Urban Field Group Pty Ltd v SafeWork NSW

1. [1]

   ADAMSON JA: I agree with Wright J.

2. [2]

   WRIGHT J: The appellant, Urban Field Group Pty Ltd (Urban Field), appealed pursuant to s 5AA(1) and (7) of the Criminal Appeal Act 1912 (NSW) against the sentence of a fine of $400,000 imposed by Scotting DCJ on 18 November 2022 for an offence under the Work Health and Safety Act 2011 (NSW).

Background

1. [3]

   By summons filed on 11 August 2021, SafeWork NSW alleged that Urban Field committed an offence under s 32 of the Work Health and Safety Act by failing to comply with its duty under s 19(1) of that Act and that failure exposed workers, including Mr Asadullah Hussaini who died, to a risk of death or serious injury.

2. [4]

   Section 19(1) of the Work Health and Safety Act provides:

3. [5]

   Section 32 of that Act relevantly states:

4. [6]

   On 18 July 2022, Urban Field pleaded guilty to the charge under s 32 of the Work Health and Safety Act. The sentence hearing took place on 16 November 2022 before Scotting DCJ and generally proceeded on the basis of agreed facts. There was one factual issue in dispute, namely, whether the admitted breach of duty was a cause of Mr Hussaini’s death. This issue was sometimes also expressed as whether Mr Hussaini’s death was a manifestation of the risk to which workers were exposed as a result of Urban Field’s failure to comply with the duty under s 19(1).

5. [7]

   On 18 November 2022, Urban Field was convicted and the sentence of a fine of $400,000 was imposed: SafeWork NSW v Urban Field Group Pty Ltd [2022] NSWDC 575.

Appeal

1. [8]

   On 28 November 2022, a notice of intention to appeal was filed and a notice of appeal against the sentence was filed, within time, on 9 October 2023.

2. [9]

   Urban Field relies on two grounds of appeal:

3. [10]

   In light of the grounds of appeal, it is necessary to review the sentencing judgment of Scotting DCJ in some detail.

Sentencing judgment

1. [11]

   Scotting DCJ commenced his judgment by noting that Urban Field had pleaded guilty to the offence under s 32 of the Work Health and Safety Act and recorded that the maximum penalty was $1.5 million.

2. [12]

   The learned sentencing judge then summarised the facts derived from the Agreed Statement of Facts. The most relevant portions of that summary are as follows:

3. [13]

   Scotting DCJ identified the only remaining factual issue in dispute as follows:

4. [14]

   The sentencing judge then:

   1. (1)

      noted the relevant principles to be applied in relation to the standard of proof and the test for causation, which were not challenged on appeal; and

   2. (2)

      identified the relevant evidence including the Agreed Statement of Facts and a record of interview with Mr Liu, another worker on the site who was working near Mr Hussaini, as well as oral evidence from Mr Liu.

5. [15]

   Scotting DCJ summarised Mr Liu’s record of interview and his oral evidence. The sentencing judge then made specific findings as to Mr Liu’s credit as follows:

6. [16]

   Based on the agreed facts, the evidence and his assessment of Mr Liu, Scotting DCJ made the following findings of fact, at [64]:

7. [17]

   The sentencing judge then noted the contentions of Urban Field that “Mr Hussaini’s fall may have been caused by other mechanisms including the ‘kickback’ of the grinder … or by the involvement of the raker ties that were present”. [2] Scotting DCJ said, however, that he did not think that either of these matters rose “above speculation”. Further, it was expressly accepted that it was not incumbent on Urban Field to suggest alternative mechanisms for Mr Hussaini’s fall. Nonetheless, his Honour said that he could not discern any alternative mechanism.

8. [18]

   The sentencing judge’s conclusions in relation to the issue in contention were set out at [66] and were to the following effect:

   1. (1)

      taking into account all the circumstances established on the evidence, Scotting DCJ was not satisfied that there was “an inference consistent with Mr Hussaini’s fall occurring by another means that [was] reasonably open on the evidence”; and

   2. (2)

      he was 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”.

9. [19]

   After noting the evidence led in relation to sentence, his Honour recorded the qualifications and experience of the Urban Field’s sole director and sole employee, Mr Sammour.

10. [20]

    His Honour then made findings as to Urban Field’s subjective case which may be summarised as follows.

11. [21]

    Urban Field was a small construction company that primarily engaged contractors to work on its building projects. Those contractors could, if necessary, engage subcontractors to undertake work on the project. It was noted that Mr Sammour’s evidence was that Urban Field took reasonable steps to ensure that the contractors it engaged were reputable and experienced.

