Citation: SafeWork (NSW) v Romanous Contractors; SafeWork (NSW) v John Allen Romanous [2016] NSWDC 48
Court: District Court of New South Wales
Date: 8 April 2016
Judge: Judge AC Scotting
Background
Romanous Contractors Pty Ltd was the principal contractor on a multi-storey retail construction project at Mortdale, NSW. Its sole director and shareholder, John Allen Romanous, acted as site manager and attended the site daily. The company had engaged a number of subcontractors, including a sole-trader bricklayer, Wojciech Czyz.
In August or September 2012, a concrete slab was poured on the second level of the site, leaving a floor penetration of approximately one metre by one metre to accommodate a smoke vent. The penetration sat roughly 5.1 metres above the level below. Mr Romanous directed a worker to cover the penetration with plywood and bolt it to the slab. The worker covered it but did not bolt it down, and informed Mr Romanous of this after hours. Mr Romanous told him to nail it instead and to do so the following morning before other workers arrived. Neither Mr Romanous nor the worker checked that the penetration had been properly secured before work resumed.
On the morning of 20 September 2012, Mr Czyz fell through the inadequately covered penetration and sustained fatal head injuries. He died at the scene. A subsequent inspection found the plywood partially covering the penetration, unsecured, with no nailing or bolting in place. Both Romanous Contractors and Mr Romanous pleaded guilty to failing to comply with their respective work health and safety duties under the Work Health and Safety Act 2011, thereby exposing Mr Czyz to a risk of death or serious injury.
Legal Issues
- The appropriate sentence for a corporation convicted of a Category 2 WHS offence under section 32 of the Work Health and Safety Act 2011, where the maximum fine is $1.5 million
- The appropriate sentence for an individual officer of that corporation convicted under the same provision, where the maximum fine is $300,000
- How mitigating factors (guilty plea, remorse, post-incident remediation, prior good character) interacted with aggravating factors (the death of a worker, serious systemic failures) in fixing the penalty
- The weight to give to capacity to pay, general deterrence, specific deterrence, and denunciation in WHS prosecutions
- Whether a discount for guilty plea should be reduced where the plea was entered at a late stage
Decision
The court found the objective seriousness of the offending to be significant. The site had no Safe Work Method Statement for work near penetrations, the safety plans in place did not address the risk of falls through unsecured openings, workers were not informed of the penetrations' existence, and the penetration was left inadequately covered despite a specific direction to secure it. The court noted that there were other unsecured penetrations visible at the time of the post-incident inspection, and found that the conduct of both offenders fell well short of the standard expected in high-risk construction work.
On mitigating factors, the court accepted that Mr Romanous had shown some remorse, had no prior convictions, and that both offenders had cooperated with the investigation. Post-incident safety remediation was given some credit. However, the court rejected the characterisation of Mr Romanous as a safe and professional site manager, noting that prosecution evidence rebutted this. Claims that Mr Romanous had been unable to work for medical or psychological reasons were not supported by medical evidence.
For Romanous Contractors, the court assessed the appropriate fine at $500,000 before discount. A 15% guilty plea discount was applied, yielding a fine of $425,000. The court noted the plea was entered at a relatively late stage, limiting the credit available. For Mr Romanous personally, the court assessed the appropriate fine at $90,000 before discount, applying only a 5% reduction for the guilty plea, producing a fine of $85,500. The court acknowledged that it was unlikely Mr Romanous would have capacity to pay the full fine imposed, but found that this consideration did not override the need for appropriate denunciation and deterrence.
Orders Made
- Romanous Contractors Pty Ltd convicted and fined $425,000
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine to be paid to the prosecutor (SafeWork NSW)
- Romanous Contractors ordered to pay the prosecution's costs as agreed or assessed
- John Allen Romanous convicted and fined $85,500
- Pursuant to section 122(2) of the Fines Act 1996, 50% of that fine to be paid to the prosecutor
- John Allen Romanous ordered to pay the prosecution's costs as agreed or assessed
Key Takeaways
- The District Court confirmed that a guilty plea entered at a late stage attracts only a modest discount: Romanous Contractors received 15% and Mr Romanous only 5%, reflecting the timing of each plea.
- Capacity to pay is a relevant sentencing consideration in WHS matters, but it does not displace the primacy of general deterrence, specific deterrence, and denunciation, particularly where a worker has died.
- Systemic failures compounded the seriousness of the offending: the absence of a SWMS for penetration work, failure to review subcontractors' safety documents, and failure to inform workers of floor hazards each contributed to the court's assessment of objective gravity.
- Under section 122(2) of the Fines Act 1996, the court directed that 50% of each fine be paid to the prosecutor, a mechanism available in WHS prosecutions brought by SafeWork NSW.
- Post-incident remediation, while given some mitigating weight, did not substantially reduce the penalty where the pre-incident failures were serious and the harm was fatal.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 27, 32
- Work Health and Safety Regulation 2011 (NSW), cls 291, 299
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(e), 21A(2)(g), 21A(3)(k)
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- Veen v R (No 2) (1988) 164 CLR 465
- R v McNaughton (2006) 66 NSWLR 566
- Baumer v R (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No 5) [2009] NSWSC 432
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Environmental Protection Agency v Barnes [2006] NSWCCA 246
- Jahandideh v R [2014] NSWCCA 178
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Olbrich (1999) 199 CLR 270
- Plunkett v Bull (1915) 19 CLR 544