Inspector Nicholson v Ibrahim [2011] NSWIRComm 39

Inspector Nicholson v Ibrahim [2011] NSWIRComm 39

REI failed to provide an adequate fall prevention system, risk assessment, occupational health and safety management, training and supervision for workers at height, exposing them to risk of serious injury or death. By s 26(1), the defendant as director was taken to have contravened s 10(1), and his culpability was equal to REI's given his role. Although REI sought safety improvements from the head builder and its culpability was less than Millennium's, those matters did not exculpate it; the serious objective risk, prior conviction, and need for deterrence required a substantial monetary penalty, moderated by a 5 percent discount for the guilty plea and some leniency for straitened...

Jurisdiction
Australia
Judgment Date
11 April 2011
Procedural Posture
Occupational Health and Safety Prosecution for Breach of S 10(1) of the Occupational Health and Safety Act 2000 by Operation of S 26(1) / Sentencing After Plea of Guilty
Outcome
Defendant found guilty, convicted, fined $25,000 with a moiety to the prosecutor, and ordered to pay the prosecutor's costs as assessed in default of agreement.
Legal Topics
['duties of Controllers of Work Premises' 'liability of Directors for Corporate Offences' 'working at Heights' 'fall Prevention Systems' 'prior Conviction' 'capacity to Pay' 'general and Specific Deterrence']
['occupational Health and Safety' 'industrial Law' 'sentencing'] ['duties of Controllers of Work Premises' 'liability of Directors for Corporate Offences' 'working at Heights' 'fall Prevention Systems' 'prior Conviction' 'capacity to Pay' 'general and Specific Deterrence']

Case Brief

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Procedural Posture

Occupational Health and Safety Prosecution for Breach of S 10(1) of the Occupational Health and Safety Act 2000 by Operation of S 26(1) / Sentencing After Plea of Guilty

Legal Issues

  1. 1 ['Whether the defendant, as director of REI Construction Pty Ltd, was taken by s 26(1) of the Occupational Health and Safety Act 2000 to have contravened s 10(1) because REI failed to ensure premises at 23 Ryde Road, Pymble were safe and without risks to health.' 'What monetary penalty should be imposed having regard to objective seriousness, relative culpability, prior conviction, deterrence, guilty plea, cooperation and capacity to pay.']

Ratio Decidendi

REI failed to provide an adequate fall prevention system, risk assessment, occupational health and safety management, training and supervision for workers at height, exposing them to risk of serious injury or death. By s 26(1), the defendant as director was taken to have contravened s 10(1), and his culpability was equal to REI's given his role. Although REI sought safety improvements from the head builder and its culpability was less than Millennium's, those matters did not exculpate it; the serious objective risk, prior conviction, and need for deterrence required a substantial monetary penalty, moderated by a 5 percent discount for the guilty plea and some leniency for straitened...

Court Disposition

Defendant found guilty, convicted, fined $25,000 with a moiety to the prosecutor, and ordered to pay the prosecutor's costs as assessed in default of agreement.

Orders

  • ['The defendant is found guilty of the offence with which he is charged and convicted accordingly.' 'I impose a monetary penalty of $25,000 with a moiety to the prosecutor.' 'The defendant is to pay the costs of the prosecutor as assessed in default of agreement.']