SafeWork NSW v Urban Field Group Pty Ltd

[2022] NSWDC 575

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Urban Field Group Pty Ltd [2022] NSWDC 575

Hearing dates:

16 November 2022

Date of orders:

18 November 2022

Decision date:

18 November 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Urban Field Group Pty Ltd is convicted.

2   The appropriate fine is one of $500,000 which will be reduced by 20% to reflect the plea of guilty.

3   I impose a fine of $400,000.

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

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

Catchwords:

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

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

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

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Work Health and Safety Act 2011

Cases Cited:

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

Jahandideh v R [2014] NSWCCA 178

R v Borkowski (2009) 195 A Crim R 1

R v Olbrich (1999) 199 CLR 270

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

Royall v The Queen (1991) 172 CLR 378

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Urban Field Group Pty Ltd (Defendant)

Representation:

Counsel:
L Doust (Prosecutor)
C O’Neill (Defendant)

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

File Number(s):

2021/229105

Publication restriction:

None

JUDGMENT

Introduction

1. Urban Field Group Pty Ltd (the offender) appears for sentence after it pleaded guilty to an offence pursuant to s 32 Work Health and Safety Act 2011 (the Act) that it failed to comply with the health and safety duty it owed pursuant to s 19(1) of the Act and thereby exposed workers, including Asadullah Hussaini to a risk of death or serious injury.

2. The maximum penalty for the offence is $1.5 million.

Facts

3. The parties tendered an Agreed Statement of Facts that can be summarised as follows.

Background

4. The offender conducted a business providing construction services and, in particular, construction of medium-density dwellings like low-rise apartment complexes and townhouses.

5. Joe Sammour is the offender’s director.

6. At all material times, Abresham Pty Ltd (Abresham) was a company that undertook painting and preparation work. Alex Kehl was the sole director of Abresham and was a licensed painter.

7. As part of its business, the offender was undertaking a construction project named “Champagne on Civic” (the project). The project involved construction of 25 residential units and five shops at a site in Pendle Hill (the site). The construction value of the project was $5 million.

8. The offender was the principal contractor of the project and was in control of the site.

9. The offender commenced work at the site on 15 February 2018.

Workers

10. The offender employed George Nassif as Project Manager. Mr Nassif was responsible for the overall structure and planning of the project. His role was to take care of subcontractors and suppliers and ensure their paperwork was in order.

11. The offender engaged Robert Abraham of Buildpoint NSW Pty Ltd as a supervisor/foreman at the site. Mr Abraham was responsible for the day-to-day running of the site and ensuring the site was run safely.

12. Mr Sammour’s role was to ensure that the project was delivered on time, within budget and to a quality standard.

13. The offender engaged Abresham to undertake painting and preparation work at the site. Abresham was to supply the labour, materials, services and equipment necessary for the preparation, application and painting of the units at the site.

14. Mr Hussaini migrated from Afghanistan to Australia in about 2017. His wife and 10 children remained in Afghanistan. Mr Hussaini was employed by Abresham as a painter, commencing in November 2018. He had undertaken approximately five jobs for Abresham prior to the incident.

15. Mr Hussaini’s duties for Abresham included preparation of internal walls, ceilings and soffits, which involved grinding surfaces, sanding, patching and priming. He also applied finishing coats of paint to these surfaces.

16. Mr Hussaini was 1.76 metres in height.

Systems of work

Workplace Risk Management Plan

17. The offender had a generic Workplace Risk Management Plan (WRMP) for construction projects. The WRMP was the document used to prepare a project specific WRMP for construction workplaces and identify key areas affecting health and safety for the workplace. A specific WRMP was not prepared for the project.

18. In terms of training subcontracted workers, WRMP provided that, at a minimum, workers would have a “General Industry OHS Induction/Safety Awareness Training for the Construction Industry” card (known as a “white card”), a work activity induction training, a workplace specific induction and relevant certification of competency. The WRMP also required that the offender take a photocopy of the employee’s “white card” and photo ID at the employee’s workplace specific induction.

