R v LH Holding & Hanna [2024] VSC 90

1 On 19 February 2024, following a plea of guilty by LH Holding Management Pty Ltd ("LH Holding") to the workplace manslaughter of Michael Tsahrelias, I sentenced the company by recording a conviction and imposing a fine of $1,300,000.

2 The same day, following his plea of guilty to an offence as an officer of a company that committed workplace manslaughter where that contravention was attributable to the officer's failure to take reasonable care, I sentenced Laith Hanna by recording a conviction and placing him on a community correction order ("CCO") for two years, with additional conditions that he complete 200 hours of unpaid community work and that he complete a course in forklift operation.

3 By consent, I ordered that LH Holding and Mr Hanna pay Michael Tsahrelias's sister $120,000 in compensation, and dismissed claims for compensation by his parents.

4 At that time, I gave a summary of my reasons for passing those sentences and making those orders. With the concurrence of the parties, I deferred giving my full written reasons until a later date. These are those written reasons.

5 In October 2021, Mr Hanna was the sole director and shareholder of LH Holding. Under Mr Hanna's stewardship, the company conducted a stonemasonry business at a factory at 10 Fleet Street, Somerton, under the trading name Universal Stone & Marble.

6 At that time, Michael Tsahrelias worked with his father Efstathios ("Steve") Tsahrelias in their family business, All Emporium Stone, which (via a company structure) subcontracted in stonemasonry to LH Holding at the same factory.

7 At that workplace, slabs of stone were stored on A‑frame steel racks. Empty A‑frame racks were moved with the use of a Crown counter‑balance forklift.

8 On Tuesday 12 October 2021, while at the factory, Mr Hanna planned to move an empty A‑frame rack from its position just inside the building to an outside area. From about 5:20 p.m., he discussed this plan with Steve Tsahrelias. At times, the discussion included Michael Tsahrelias. Mr Hanna decided that he would use the forklift to place the rack in a space between a skip bin and a cyclone fence bordering the front of the property.

9 The forklift was parked in a bay to the left of the skip bin which was sitting beside the factory's sloped concrete driveway. Mr Hanna reversed the forklift out of the parking bay, turning 90 degrees to his right, and then drove it forwards up the driveway, stopping part‑way into the entrance to the factory building. He then lowered the mast of the forklift. While Mr Hanna stayed in the driver's seat, Michael used a green loading rope to hook the A‑frame rack to a jib that was carried by the tynes of the forklift. Mr Hanna then raised the mast of the forklift so that the bottom of the rack was just off the ground.

10 Next, he reversed the forklift in a straight line back down the driveway towards the street. While this was occurring, Michael remained inside around the entrance area, and his father was working inside at the rear of the building. Mr Hanna stopped the forklift when he was adjacent to the skip bin. He began to raise the mast just before he stopped, and continued to do so as he then drove forwards and turned 90 degrees to his right, so that the forklift was facing the bay where it had been parked earlier. By this stage, the rack was swinging, with its underside about two metres off ground. Mr Hanna then reversed the forklift 90 degrees to his left, so that its front was facing down the driveway, towards the street.

11 Next, he drove forwards for a few metres, and then slowly veered 90 degrees to his left, so that the front of the forklift was facing the space in which he was intending to land the load - i.e., between the right‑hand side of the skip bin and the left of the cyclone fence (from his perspective). This part of the driveway was a bit steeper than the part where he had done the 180‑degree turn in two manoeuvres only moments earlier.

12 At this point, Michael came out of the factory. He walked behind the forklift and around to its right, which, by then, was its downhill side. From that position, with an outstretched arm, he tried to reach up and steady the load, which was still swinging from side to side and about two metres off the ground. At the same time, Mr Hanna began to reverse the forklift and turn its rear wheels to the right, so that they were pointing downhill. As he inched the forklift backwards and to the right, it began to tip sideways downhill. Within an instant, it was past the point of no return.

13 Once it was apparent to Mr Hanna that the forklift was toppling over, he tried to climb out of the left (or uphill) side of the cabin. He ended up clinging to and riding on the left side of the forklift as it came crashing down on the driveway and skidded downhill for a metre or more. Luckily, he was unharmed.

14 Michael, however, was not so fortunate. As he realised the load he was trying to steady was tipping towards him, he took a couple of evasive steps backwards across the slope. But this only put him directly in the path of the forklift's mast, which was falling like a tree. Tragically, the mast struck Michael from his left, knocking him to the ground and pinning him underneath. He was then dragged downhill until the forklift came to an abrupt halt, which occurred when the top of the mast ploughed into the side of a utility parked in the street.

