems following the incident are rudimentary and unconvincing.

Aggravating Factors

110. The injury, harm and loss caused by the s 32 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 only the creation of a risk. In this case, the death of Mr Cassaniti and extensive injuries suffered by Mr Wehbe are sufficient to establish the aggravating factor.

Mitigating Factors

111. The offender does not have any record of previous convictions s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender was incorporated in 2011.

112. The offender has some prospects of rehabilitation, but I am not satisfied that it has established on the balance of probabilities the mitigating factor provided for by s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It should be accepted that the offender has taken steps to improve its systems after the incident, but those steps are not extensive and constitute an increased reliance on administrative controls, which failed in the present case. As a large business in the industry, the offender has failed to investigate and/or implement higher level engineering controls, such as the use of tamper-proof scaffolding components.

113. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr El Jarrar on behalf of the offender acknowledged that it should have stopped work and prevented access to the Scaffold in the circumstances. He also expressed an apology to the Cassaniti family and Mr Wehbe.

114. The offender entered a plea of guilty: ss 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. It 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].

115. The matter was listed for a seven week hearing commencing on 25 July 2022. On 21 July 2022 the offender entered a plea of guilty to an Amended Summons in full and final satisfaction of a number of charges. The appropriate discount is 10%.

116. The offender co-operated with the SafeWork investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. The extent of the co-operation was not substantial.

Penalty

117. Synergy Scaffolding Services Pty Ltd is convicted.

118. I have taken into account the Victim Impact Statements prepared by Mrs Cassaniti and Mr Wehbe. Pursuant to s 30E Crimes Sentencing Procedure Act 1999, I have taken into account that the harmful impacts of Mr Cassaniti’s death endured by his family is evidence of harm to the community. I am satisfied that it is appropriate to take into account Mrs Cassaniti’s VIS in determining the appropriate penalty to be imposed.

119. Through her VIS, Mrs Cassaniti conveyed the love and esteem in which Christopher was regarded by his family, friends and workmates and her family’s pain and anguish caused by his loss. I would also like to acknowledge Mr and Mrs Cassaniti’s significant contribution to increasing awareness of workplace safety issues. I agree with Mrs Cassaniti that there is much work to be done to achieve national harmonisation of work health and safety laws, which is an object of the Act.

120. Mr Wehbe’s VIS conveyed the serious ongoing impacts of the injuries that he sustained in the incident. In short, he has not been able to return to work and has lost his independence. He has been left with intrusive feelings of guilt that he survived and Mr Cassaniti did not. He continues to require significant ongoing medical treatment.

121. The appropriate fine is $2.2 million that will be reduced by 10% to give effect to the plea of guilty.

122. I impose a fine of $2 million.

123. The offender is to pay the prosecutor’s costs as agreed or assessed.

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

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Decision last updated: 25 November 2022