SafeWork NSW v Thompson

[2021] NSWDC 689

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Thompson [2021] NSWDC 689

Hearing dates:

15 December 2021

Date of orders:

17 December 2021

Decision date:

17 December 2021

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Stephen Craig Thompson was convicted on 15 December 2021.

(2)   The appropriate fine is $40,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Stephen Craig Thompson to pay a fine of $30,000.

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

(5)   Order Stephen Craig Thompson to pay the prosecutor’s costs.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of officers – risk of death or serious injury

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty – parity - victim impact statement

COSTS – prosecution costs

OTHER – worker was electrocuted after a 4.7-metre reo bar protruding from a scaffold deck over a plywood hoarding made contact with high voltage power lines – fitted hoarding was not an impenetrable barrier – high voltage power lines were visible from the scaffold deck – absence of electrical hazard warning signs - no formal processes for assessing and managing hazards

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 32

Work Health and Safety Regulation 2017 (NSW), cll 166, 225.

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

DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

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

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 Wilkinson (No. 5) [2009] NSWSC 432

SafeWork NSW v Simos Scaffolding Pty Ltd [2021] NSWDC 443

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125

WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316

Texts Cited:

AS/NZS 4576:1995 Guidelines for Scaffolding

Safe Work Australia, General Guide for Working in the Vicinity of Overhead and Underground Electrical Lines, July 2014

Safe Work Australia, Scaffolding Work near Overhead Electric Lines Information Sheet, July 2014

WorkCover Code of Practice, Work Near Overhead Power Lines (WorkCover NSW Publication No. 1394)

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Stephen Craig Thompson (Defendant)

Representation:

Counsel:
N Read (Prosecutor)
G Diggins (Defendant)

Solicitors:
SafeWork NSW (Prosecutor)
Barry Nilsson (Defendant)

File Number(s):

2020/312626

Judgment

1. On 6 November 2018 Mr Ghanim Al-Shnen was working on a scaffolding deck at a construction site in Guildford. Construct By Design Residential Pty Ltd (“CBD”) was the principal contractor on the project. A 4.7-metre reo bar which protruded over a plywood hoarding made contact with high voltage power lines. Mr Al-Shnen was electrocuted and suffered massive injuries leading to the surgical amputation of both arms below the elbow and significant burns.

2. Mr Stephen Craig Thompson, who was a director of CBD, has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 27(1) of the Work Health and Safety Act 2011 (NSW) (“the Act”) to exercise due diligence to ensure that CBD complied with its duty under s 19(1) of the Act, he failed to comply with that duty and thereby exposed Mr Al-Shnen to a risk of death or serious injury contrary to s 32 of the Act.

3. Section 27 of the Act provides:

27 DUTY OF OFFICERS

(1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.

(2) Subject to subsection (3), the maximum penalty applicable under Division 5 of this Part for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence.

(3) Despite anything to the contrary in section 33, if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of Division 2 or 3 of this Part or this Division, the maximum penalty under section 33 for an offence by an officer under section 33 in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation.

(4) An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation.

(5) In this section,

“due diligence” includes taking reasonable steps –

(a) to acquire and keep up-to-date knowledge of work health and safety matters, and

(b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations, and

(c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, and

(d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and

(e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act, and

Example : For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include--

• reporting notifiable incidents,

• consulting with workers,

• ensuring compliance with notices issued under this Act,

• ensuring the provision of training and instruction to workers about work health and safety,

• ensuring that health and safety representatives receive their entitlements to training.

(f) to verify the provision and use of the resources and processes referred to in paragraphs (c)-(e).

4. The maximum penalty for the offence is a fine of $300,000.

The Risk

5. The risk is described in par 15 of the Amended Summons as follows:

“15.   The risk was the risk of workers, in particular Mr Al-Shnen, suffering serious injury or death as a result of electric shock or electrocution while working on a scaffold that was in unsafe proximity to live overhead high voltage power lines.”

Reasonably Practicable Measures

6. Paragraphs 16-18 of the Amended Summons pleads particulars of the defendant’s failure to comply with the duty under s 27(1) of the Act as follows:

“16. The company [CBD] failed to comply with its duty under s 19(1) by failing to take reasonably practicable measures to eliminate, or alternatively minimise, if not reasonably practicable to eliminate, the risk.

17. The defendant failed to comply with his duty to exercise due diligence to ensure that the company [CBD] complied with its duty under section 19(1) of the Act by failing to take the following reasonable steps:

(a)   Ensuring that the company had implemented adequate processes for risk assessment, reporting hazards and assessing and managing risks; and

(b)   Verifying that the company used the above resources and processes by requesting reports from the site personnel on safety matters (including the implementation of measures to address hazards at the site) and implementation of the WHS Management Plan, carrying out a project hazard assessment with the site manager, undertaking audits of the company’s safety system, conducting site safety walkthroughs/site inspections and inspecting safety documents when on site.

18. As a result of the defendant’s failures to take the reasonable steps identified in paragraph 17 above, he failed to comply with his duty under section 27(1) of the Act.”

Background

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

8. CBD was a registered corporation which conducted a business or undertaking involving the provision of building and construction services.

9. CBD was the principal contractor at a construction site located at Mountford Avenue, Guildford, NSW (“the site”). CBD was building a multi-storey 15-unit assisted living apartment building at the site. As the principal contractor, CBD was responsible for ensuring the safety of workers at the site. CBD had the management and control of the site.

10. Mr Thompson was the General Manager of CBD. Mr Thompson had financial control of CBD’s business. He was responsible for overseeing the construction projects undertaken by CBD, made significant decisions on behalf of the company and signed off on all purchases.

11. Mr Thompson was the Project Manager for the site.

12. CBD engaged Mr Phil Keyes in the role of Estimator. Mr Keyes was responsible for preparing and delivering estimates for the cost of materials, labour and equipment needed to complete the construction project.

