Inspector Nikolovski v Lankry [2013] NSWIRComm 40

Inspector Nikolovski v Lankry [2013] NSWIRComm 40

The offences were objectively serious because the system of work on the construction site was patently unsafe, the risk of collapse of the masonry block wall was obvious, foreseeable and serious, and simple measures such as adequate bracing, core filling at the appropriate height, engaged piers at required intervals and preventing construction to full height without core filling were readily available. Although Minfen, Combined Scaffolding and the site supervisors also contributed to the risk, mitigating the objective seriousness of the defendant's offences, the defendant's roles for Domain and Metro, his involvement in site operations and his knowledge of deficiencies meant his...

Jurisdiction
Australia
Judgment Date
28 May 2013
Procedural Posture
Occupational Health and Safety Prosecution / Sentencing After Pleas of Guilty
Outcome
Defendant convicted and fined on both offences; costs ordered in favour of the prosecutor.
Legal Topics
['occupational Health and Safety Act 2000 Offences' 'construction Site Safety' 'risk of Structural Collapse' 'guilty Plea Discount' 'totality' 'costs']
['occupational Health and Safety' 'criminal Sentencing'] ['occupational Health and Safety Act 2000 Offences' 'construction Site Safety' 'risk of Structural Collapse' 'guilty Plea Discount' 'totality' 'costs']

Case Brief

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Procedural Posture

Occupational Health and Safety Prosecution / Sentencing After Pleas of Guilty

Legal Issues

  1. 1 ['What penalties should be imposed for the two Occupational Health and Safety Act 2000 offences after pleas of guilty.' "Whether the defendant's culpability was mitigated by the roles and contributions of other entities and individuals involved in the construction work." 'Whether an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 was appropriate.' "What allowance should be made for the defendant's guilty pleas, contrition, absence of prior convictions, cooperation, character, post-incident measures and personal circumstances." 'Whether costs should be ordered in favour of the prosecutor.']

Ratio Decidendi

The offences were objectively serious because the system of work on the construction site was patently unsafe, the risk of collapse of the masonry block wall was obvious, foreseeable and serious, and simple measures such as adequate bracing, core filling at the appropriate height, engaged piers at required intervals and preventing construction to full height without core filling were readily available. Although Minfen, Combined Scaffolding and the site supervisors also contributed to the risk, mitigating the objective seriousness of the defendant's offences, the defendant's roles for Domain and Metro, his involvement in site operations and his knowledge of deficiencies meant his...

Court Disposition

Defendant convicted and fined on both offences; costs ordered in favour of the prosecutor.

Orders

  • ['In IRC 1847 of 2008, Alex Avi Lankry is convicted of the offence and fined $4,500 with a moiety to the prosecutor.' 'In IRC 1848 of 2008, Alex Avi Lankry is convicted of the offence and fined $4,500 with a moiety to the prosecutor.' 'In IRC 1847 and IRC 1848 of 2008, the defendant is to pay the reasonable costs of...