Safe Work Method Statement

19. The offender had a Safe Work Method Statement (SWMS) for the activity of “Working at Height & Scaffolding”. The SWMS identified the risk of falling from height when working off a ladder.

20. The SWMS required that ladders be footed by another person or tied off at the top and bottom of the ladder. It also required that ladders be angled 1 metre out for every 4 metres in height and that, when working at a height over 1.8 metres, the person on the ladder wear a full fall arrest harness and be anchored from above and below using a lanyard.

21. The SWMS did not specify the circumstances in which the portable ladder could be used at the site, such as for the purposes of simple access jobs, short duration work and light duty work.

22. Further, the SWMS did not adequately prescribe control measures for ladder use at the site. For example, it did not require that three points of contact be maintained with the ladder at all times, nor did it prohibit operation of power tools requiring two-handed operation whilst standing on a ladder.

23. The offender did not obtain from Abresham a SWMS for painting and preparation work at the site. Mr Abraham assumed that a SWMS was provided to “the office”.

24. Abresham did not have a SWMS in place for work to be performed at the site.

Use of the ladder

25. It was usual practice for the offender to undertake work at heights of up to 3.3 metres from an A-frame stepladder. Abresham would normally use a ladder to perform the task of grinding and patching walls and ceilings.

Induction Training and Supervision

26. Mr Hussaini did not have a “white card” and the offender did not ensure that Mr Hussaini had undertaken general construction training prior to allowing him to commence work at the site.

27. The offender’s SWMS for “Working at Height and Scaffolding” provided that subcontractors were to be supervised by the offender and that a supervisor/foreman was to carry out daily inspection for worksite hazards. The offender did not supervise or inspect the work performed by Mr Hussaini. Mr Abraham believed that Mr Hussaini’s boss told him what had to be done, so Mr Abraham “just left it up to him”.

The incident

28. Mr Hussaini commenced working at the site on 28 August 2019. Mr Hussaini was expected to perform a full day’s work at the site from 7.00am to 3.00pm.

29. At approximately 7.00–7.30am on 28 August 2019, Mr Abraham provided Mr Hussaini with a basic site induction which included the location of the toilets, first aid and the evacuation procedure.

30. Mr Kehl attended the site with Mr Hussaini and instructed him to grind and patch the first-floor balcony, including the balcony soffits, ceilings and walls.

31. Mr Kehl observed Mr Hussaini grind a soffit and then left the site to go to another job in the city.

32. Mr Kehl supplied Mr Hussaini with a patch, a Makita angle grinder and a Syneco SADP6 ladder to assist with his duties at the site. The grinder was an electrical corded power tool intended for grinding, sanding and cutting metal and stone material. The ladder was a dual-purpose ladder which could be used in either an ‘A’ frame configuration or in an extended straight configuration. The height of the ladder was 1.82 metres when used as a step ladder and 3.19 metres when used as a single/extension ladder. The height of the balcony soffits and ceiling was approximately 3.3 metres.

33. Mr Hussaini was working on a balcony in unit 5 on the first floor at the site. The surfaces of the floor, wall and ceiling on the balcony were uncoated concrete.

34. Weiyi Liu, a gyprocker employed by EJ Developments Pty Ltd, was working approximately 10 metres away from Mr Hussaini. Mr Liu observed Mr Hussaini working on the ladder and holding the grinder during the morning.

35. At approximately 12.30pm Mr Liu heard a loud “boom” sound and then observed Mr Hussaini laying on the floor. Mr Hussaini’s face was to the floor and he was unresponsive.

36. An ambulance was called at 12.34pm and paramedics arrived at the scene at 12.44pm. Mr Hussaini was transported to Westmead Hospital for treatment.

37. Mr Hussaini sustained severe head injuries and a right wrist fracture due to the fall.

38. Mr Hussaini died on 4 September 2019 as a result of his head injuries.

Site inspection

39. At approximately 3.15pm on 28 August 2019, Inspector Andrew Komisarczuk of SafeWork NSW attended the site and observed the scene of the incident.

40. Inspector Komisarczuk noted that the incident scene had been disturbed when assistance was rendered to Mr Hussaini. Namely, the grinder and ladder had been placed at the side of the room to make space for the paramedics to work.