12. [22]

    For the project in question, Urban Field engaged Abresham to undertake painting works. In addition, Urban Field engaged a Project Manager as well as a site supervisor/foreman, who reported regularly to the Project Manager and Mr Sammour. The supervisor/foreman had various responsibilities including: inducting workers onto the site in relation to site safety practices concerning working from heights; conducting regular site safety inspections; supervising work of trade persons on site; issuing non-compliance notices to subcontractors; and, overseeing the general safety of all construction works on site.

13. [23]

    Prior to the incident involving Mr Hussaini, Urban Field required any person attending the site to be inducted by the supervisor/foreman. These inductions allowed for identification and discussion of work health and safety issues on site. They also provided Urban Field with the opportunity to ensure that all trades were familiar and complied with all relevant work health and safety policies and procedures. The Project Manager was required to undertake a review of the SWMSs.

14. [24]

    Urban Field implemented a site specific WHS Management Plan which referenced key safety issues and provided measures to address those issues. All workers were introduced to the plan as part of their induction. There were also on-site consultation meetings and safety audits involving Mr Sammour, the Project Manager and the supervisor/foreman.

15. [25]

    As to working from heights requirements, the supervisor/foreman’s daily site inspections and walk-throughs included inspections of workers performing works on-site and Mr Sammour’s evidence was that, when he conducted safety inspections, he would ensure to the best of his ability that workers working from heights were doing so safely. The WHS management plan required Urban Field to obtain a SWMS which would address, inter alia, safety issues related to working from heights.

16. [26]

    His Honour specifically noted that Mr Sammour accepted that Urban Field’s systems of work on the day “were not to a requisite standard”.

17. [27]

    After the incident, Urban Field took steps to improve its safety management system including, in relation to working from heights, installing signage to communicate and emphasise that using a stepladder is not an acceptable practice when working from heights, and emphasising during inductions that only platform ladders should be used when working from heights. His Honour also noted the measures undertaken by Urban Field in relation to a different and subsequent project at Toongabbie.

18. [28]

    There was evidence that Urban Field had made donations to various charities and a church and was a member of the Housing Industry Association.

19. [29]

    Urban Field’s accountant deposed that it was experiencing financial difficulties and struggling to pay its current debts and, in the absence of significant financial growth, it would not be profitable in the foreseeable future.

20. [30]

    As to contrition and remorse, Urban Field’s case included that Mr Sammour acknowledged that it could have done more to reduce the risks to workers associated with working from heights and he expressed personal remorse for the incident and as a result of the anxiety he experienced he reduced the amount of work that Urban Field took on. It was also said that Urban Field had no prior history of SafeWork convictions and had cooperated with the investigation.

21. [31]

    The sentencing judge commenced his consideration of the appropriate sentence by noting that he had had regard to the objects of the Work Health and Safety Act and the purposes of sentencing.

22. [32]

    Under the heading “Objective Seriousness”, his Honour concluded that the offence was “objectively serious”, at [102]. The relevant findings were then set out and included what follows.

    1. (1)

       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 Urban Field, whose SWMS referred to that precise risk.

    2. (2)

       The likelihood of the “risk coming home was moderate” if steps were not taken to train workers on the site such as Mr Hussaini in relation to the relevant dangers and relevant prohibitions were not enforced.

    3. (3)

       The steps that could have been taken to prevent the fall included enforcing Urban Field’s own SWMS and ensuring Abresham had an appropriate SWMS which required workers such as Mr Hussaini to use a work platform and which was adequately understood and supervised.

    4. (4)

       The induction conducted by Urban Field was so inadequate that it failed to detect that Mr Hussaini did not have a White Card.

    5. (5)

       The steps that could have been taken were simple, inexpensive, well known in the industry, referred to in Urban Field’s SWMS and required by the Work Health and Safety Regulation 2017.

    6. (6)

       The consequences of the risk included a risk of death.

    7. (7)

       The death of Mr Hussaini was an aggravating feature of the offence.

    8. (8)

       Although Urban Field was the principal contractor and did not have the same level of influence over Mr Hussaini as Abresham, Urban Field “fell well short on the things it could have done to alleviate the risk that came home”.

23. [33]

    The sentencing judge then said that he had taken into account the maximum penalty for the offence.

24. [34]

    Under the heading “Deterrence”, his Honour observed that the penalty must provide for general deterrence, noting that employers must take obligations imposed by the Work Health and Safety Act very seriously, and the community was entitled to expect compliance. The sentencing judge referred to what was said in Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 (Bulga) as to the significance of general deterrence when safety obligations were breached. He also observed that it was well known in the construction industry that falls from heights were a major cause of death and serious injury and the penalty to be imposed must bring home that a failure to take all reasonably practicable steps to eliminate or minimise the risk of falls from height would be met with condign punishment.