13. Between November 2017 and late April 2018 CBD engaged Mr Richard Bryson as the Site Manager. From around early June 2018 CBD engaged Mr Symond Georges as the Site Manager.

14. CBD engaged Simos Scaffolding Pty Ltd (“Simos”) to supply, erect and dismantle perimeter scaffolding at the site. Mr Ray Simpson was a director of Simos and controlled its activities at the site.

15. CBD engaged Lime Structural Solutions Pty Ltd (“Lime”) to install pre-fabricated structural panels, including all fixing materials, bracing and props. Lime’s scope of work included installing horizontal and vertical reinforcement for wall panels.

16. Mr Al-Shnen was employed by Lime as a labourer/installer to work at the site.

The Power Lines Hazard

17. The site was situated on a corner block fronting Mountford Ave to the north and Marian St to the east. The street frontages contained both low and high voltage power lines. The high voltage power lines carried 11kV. The electrical supply authority was Endeavour Energy (“Endeavour”).

18. In April 2018 Mr Simpson attended the site and assessed the scope of the scaffolding works. Mr Simpson raised a concern with CBD about the proximity of uninsulated power lines to the scaffold. Mr Simpson told Mr Keyes that tiger tails and plywood casing would be required. Mr Keyes passed this information on to Mr Bryson and Mr Thompson.

19. Mr Bryson had a meeting with Mr Simpson and a representative of Endeavour to discuss what was required to complete the scaffolding work in proximity to the power lines. Endeavour advised Mr Bryson and Mr Simpson that it was necessary to isolate the power lines and to erect the scaffolding with a plywood hoarding.

20. Mr Bryson reported Endeavour's requirements to Mr Thompson. There was no allowance in Simos’ quote for the installation of hoarding. This was because Simos quoted for the job “off the plan” and had not visited the site. Once Mr Simpson attended the site, he made Mr Keyes aware of the need for hoarding and that the time spent installing hoarding would be charged at an hourly rate.

21. Mr Keyes informed Mr Simpson that the costs of the power isolation and hoarding had not been factored into CBD’s original estimates for the project. In order to save costs, Mr Thompson and Mr Keyes asked Mr Simpson to use plywood hoarding that had been used for a previous job that Simos had undertaken for them.

22. On 29 April 2018 Simos commenced erecting the scaffolding at the site. The scaffolding was erected to approximately seven metres in height and consisted of 46 bays.

23. On 10 May 2018 Mr Thompson signed a work order authorising Endeavour to install tiger tails on the low voltage power lines at the site. Mr Thompson sent the work order to Endeavour. On 20 May 2018 Endeavour installed tiger tails on the low voltage power lines in accordance with the work order.

24. In mid-May 2018 Mr Bryson ceased working for CBD. There was no Site Manager until Mr Georges commenced work in early June 2018.

25. In mid-June 2018 CBD arranged with Endeavour for the power lines to be isolated so further perimeter scaffolding could be erected to enable the construction works to continue.

26. The power line outage was scheduled for 6 July 2018 between 9.00am and 4.00pm.

27. On 18 June 2018 Endeavour sent a letter to CBD setting out the conditions for undertaking work in the vicinity of its power lines. The letter was titled “Erection of Scaffold in proximity to Endeavour Energy Overhead Assets”.

28. The letter enclosed a copy of the WorkCover Code of Practice for Work Near Overhead Powerlines, 2006, (WorkCover NSW Publication No. 1394) (“the Code”).

29. The letter contained a declaration to be completed and signed by CBD and returned to Endeavour. Mr Keyes completed and signed the declaration on behalf of CBD on 18 June 2018 and sent it to Endeavor by email. Mr Keyes copied Mr Georges and Mr Simpson into his email.

The Further Scaffolding Works

30. On 5 July 2018, in advance of the power outage scheduled for 6 July 2018, Simos built an additional level on the scaffolding. As a result, prior to the power outage, the scaffolding comprised three working decks which were adjacent to the first to third levels of the building.

31. On 6 July 2018 Endeavour de-energised the power lines to enable Simos to erect the further scaffolding. Simos built up the scaffolding another level and fitted a plywood hoarding. The horizontal distance between the erected scaffold and the nearest high voltage power line was approximately 2.1 metres.

32. The hoarding erected by Simos did not comply with the Code or with Endeavour’s requirements. The hoarding measured 1.4 metres in height from the scaffolding deck. There was a significant gap above the top of the hoarding. The hoarding was not an impenetrable barrier to tools, material and equipment. The high voltage power lines were visible from the scaffold deck. Warning signs were not affixed to the safe side of the hoarding warning of the presence of the electrical hazard.

33. At approximately 4.00pm on 6 July 2018 the power lines were re-energised.

34. Between 7 July 2018 and 6 November 2018 Simos attended the site on several occasions to inspect and adjust the scaffolding. During this time Simos built an additional level on the scaffold. When the additional level was built, the high voltage power lines were not de-energised.

The Incident

35. On 6 November 2018 there were several contractors undertaking work at the site including plasterers, bricklayers and carpenters.

36. At approximately 7.00am on 6 November 2018 Mr Al-Shnen arrived at the site to commence work. Mr Al-Shnen had not previously undertaken work at the site.

37. Mr Al-Shnen’s role was to continue with the installation of the prefabricated wall panel system, in particular to install reinforced steel bars (“reo bars”) through the wall panels. Once the reo bars were installed, concrete was to be poured into the wall panels to provide structural stability.

38. Mr Al-Shnen introduced himself to another worker Mr John Hidden, a carpenter engaged by CBD.

39. At approximately 8.00am Mr Al-Shnen asked Mr Georges to arrange some workers to move a steel frame so he could access reo bars underneath. Mr Georges instructed Mr Hidden and two other workers to assist Mr Al-Shnen in moving the steel frame.