15 Mr Hanna screamed for help. Steve Tsahrelias came running out of the factory to find, to his horror, his son trapped underneath the mast. Within a minute, Barry Butwell drove another forklift from the premises across the road and used its tynes to lift the mast off Michael. This allowed Mr Hanna and another to perform CPR on him, which paramedics continued upon their arrival. Sadly, however, Michael could not be resuscitated, and he died at the scene from his injuries. He was aged only 25.

16 The whole incident was captured from different angles by CCTV cameras at the factory and from across the street. It is harrowing footage.

17 Mr Hanna was interviewed, both personally and on behalf of the company, by WorkSafe investigators on 14 October 2021, two days after the incident.

18 Mr Hanna explained that moving an A‑frame rack was a task that he had performed "many times". Most of the time, he carried out that task on his own. There was not a designated area in the front yard for the empty racks, but he frequently placed them in the spot where he had tried to place the A‑frame on that fateful day.

19 In relation to the moments before the forklift tipped over, Mr Hanna said the following:

Michael, he said to me, "If you go more to the left to drop it off," so I reversed back. As soon as I reversed back right, straight away it lost balance - the forklift lost balance and tipped ... but Michael before then, he was meant to be, you know, far. I did tell him keep - keep off the forklift, as usual, keep away from forklift, and, you know, he wasn't allowed to come nearby the machine. He said, you know, he was around to hold it - hold that A‑frame so when we drop it down, we drop it down on the ground and where we want it. And so - yeah, so Michael, he was in a safe place but when this happened, I'm not sure what happened to Michael. I think - I, I don't know, maybe he panic or maybe he thought he can hold - try and hold the forklift not to fall - I have no idea. Yeah. And then it fall over, on him.

I said just, "Michael, keep away when - when we're working." And then he ... told me, "Maybe it's better if you get it over the fence to avoid it," and I tried to do that and I said, "Can you - can you move [to] the other side?" And - but he stayed there and I was like - I wasn't sure what to do, and then I said to him, "Can you go - go back the other side - like go back and go the other side and from there, try and hold the A‑frame when we drop it down?" And then I wasn't sure where he was.

21 A person must have a high‑risk work licence in order legally to operate a forklift. Mr Hanna obtained such a licence seven months earlier, on 20 March 2021. He explained that his training was conducted with others at the factory on that day, and went from 7:00 a.m. until 2:00 or 3:00 p.m. It consisted of a written test and the trainer checking that they were aware of the forklift's features and how to use it. Prior to that day, he was given a course book, which he was required to read. As part of his assessment, Mr Hanna was required to answer 57 out of 61 questions correctly concerning the safe operation of forklifts. The questions addressed, among other things, reasons why it is unsafe to turn a loaded forklift on a sloping surface, the risks of travelling with the load raised high, the safe heights to carry a load, and actions that may cause a forklift to tip over sideways while travelling.

22 In response to questions asked in the interview about forklift safety, Mr Hanna said that people should not be close to a forklift; they should be two‑and‑a‑half to three metres away from it. He accepted that the manual provided that the forklift operator must stop working if person enters the work area, and that the operator must not continue working until it is safe to do so.

23 He said that slopes should be avoided as much as possible, especially sharp slopes. In respect of the accident site, he said, "The slope there, when this happened, I never thought it would be that dangerous."

24 He accepted that, because the A‑frame rack was an "irregular load", he needed to be "extra careful". He also accepted that it was a raised load, in that the rack was about two metres off the ground and the attachment rope was about three metres off the ground. He acknowledged that the load needed to be kept in the centre and that, if the forklift were on a slope, the load would no longer be in the centre.

Charges, committal, pleas of guilty, and plea hearing

25 Following a WorkSafe investigation, LH Holding and Mr Hanna were charged with offences against the Occupational Health and Safety Act 2004 (Vic) ("the OHS Act").

26 Ultimately, following a committal hearing in the Magistrates' Court, LH Holding pleaded guilty on indictment before a judicial registrar of this Court, on 25 July 2023, to a charge of workplace manslaughter.[1] The same day, on the same indictment, Mr Hanna pleaded guilty to a charge of being an officer of a company that committed workplace manslaughter where that contravention was attributable to the officer's failure to take reasonable care.[2]

27 Over three days in October and December last year, I heard an opening and pleas in mitigation, and received extensive written and oral submissions on sentence. I also heard applications for compensation under s 85B of the Sentencing Act 1991 (Vic) by Michael Tsahrelias's parents and his sister, which were supported by evidence on affidavit, and I received written and oral submissions on those applications.