25. [35]

    It was also said that the penalty must provide for specific deterrence because Urban Field continued to operate in the industry. Nonetheless, it was held that that need was “reduced to some extent” because of the extensive steps taken by Urban Field after the incident to bring its safety systems to a sufficient standard.

26. [36]

    Under the heading “Aggravating Factors”, Scotting DCJ said:

27. [37]

    Under the heading “Mitigating Factors”, the sentencing judge took into account the following circumstances.

    1. (1)

       Urban Field had no previous convictions or safety breaches.

    2. (2)

       Urban Field had good prospects of rehabilitation, noting the significant steps taken to upgrade it safety systems.

    3. (3)

       Urban Field had demonstrated remorse.

    4. (4)

       Urban Field had entered a plea of guilty and was entitled to a discount to reflect the utilitarian value of the plea, which also indicated remorse. Although Urban Field lost on the disputed issue, “it did so efficiently” and it was found that the appropriate discount was 20%.

    5. (5)

       Urban Field cooperated with the SafeWork investigation.

    6. (6)

       Urban Field had demonstrated itself to be a good corporate citizen through its support of charitable causes.

28. [38]

    Under the heading “Capacity to Pay a Fine”, it was noted that the Court was required under s 6 of the Fines Act 1996 (NSW) to have regard to the means of an offender and observed that in effect Urban Field bore the onus of establishing that a reduced fine should be imposed on the basis of a limited capacity to pay. The sentencing judge also noted that capacity to pay is relevant but not decisive, and a substantial fine might still be warranted as a result of the seriousness of the offence and the need for general deterrence. His Honour referred to the evidence relevant to capacity to pay and concluded that it was “entirely unconvincing” and Urban Field had not demonstrated a limited capacity to pay.

29. [39]

    After convicting Urban Field, Scotting DCJ held that the appropriate fine was $500,000, reduced by 20% for the plea of guilty, and consequently imposed a fine of $400,000, with Urban Field to pay the prosecutor’s costs and 50% of the fine to be paid to the prosecutor.

Ground 1

1. [40]

   Urban Field’s first ground of appeal involved the contention that the sentencing judge erred in finding that Mr Hussaini’s death was “a manifestation of the risk that he was exposed to” because of the failure to comply with the health and safety duty under s 19(1) of the Work Health and Safety Act. The relevant risk was said to be “the risk of workers, in particular Mr Hussaini, suffering serious injury or death as a result of falling from a ladder whilst working at heights”.

2. [41]

   In considering the first ground of appeal, it should be borne in mind that an appeal such as the present under s 5AA of the Criminal Appeal Act is an appeal in the strict sense in that it is necessary to show error: Bulga at [96] (Bathurst CJ, Hidden and Davies JJ). Moreover, to succeed in such an appeal, the appellant must show a relevant form of error, being either an error of law or the application of wrong principles in the fact finding exercise: Bulga at [96]; Harris v Natural Resources Access Regulator; Timmins v Natural Resources Access Regulator [2023] NSWCCA 16; (2023) 254 LGERA 419 at [34] (Beech-Jones CJ at CL, as his Honour then was, Price and Garling JJ agreeing).

3. [42]

   The error identified in Urban Field’s submissions was that “there were insufficient facts from which the learned sentencing judge could safely infer, beyond reasonable doubt, that Mr Hussaini’s death was a manifestation of the pleaded risk”, and that therefore such a finding was “unsafe and unsatisfactory and therefore in error”. To make good these propositions, Urban Field then concentrated its submissions on what it described as “the circumstances directed most acutely towards the mechanism of the alleged fall” namely:

   1. (1)

      “a ‘bang’ or ‘boom’” heard by Mr Liu;

   2. (2)

      “the position of Mr Hussaini’s body and the ladder”; and

   3. (3)

      “the position of the grind marks”.

4. [43]

   The ground was then supported by more detailed submissions as to why the evidence in respect of each of those three matters did not support an inference beyond reasonable doubt that Mr Hussaini fell from the ladder while working at a height.

5. [44]

   In my view, there was a number of fundamental problems with this ground of appeal. First, Urban Field did not specifically identify any error of law or application of wrong principle in the fact finding exercise carried out by Scotting DCJ. Rather the substance of the ground was that the sentencing judge made “critical findings, adverse to [Urban Field], that were not warranted by the evidence” in relation to the three specific circumstances namely, the noise heard by Mr Liu, the position of Mr Hussaini’s body and the ladder and the position of the grind marks. Secondly, Urban Field’s submissions depended on the premise that each of the sentencing judge’s findings in respect of those three matters was required to be made beyond reasonable doubt. Such a premise was misguided. Thirdly, in seeking to make good its submission, Urban Field adopted the approach of dealing with the evidence in relation to each of the three circumstances in isolation and piecemeal. This approach was not in accordance with the principles to be applied in cases of this kind.