40. The workers moved the steel frame and Mr Al-Shnen continued with the task of installing reo bars into the walls.

41. Immediately prior to the incident, Mr Al-Shnen was installing reo bars from the fourth level of the perimeter scaffolding fronting Marian Street. Mr Al-Shnen was working on a level of the scaffolding where there was no adequate hoarding installed to protect him from the electrical hazard of the adjacent high voltage power lines.

42. Mr Al-Shnen was in the process of installing a reo bar horizontally into a wall cavity by standing on the scaffolding deck holding the reo bar, which was approximately 4.7 metres in length. Mr Al-Shnen extended the reo bar though the gap over the top of the plywood hoarding. The reo bar either made contact with the high voltage power line or the electricity arced from the power lines to the reo bar. Mr Al-Shnen suffered a serious electrocution injury.

43. Mr Hidden was walking in the internal stairwell of the site when he noticed Mr Al-Shnen lying awkwardly on the scaffolding deck. Mr Hidden called Mr Georges for assistance. Mr Georges attended and smelt burning flesh and saw Mr Al-Shnen lying on the deck, shaking and frothing at the mouth with badly injured arms. Mr Georges called an ambulance. Mr Hidden directed an electrician to turn the site power off. Mr Al-Shnen was transported by ambulance to Westmead Hospital.

Injuries

44. The electrical current entered through Mr Al-Shnen’s hands and exited through his right shoulder and right hip. The electrical current caused open exit wounds to Mr Al-Shnen’s right shoulder and hip which required multiple debridement and skin graft surgeries.

45. The extent of the injuries to Mr Al-Shnen’s hands and forearms resulted in bilateral surgical amputation of both arms below the elbow. Mr Al-Shnen suffered significant burn injuries to a large part of his body. His injuries are described more fully in his Victim Impact Statement which is set out below.

SafeWork NSW Inspection

46. After the incident SafeWork NSW undertook an inspection of the site which identified:

1. A dark mark on the high voltage power line adjacent to the scaffold deck where Mr Al-Shnen had been standing when the reo bar made contact with the power line.

2. The reo bar was resting against a site security fence on the Marian Street side of the site and had visible signs of discolouration and body matter stuck to it.

CBD’s Systems of Work Prior to the Incident

47. Prior to the incident, CBD had prepared a Work Health and Safety Management Plan for the project which included a safety system setup checklist, an OHS Policy, a table of Management Responsibilities and Site Safety Procedures (“WHS Management Plan”).

48. In respect of monitoring and reviewing safety controls, the WHS Management Plan provided:

“Safety Work Plan rules, Safe Work Method Statements, Risk Assessments, Hazards and Safety Controls shall be monitored and reviewed by the Site Manager, Foreperson, Site Safety Advisor or nominee on a weekly basis. Subcontractors in conjunction with a member from the CBD site management, a safety committee member or site safety officer are to conduct a site safety inspection/observation of their own work activities each month. A record of each safety inspection/observation is to be supplied to the CBD site office... Formal safety audits are to be conducted periodically (as decided by the Site Manager/Site Safety Committee) by the Site Manager/Site Safety Advisor and/or the Company Management Services Officer and recorded ... Site Safety observation walkthroughs are to be conducted by the Construction Manager quarterly and by the Project Manager/Supervisor once per month and documented ... OH&S issues observed during inspections are to be discussed with Site Management ...”

49. Mr Thompson was responsible for all financial decisions relating to the project, including decisions in relation to expenditure on safety resources.

50. CBD provided Mr Bryson, the initial site manager, with a copy of the WHS Management Plan. Mr Bryson was not provided with any information or instruction on how to use the folder of information that had been provided to him.

51. During the project Mr Bryson experienced significant difficulty in getting subcontractor workers to sign in each morning.

52. Mr Bryson was not aware whether a risk assessment had been undertaken in respect of the overhead power lines.

53. As at the date of the incident, Mr Georges was responsible for overseeing the day-to-day operation of the site, including work health and safety matters. When Mr Georges commenced at the site in early June 2018, he observed there to be some safety-related documents on site. Mr Georges requested CBD to provide him with toolbox talk documents, but none were provided. Mr Georges was told that CBD was working with the Master Builders Association to revise its safety documentation and that when that process was completed, he would be provided with new forms. He was told to work in the interim with what he had, which was induction forms. Mr Georges said that the induction forms ran out, after which he started using blank paper. Mr Georges raised with Mr Keyes that he had run out of induction forms. Mr Keyes provided additional copies of the induction form template.

54. Mr Georges was not given any instruction on how to induct people into the site. Mr Georges said that the induction process involved completing the form and checking that the workers had high visibility clothing. Mr Georges said the induction did not talk about site safety rules or anything to be aware of in terms of safety at the site.

55. Mr Georges had never carried out a formal or documented risk assessment at the site. Mr Georges said he was not aware of anyone from CBD undertaking a risk assessment before the incident.

56. Mr Georges said that there were no official site walkthroughs or workplace inspections prior to the incident.

57. Mr Hidden commenced work at the site approximately three to four weeks prior to the incident as a carpenter/leading hand. Upon commencement of work at the site Mr Georges informally inducted Mr Hidden by showing him the location of the site facilities and telling him to wear a hard hat and high visibility clothing. Mr Hidden did not sign any induction document until after the incident. Mr Hidden was not provided with any information concerning the potential risks in relation to working near the overhead power lines. Mr Hidden said no toolbox talks were undertaken at the site prior to the incident.

58. Mr Simpson had not been inducted into the site prior to the incident. Mr Simpson said that all workers onsite on 6 November 2018 were inducted after the incident.

59. Mr Simpson had never seen a Work Health and Safety Management Plan for the site prior to the incident.

60. In response to a Notice issued to CBD by SafeWork NSW requesting production of all records or meeting minutes of WHS consultations with workers between 6 July 2018 and 6 November 2018, CBD produced one toolbox talk minute dated 19 February 2018 (outside the date range). The toolbox talk minute recorded two workers being present.

