By: Nicki Milionis and Michael McCrae with thanks to Yasmine Sahihi and Amy Moore for their contributions

Victoria’s first industrial manslaughter decision pursuant to section 39G of the Occupational Health and Safety Act 2004 (Vic) (OHS Act) was handed down in the Supreme Court recently in R v LH Holding Management Pty Ltd & Hanna [2024] VSC 90 (R v LH).

LH Holding Management Pty Ltd (LH) pleaded guilty to a charge of workplace manslaughter contrary to s 39G(1) of the OHS Act.  Mr Hanna was the sole director of LH and was charged as an officer of a company that committed workplace manslaughter where that contravention was attributable to the officer’s failure to take reasonable care pursuant to section 144 OHS Act. Mr Hanna entered a plea of guilty.

LH was convicted and fined $1.3 million.  Without the early guilty plea the fine imposed would have been $2 million. Mr Hanna was convicted and placed on a 2 year Community Correction Order, with additional conditions that he complete 200 hours of unpaid community work and complete a course in forklift operation.  Pursuant to an agreement between the parties the court ordered LH and Mr Hanna to pay $120,000 in compensation to Mr Tsahrelia’s sister pursuant to her application under s 85B Sentencing Act 1991 (Vic).

Facts

LH conducted a stonemasonry business at its factory.  LH subcontracted All Emporium Stone (AES), a family business, in which Mr Michael Tsahrelias worked along with his father.

On 12 October 2021, Mr Hanna planned to move an empty A-frame rack (‘the rack’) from inside the factory to the outside using a forklift. Mr Hanna drove the forklift part-way into the entrance of the factory and remained seated in the forklift while Mr Tsahrelias used a loading rope to hook the rack onto a jib carried by the tynes of the forklift. As Mr Hanna manoeuvred the forklift, with the rack lifted about 2 metres off the ground, the rack started swinging. Mr Tsahrelias emerged from the factory, walked behind the forklift and around to its right and reached out to try and steady the load. Mr Hanna later said to investigators that he had told Mr Tsahrelias, in the moment before the forklift tipped over, to keep away from the forklift and to move to the other side. 

As Mr Hanna reversed downhill very slightly, the forklift began to tip sideways and he tried to climb out the left (uphill) side of the cabin and clung to its side as it fell. When Mr Tsahrelias realised that the forklift was tipping over, he took several evasive steps backwards which put him directly in the path of the forklift’s mast which struck him.  He could not be resuscitated and died at the scene from his injuries.

Decision

The court accepted that Mr Hanna told Mr Tsahrelias to move, however, His Honour found that the operation of a forklift across a slope with a high swinging load (contravening basic safety rules) was an aspect of LH’s negligence which caused the death and contributed to a finding of heightened culpability. His Honour also considered that in any event, “…it was incumbent on Mr Hanna – and thereby on the company and on him as an officer of it – to cease operation of the forklift immediately when he saw Michael in the vicinity and to ensure he was out of harm’s way before the machine moved another inch”.

His Honour agreed with submissions made by Counsel for the Prosecution that Mr Hanna’s failure as an officer of the company was of “great significance because it involved him being personally responsible for the negligent operation of the forklift that resulted in the death”.

In accordance with s 5(2)(b) of the Sentencing Act, his Honour was required to have regard to current sentencing practices and was referred to the sentencing decision of Judge Rafter in R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 (Brisbane Auto). His Honour accepted “Judge Rafter’s remarks concerning the importance of general deterrence and adequate punishment, and to the effect that incapacity to pay a fine does not preclude the imposition of an appropriate financial penalty in the circumstances”.

However, Justice Croucher identified several differences between the facts in Brisbane Auto and LH which impacted the sentencing considerations:

1.     Mr Hanna had a forklift licence whereas in Brisbane Auto the worker driving the forklift had no licence and the company had failed to ensure that only those with a licence could operate the forklift.

2.     The offending conduct of the directors in Brisbane Auto occurred over a period of about 17 months whereas the criminally negligent conduct, through Mr Hanna, was measured in seconds.

3.     The directors in Brisbane Auto deliberately sought to dishonestly evade responsibility for the incident. Mr Hanna made admissions, cooperated with the regulator and assisted the Tsahrelias family.

4.     In Brisbane Auto, the gravity of the offending conduct and the moral culpability of the defendants was high. The offending by Mr Hanna and LH Holding, while serious, did not involve the same level of moral culpability.

As a result, His Honour found that the sentence imposed in Brisbane Auto was not a useful comparator as “sentences are not precedents to be applied or distinguished” and instead relied on the particular circumstances of the offence and the sentencing principles and purposes in arriving at the appropriate sentence.

Comment

Workplace manslaughter offences exist in Queensland, ACT, WA, NT and Victoria.  From 1 July 2024 industrial manslaughter provisions will come into effect in South Australia and the Commonwealth, while the NSW Government has sought public comment (which closed on 18 March 2024) on the development of an industrial manslaughter offence within the NSW Work Health and Safety Act 2011.

R v LH is the first Victorian decision in a workplace manslaughter case and the first officer prosecution where workplace manslaughter was attributable to the officer’s failure to take reasonable care.  While a Victorian case, the discussion as to the sentencing principles applicable to workplace manslaughter will be instructive in each of the other Australian jurisdictions namely:

(1) The objective seriousness of the breach is a primary factor in determining penalty, and mitigating factors subjective to the offender should not be permitted to produce a sentence which fails adequately to reflect the seriousness of the offence.

(2) The gravity of the contravention is affected by the extent of the duty-holder’s failure to meet its duties under the OHS Act.

(3) General deterrence is the pre-eminent sentencing consideration.

(4) The sentence imposed must reflect an element of general deterrence.