WorkCover Authority of NSW (Inspector Moore) v E and T Bricklaying Pty Ltd

[2016] NSWDC 16

District Court

New South Wales

Medium Neutral Citation:	WorkCover Authority of NSW (Inspector Moore) v E & T Bricklaying Pty Ltd [2016] NSWDC 16
Hearing dates:	24 February 2016
Date of orders:	24 February 2016
Decision date:	24 February 2016
Jurisdiction:	Criminal
Before:	KEARNS DCJ
Decision:	Order that: E & T be fined the sum of $80,000; Mr Kose be fined the sum of $10,000. In both instances a moiety is to be paid to the prosecutor. Order the defendants to pay the prosecutor’s costs.
Catchwords:	Sentencing – defendants convicted for offences under Work Health and Safety Act 2011 ss 19(1)a, 27 and 32 – purposes of sentencing – ss 3A and 21A Crimes (Sentencing Procedure) Act 1999 – gravity of the offence – foreseeability of the risk of injury – foreseeability of the consequences of the risk coming home – whether measures available to avoid risk – application of the principle of parity – culpability of defendants – position and responsibility of defendant on worksite – whether general deterrence should be taken into account in sentencing – specific deterrence – whether an order under s 10A(1) of the Crimes (Sentencing Procedure) Act or s 239 of the Work Health and Safety Act should be made in respect of the individual defendant – no evidence of remorse or contrition – no prior convictions – victim impact statement
Legislation Cited:	Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999
Cases Cited:	WorkCover Authority of NSW (Inspector Moore) v E & T Bricklaying Pty Ltd [2015] NSWDC 369; WorkCover Authority of New South Wales v JMW Developments Pty Limited [2015] NSWDC 259
Category:	Sentence
Parties:	WorkCover Authority of New South Wales (Prosecutor) E & T Bricklaying Pty Ltd (Defendant 13/379508) Eyup Kose (Defendant 13/379523)
Representation:	Counsel: Mr B Neild, instructed by WorkCover Authority of New South Wales, appeared for the prosecutor  Dr S Bogan, instructed by Criminal Defence Group, appeared for the defendants
File Number(s):	2013/379508; 2013/379523

Judgment

OUTLINE

1. There are before me two matters for sentence under the Work Health and Safety Act 2011.

2. Both defendants were convicted on 16 December 2015. My reasons for conviction and the findings of guilt were delivered on that date. The circumstances that gave rise to the incident leading to the charges are well known. There is no need to recite them here. They are set out in the reasons I delivered on 16 December 2015 in WorkCover Authority of NSW (Inspector Moore) v E & T Bricklaying Pty Ltd [2015] NSWDC 369. The reasons set out there may be taken as incorporated into these reasons.

3. That brings me directly to the sentencing process.

4. In sentencing, I need to bear in mind several matters. I need to bear in mind the purposes of sentencing as enumerated in s 3A of the Crimes (Sentencing Procedure) Act 1999. I need to bear in mind the purposes of the Work Health and Safety legislation, in particular ensuring the safety, health and welfare of workers and others on workplace premises. I need to bear in mind any aggravating and mitigating factors, including any mentioned in s 21A of the Crimes (Sentencing Procedure) Act 1999, so far as any of those may be relevant.

5. I commence my analysis with a consideration of the gravity of the offence. This is determined in part by the foreseeability of the risk of injury, the foreseeability of the consequences of the risk coming home and the measures available to avoid the risk

6. This incident was readily foreseeable. The handling of metal objects in proximity to live wires was fraught with risk of contact between the two if proper precautions were not taken.

7. The consequences of the risk coming home in this case were readily foreseeable. Electric shock and even electrocution were foreseeable consequences. Measures were readily available to avoid the risk.

8. The measures that were readily available to the defendants are set out in [53] of the reasons I delivered on 16 December 2015. In the case of Mr Kose, the measures are those that he failed to carry out as set out in [79] of those reasons.

9. As indicated in those earlier reasons, there were two other main players in this incident. One was Ultra Group Pty Ltd, the scaffolding company, and the other was JMW Developments Pty Ltd, the head contractor and building company. Both pleaded guilty in relation to charges brought against them arising from the incident. They have been dealt with by the Court. Ultra was dealt with by Finnane DCJ. I dealt with JMW on 8 July 2015. My reasons are recorded under WorkCover Authority of New South Wales v JMW Developments Pty Limited [2015] NSWDC 259. For reasons there expressed, there can be no parity between this case and that of Ultra.

10. There is issue here as to whether the parity principle ought to apply as between this case and the JMW case. The Prosecutor has submitted that the parity principle is applicable at the same time acknowledging the higher level of culpability of JMW. The defendants, if I have understood the submission correctly, argue that the parity principle does not apply or, if it does, the relationship in comparison between the two cases is so vastly different that the penalty to be applied to these defendants should be a mere fraction of the penalty applied in the case of JMW. I should correct that to say that this parity point applies only to E & T and not to Mr Kose. There is a different parity point in relation to him which I shall come to.

11. The argument proceeded that JMW was in occupation and control of the whole enterprise including the workplace, the equipment and what to do about the power lines. E & T was a mere invitee on the premises having no control over anything. All it could do was make inquiry and, if it did not get a satisfactory answer, walk off. That is putting E & T’s position and responsibility at a very low level and almost dismissing it.