61. In response to a Notice issued to CBD by SafeWork NSW requesting production of risk assessments undertaken by the company prior to the incident for work near overhead power lines, CBD produced email correspondence relating to Mr Simpson pointing out the need to install tiger tails and plywood casing in mid-April 2018. CBD did not produce any risk assessment undertaken by it.

62. In response to a request by SafeWork NSW to produce records of safety inspections and workplace assessments, CBD produced no documents.

63. In response to a request by SafeWork NSW to produce any and all hazard or incident reports for work carried out at the site between 6 July 2016 and 6 November 2018, CBD produced one document, that being a photograph of a “Injury Register'”.

64. CBD was unable to produce daily sign-in sheets for the site for the period 6 October 2018 to 6 November 2018.

65. CBD produced a number of induction forms for the site, many of which were undated. However, CBD did not implement a consistent practice of inducting workers at the site. Mr Al-Shnen was not inducted at the site or provided with any information about the hazard of the high voltage power lines.

66. During the time Mr Bryson was the site manager, Mr Thompson visited the site either weekly or fortnightly. During these visits Mr Thompson met the developer and walked through the site.

67. From approximately August 2018 Mr Thompson visited the site once or twice a week. During this time Mr Thompson and Mr Georges walked through the site. Mr Thompson assisted at times cleaning up scaffolding and observing the overall progress of works. Prior to the incident Mr Thompson last visited the site on 2 November 2018.

68. Mr Thompson and Mr Georges spoke on the telephone daily or every second day. During these calls they discussed what was going on at the site.

69. CBD did not undertake formal documented risk assessments or hold regular toolbox talks, contrary to the requirements of the WHS Management Plan.

Legislation and Guidance Material

70. Clause 166(1) of the Work Health and Safety Regulation 2017 (“the Regulation”) provides that a person conducting a business or undertaking (“PCBU”) at a workplace must ensure, so far as is reasonably practicable, that no person, plant or thing at a workplace comes within an unsafe distance of overhead power lines.

71. Clause 166(2) provides that if it is not reasonably practicable to ensure the safe distance of a person, plant or thing from an overhead electric line, the PCBU at the workplace must ensure that:

“(a)   a risk assessment is conducted in relation to the proposed work; and

(b)   control measures implemented are consistent with–

(i)   the risk assessment; and

(ii)   if an electricity supply authority is responsible for the electric line, any requirements of the authority.”

72. The requirements of the electricity supply authority Endeavour were provided to CBD on 18 June 2018.

73. Prior to the incident the Code (referred to in par 28 above) was available on the SafeWork NSW website. The Code was provided to CBD by Endeavour and was part of its requirements for erecting scaffolding in proximity to its overhead network. The Code provides practical guidance to protect the safety of persons working near overhead power lines. The Code provides:

1. If it is not possible to eliminate the risk of working near overhead power lines, the risk may be minimised by separating the hazard from workers, for example by erecting physical barriers to prevent a person or anything held by a person coming near the overhead power line (p 17).

2. Work on the overhead power lines should not be performed unless those performing the work have received appropriate instruction and training (p 18).

3. Information on identifying and assessing the relevant approach distances for power lines.

4. General risk management principles for work undertaken near overhead power lines.

5. The requirements for using hoarding as a non-conductive impenetrable barrier for persons, tools, materials and equipment (p 43).

74. Australian Standard AS/NZS 4576:1995 Guidelines for Scaffolding was also published and available to CBD. The Standard relevantly provided:

1. Power lines are a potential hazard to persons erecting, working from or in the vicinity of a scaffold. Isolate or shield any electrical wires (cl 5.4.1).

2. The clearance between scaffolds and any transmission line should be not less than four metres where any metal member is used.

3. Do not erect scaffolding until the necessary measures have been taken to minimise risk and a written authorisation has been received from the electricity supply authority.

4. High voltage mains (i.e. more than 600V) near scaffolding should be de-energised, short-circuited and earthed or re-routed prior to erection of the scaffolding (cl 5.4.2).

75. Safe Work Australia had also published guidance material available to CBD including the Safe Work Australia General Guide for Working in the Vicinity of Overhead and Underground Electrical Lines, July 2014. This document was referred to in CBD’s WHS Management Plan and relevantly provided:

1. Working in the vicinity of energised electric lines can create risks to workers and the public where a person or something the person is holding is in contact with or could come closer than the relevant approach distances.

2. If it is not reasonably practicable to completely eliminate the risk then consider isolating the hazard from people e.g. erect a physical barrier to prevent any part of the plant or equipment or a person or anything held by a person, or attached to a person, entering safe approach distances. A physical barrier should be made of non-conductive material like wood or plastic and be erected safely. This may require isolating the electricity supply while the barrier is installed.

76. Safe Work Australia had also published an Information Sheet on Scaffolding Work near Overhead Electric Lines, July 2014 which provided information on using hoarding and enclosures for scaffolding with reduced safety clearances.

77. Clause 225(2) of the Regulation provides that the person with management or control of a scaffold at a workplace must ensure that the scaffold is not used unless the person receives written confirmation from a competent person, who has inspected the scaffold, that construction of the scaffold has been completed.

Failures of CBD

78. CBD failed to ensure, so far as was reasonably practicable, that the health and safety of workers, in particular Mr Al-Shnen, was not put at risk from work carried out as part of the conduct of its business or undertaking, in that it failed to take the following reasonably practicable measures:

1. Undertake a risk assessment to determine the risk of a person or anything held by a person or attached to a person coming within an unsafe distance of the power lines which:

1. Assessed the type of work activities being undertaken from the scaffolding and the proximity to the overhead power lines; and

2. Determined the most effective controls to manage the risk.

2. Read and comply with the requirements of Endeavour for the erection of scaffolding in proximity to power lines in its “Letter of Conditions” provided to CBD on 18 June 2018.

