Inspector Nicholson v Nahed [2011] NSWIRComm 41

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Nicholson v Nahed [2011] NSWIRComm 41 Hearing dates: 4 June 2010 Decision date: 11 April 2011 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: 1) The defendant is found guilty of each of the offences with which he is charged and convicted accordingly. 2) 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. 3) The defendant is to pay the costs of the prosecutor in an amount assessed under the Legal Profession Act in default of agreement. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 10(1) and s 94 by virtue of s 26 of the Occupational Health and Safety Act 2000 - guilty pleas - appropriate penalties - inadequate safety procedures and risk assessment - objective seriousness - serious breach - prohibition notices - general and specific deterrence - no prior convictions - principles of totality - orders made Legislation Cited: Occupational Health and Safety Act 2000 - s 10(1), s 26, s 94 Cases Cited: Attorney-General v Tichy (1982) 30 SASR 84 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 EPA v Barnes [2006] NSWCCA 246 Inspector Nicholson v Ibrahim [2011] NSWIRComm 39 Inspector Nicholson v Mackey [2010] NSWIRComm 159 Inspector Nicholson v Mackey (No 2) [2011] NSWIRComm 40 Inspector Nicholson v Pymble No 1 & Molinara (No 2) [2010] NSWIRComm 151 Inspector Nicholson v Sawmaa [2011] NSWIRComm 38 Johnson v R [2004] HCA 15 Pearce v The Queen [1988] HCA 57 Category: Principal judgment Parties: Inspector Nicholson (Prosecutor) George Nahed (Defendant) Representation: Mr R Reitano of counsel (Prosecutor) WorkCover Legal Group (Prosecutor) Mr J Whitfield of Whitfield Solicitors (Defendant) File Number(s): IRC 631 & 632 of 2009