Inspector Wright v Khouzame [2012] NSWIRComm 125

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Wright v Khouzame [2012] NSWIRComm 125 Hearing dates: 26 October 2012 Decision date: 16 November 2012 Before: Staff J Decision: In Matter No IRC 1668 of 2011 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence, as charged. 3. The defendant is fined an amount of $2500 with a moiety thereof to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, as assessed. In Matter No IRC 1669 of 2011 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence, as charged. 3. The defendant is fined an amount of $2500 with a moiety thereof to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, as assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 - gardening and tree felling business - risk of injury to employees and non-employees by falling tree power lines and power poles - no procedures in place to avoid risk of serious injury - employees had no accreditation for carrying out tree felling work - plea of guilty - risk was foreseeable - simple remedial measures available - serious offence - no persons injured - significant damage to property - remorse - defendant a student - s 6 of the Fines Act 1996 - penalty reduced - penalty imposed Legislation Cited: Fines Act 1996 Occupational Health and Safety Act 2000 Cases Cited: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; (2000) 99 IR 29 Corinthian Industries (Sydney) Pty Limited v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; (2000) 99 IR 159 Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan [2001] NSWIRComm 313; (2001) 105 IR 181 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Inspector Childs v Stimson (No 4) [2006] NSWIRComm 158 Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153 Inspector Yeung v Thiess Pty Ltd (No 2) [2004] NSWIRComm 96 JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales [2008] NSWIRComm 177; (2008) 184 IR 1 Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117 Pearce v The Queen (1998) 194 CLR 610 Retsos v Regina [2006] NSWCCA 85 R v Jenkins [1999] NSWCCA 110 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 A Crim R 104 WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council [2000] NSWIRComm 57; (2000) 99 IR 284 WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd [No 2] [2000] NSWIRComm 99; (2000) 100 IR 23 WorkCover Authority (Inspector Yeung) v Wilson (t/as Wilson's Tree Service [2005] NSWIRComm 158; (2005) 143 IR 187 Category: Principal judgment Parties: Inspector Michael Wright (Prosecutor) Zeina Khouzame (Defendant) Representation: Mr PJ Gow of counsel (Prosecutor) Mr E Khouzame Solicitor (Defendant) WorkCover Authority of New South Wales (Prosecutor) Senses Legal (Defendant) File Number(s): IRC 1668 and 1669 of 2011