41. At 4.20pm Crime Scene Officer Sergeant Hunt attended the site and conducted a forensic examination. Sergeant Hunt recorded in his examination notes that there was a ladder with five rungs and a top step that could be extended out. Its spreaders were not in place, nor were extender clips. Sergeant Hunt also noted that it was “unknown whether ladder originally retracted or if fully extended at the time”. There was some scaffolding that was angled into the room through the adjacent void/windows.

42. On 29 August 2019, Inspector Neil Simpson of SafeWork NSW attended the site and conducted a factual inspection report. Inspector Simpson made the following observations at the scene of the incident:

1. the height of the roof over the balcony was approximately 3.3 metres;

2. the outside edge of the roof had a solid turn-down extending approximately 800 millimetres;

3. the construction material in the roof and turndown was concrete;

4. the concrete surface was primarily smooth and consistent;

5. there were some areas of concrete that appeared to have been blended by grinding and other areas that appeared rough and unground;

6. the front of the ladder on the balcony had five steps and a top plate. The rear of the ladder had five steps. The steps were approximately 285 millimetres apart.

Systems of work after the incident

43. Following the incident, SafeWork NSW issued an Improvement Notice to the offender and Abresham, requiring that they review and revise the measures implemented to control the risks associated with preparation and painting works at the site.

44. The offender engaged MSM Fire Services to review its work health and safety policies.

45. On or about 24 September 2019 the offender engaged GP Coatings Pty Ltd to complete the painting and preparation work at the site.

46. On or about 30 September 2019 the offender implemented a Project Safety Management Plan for the site, which requires that the Project Manager request a SWMS from all trades prior to any appointment and that all SWMS be kept on site for the site supervisor to implement and monitor.

47. The offender now only accepts platform ladders at its sites.

Factual issue

48. The offender contended that I could not be satisfied beyond reasonable doubt that Mr Hussaini fell from the ladder or that he was using it improperly at the time when he fell and thereby that its breach of duty in failing to provide a safe system of work for the use of portable ladders was a cause of his fatal injuries.

49. To the extent that I make any finding of fact adverse to the offender including the establishment of the aggravating factor, I must be satisfied of that fact or conclusion beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

50. The question of causation is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378.

51. The offender consented to the tender of the Agreed Statement of Facts and the documents in the Sentence Tender Bundle, which included a Record of Interview with Mr Liu, who was working in close proximity to Mr Hussaini immediately before he was discovered unconscious on the floor. I directed that the rules of evidence apply to the evidence of Mr Liu, who was called to give evidence to clarify the content of his Record of Interview.

Mr Liu’s evidence

Mr Liu’s Record of Interview

52. Mr Liu was interviewed by Inspector Simpson on 21 January 2020 about five months after the incident. Wenxiu Guo was also present. In his oral evidence, Mr Liu said that the interview was conducted without an interpreter present, but he may have been mistaken about that.

53. Mr Liu told Inspector Simpson that he was working in a room about 10m away from where Mr Hussaini was working on the balcony of level one of the building. At about 1pm he heard a noise, which he described as a “boom” before seeing Mr Hussaini face down on the ground. Mr Liu tried to wake him up before going to find the foreman to call a doctor.

54. Mr Liu could not say what work Mr Hussaini was doing immediately before he found him and did not see him fall. Mr Liu assumed that Mr Hussaini fell because of the noise he heard followed by finding him on the ground shortly afterwards.

55. Mr Liu had seen Mr Hussaini using an A-frame ladder and that he had been standing in the middle of it. Mr Liu had not seen Mr Hussaini working while he was standing on the ladder. Mr Liu had seen Mr Hussaini with a grinder in his hand but did not see him use it. Mr Liu observed Mr Hussaini wearing goggles and gloves. Mr Liu assumed that Mr Hussaini was using the grinder to smooth out parts of the concrete on the balcony.