3. Erect a physical barrier on the scaffolding to prevent a person, or anything held by a person, encroaching within an unsafe distance from the power lines, such as plywood that fully covered the scaffold deck adjacent to the power lines and was an impenetrable barrier to tools, materials and equipment.

4. Fix warning signs to the safe side of the hoarding, warning of the presence of the electrical hazard on the other side.

5. Require Simos to take the measures set out at (1)-(4) above and verifying the measures had been taken prior to allowing workers to undertake work from the scaffolding.

79. CBD did not undertake a risk assessment to determine the risk of a person or anything held by a person coming within an unsafe distance of the power lines. Simos had undertaken a risk assessment which identified the hazard of the high voltage power lines and the need to install hoarding. This was communicated to CBD in April 2018. A risk assessment was required to be undertaken pursuant to clause 166(2)(a) of the Regulation. The letter from Endeavour also specified that CBD was to complete a written risk assessment and to engage safe systems of work in accordance with the Code.

80. CBD failed to erect, or direct Simos to erect, an impenetrable nonconductive hoarding to prevent persons, or anything attached to or held by a person, from coming within an unsafe distance of the power lines. CBD failed to identify that the hoarding erected by Simos was inadequate to guard against the hazard of the high voltage power lines.

81. CBD failed to fix, or direct Simos to fix, warning signs to the safe side the hoarding warning of the presence of the electrical hazard. CBD did not provide any information to Mr Al-Shnen about the presence of the power lines and the risks associated with working in proximity to them. Mr Al-Shnen was not inducted.

Failures of Mr Thompson

82. Prior to the incident Mr Thompson did not verify that CBD had implemented adequate resources and processes for managing health and safety risks at the site, in particular, risk assessment processes, processes for reporting hazards and processes for confirming the implementation of safety measures.

83. Mr Thompson failed to take steps to verify that CBD used adequate resources and processes for managing safety, in particular requesting reports from site personnel about safety matters, undertaking site inspections and inspecting documents.

84. Mr Thompson did not verify that CBD had complied with the requirements of Endeavour, including undertaking a risk assessment and erecting hoarding that was an impenetrable barrier to tools, materials and equipment. Prior to the incident, Mr Thompson did not conduct an audit of CBD’s safety systems or check whether safety inspections, observations and walkthroughs were being undertaken and documented. Mr Thompson did not conduct and document site safety observation walkthroughs with the on-site manager.

85. There were no formal processes implemented onsite for assessing and managing hazards or to verify that hazards were appropriately safeguarded. There was no adequate system implemented onsite for confirming the implementation of safety measures.

Steps taken by CBD after the Incident

86. After the incident Mr Georges, on behalf of CBD, and Simos undertook a risk assessment of the hazard of the high voltage power lines. The risk assessment identified the inadequacy of the hoarding and the need to provide an impenetrable barrier and to fix signs to warn workers of the hazard of the power lines.

87. On 9 November 2018 Mr Thompson and Mr Simpson arranged for additional hoarding and mesh to be installed on the scaffolding which fully covered the scaffold deck and was an impenetrable barrier. Mr Thompson authorised the work.

88. On 9 November 2018 Mr Georges held a toolbox talk on the subject of scaffolding, in which he instructed the workers not to remove or alter any part of the scaffolding. He said that only authorised persons were permitted to make alterations to scaffolding.

89. Warning signs were affixed to the safe side of the hoarding warning of the presence of the electrical hazard on the other side.

Evidence for the Defendant

90. Mr Thompson swore an affidavit on 1 December 2021 (DX 1). Mr Thompson was the Managing Director and General Manager of CBD, which is now deregistered.

Background of Mr Thompson

91. Mr Thompson has been involved in the construction industry since 1978. He has worked in both residential and commercial construction and has worked in various partnerships.

92. Mr Thompson was initially trained as an architectural draftsman.

93. Mr Thompson has traded under the business name “Construct By Design” since 2000.

94. On 26 July 2016 Mr Thompson became the Managing Director and General Manager of CBD. In this role Mr Thompson managed the company’s financials and oversaw construction projects.

95. In pars 11 to 26 of his affidavit Mr Thompson outlined various memberships he held and training he had undertaken.

Background of CBD

96. CBD was incorporated on 26 July 2016 and operated as a construction business.

97. CBD was involved in residential and low-rise commercial construction projects, predominantly single dwelling premises, low-rise residential apartment blocks or single level commercial premises.

98. As at 6 November 2018, Mr Thompson was also a director of two related companies, Construct by Design Commercial Pty Ltd (“CBDC”) and Construct by Design Holdings Pty Ltd (“CBDH”). These companies operated with CBD to form a business known as Construct by Design. All three entities were small family-owned companies. Mr Thompson and his wife, Mrs Thompson, were the sole shareholders of CBD.

99. CBDC undertook high-end retail and workplace construction projects.

100. CBDH employed the staff for the Construct by Design business. In 2018 it employed an estimator, Mr Phil Keyes, and his wife, Ms Christina Ambrose-Keyes, as an administrator. CBD and CBDC did not employ anyone in 2018.

101. CBD engaged specialist subcontractors to conduct all of the work at its sites.

102. CBD engaged contracted site managers to have day-to-day responsibility for the management of its operations, including work health and safety at worksites. Each site had a dedicated site manager.

103. In 2018, CBD was beginning to wind down its operations. The company finished the construction of five townhouses in Belrose in November 2018. CBD was also undertaking a small commercial refurbishment job in Guildford.

The Guildford Project

104. In November 2017, CBD was engaged by Ability SDA Pty Ltd to undertake the construction of a three-storey assisted living apartment building at Mountford Ave, Guildford (“Guildford site”).

