Safe Work NSW v Modern Touch Marble and Granite Pty Ltd; Safe Work NSW v Johnne Khouri [2018] NSWDC 20

District Court New South Wales

Medium Neutral Citation: Safe Work NSW v Modern Touch Marble and Granite Pty Ltd; Safe Work NSW v Johnne Khouri [2018] NSWDC 20 Hearing dates: 30 January 2018 Date of orders: 20 February 2018 Decision date: 20 February 2018 Jurisdiction: Criminal Before: Judge AC Scotting Decision: 1 Modern Touch Marble and Granite Pty Ltd is convicted. 2 I impose a fine of $75,000. 3 I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 4 I order that Modern Touch pay the prosecutors costs as agreed or assessed. 5 Johnne Khouri is convicted. 6 I impose a fine of $12,500. 7 I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 8 In relation to the section 43 offence I impose no further penalty pursuant to section 10A Crimes (Sentencing Procedure) Act 1999. 9 I order that Mr Khouri pay the prosecutors costs as agreed or assessed. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition COSTS – prosecution costs Legislation Cited: Work Health and Safety Act 2011 s.19, 27(1), 32, 43 Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 21A(2)(g), 21A(3)(e), 21A(30(h), 21A(3)(i), 21A(3)(k), 21A(3)(m) Fines Act 1996 ss. 6, 122(2) Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1 Jahandideh v R [2014] NSWCCA 178 R v Youkhana [2004] NSWCCA 412 Category: Sentence Parties: Safe Work NSW (Prosecutor) Modern Touch Marble (Offender) Johnne Khouri (Offender) Representation: Counsel: Mr D Nagle (Prosecutor) Mr F Salama (Offenders)