56. When Mr Liu found Mr Hussaini the grinder had stopped.

Mr Liu’s oral evidence

57. In evidence-in-chief, Mr Liu stated that he started at the site at 7.00am on the day of the incident, and that he usually took a break at 11.00am. He first saw Mr Hussaini in the afternoon about one to two hours before finding him on the floor.

58. Mr Liu’s evidence was that Mr Hussaini had been using the grinder on the upper part of the wall of the balcony and using a ladder to do so. He did not see Mr Hussaini doing that work but formed the view that he had been grinding because of the amount of dust in the air. Mr Liu did not see Mr Hussaini do any other work on the day and gave evidence that he had been grinding the wall for the whole time.

59. Before finding Mr Hussaini on the floor, Mr Liu saw him climb the ladder holding the grinder. Mr Liu assumed that Mr Hussaini was about to grind the wall.

60. Mr Liu described the noise he heard as a “bang” like a large object had fallen to the ground. He went to investigate immediately “on instinct”. He saw Mr Hussaini face down with his arms above his head and the grinder was next to him. He saw that the A-frame ladder was on its side on top of Mr Hussaini. Mr Liu checked on Mr Hussaini before running to find the builder and calling out for help. The builder called an ambulance and Mr Liu stayed and helped the builder follow the instructions of the paramedics on the telephone. Someone else moved the ladder to the side of where Mr Hussaini was lying.

61. In cross-examination, Mr Liu gave evidence that he did not have an interpreter present at the interview. I pause to note that Mr Liu chose to give all of his evidence through the interpreter although he spoke some English. He gave evidence that his recollection was that when he saw Mr Hussaini climbing the ladder that he had the grinder in his hand, but that he could not be “100% sure”. He accepted that his memory of the events would have been better at the time of the interview, back in 2020, than it was now.

62. Mr Liu gave evidence that he was pretty sure that Mr Hussaini was using the grinder because there was dust everywhere. He accepted that he did not see him working on the ladder, but just being on it. Mr Liu accepted the proposition that he saw grind marks on the wall.

Mr Liu’s credit

63. Mr Liu gave evidence in a thoughtful and careful manner. He made appropriate concessions and appeared to be trying to answer questions as truthfully and accurately as possible. There were some matters in his evidence that were contradictory, but I am satisfied that these arose as a result of language difficulties and the fading of his memory over time. I formed the impression that he was a reliable witness and I accept his evidence.

Findings on the factual issue

64. From the agreed facts and the evidence, I make the following findings of fact:

1. Mr Hussaini’s first day on the site was the day of the incident.

2. He was not trained by the offender on the proper use of a portable ladder because the offender’s SWMS was inadequate on the issue.

3. The offender did not have any evidence in the form of a SWMS prepared by Abresham that Mr Hussaini had been adequately trained on the use of a portable ladder.

4. In the morning of 28 August 2019, Mr Kehl instructed Mr Hussaini to grind and patch the concrete surfaces of the balcony soffits, ceilings and walls on the first floor of the building. Mr Hussaini was provided with a grinder and a portable ladder to do the task. Mr Kehl was present to observe Mr Hussaini use the ladder to grind a soffit before leaving for another site. The height of the soffits and ceilings was approximately 3.3m. The use of a portable A-frame ladder to do this type of work was usual practice for Abresham.

5. The portable ladder was unsuitable for the task because of the height of the ceilings. Accessing the upper rungs of the ladder to a point necessary to reach the upper parts of the walls and the ceiling while undertaking a task such as the grinding, was likely to make the ladder unstable and could cause the user to fall off it.

6. About an hour before the incident, Mr Liu saw Mr Hussaini climbing the ladder with the grinder in his hand in preparation to use it on the upper part of the walls or the ceiling. I am satisfied that Mr Liu first saw Mr Hussaini at a time after about 11.30am, being after his break.

7. Mr Liu observed Mr Hussaini was wearing safety goggles and that there was a lot of dust in the air which was consistent with Mr Hussaini using the grinder on the concrete surfaces of the balcony. The photographs of the balcony taken the next day depicted grey marks on the walls, soffit and ceilings that were consistent with the use of the grinder in those areas. A number of those marks were in areas that could have only been accessed with the use of the ladder. I am satisfied that in the time between when Mr Liu first saw Mr Hussaini and 12.30pm, that Mr Hussaini was undertaking the task of grinding the concrete surfaces on the balcony and was using the ladder to reach some places.