6. [45]

   In the present case there was no direct evidence of how Mr Hussaini came to be lying face down on the floor, unconscious, with blood and other bodily fluids surrounding his head, with the step ladder on top of him. Consequently, Scotting DCJ was required to rely on circumstantial evidence and reasoning in determining how he died.

7. [46]

   The principles concerning cases that turn upon circumstantial evidence and reasoning are well settled. They are applicable in a case such as the present where the issue was whether an aggravating factor had been established beyond reasonable doubt as well as in cases where the issue is whether the Crown has proven the guilt of an accused beyond reasonable doubt. Urban Field’s contentions under ground 1 are to be addressed in the light of those principles.

8. [47]

   Adapting the statement of those principles to the circumstances of the present case, the relevant principles include that a finding beyond reasonable doubt that Mr Hussaini died as a result of falling from a ladder while working at height could not be made unless that was the only rational inference that the circumstances would enable to be drawn: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (Baden-Clay) at [46] (French CJ, Kiefel, Bell, Keane and Gordon JJ) and the cases there cited. In addition, for an inference that Mr Hussaini’s death was caused by a different mechanism to be rational, it must rest on more than mere conjecture or speculation: Baden-Clay at [47] and the cases there cited. The bare possibility that his death may have occurred by a different mechanism does not preclude a finding that it was caused by a fall from a ladder while working at height if that latter finding is the only inference open on consideration of all the facts in evidence: Baden-Clay at [47].

9. [48]

   Scotting DCJ stated, at [66], that he had taken into account all of the circumstances established on the evidence and was not satisfied that there was an inference consistent with Mr Hussaini’s fall occurring by means other than a fall from the ladder while working at height that was reasonably open on the evidence. The alternative hypotheses of his death being caused by a kick back from the grinder or by the presence of the raker ties were considered but rejected as not rising above speculation. That finding was, in my view, open on the evidence. There was no evidence to which Urban Field could point which causally connected the raker ties to Mr Hussaini’s being found lying on the ground unconscious or which otherwise indicated that there was a reasonable possibility that the raker ties, which were in the general locality, were involved in any way in Mr Hussaini’s death. Similarly, there was no evidence identified which provided any real support for concluding that it was a reasonable possibility that his death was caused by the grinder kicking back unassociated with his working at height on the ladder. Given the state of the evidence, the sentencing judge did not make any error of principle in the fact finding process when he concluded that he was not satisfied that there was an inference consistent with Mr Hussaini’s fall occurring by another means that was reasonably open on the evidence.

10. [49]

    Furthermore, in a circumstantial case such as the present, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is a rational inference that Mr Hussaini’s death was caused other than by a fall from a ladder while working at height and the evidence is not to be looked at in a piecemeal fashion, whether at trial or on appeal: Baden-Clay at [47]; The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46] and [48] (Gummow, Hayne and Crennan JJ). In seeking to challenge the sentencing judge’s conclusion, Urban Field’s submissions in substance adopted the erroneous approach of not considering all of the circumstances as a whole. As noted above, the submissions focused on the three circumstances said to be “directed most acutely towards the mechanism of the alleged fall” taken in isolation and piecemeal.

11. [50]

    In the present case, none of the circumstances relied upon by Scotting DCJ was indispensable to the finding as to how Mr Hussaini’s death occurred. In that situation, it is well established that it is not necessary that any of those circumstances be proved beyond reasonable doubt before they could be relied on to reach a conclusion as to the cause of Mr Hussaini’s death: Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 (Shepherd) at 579-580 (Dawson J, Mason CJ, Toohey and Gaudron JJ agreeing) and see also McHugh J at 592-3; Carbone v R (No 2) [2024] NSWCCA 7 (Carbone No 2) at [64] (Simpson AJA, Price and Davies JJ agreeing).

12. [51]

    Indeed, individual items of evidence, on their own inadequate to justify a conclusion beyond reasonable doubt that Mr Hussaini’s death was caused by a fall from a ladder while working at height, may take strength from other items: Davidson v R [2009] NSWCCA 150; (2009) 195 A Crim R 406 at [61] (Simpson J, Spigelman CJ and James J agreeing); Carbone No 2 at [64]. The probative force of a mass of evidence may be cumulative: Shepherd at 580.