12. Mr Rahimi was on the site as a worker. He was a self-employed worker. He was on the site only because he had a contract with E & T that provided him with work there. As I found, E & T was responsible under the legislation for ensuring as far as practicable his health, welfare and safety. It had a positive duty. It is true that it was not the head contractor and did not have the same responsibilities that JMW had. Nor did it have power and control to do things that JMW could do. That does not put it in a category of having a mere fraction of JMW’s responsibility. It provides some guidance as to how to approach the sentence utilising the parity principle. I reject the submission that its responsibility was well below that of JMW and a mere fraction. At the end of the working day E & T agreed to take on this task that JMW had requested it to do. It agreed to do so by utilising the service of Mr Rahimi. It was positively active in his doing the work by handing up the bars to him to place vertically into the cavities of the besser blocks. It did nothing that it was required to do under the legislation to look after Mr Rahimi’s health, welfare and safety.

13. It was submitted to me that E & T’s culpability was limited and it was limited to responsibility for asking whether the scaffolding was compliant. I reject that submission. It is inconsistent with the particulars of failure that I found in the case of E & T and in relation to Mr Kose.

14. It has been submitted that general deterrence is not a factor to be taken into account in this case. That was indeed a bold submission. The basis for it is that others, Ultra and JMW, have been dealt with and there is therefore no need for general deterrence because that has already been covered in effect by those cases. This is something of a Russian roulette submission. It would lead to jockeying for position in cases where more than one defendant is charged in respect of a particular incident. No defendant would want to be first in the queue in being dealt with by the court. General deterrence would be taken into effect in that case and everybody who jockeyed themselves into position behind that defendant could then heave a sigh of relief knowing that general deterrence would not be taken into account in their cases. More tellingly perhaps, it does nothing for general deterrence to publicise to the world that an offender who has been dealt with and found guilty may get away with general deterrence as a factor.

15. Not only is general deterrence to be considered in this case, but so is specific deterrence. The defendants continue to work. Nothing has been put before me as to what steps they have taken to ensure that an incident of the kind that happened in this case would not happen again.

16. There are some other matters that have been put to me that appear to be particularly directed to the case of Mr Kose personally. One is that the application of the parity principle means that he should be given the benefit of an order under s 10A(1) of the Crimes (Sentencing Procedure) Act or s 239 of the Work Health and Safety Act. The argument proceeds that Mr Dagher of JMW and Mr Azzi of Ultra were not proceeded against by WorkCover. Accordingly, no convictions have been recorded against them. The parity principle, it was put, would require that no penalty should be imposed on Mr Kose or no conviction should be imposed on Mr Kose. For a start, he has already been convicted. It seems to me nonsensical to suggest that because somebody does not have a conviction for the reason that proceedings were not brought against him, therefore somebody who is proceeded against and found guilty should not be convicted. I reject the submission. The submission was further developed. It was put that WorkCover improperly used the threat of a conviction on Mr Kose for an ulterior purpose, that being that all they really wanted was a plea or conviction on the part of the company. I reject that submission. It was put to me without any evidence to support it. When that matter was raised by me, I was informed about the content of some correspondence without being provided with the correspondence. Apparently, it was not immediately available. Nothing I was told about the content of that correspondence in my view supported the submission. A short adjournment was sought with a view to gathering the correspondence. I rejected that application, because I considered it would have been of no utility.

17. In relation to Mr Kose, also it was put there was evidence of remorse and contrition. More accurately, it was put that there was remorse and contrition because he had made an offer to plead guilty. I say ‘more accurately’ because there was no evidence of this. Again, the lack of evidence was a matter I raised. That brought the same result. I was informed about the content of some correspondence without being provided with the correspondence. The same application for a short adjournment met with the same result for the same reason. There is no evidence of remorse or contrition at all in this instance.

18. The defendants have no prior conviction.

19. That brings me to the assessment of penalty. Doing the best I can in all the circumstances, in particular considering the principle of parity, taking into account JMW’s higher responsibility, I think an appropriate penalty to apply to E&T in this case is the sum of $80,000.

20. Before leaving that I should note that evidence was led as to the financial position of E&T and Mr Kose. In the case of E&T, the evidence was that it has no assets apart from a couple of motor vehicles of limited value. It has no bank account. The evidence was that the bank account it had was closed by the bank for want to funds. It does, however, generate sufficient work for Mr Kose and his partner in the business to earn an income.

21. The financial evidence in relation to Mr Kose was that he earned about $35,000 in the last financial year and his income has been maintained at about the same level. His wife is on an income from Centrelink of about $600 to $700 per fortnight. He is a married man with four children, aged from 12 years down to 4 years. Between them they have a number of credit cards with debts of about $25,000. They have a house worth about $700,000 with equity of about half that. That brings me to the fine to be applied in the case of Mr Kose. I think an appropriate penalty for him in the circumstances is the sum of $10,000.

22. I note that I have been provided with a victim’s impact statement. I have not taken that into account in determining the penalties I have imposed. I have taken into account the obvious seriousness of this offence. Mr Rahimi in his statement sets out ways in which the incident has impacted on him in his understanding. The Court obviously sympathises with Mr Rahimi and notes that he should not have been subjected to this incident.

ORDERS

23. I order that:

1. E & T be fined the sum of $80,000;

2. Mr Kose be fined the sum of $10,000.

24. In both instances a moiety is to be paid to the prosecutor.

25. I order the defendants to pay the prosecutor’s costs.

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Decision last updated: 26 February 2016