WorkCover Authority of NSW v Interlink Carpentry and El-Bayeh

[2015] NSWDC 277

District Court

New South Wales

Medium Neutral Citation:

WorkCover Authority of NSW v Interlink Carpentry and El-Bayeh [2015] NSWDC 277

Hearing dates:

09 June 2015

Date of orders:

09 June 2015

Decision date:

09 June 2015

Jurisdiction:

Criminal

Before:

Curtis J

Decision:

I convict the defendant Interlink carpentry Pty Ltd and fine them $300,000

I convict Mr El-Bayeh and I fine him $33,750

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of employee - worker crushed by falling wall under demolition
SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty

Legislation Cited:

Occupational Health and Safety Act 2000
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1996

Category:

Sentence

Parties:

WorkCover Authority of New South Wales (Prosecutor)
Interlink Carpentry Pty Ltd (Defendant)
Allan El-Bayeh (Defendant)

Representation:

Counsel:
M K Scott appeared for the Prosecutor
M McAuley appeared for the Defendant

Solicitor:
WorkCover Legal Services for the Prosecutor
Hawach Lawyers for the Defendants

File Number(s):

2013/228051 and 2013/228057

SENTENCE

1. On 15 October 2011 at level 12, 33 York Street Sydney, a young man, Mr Aidan Chan, just 22 years old, was killed when he was crushed by a falling wall then under demolition. The demolition of the wall was the undertaking of the first defendant Interlink Carpentry Projects Pty Limited which was a corporate vehicle carrying out the works of its proprietor Mr Allan El-Bayeh.

2. Mr Chan was the building manager of the company charged with the maintenance of 33 York Street, Sydney and his function on that day was to give access to Mr El-Bayeh and several of his employees. Mr Chan directed Mr El-Bayeh to the wall in question so that the men could commence the work.

3. Mr El-Bayeh instructed his workers to commence demolition of the wall by first removing the middle section of its vertical face. The wall was in panels, each defined by brickwork laid between steel uprights or channels. As the centre of each panel was removed the upper portion was free to slide down within the steel channels.

4. An opening having been created in the wall, Mr Chan sought to pass from one side to the other through that opening and as he did so the upper part of the wall, weighing perhaps 400 kilograms fell upon him, crushing him.

5. Interlink Carpentry pleads guilty to the charge that it failed to ensure so far as reasonably practicable that Mr Chan would not be exposed to risk to his health and safety arising from the conduct of the defendant’s undertaking while at the defendant’s place of work, contrary to s 83 Occupational Health and Safety Act. Mr El-Bayeh was the director of Interlink Carpentry and pleads guilty to the charge that contrary to s 26(1) of the Occupational Health and Safety Act, he failed by his actions or omissions to exercise due diligence to ensure that his company Interlink Carpentry complied with its obligations under s 8(2).

6. Mr El-Bayeh accepts that the demolition was a task undertaken by his company. He concedes for himself and his company that he failed by his acts or omissions to discharge his duty. The negligence in this case is quite gross. Mr El-Bayeh concedes that it was not his practice to prepare safe work method statements in relation to works undertaken by the company. Before commencing the work Mr El-Bayeh undertook no investigation of the wall, his materials, the structural system of the wall or the sequence of demolition. He conducted no risk assessment.

7. He established no exclusion zone which may have prevented Mr Chan being placed in the position of danger. He provided no safe work method statement. He failed to observe the most elementary of precautions mandated by Australian standards. This is not an incident where a company conscious of safety inadvertently failed to achieve the standard required.

8. Mr El-Bayeh and his company were oblivious to any concerns for safety and accepted no responsibility at the time.

9. The objective analysis of the defendant’s failure is summarised in the submissions of the prosecution as follows:

“The vice in this matter is to be found in:

1. the complete lack of planning undertaken by the defendants

2. the complete disregard of the Australian standard for the demolition of structures

3. the failure to exclude Mr Chan from the demolition area whilst the work was being carried out

4. the failure to undertake any risk analysis or any safe work method statement prior to the work being undertaken.”