13. [52]

    Accordingly, it was not necessary for Scotting DCJ to be satisfied of each of the three circumstances said to be “directed most acutely towards the mechanism of the alleged fall” beyond reasonable doubt as Urban Field’s submissions appeared to assume. Moreover, the circumstances actually relied on by Scotting DCJ in reaching his conclusion extended well beyond the three matters upon which Urban Field’s submissions focused. They were distilled at [64] of his Honour’s judgment and may be summarised as set out in the following paragraphs.

    1. (1)

       The fact that the incident occurred on Mr Hussaini’s first day at work and Mr Hussaini had not been trained or adequately trained on the proper use of the portable ladder.

    2. (2)

       Mr Hussaini’s instructions were to grind and patch the concrete surfaces of the balcony soffits, ceilings and walls and he was given a grinder and portable ladder to do the task and he was observed using the ladder to grind a soffit.

    3. (3)

       The height of the soffits and ceilings was approximately 3.3m and the portable ladder was unsuitable for the task of grinding them because of their height.

    4. (4)

       Accessing the upper rungs of the ladder to a point necessary to reach the upper parts of the walls and the ceiling while grinding was likely to make the ladder unstable and could cause the user to fall off it.

    5. (5)

       About half an hour before the incident, Mr Hussaini had been observed climbing the ladder with the grinder in hand in preparation for using it on the upper part of the walls or the ceiling.

    6. (6)

       There was a lot of dust in the air consistent with Mr Hussaini using the grinder during the period before the incident.

    7. (7)

       Grey marks on the walls, soffits and ceiling indicated where the grinder had been used and a number of those marks were in areas that could have only been accessed with the use of the ladder.

    8. (8)

       Before the incident, Mr Hussaini was grinding the concrete surfaces on the balcony and was using the ladder to reach some places.

    9. (9)

       Mr Liu heard a noise which sounded to him to like a large object hitting the ground and this was consistent with Mr Hussaini falling off the ladder.

    10. (10)

        When Mr Liu found Mr Hussaini he was face down with his arms above his head and the ladder was on top of him and this was also consistent with him falling off the ladder.

    11. (11)

        The bloodstains on the floor depicted in the photographs indicated the position where Mr Hussaini’s head was after he fell.

    12. (12)

        The bloodstains on the floor were adjacent to grind marks on the return of the soffit and on the ceiling and this was consistent with the fall being occasioned at the time when he was using the ladder to grind one of those areas.

14. [53]

    In my view, this case was an example of where the accumulation and consistency of the circumstances meant that in combination, and viewed as a whole, they had very considerable probative force, even if individually they were insufficient to establish beyond reasonable doubt how Mr Hussaini died. Together, the circumstances found by Scotting DCJ provided a more than adequate basis to be satisfied beyond reasonable doubt that that Mr Hussaini fell off the ladder while using the grinder to smooth the concrete surface of the ceiling or return of the soffit as demonstrated by the grind marks in the area adjacent to the bloodstains.

15. [54]

    In addition, however, Urban Field’s submissions included what amounted to challenges to some of the relevant findings made by Scotting DCJ. In my view, none of those challenges should be upheld for the reasons set out below.

    1. (1)

       It was submitted that:

    2. (2)

       It was submitted that:

    3. (3)

       As to the position of the ladder, it was submitted in effect that the fact that Mr Hussaini ended up directly below the grind marks on the ceiling with the ladder on top of him meant that he must have slipped under, rather than toppled off, the ladder. In my view, such a conclusion that this must have been what occurred was not justified. Common human experience indicates that a person can fall from a ladder and then the ladder can topple over onto the person lying on the ground. It is not the case that, as Urban Field effectively contended, the inference was not available that Mr Hussaini was on the ladder, toppled off and the ladder fell on top of him. Scotting DCJ’s finding that the fact that the ladder ended up on top of Mr Hussaini was consistent with a fall from the ladder was open based on all of the circumstances viewed as a whole, including the fact that the incident involved a sound like a large object falling from a height, that Mr Hussaini’s assigned task involved him working with a grinder up a ladder at height which was likely to make the ladder unstable and could cause the user to fall off and that he had been so working.

    4. (4)

       It was also submitted that:

    5. (5)

       As to whether Mr Hussaini was using the grinder at the time he fell, it was submitted that:

16. [55]

    In my view, none of Urban Field’s challenges to these findings made by Scotting DCJ or any other similar findings, had any merit.

17. [56]

    In short, Scotting DCJ did not apply any wrong principle in carrying out the fact finding process in relation to the cause of Mr Hussaini’s death in the present case. His Honour’s findings as to the relevant circumstances were all open on the evidence and, when considered as a whole, these provided a more than adequate basis for his conclusion, 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.