28 On the plea, I also heard victim impact statements from the Tsahrelias family.

29 Michael's mother Phyllis Tsahrelias is angry that her son's life ended when, at 25, it was only just beginning. As she said, as a parent, you don't expect to bury your child. She is just so sad and broken. The only reasons she has not taken her own life are that she has a daughter to care for and because her son would have wanted her to carry on.

30 Michael's father Steve feels that his life is destroyed. All his hopes and dreams for his son are gone. He constantly relives the way he died, which distresses him no end. He keeps thinking, "What if?" He finds it harrowing to witness the pain and sadness his wife and daughter are suffering. He feels a sense of futility and worthlessness. He no longer wants to live, but he wouldn't betray his wife and daughter by leaving them alone.

31 Michael's sister Georgia Tsahrelias is devastated. Seeing his body at the scene of his death was so upsetting that it caused her to shake uncontrollably at times for months. For a year after his death, she visited his grave every day. She would tell him how their family were not coping, and how much she missed him. Neither she nor her family will ever be the same again.

32 Plainly, and inevitably, the impact of these offences on the Tsahrelias family is profound. In so far as it is permissible to do, I have taken their victim impact statements into account in considering sentence.

33 I wish to add this. I know that there is nothing this Court can say or do to salve, let alone heal, the grief and pain suffered by Michael Tsahrelias's family. The sentence I must impose is not a reflection of the worth of his young life. It cannot be. For a start, such a precious thing is immeasurable, at least by a stranger. But, in any event, the sentence I must impose reflects many factors which I am required by law to take into account, only one of which is the impact on victims.

34 I turn now to the gravity of the offending, commencing with the nature of workplace manslaughter. This is the first time that the offence has been prosecuted in this State.

35 The offences of workplace manslaughter are found in Part 5A of the OHS Act, which came into force on 1 July 2020. I say "offences", because there are two. One is found in s 39G(1), which concerns bodies corporate and natural persons. The other is found in s 39G(2), which concerns officers of applicable entities. LH Holding is charged pursuant to s 39G(1).

36 The offences are broadly based on the Queensland provisions concerning industrial manslaughter, which came into effect in that State in 2017.[3]

37 The objects of Part 5A are to prevent workplace deaths, to deter persons who owe certain duties under the Act from breaching those duties, and to reflect the severity of conduct that places life at risk in the workplace.[4]

38 The particular version of the offence charged in this case is committed when a person (who is not a volunteer) engages in conduct that is negligent, that constitutes a breach of "an applicable duty" under the OHS Act owed to another person, and that causes the death of the other person.[5]

39 Section 39E(1) provides conduct is negligent if it involves "(a) a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in" and "(b) a high risk of [death or serious injury]".[6] This definition is based on the common law standard of criminal negligence in Victoria.[7]

40 In determining whether conduct engaged in by a body corporate is "negligent":[8]

a) what matters is the conduct engaged in by the body corporate itself;

b) it does not matter whether the conduct is, or is not, conduct imputed to the body corporate under s 143 of the OHS Act;

c) it does not matter whether any of the body corporate's officers were involved in all or any part of the conduct; and

d) the standard to be applied under s 38G(1)(a) of the OHS Act is the standard of care that would have been taken by a reasonable body corporate in the circumstances in which the conduct was engaged in.

41 Ms Tittensor SC appeared with Ms French for the Director of Public Prosecutions. As she explained, prior to the introduction of Part 5A, the most serious offences in the OHS Act were those in Part 3, which is headed "General Duties Relating to Health and Safety". The offences in Part 3 are risk‑based, not outcome‑based. In contrast, the offence in s 39G(1) is outcome‑based, because the occurrence of death is an element of the offence of workplace manslaughter.

42 However, as Ms Tittensor observed, the workplace manslaughter provisions also work within the framework of the risk‑based offences in Part 3. This is because a breach of s 39G(1) requires proof that there has been a breach of an applicable duty in Part 3.[9] Section 39F(1) provides that a person ("A") owes an applicable duty to another person ("B") for the purposes of Part 5A if Part 3 of the Act imposes an applicable duty on A and it is either explicit or implicit that B is a person to whom the duty is owed.

43 In the Explanatory Memorandum to the Bill that became the Act that introduced Part 5A into the OHS Act, this is said:[10]

The purpose of linking the new offences [in Part 5A] to existing duties under the OHS Act is to provide significant consequences for breaching these duties where negligent conduct causes death. If duty holders are compliant with these duties, they should not be liable for the offence.