Simos Scaffolding

105. CBD engaged Simos as a subcontractor to perform scaffolding work at the Guildford site.

106. CBD had previously engaged Simos to complete work in relation to the construction of five townhouses at Belrose and an eight-unit block with commercial shops at Narrabeen.

107. Mr Thompson was satisfied that Simos was a competent scaffolding company. Simos had originally been recommended by a building industry contact. Simos was known to be reliable and got the job done.

108. Mr Thompson was aware that Simos had a Safe Work Method Statement (“SWMS”) in place and provided handover certificates.

109. Mr Thompson was confident about, and relied on, the expertise of Simos in the erection of scaffolding to assist in safe access to the exterior and interior of the Guildford site.

Site Management

110. Supervision and management of the Guildford site was allocated to the site manager engaged by CBD for that purpose. CBD engaged two site managers over the course of the Guildford site project.

111. Mr Thompson accepts that he had ultimate overall responsibility for all of CBD’s projects, including the Guildford site, however on a day-to-day basis he relied on the site manager to supervise and manage the site.

Richard Bryson

112. CBD engaged Mr Bryson as site manager between November 2017 and May 2018. Mr Bryson had over 25 years of experience running his own construction company and was a licensed builder. Mr Bryson was also trained in OHS and risk management.

113. When Mr Bryson commenced as site manager, he was provided with documents including work health and safety plans in both electronic and hard copy form. CBD used a Dropbox which was accessible to staff. Documents regarding site management and safety were periodically added to that Dropbox for the use of Mr Bryson and later Mr Georges.

114. On 22 May 2019 Mr Bryson told Mr Thompson that he would not be returning to the Guildford site.

Symond Georges

115. Following Mr Bryson’s departure CBD contracted Mr Georges as site manager.

116. Mr Georges had 15 years of experience in the building industry. He had extensive experience as a foreman, site manager and project manager and had been involved in a range of projects.

WHS Management Plan

117. Mr Thompson engaged Mr Scott Hohne of MBA in either 2013 or 2014 to assist with CBD’s work health and safety management. Mr Hohne developed WHS compliance documentation, including a precedent WHS Management Plan that was subsequently applied throughout the business.

118. Site managers were provided with resources to assist them in managing the site, including the WHS Management Plan for the site, induction documents and hot work authorisations.

119. The WHS Management plan was a living document and it was updated from time to time as the project progressed. An updated version of the document was provided to Mr Georges when he commenced as site manager.

117. In 2017 Mr Thompson engaged MBA to provide further safety resources for CBD. MBA provided approximately 50 documents, mainly in template form, which addressed management of risks, hazard registers, SWMSs, incident management, consultation, training and inspections. These documents were uploaded into the Dropbox, to which all employees and contractors had access.

118. In 2018 CBD discussed with MBA the prospects of conducting an audit and review of CBD’s safety practices. CBD did not ultimately proceed with this audit and review because of the incident involving Mr Al-Shnen. CBD instead decided to focus on assisting SafeWork NSW.

Mr Thompson’s Role at the Guildford Site

122. Mr Thompson was careful to ensure that appropriately skilled and experienced site managers were engaged. Mr Thompson directed the site managers to obtain safety documentation such as SWMSs and details of the employees of the subcontractors on site.

123. Mr Thompson attended the site twice a week. He walked around the site and observed the progress of the work.

124. Mr Thompson was in regular contact with the site managers about what was happening onsite, who was there and how the work was progressing.

125. Mr Thompson accepts that he should have taken greater steps to verify that the WHS Management Plan had been implemented and was being observed at the site. In particular, he accepts that he should have conducted proper site safety inspections, conducted audits of the site records and required greater reporting on safety matters.

The Incident

126. Mr Thompson accepts that the plywood hoarding that was erected on the scaffold deck where Mr Al-Shnen was working was insufficient to control the risk presented by the adjacent power lines. He did not however have an appreciation that this was the case prior to the incident.

127. CBD’s scaffolding contractor, Simos, had installed plywood hoarding on the level of the scaffolding on which Mr Al-Shnen was working. The power lines had been de-energised to enable this installation work to occur. Mr Thompson understood that this step was sufficient to control the risk.

128. On 24 April 2018 Mr Bryson emailed Endeavour noting that plywood hoarding would be fixed to the scaffold for workers’ safety.

129. On 14 June 2018 Mr Keyes emailed Ability SDA stating that the scaffolding would have hoarding shortly.

130. The level of scaffolding upon which Mr Al-Shnen was working was erected on 6 July 2018. That scaffolding had been installed to act as a barrier to the adjacent high voltage power lines.

131. Mr Thompson stated that he was unaware of any additional requirements to control the risk posed by the high voltage power lines.

Safety Record and Prior Convictions

132. Neither Mr Thompson nor CBD have any prior convictions.

133. Mr Thompson was involved in the following two safety incidents:

1. In 1983 when Mr Thompson was operating as a sole trader, a subcontractor lost an eye as a result of a concrete agitator truck chute hitting him in the face.

2. In 2010 Mr Thompson operated a company called New CBD Pty Ltd which was in partnership with another builder. A young carpenter employed by that company was operating an electric planer and took a little bit off the top of his finger. He returned to work in the office as an estimator.

Impact on Mr Thompson

134. Mr Thompson was deeply shaken by the incident involving Mr Al-Shnen. He has significant anxiety about the incident.

135. Mr Thompson was already considering retirement. After the incident Mr Thompson decided that he would not continue to work in construction.

136. The delay in the completion of the Guildford site project contributed to CBD going into voluntary administration on 3 July 2019.

137. CBD was deregistered on 12 November 2020.

Contrition

138. Mr Thompson visited Mr Al-Shnen in hospital on 7 November 2018 and apologised for the incident. Mr Al-Shnen was in a lot of pain at this time. Mr Thompson is not sure whether Mr Al-Shnen would remember his visit.