18. [57]

    Thus, contrary to Urban Field’s submission, I do not accept that there were insufficient facts from which the learned sentencing judge could safely infer, beyond reasonable doubt, that Mr Hussaini’s death was a manifestation of the pleaded risk. No other error of law in relation to the sentencing judge’s conclusion on the contested issue was identified or made out.

19. [58]

    For these reasons, I reject the first ground of appeal.

Ground 2

1. [59]

   Although the second ground of appeal was framed only as ground alleging that the sentence was manifestly excessive, Urban Field’s submissions in relation to this ground also included the contentions that the sentencing judge erred in specific respects, namely:

   1. (1)

      in assessing objective seriousness;

   2. (2)

      by double counting in relation to the risk of harm; and

   3. (3)

      by not treating specific deterrence as of secondary importance.

2. [60]

   I shall deal with those specific criticisms first before considering whether the sentence was manifestly excessive.

3. [61]

   Urban Field submitted that the sentencing judge’s assessment that the offence was objectively serious based on the factors summarised at [32] above did not take into account “many of the particular circumstances in which these failures occurred”. The particular circumstance identified as an example was that Mr Hussaini was working only mid-way, or between 900mm and 1.2m, up the ladder, calculated based on his height, the height of the ladder, the height of the ceiling and the distance between the rungs. Thus, it was said that this was not a case where the relevant failures related to high risk construction work which involves workers falling more than 2m. Urban Field also submitted that Scotting DCJ had “placed significant weight on the gravity of the apparent consequence” when, given the height at which Mr Hussaini was working, this was not a case in which there was “every prospect of serious consequences”.

4. [62]

   Contrary to Urban Field’s implicit contentions, the factors relied upon by the sentencing judge did not include that the work involved “high risk construction work” or that this was a case in which there was “every prospect of serious consequences”. His Honour held, at [103], that the risk was the risk of a fall and that the likelihood of that risk coming home was “moderate if steps were not taken to train the workers on site”. That finding was open in the circumstances and was a relevant consideration in relation to objective seriousness. At [106], it was found that the consequences of the risk “included a risk of death”, which was no doubt correct. The finding of objective seriousness was not based on the finding that a fatal consequence was likely or that there was “every prospect” of such a consequence. Accordingly, I do not accept that Scotting DCJ failed to take into account the relevant circumstances of the present case when assessing objective seriousness, as Urban Field contended.

5. [63]

   Further and in any event, in my view, his Honour’s finding that the offence was objectively serious was open given the relevant circumstances of the offending as found. It is sufficient to note the generally accepted position that a finding of objective seriousness is quintessentially a matter for the sentencing judge and is reviewable only on a limited basis: Mulato v R [2006] NSWCCA 282 at [37], [45]-[46]; Greentree v R [2018] NSWCCA 227 at [34]; Magro v R [2020] NSWCCA 25 at [31]; Ahmad v R [2021] NSWCCA 30 at [18]. None of the bases for review has been established in this case.

6. [64]

   Finally, since Mr Hussaini’s death was a manifestation of the risk in the present case, there was no error in taking that matter into account as an aggravating factor in assessing objective seriousness.

7. [65]

   For all of these reasons I reject this aspect of ground 2.

8. [66]

   Under the heading of “Double Counting”, Urban Field submitted that the findings that: 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 “likelihood of the risk coming home was moderate”; and, the “consequences of the risk included a risk of death”, together with the statement that it was “well known in the construction industry that falls from height are a major cause of death and serious injury”, did not sit neatly with his Honour’s statement that “[i]n order for the aggravating factor to be established, [he] must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question”.

9. [67]

   In support of the contention that there was double counting it was then submitted, at par 79 of Urban Field’s written submissions:

10. [68]

    In my view, there was no impermissible double counting on the basis submitted by Urban Field. The sentencing judge identified and took into account the relevant objective circumstances of the offending. It was not part of the reasoning that the objective seriousness was increased by the obviousness of the risk of death. The risk found to be obvious was the risk of a fall from height through the inappropriate use of a ladder, at [103]. The consequences of the risk were found to include a risk of death, at [106], but it was not otherwise found that the risk of death was obvious. In accordance with s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the aggravating factor that the injury, harm and loss was substantial was taken into account, since the death of Mr Hussaini was sufficient to establish that factor to the requisite standard, as was made clear at [106] and [113]. It can be noted at this point that the aggravating factor at s 21A(2)(ib), that “the offence involved a grave risk of death to another person or persons” was not taken into account.