8. Mr Liu heard a noise like a loud object had hit the ground at about 12.30pm that was consistent with Mr Hussaini falling off the ladder.

1. When Mr Liu found Mr Hussaini he was face down with his arms above his head and the ladder was on top of him, which was also consistent with him falling off the ladder. Mr Hussaini had blood coming from his nose and ears and a dark substance coming from his mouth. He was unconscious. I am satisfied that the bloodstains on the floor depicted in the photographs indicate the position where Mr Hussaini’s head was after he fell.

2. The ladder was removed from Mr Hussaini by someone during attempts to treat him. The position where it was depicted in the photographs (over the top of the bloodstains) is not the position where it was when Mr Hussaini was using it.

3. The photographs of the scene depict blood stains in the floor adjacent to grind marks on the return of the soffit and on the ceiling. This is consistent with the fall being occasioned at the time when he was using the ladder to grind one of those areas.

65. The offender contended that Mr Hussaini’s fall may have been caused by other mechanisms including the “kickback” of the grinder (referred to in the user manual for the grinder) or by the involvement of the raker ties that were present. I do not think that either of these matters rise above speculation. I accept that it is not incumbent on the offender to suggest alternative mechanisms of the fall, but I cannot discern one.

66. Taking into account all of the circumstances established by the evidence, I am not satisfied that there is an inference consistent with Mr Hussaini’s fall occurring by another means that is reasonably open on the evidence. I am satisfied beyond reasonable doubt that Mr Hussaini fell off the ladder while using the grinder to smooth the concrete surface of the ceiling or return of the soffit in the area as demonstrated by the grind marks in the area adjacent to the bloodstains depicted in the photographs.

Offender’s Case on Sentence

67. The offender relied upon the affidavit of Mr Sammour dated 10 November 2022. It also relied upon the affidavit of Joe Arraj, the offender’s accountant, dated 9 November 2022, regarding the offender’s capacity to pay a fine.

Background

68. Mr Sammour is the sole director and sole employee of offender. He has 27 years’ experience in the construction industry. He has the following qualifications:

1. Builder’s licence.

2. General construction induction card (known as a “white card”).

3. WHS Risk Management for Managers and Supervisors; and

4. First aid certificate (not in-date).

69. Prior to being the offender’s director, Mr Sammour worked as a subcontractor in the building industry.

70. The offender is a small construction company that primarily engages contractors to work on its building projects. These contractors can, if necessary, engage other subcontractors to undertake work on the project.

71. Mr Sammour deposed that the offender takes reasonable steps to ensure that the contractors it engages are reputable and experienced.

72. For the project, the offender engaged Abresham to undertake painting works at the site. Mr Sammour was unaware that Abresham would be commencing the painting work on the day of the incident.

73. Mr Abraham was engaged as a site foreman. Mr Abraham was required to regularly report to Mr Nassif and Mr Sammour on all matters related to the site, including work health and safety.

74. Mr Abraham was responsible for the following tasks:

1. managing day-to-day operations at the site;

2. inducting workers onto the site, including in relation to site safety practices concerning working from heights;

3. conducting regular site safety inspections;

4. supervising work of trade persons on site;

5. issuing non-compliance notices to subcontractors;

6. arranging for alterations to scaffolding to be done by a competent licenced person;

7. overseeing general safety of all construction works on site; and

8. reporting to Mr Sammour or Mr Nassif on a regular basis in relation to progress and status of the works on site and any issues that arose.

Systems of work prior to the incident

Inductions

75. The offender required that any person attending the site be inducted by Mr Abraham. These inductions allowed for identification and discussion of work health and safety issues on site. They also provided the offender with the opportunity to ensure that all trades were familiar and complied with all relevant work health and safety policies and procedures.

76. Inductions emphasised general safety issues, like where first aid facilities and emergency spots were located on site, as well as the importance of undertaking regular risk assessments. The induction provided an outline of the offender’s site safety rules. The induction included a site walk through.