139. Mr Thompson accepts that he failed in the ways particularised in the Amended Summons. He accepts that those failures resulted in the injuries sustained by Mr Al-Shnen.

140. Mr Thompson deeply regrets and apologises for the failures of his duty and the injuries suffered by Mr Al-Shnen.

Community/Charitable Involvement

141. Mr and Mrs Thompson are involved with the Baptist Church at Narrabeen. Together they care for people in the community by distributing meals, arranging transport, finding accommodation and assisting people who are living with a disability or are sick. Mr and Mrs Thompson have been involved in this work for 26 years.

Consideration

142. 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

143. 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].

144. 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].

145. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

146. 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].

147. 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.

148. 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. 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.

149. The Court of Criminal Appeal has 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. Justice Basten at [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.”

150. Further at [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 [event] 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.”

151. At [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.”

152. My findings about the defendant’s level of culpability are based upon the following:

1. The risk was foreseeable and foreseen. The risk of contact with overhead power lines was well known to Mr Thompson. The gap in the inadequate hoarding was there to be seen. Any competent officer of a principal contractor would have been startled to see such an obvious and deadly risk.

2. The risk existed from early July 2018 until the incident on 6 November 2018. Given that the risk was there, apparently unobserved by CBD or Mr Thompson for four months, the likelihood of the risk occurring was high.

3. The potential consequences of the risk were death, or as happened, catastrophic injury.

4. Simple and cost-free steps were available to eliminate the risk. All CBD and Mr Thompson had to do was direct Simos to rectify the inadequate hoarding forthwith.

5. There was no burden or inconvenience imposed if appropriate steps had been implemented.

6. Grave and life-long harm was caused to Mr Al-Shnen. This is dealt with in detail below in relation to his Victim Impact Statement (PX 2).

7. The maximum penalty for the offence is a fine of $300,000, which reflects the legislature’s view of the seriousness of the offence.

153. I find that the level of culpability of Mr Thompson is in the upper half of the mid range.

Deterrence

154. 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].

155. The penalty must reflect the need for specific deterrence, although this is a very minor factor in the circumstances, since Mr Thompson has retired.

Aggravating Factors

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

Mitigating Factors

157. Mr Thompson has no previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. This is a factor strongly in his favour, since he worked in the construction industry for over 40 years.

158. Mr Thompson is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which he took after the incident demonstrate this.

159. Mr Thompson is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

160. Mr Thompson has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. He took positive steps to guard against the risk of an incident such as this ever happening again. He brought CBD’s documentation and its procedures into line with those which, on all the evidence, should have been in place before this accident occurred.

161. Mr Thompson has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. He has provided evidence that he has accepted responsibility for his actions and has acknowledged that the injury to Mr Al-Shnen was caused by his actions.

162. Mr Thompson entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the 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 Mr Thompson a 25% discount for an early plea. The prosecutor conceded this.

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

Parity

164. Simos was also prosecuted for a breach of its health and safety duties arising under s 19(2) of the Act, relating to the same incident in which Mr Al-Shnen was electrocuted. But for a reduced capacity to pay, the fine for Simos would have been $400,000 reduced by 25% for an early plea: SafeWork NSW v Simos Scaffolding Pty Ltd [2021] NSWDC 443 at [128].

165. Where two or more offenders are involved in the same criminal conduct or enterprise the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [30].

166. The principle operates in the nature of a “check” required of the sentencing Court: DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [31]. The Court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [139] Justice Campbell said:

“An essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence.”

167. The court should not use a co-offender’s sentence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v The Queen at [32]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.

168. It is appropriate for the court to consider the respective contributions of Simos Scaffolding and Mr Thompson. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 at [241].

169. Parity has only a limited role to play in this case, as Simos was charged with a different offence, which carried a different penalty.

170. I find that Simos was more culpable than Mr Thompson. Simos erected the inadequate hoarding. CBD failed to inspect it and check it. Mr Thompson failed to ensure that CBD did so.

Capacity to Pay a Fine

171. 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.

172. 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.”

173. There was no submission about capacity to pay, so this issue does not arise.

Victim Impact Statements

174. The defendant was convicted at the sentence hearing on 15 December 2021.

175. 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 summarily by the District Court where the offence results in the death of, or actual physical bodily harm to, any person – s 27(2)(a).

176. By s 28(1) a primary victim may prepare a statement that contains particulars of the following suffered as a direct result of the offence:

1. Any personal harm

2. Any emotional suffering or distress

3. Any harm to relationships with other persons

4. Any economic loss or harm that arises from any matter referred to in (1) – (3) above.

177. 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. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement – s 30D(1).

178. 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).

179. In his Victim Impact Statement (PX 2) Mr Al-Shnen said:

“I was injured at work on 6^th November 2018 on a building site in my role as a labourer. The electrical injury caused massive injuries to my waist, my right shoulder and both arms and hands. I was taken by ambulance to Westmead Hospital and, from there, I was admitted to the Burns Unit at Concord Hospital. The surgeons who treated me decided that the amputations of both upper limbs were needed. My left hand was amputated between the wrist and elbow. My right arm was amputated above the elbow. I also incurred major burns through my skin around large areas of my torso.

I needed to have multiple operations – like the amputations I mentioned above procedures, skin grafts, where they peel skin off my thighs to place on the areas that were burnt so badly there was no skin left. I also needed areas ‘debrided’. This is where the nurses and doctors scrub down areas of skin that are dying and need to be cleared away to see if new skin can grow back. I later had a series of other operations to refashion the stumps of my arms, to insert rods ready for the prostheses and then application of the prosthetic limbs.

I summarise here the main ways these injuries have impacted me, in various areas of my life.

Physical:

A.   Time cost. I have lost countless hours of my life to inpatient admissions, prosthetics, physical therapy, surgical appointments, psychology appointments and other allied health appointments.

