Inspector Nicholson v Nahed [2011] NSWIRComm 41

Inspector Nicholson v Nahed [2011] NSWIRComm 41

The defendant, as site supervisor and person concerned in the management of Millennium Projects Australia Group Pty Ltd, was responsible for ensuring site safety and compliance with prohibition notices. He failed to do so, resulting in exposure of workers to serious risk and a continued unsafe environment over a significant period. Both breaches (of s 10(1) and s 94) were of high seriousness. Application of the totality principle required some reduction in penalty to avoid unjust cumulative punishment, but substantial penalties were justified for deterrence and denunciation.

Jurisdiction
Australia
Judgment Date
11 April 2011
Procedural Posture
Prosecution Under Occupational Health and Safety Act 2000 / Sentencing After Guilty Plea
Outcome
The defendant was found guilty on both charges (breach of s 10(1) and s 94 via s 26), convicted, and fined as follows: $20,000 in Matter No IRC 631 of 2009 and $25,000 in Matter No IRC 632 of 2009. Moiety of fines to the prosecutor, and costs to be paid by defendant as assessed.
Legal Topics
['failure to Ensure Safe Work Premises' 'non Compliance With Prohibition Notice' 'penalties and Sentencing Principles' 'totality Principle in Sentencing']
['occupational Health and Safety' 'industrial Law'] ['failure to Ensure Safe Work Premises' 'non Compliance With Prohibition Notice' 'penalties and Sentencing Principles' 'totality Principle in Sentencing']

Case Brief

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Procedural Posture

Prosecution Under Occupational Health and Safety Act 2000 / Sentencing After Guilty Plea

Legal Issues

  1. 1 ['Whether the defendant breached s 10(1) of the Occupational Health and Safety Act 2000 by failing to ensure safe premises as a person concerned in the management of Millennium.' 'Whether the defendant failed to comply with a prohibition notice in breach of s 94 by virtue of s 26 of the Act.' 'Appropriate penalties for breaches given the seriousness, deterrence, and totality considerations.']

Ratio Decidendi

The defendant, as site supervisor and person concerned in the management of Millennium Projects Australia Group Pty Ltd, was responsible for ensuring site safety and compliance with prohibition notices. He failed to do so, resulting in exposure of workers to serious risk and a continued unsafe environment over a significant period. Both breaches (of s 10(1) and s 94) were of high seriousness. Application of the totality principle required some reduction in penalty to avoid unjust cumulative punishment, but substantial penalties were justified for deterrence and denunciation.

Court Disposition

The defendant was found guilty on both charges (breach of s 10(1) and s 94 via s 26), convicted, and fined as follows: $20,000 in Matter No IRC 631 of 2009 and $25,000 in Matter No IRC 632 of 2009. Moiety of fines to the prosecutor, and costs to be paid by defendant as assessed.

Orders

  • ['The defendant is found guilty of each of the offences with which he is charged and convicted accordingly.' 'In Matter No IRC 631 of 2009, I impose a monetary penalty of $20,000 and in Matter No IRC 632 of 2009 I impose a monetary penalty of $25,000, with a moiety in each case to the prosecutor.' 'The defendant is...