10. The event was completely foreseeable. The failures by the defendants were gross. The maximum penalty with regard to the corporate defendant is $550,000. Section 21A of the Crimes (Sentencing Procedure) Act 1999 provides that in determining the appropriate sentence the court is to take into account aggravating factors referred to in subsection 2.

11. Amongst those aggravating factors are the injury, emotional harm and loss or damage caused by the offence. Not only was the harm to Mr Chan the most extreme, but the harm has carried on to have the gravest effect upon his family. The victim’s mother Mrs Christine Chan has been left as she says “a broken person, a shell”. She speaks of his family and his friends being now bound together, not by affection for the deceased but by his unbearable loss.

12. It is of particular notice that s 21A includes subsection (iv) that the offence involved a grave risk of death to another person or persons.

13. In mitigation it is apparent that the defendant does not have any record of previous convictions, although this would appear from the evidence of Mr El-Bayeh to be a circumstance of good luck rather than good management.

14. Although Mr El-Bayeh himself expresses regret for the circumstance of the accident, and says that “I am extremely sorry for his death and I think about how I could have prevented it”, there is no evidence that he conveyed his remorse and responsibility to the victim’s family before today’s event. As Mrs Chan says, they await a coroner’s inquest to find out as they put it, exactly how it happened, it is quite apparent that the responsibility is with Mr El-Bayeh. It seems to me that if he conveyed his responsibility and sorrow to the family at an earlier time their suffering would have been alleviated.

15. Subjective matters include the circumstance that although Mr El-Bayeh continues to engage in the building industry he does not now perform demolition work.

16. The penalty must reflect general deterrence to persons who might otherwise adopt such a cavalier attitude to safety. This particular offence calls for a high measure of objective deterrence.

17. Mr El-Bayeh is a young man and still works in the building industry. It seems to me that an element of subjective deterrence is required so that he is reminded of the responsibilities of entrepreneurs in relation to matters of occupational health and safety.

18. The substantial matter put by his counsel is that he is a man of limited means and pursuant to s 6 of the Crimes Act 1996 I should consider his means to pay. That plea is founded upon evidence that Mr El-Bayeh together with his wife occupies a house presently worth between 880 and $900,000. He owns two investment properties which he says are together worth $1,000,000 although no expert evidence is called to confirm that fact. He has assets then of $1.9 million against which he has liabilities of approximately $1.4 million leaving net assets of nearly half a million dollars. His income is $80,000 a year.

19. I take into account that his wife is a joint owner of this property and it would be appropriate to ascribe $250,000 in capital assets to Mr El-Bayeh.

20. The maximum penalty which may be imposed on the corporate defendant for the offence is $550,000. Parity requires that I bear in mind the penalty imposed by Judge Finnane on CVD Asset Management Pty Limited the employer of Mr Chan. His Honour Judge Finnane fined that company $250,000. That company did not have the expertise of Mr El-Bayeh. Mr El-Bayeh concedes that of the persons present at the scene of the accident, to his knowledge he was the only person with trade qualifications. His responsibility for the accident exceeds by some measure that of the client company.

21. The case falls into the worst category of offence.

22. I convict the defendant Interlink Carpentry Pty Limited and I find that the appropriate fine will be $400,000. The plea of guilty entitles this defendant to a reduction of 25% and the company Interlink Carpentry Projects Pty Limited is fined $300,000.

23. The maximum penalty which may be imposed for a breach of Mr El-Bayeh’s personal responsibilities is $55,000. The appropriate fine in this case is $45,000. He is entitled to a 25% reduction for his early guilty plea and cooperation with the authorities. I convict Mr El-Bayeh and I fine him $33,750.

24. I order that the prosecution have a moiety of the fines and I order that the defendants pay the prosecution’s costs as agreed or assessed.

Decision last updated: 25 November 2015