WorkCover Authority of New South Wales (Inspector Macready) v Fawaz El Dadoun and Ghaleb El Dadoun (No. 2) [2007] NSWIRComm 238

WorkCover Authority of New South Wales (Inspector Macready) v Fawaz El Dadoun and Ghaleb El Dadoun (No. 2) [2007] NSWIRComm 238

The appropriate penalties for the proven occupational health and safety offences are to be set having regard to the objective seriousness of the risk created, the defendants’ genuine but mistaken belief in the limits of their obligations, the actions of the principal contractor, mitigating subjective factors, and significant costs orders; however, the case is not so exceptional as to warrant the application of s 10 of the Crimes (Sentencing Procedure) Act. General deterrence remains significant in the construction industry; specific deterrence is relevant but tempered by subsequent remedial conduct and demonstrated good character.

Parties
Prosecutor: WorkCover Authority of New South Wales (Inspector Macready); Defendant: Fawaz El Dadoun; Defendant: Ghaleb El Dadoun
Jurisdiction
Australia
Judgment Date
26 September 2007
Procedural Posture
Criminal Prosecution / Sentencing and Penalty
Outcome
Penalty imposed on both defendants; costs to be paid by defendants; application for non-conviction order (s 10) refused.
Legal Topics
Sentencing Principles, General and Specific Deterrence, Objective Seriousness, Parity in Sentencing, Mitigating and Aggravating Factors, Costs Orders, Application of S 10 Crimes (sentencing Procedure) Act, Workplace Safety Obligations
Occupational Health and Safety Criminal Law Employment Law Sentencing Principles General and Specific Deterrence Objective Seriousness Parity in Sentencing Mitigating and Aggravating Factors +3 more

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Parties

WorkCover Authority of New South Wales (Inspector Macready)

Prosecutor

Fawaz El Dadoun

Defendant

Ghaleb El Dadoun

Defendant

Procedural Posture

Criminal Prosecution / Sentencing and Penalty

Legal Issues

  1. 1 What is the appropriate penalty and costs order for offences by the defendants under s 9 of the Occupational Health and Safety Act 2000?
  2. 2 Should the Court exercise its discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999?
  3. 3 What is the comparative culpability of the Dadoun partnership vis-à-vis the principal contractor Forcon?

Ratio Decidendi

The appropriate penalties for the proven occupational health and safety offences are to be set having regard to the objective seriousness of the risk created, the defendants’ genuine but mistaken belief in the limits of their obligations, the actions of the principal contractor, mitigating subjective factors, and significant costs orders; however, the case is not so exceptional as to warrant the application of s 10 of the Crimes (Sentencing Procedure) Act. General deterrence remains significant in the construction industry; specific deterrence is relevant but tempered by subsequent remedial conduct and demonstrated good character.

Court Disposition

Penalty imposed on both defendants; costs to be paid by defendants; application for non-conviction order (s 10) refused.

Orders

  • In matter IRC 4708 of 2005: defendant Fawaz El Dadoun is guilty as found, penalty of $1,500 imposed, moiety allocated to prosecutor on usual terms.
  • In matter IRC 4709 of 2005: defendant Ghaleb El Dadoun is guilty as found, penalty of $1,500 imposed, moiety allocated to prosecutor on usual terms.