11. [69]

    In addition, Scotting DCJ’s comment concerning it being well known in the construction industry that falls from height are a major cause of death and serious injury was made in the context of considering general deterrence, at [111], not in assessing objective seriousness. There was no error or double counting in the sentencing judge doing so.

12. [70]

    As a result, I am not satisfied that the sentencing judge engaged in any impermissible double counting as contended in respect of this aspect of ground 2.

13. [71]

    As to specific deterrence, Urban Field drew attention to the fact that, although the sentencing judge noted, at [114], that it had operated since 2002 without any prior safety breaches, this did not form part of his Honour’s analysis for specific deterrence. The submission was then that specific deterrence should have assumed a secondary importance given that history and the steps taken by Urban Field following the incident. The implicit premise of the submission was that specific deterrence was wrongly given primary significance by the sentencing judge.

14. [72]

    Scotting DCJ’s consideration of specific deterrence included at [112] the following:

15. [73]

    This reflected the principle that it is possible to be satisfied in the case of a small corporation that changes in management practice may diminish significantly the need for individual deterrence: Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 at [59] (Basten JA, Hoeben CJ at CL and Walton J agreeing).

16. [74]

    The need for specific deterrence was found, in the circumstances of the case, to be “reduced to some extent”. Thus, it did not appear that Scotting DCJ gave specific deterrence primary, or non-secondary, significance in the sentencing exercise, as Urban Field appeared to contend.

17. [75]

    In addition, the sentencing judge held at [114] under the heading “Mitigating Factors”:

18. [76]

    In its context, it is clear that the sentencing judge treated the absence of prior safety breaches as mitigating the sentence.

19. [77]

    Further and in any event, the weight to be given to particular factors in sentencing is pre-eminently a matter for the sentencing judge: Hunt v R [2017] NSWCCA 305 at [62] (Adamson J as her Honour then was, Basten JA and Bellew J agreeing). There was no error disclosed in Scotting DCJ’s consideration of specific deterrence as a factor in determining the sentence to be imposed.

20. [78]

    Finally under ground 2, Urban Field contended that the sentence of a fine of $400,000 was manifestly excessive, particularly having regard to the fines imposed and the principles established in one decision of this Court and six District Court cases.

21. [79]

    The principles in relation to whether a sentence is manifestly excessive were not in dispute and it is sufficient to quote the helpful summary provided by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] which has been relied upon in many subsequent cases and is as follows:

22. [80]

    The sentence imposed in the present case was a fine of $400,000, after a discount of 20% for the utilitarian value of the plea of guilty. Thus, the starting point was a fine of $500,000. At the relevant time, the maximum penalty was $1.5 million.

23. [81]

    I shall consider each of the cases said by Urban Field to be comparable in turn noting, however, that while in seeking consistency in sentencing regard must be had to what has been done in other cases, the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence: Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]-[41] (French CJ, Hayne, Kiefel and Bell JJ). Furthermore, it is important to bear in mind the comments of French CJ, Gummow, Hayne, Kiefel and Bell JJ in Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54] endorsing the observations of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]‑[305] as follows:

24. [82]

    The decision of this Court relied upon by Urban Field was Attorney General v Jamestrong Packaging Australia Pty Ltd (Jamestrong) [2020] NSWCCA 319. In that case, it was conceded that the fine originally imposed was manifestly inadequate and this Court resentenced the offender to a fine of $300,000 for an offence contrary to s 32 of the Work Health and Safety Act after applying a 25% discount for a plea of guilty. The implicit starting point was, accordingly, a fine of $400,000.

25. [83]

    The death of the worker in that case occurred when he was working at a height of 4m above a concrete floor on a ceiling riddled with uncovered and unfenced penetrations, through any one of which a workman could fall as a result of momentary inattention. Before directing the worker to work above the ceiling the company had not undertaken an assessment of the risks of performing that work at that location. No SWMS had been prepared for the work. Nor had the company obtained from the sub-contractor the SWMS that it had prepared, either to ascertain whether that sub-contractor had complied with its own safety precautions in relation to the work it had carried out or to determine whether those precautions should be adopted for the protection of the company’s employee. It was held that there had been “a very serious infringement of the section” since the risk of a fall was high and the consequences of the risk being realised were extreme and there had been a failure to implement a protective solution that was obvious and involved little expense or inconvenience.

26. [84]

    The company’s subjective case included the following.

    1. (1)

       It had an excellent safety record with respect to its large workforce prior to the accident, in that for 20 years prior there had been no other major accident, in Australia or New Zealand and it recorded extended periods of no time lost from work as result of any injury to any employee, across all its sites.

    2. (2)

       The company’s relevant statistics were very significantly better than the industry average.