77. Mr Nassif was required to undertake a review of the Safe Work Method Statements (SWMS).

Work Health and Safety Management Plan

78. The offender implemented a site-specific WHS Management Plan (the Plan) for the site outlining the responsibilities of the offender’s personnel on site and the offender’s objectives for WHS issues.

79. The Plan referenced key safety issues and provided measures to be taken to address these issues, including risk management, communication and consultation, traffic management, training, public safety, amenities and site safety.

80. All workers were introduced to the Plan as part of their induction. They were expected to comply with its requirements at all times.

On site consultation meetings and safety audits

81. The offender conducted WHS consultation meetings involving all trades on site. These meetings provided a forum for discussion of all WHS issues on site and the opportunity for safety hazards or concerns to be raised.

82. Mr Sammour attended the site on average two or three times per week.

83. During these visits, Mr Sammour would discuss the progress of the project with Mr Nassif and Mr Abraham, ensure that all trades were progressing as required, conduct site inspections, have informal consultations with workers on site about issues which may have arisen and ensure cleanliness of the site.

84. On the days that Mr Sammour was not physically on site, he would communicate with Mr Abraham and Mr Nassif via phone calls or text messages.

85. In addition, Mr Abraham was required to undertake site inspections and walk throughs on a daily basis, to identify safety issues arising on the site.

86. Mr Abraham conducted regular toolbox talks for the trades and undertook inspections of the tools, equipment and personal protective equipment being used on site.

Working from heights requirements

87. Mr Abraham’s daily site inspections and walk throughs included inspections of workers performing works on site.

88. Mr Sammour deposed that when he conducted safety inspections, he would ensure to the best of his ability that workers working from heights were doing so safely.

89. The WHS Management Plan required the offender to obtain a SWMS. Mr Sammour deposed that a SWMS would address safety issues including those related to working from heights.

Systems of work after the incident

90. Mr Sammour accepted that the offender’s systems of work on the day were not to a requisite standard.

91. Since the incident, the offender has undertaken the following steps to improve its safety management system:

1. installation of signage on site to communicate and emphasise that using a step ladder is not an acceptable practice when working from heights;

2. emphasising during inductions that only platform ladders should be used when working from heights;

3. increasing the level of safety inspections undertaken by the site foreman and Mr Sammour; and

4. compliance with the directions and recommendations of SafeWork.

92. After works on the project were completed, the offender was engaged to undertake a residential project in Toongabbie, that is now near completion.

93. For the Toongabbie project, the offender undertook the following measures:

1. a different painting company was engaged;

2. all site inductions included the issue of scaffolding, including providing names of the personnel to be contacted if the scaffold was required to be altered or moved;

3. toolbox talks were held on a daily, rather than weekly, basis;

4. toolbox talks and safety inspections specifically related to working from heights were conducted;

5. a site foreman, Charbel Moussa, was engaged to be on site on a full-time basis to conduct daily safety inspections. Mr Moussa has 20 years’ experience as a builder;

6. signage was installed to communicate and emphasise that the use of step ladders is not acceptable when working from heights;

7. emphasised in worker inductions that, when working from heights, only platform ladders or scaffolds should be used;

8. the level of safety inspections undertaken by the site foreman and Mr Sammour was increased; and

9. an external safety consultant from Management Systems and Maintenance, William Otuhiva, was engaged to conduct safety inspections and monitor and enforce safety procedures.

Corporate citizenship

94. Over the years, the offender has made donations to charities like the Starlight Foundation, the Police Citizens Youth Club and the CEO Sleepout.

95. The offender recently made a donation towards the building of a church in Dural and to the Reverend Bill Crews Foundation.

96. The offender is also a member of the Housing Industry Association.

Capacity to pay a fine

97. Mr Arraj has been the offender’s accountant since 2015. He deposed that it was experiencing financial difficulties and that it is struggling to pay its current debts. Mr Arraj stated that in the absence of significant financial growth by the offender, it will not be profitable in the foreseeable future.