B.   Pain. In addition to the early painful surgeries, I still have pain every day in my stumps, my shoulder and my torso. The more I try to do with my prosthesis, the more pain I will have in the evening and throughout the night which causes me difficulty sleeping. I have to sleep in one position on my back only and put two pillows on each side under each arm to stop me from turning on my sides. Doctors have told me this will be something I have to adjust to for the rest of my life. I only use the prostheses three to four hours at a time until it starts to become too painful. I have constant significant pain in my right arm which the doctors are currently investigating.

C.   Reduced physical function: Even with the assistance of the prosthesis, this injury has permanently impacted on my ability to undertake everyday tasks. I have been given good prosthetic limbs by a surgical team, but I am still unable to do most tasks that require dexterity and coordination. I need full time assistance from carers to assist me every day with tasks such as travel, accessing technology (e.g. getting my phone for me and placing it in my prosthetic hand), personal hygiene, some eating tasks and some dressing. I try to do what I can but there are still many domestic chores that I cannot master with a prosthetic limb. I will require this level of care for the foreseeable future and will require an extensive level of care for the rest of my life. I require assistance putting the prosthetics on and affixing it to both arms. I am unable to expose it any water such washing my face or showering, I require assistance dressing and undressing. When eating, someone will need to place the spoon near my prosthetic arm in the correct position to enable me to use it. The weight of the prosthetic arms is approximately 3kgs each arm, which impacts on my ability to wear them for long periods. When I go for a walk, I need to take them off as they weigh me down and cause me pain I am unable to undertake something as simple as brushing my hair without the need for assistance from the carers. Another indignity is having to rely on the assistance from the carers when relieving myself. At times when my carers are between shifts and are unavailable and I urgently need to go to the bathroom, I am unable to so until the carer arrives. At times I have had to call neighbours to assist me in this regard when my carer’s are not present.

Social and Religious:

My injuries have prevented me from praying and attending to my usual weekly religious practices, which are important to me. I have fewer friends now but I cherish the ones who have stood by me. I rely on social media for contacts, which is not the same as being able to go to work, or shop or visit independently. The worst social impact has been the way that others look at me. Many people stare and make me feel very self-conscious. But I am most badly affected when I see children who look scared or disgusted by my appearance. This makes me extremely sad and I have lost my dignity and confidence as a man.

Vocational:

My physiotherapists and surgeons have agreed that I cannot work. The main reason is that I have lost my manual capabilities. My pain also limits my capacity to work. Furthermore, I spend much of my time doing prescribed rehabilitation exercises on my own (e.g. practicing using the myoelectric arm or re-strengthening muscles) or attending actual therapy appointments. I also have medical appointments. All these issues together prevent me from retraining.

Family:

Perhaps the deepest pain for me has been my prolonged separation from my wife and children. A combination of factors, including my need for highly specialised medical and allied health treatments required me to stay in Sydney, while my family migrated from Iraq to Finland. I cannot go there and complete my treatment and they are not permitted to come to Australia.

Emotional and Mental Health:

A.   Trauma-related stress. I have been experiencing unwanted, painful memories of the day of the accident. These ‘flashbacks’ extend to the days in hospital, such as when the doctor said that they have to amputate both arms. That still makes me shudder. For a long time, I also had terrible nightmares of injuries and confusing terrifying scenes in hospitals. I still feel distressed when reminded of the accident and surgeries.

B.   Moral injury. I have felt abandoned and let down by the employer and those I hold accountable for my injury because there was no effort to ask about my wellbeing or progress. To my shock and amazement, nobody ever came to the hospital or my home and I did not receive a phone call to see if I was alive or okay or needed anything. To think that they were still at work, making money, while I was in hospital, in pain, with my life changed, made me feel sad and betrayed.

C.   Loss of autonomy and self-reliance. It is hard to express what it is like living your life when you need to rely on others to do basic things for you – I must accept how they do these things for me, and how long I have to wait for them and so on. It is not just frustrating – it leads to a loss of dignity when you cannot do basic things for yourself like finish getting dressed, finish your own hygiene or take your mobile phone from your own pocket. I cannot even hug my own children and express my affection for them which has left me distraught.

D.   Loss of self-worth. I realise that working for money, doing small jobs at home and helping others all helped me to feel like a good person. My feelings of worth and value have been more than halved since my injuries. I am proud of how hard I have worked in my therapy and I have talked to my psychologist about this but still I feel useless everyday compared to how I was.

E.   Uncertainty over future. One of the worst things for me is that I can’t see things changing. I wish to earn money for myself and my family; I long to be united with them; I wish to have some predictability about how and where I will live; I need to know that my family will be provided for if I cannot be the breadwinner for my own children. Now knowing these things causes me great worry every day. I feel inadequate as a husband and as a father.

F.   Depression. The combined effect of all these things has led to Depression, for which I am receiving some treatment. My mind tells me that it would have been better if I died in the electrical accident and I pray to die but I will never kill myself. As I have said, I feel that my worth is reduced, it is hard to be optimistic about the future, I have lost confidence, I don’t like going out. I have become socially withdrawn, as whenever I am in public or attend gatherings, people would stare and point as if I am not human. It also invited questions about my injury which I was not comfortable answering. When I do go out, I always end up on my own, with the trauma of what happened to me, with the chronic pain, no limbs and no family by my side. I feel sad all the time. I don’t know how my life will be now.”

180. I will take this Victim Impact Statement into account in determining the appropriate sentence.

Costs

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

Penalty

182. My orders are:

1. Stephen Craig Thompson was convicted on 15 December 2021.

2. The appropriate fine is $40,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Stephen Craig Thompson to pay a fine of $30,000.

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

5. Order Stephen Craig Thompson to pay the prosecutor’s costs.

**********

Decision last updated: 17 December 2021