    3. (3)

       It had no prior conviction for a contravention of work, health and safety legislation and no safety-related prosecutions have been brought against it.

    4. (4)

       Work on the construction of the enclosure room which led to the offending in that case was outside the company’s core activity of manufacturing.

    5. (5)

       Since the accident the company returned to excellent safety performance and, immediately after the incident, fixed covers were installed over all penetrations of the ceiling before work continued.

    6. (6)

       The company implemented more rigorous systems with the aim of ensuring fulfilment of its safety obligations to employees in future, outlaying in the order of $500,000 on safety audits and implementation of the safe working systems and checks.

    7. (7)

       The risk of re-offending was very low and it was accepted that the company was genuinely remorseful.

    8. (8)

       In the hearing of the appeal the company continued its cooperation in the administration of justice, appropriately acknowledging from the outset that the penalty originally imposed was manifestly inadequate.

    9. (9)

       In the immediate aftermath of the accident, practical assistance to the family of the deceased was provided and thereafter continuing support for their welfare was offered.

27. [85]

    It can be accepted that there are some similarities in the nature of the offending between what occurred in the present case and in Jamestrong. There are also differences. In the present case, there was a failure to provide any relevant training or induction for Mr Hussaini or to take other steps to ensure that Urban Field’s SWMS relating to the use of ladders on the site was adhered to. Unlike the company in Jamestrong the work in the present case was not outside Urban Field’s core activity. In addition, on the bases noted above, in Jamestrong the company had an exceptionally strong subjective case. Further, the fine in Jamestrong should be viewed in the context not only of the amount of $500,000 expended on safety audits and implementation of the safe working systems and checks but also the acknowledgement by the company that the sentence of $75,000 originally imposed was manifestly inadequate.

28. [86]

    In all the circumstances, in my view, the starting point of a fine of $400,000 in Jamestrong suggests that the starting point of a fine of $500,000 in the present case was not so high that it would not be within the appropriate range. Nor does Jamestrong provide a basis for concluding that the sentence in the present case was unreasonable or plainly unjust.

29. [87]

    The remaining six cases, which all involved fines for breaches of s 32 of the Work Health and Safety Act, can be summarised as set out in the table below.

30. [88]

    Urban Field submitted that the “above cases show that the principles have not been consistently applied in respect of [Urban Field]”. The submissions did not specify, however, which relevant principles were said not to have been applied consistently in the present case or how. On my review of the cases, the fines imposed (prior to any applicable discount) appeared to reflect the particular circumstances involved rather than being illustrations of specific underlying principles. In particular, it did not appear to me that the cases established a principle that the greater the height of any fall the higher penalty. While the height at which a worker was required to work and the consequences of any breach of s 32 in respect of that work are relevant and potentially significant considerations, there is no necessary direct correlation between penalty and height of the work.

31. [89]

    If an overview of the cases relied on by Urban Field is taken, the fine in Safe Work NSW v Wholesale Joinery Pty Limited might be put to one side as that case did not bear sufficient similarity to the present case to make comparison meaningful. It appeared to have been heavily influenced by the markedly less serious nature of the injury to the worker in that case compared to the other cases, the fact that the company did not generally carry out the type of work relevantly involved and did not intend to do so again, and the otherwise very strong subjective case.

32. [90]

    The remaining cases establish a relevant range of fines of $300,000 to $500,000, for an offence with a maximum penalty at the relevant times of $1.5 million. This selection from the history of fines imposed does not establish that the range identified is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits but it does provide guidance as a yardstick against which to examine the impugned sentence.

33. [91]

    Applying that yardstick and having regard to all the relevant circumstances of the present case, as well as the purposes and the principles of sentencing, I could not conclude that the fine of $400,000 imposed (after applying the 20% discount) was unreasonable or plainly unjust or that it was so far outside the range of sentences available that there must have been error. Indeed, the undiscounted quantum of the fine fell at the top end of the range derived from the cases relied upon by Urban Field, even if the fine in Safe Work NSW v Wholesale Joinery Pty Limited were included.

34. [92]

    In these circumstances, the sentence imposed by Scotting DCJ was not, in my view, manifestly excessive.

35. [93]

    For these reasons, I reject all aspects of the second ground of appeal.

Proposed orders

1. [94]

   Since Urban Field has not succeeded on any of its ground of appeal, I propose that the order of the Court should be:

   1. (1)

      Appeal dismissed.

2. [95]

   SWEENEY J: I agree with Wright J that Scotting DCJ, who is very experienced in sentencing for offences of this kind, did not err in any of the ways asserted by the appellant, and the appeal should be dismissed.