Contrition and Remorse

98. Mr Sammour acknowledged that the offender could have done more to reduce the risk to workers associated with working from heights.

99. Mr Sammour expressed personal remorse for the incident. He has been experiencing anxiety since the incident, and as a result, has reduced the amount of work that the offender takes on.

100. The offender has no prior history of SafeWork convictions. It co-operated with the SafeWork investigation.

Consideration

101. 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

102. The offence is objectively serious.

103. The risk of a fall from height through the inappropriate use of a ladder was obvious, well known in the industry and actually known to the offender. The offender had made reference to the precise risk in its SWMS.

104. The likelihood of the risk coming home was moderate if steps were not taken to train the workers on the site as to the dangers posed by working on ladders and enforcing the prohibition on doing so, for tasks like the one that Mr Hussaini was undertaking.

105. The steps that could have been taken to prevent the fall included enforcing the offender’s own SWMS through adequate training and supervision, ensuring that Abresham had an appropriate SWMS and that its workers understood it through adequate training and supervision and requiring the use of a work platform by the workers engaged in the task that Mr Hussaini was undertaking. The induction conducted by the offender was so inadequate that it failed to detect that Mr Hussaini did not have a White Card. The steps that could have been taken were simple, inexpensive, well known in the industry, referred to in the offender’s SWMS and required by the Work Health and Safety Regulations 2017.

106. The consequences of the risk included a risk of death.

107. The death of Mr Hussaini is an aggravating feature of the offence.

108. The offender was the principal contractor for the project and did not have the same level of influence over Mr Hussaini as Abresham did. However, it fell well short on the things it could have done to alleviate the risk that came home.

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

Deterrence

110. 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 Ltd v Nash [2016] NSWCCA 37 at [180].

111. It is well known in the construction industry that falls from height are a major cause of death and serious injury. The penalty imposed must bring home to other PCBUs involving the risk of a fall from height, that if they fail to take all reasonably practicable steps to eliminate or minimise the risk that they will meet with condign punishment.

112. The penalty imposed must also provide for specific deterrence because the offender continues to operate a business in the construction industry. However, it is reduced to some extent by reference to the extensive steps that the offender has taken after the incident to bring its safety systems to a sufficient standard.

Aggravating Factors

113. 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 Hussaini is sufficient to establish the aggravating factor.

Mitigating Factors

114. The offender does not have any previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender has operated since 2002 without any prior safety breaches.

115. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken significant steps after the incident to upgrade its safety systems and has demonstrated that it has good prospects of rehabilitation.

116. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr La Delfa, on behalf of the offender, has accepted responsibility for its failings and expressed remorse for the incident and its impact on Mr Prendergast.

117. The offender entered a plea of guilty: s 21A(3)(k) and s 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]. The offender disputed a significant fact and lost on that issue, but it did so efficiently. The appropriate discount is 20%.

118. The offender co-operated with the SafeWork investigation: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

119. The offender has demonstrated itself to be a good corporate citizen through its support of charitable causes.

Capacity to Pay a Fine

120. The Court is required to have regard to s 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, 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: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

121. Both Mr Arraj and Mr Sammour were cross-examined on this issue. It would be fair to say that neither of them could provide a complete picture of the offender’s finances. The offender’s latest financial accounts record unsecured loans of about $2.1 million to other parties. Neither Mr Arraj nor Mr Sammour could provide any information on these loans. Doing the best I can, I assume that they are related to the offender’s latest project being constructed for Lindon Street Investments Pty Ltd, a company that is also operated by Mr Sammour, but the offender has not proved this to be the case. In any event the offender has a significant asset in these loans that it could call in to pay any relevant fine.

122. The evidence on capacity to pay was entirely unconvincing and I am not satisfied that the offender has discharged its onus to demonstrate a limited capacity to pay a fine.

Penalty

123. Urban Field Group Pty Ltd is convicted.

124. The appropriate fine is one of $500,000 which will be reduced by 20% to reflect the plea of guilty.

125. I impose a fine of $400,000.

126. The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

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

**********

Decision last updated: 22 November 2022