44 Section 26(1) of the OHS Act, which is in Part 3, imposes a duty on persons who (whether as owners or otherwise) manage or control workplaces to ensure, so far as is reasonably practicable, that the workplace and the means of entering or leaving it are safe and without risks to health. That is the applicable duty LH Holding owed to Michael Tsahrelias and which was breached by the company's negligent conduct in this case.

45 The offence of workplace manslaughter under s 39G(1) carries a maximum penalty for a body corporate of 100,000 penalty units.[11] At the time of the offending, this equated to $18,174,000.[12]

46 This maximum penalty is substantially higher than the maximum penalties for breaches by companies of the more serious of the offence provisions contained in Part 3 of the Act. For example, offences by bodies corporate against s 26 (duties of persons who manage or control workplaces) and s 32 (reckless endangerment of another at a workplace) committed at the relevant time respectively carried maximum penalties of 9,000 penalty units (or $1,635,660) and 20,000 penalty units (or $3,634,800).

47 In her Second Reading Speech to the Bill that became the Act that inserted Part 5A into the OHS Act, the Attorney‑General, Ms Jill Hennessey, said this of the maximum penalties for workplace manslaughter:[13]

These penalties reflect the seriousness of the offending and are designed to help prevent workplace deaths by creating a strong deterrence for organisations and individual officers against breaching their occupational health and safety duties.

Sentencing principles for workplace manslaughter

48 As I understood her, Ms Tittensor submitted that, by parity of reasoning with sentencing for the risk‑based offences in Part 3 of the OHS Act, when it is recognised that this offence is partly risk‑based, the following principles should apply in sentencing for workplace manslaughter.

49 First, the objective seriousness of the breach should be regarded as 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.

50 Second, the gravity of the contravention is affected by the extent of the duty‑holder's failure to meet its duties under the OHS Act, which is determined by three factors:

a) the measure of evidenced disregard concerning safety;

c) the likelihood or risk of potential harm occurring.

51 Third, general deterrence is the pre‑eminent sentencing consideration.

52 Further, given that workplace manslaughter is also outcome‑based, and the required negligence is the equivalent of that which is required for manslaughter by criminal negligence, I understood Ms Tittensor to submit that the principles concerning the latter offence should also be relevant. In particular, since workplace manslaughter, like manslaughter by criminal negligence, involves the death of a human being, the sanctity of human life must be emphasised. Further, the sentence imposed must reflect an element of general deterrence.

53 Mr O'Neill appeared with Ms Beech for LH Holding and Mr Hanna. I understood him to accept these propositions. He added that, in so far as resort may be had to the sentencing principles concerning manslaughter, it must be remembered that often there will be a lower level of culpability in the offender who killed by criminal negligence than one who killed by an unlawful and dangerous act. This is because in most cases of manslaughter by criminal negligence there will be no intent on the part of the offender to cause any harm whatsoever to the victim, whereas such an intention will often (but not always) be present in cases of manslaughter by an unlawful and dangerous act. He further submitted that this distinction is apposite to the present case, bearing in mind that workplace manslaughter can only be committed by negligence.

LH Holding's offence of workplace manslaughter

54 Turning to this instance of workplace manslaughter by LH Holding, Ms Tittensor submitted that the objective seriousness of the company's offence was very high. She emphasised the very significant departure from acceptable safety standards involved in turning the forklift down and across a slope with a raised load, and in continuing to operate when Michael Tsahrelias was in an unsafe proximity to it. Ms Tittensor also submitted that, once the centre of gravity moved outside the forklift's stability triangle with a person in an unsafe proximity, the potentially devastating consequences of continuing to operate the forklift were reasonably foreseeable and likely to occur.

55 Mr O'Neill accepted that the offending is serious in nature. He conceded that Mr Hanna breached rules regarding safe forklift use, and that a combination of some of those breaches led to Michael's death. Further, he conceded that Mr Hanna, as a person trained in the safe use of forklifts, ought not have conducted himself as he did at the time of the incident.

56 However, he submitted that the gravity of the offending must be assessed in light of three other features of the evidence. First, the negligent conduct itself was very brief, occurring over a matter of seconds. In his submission, Michael Tsahrelias was only at risk for a matter of seconds. Second, in the records of interview, Mr Hanna indicated that he attempted to prevent the tragedy occurring when he told Michael to move before the forklift tipped. Third, Mr Hanna said he believed that Michael had in fact moved when he was asked to do so.

57 I accept that an aspect of LH Holding's negligence which caused this tragic death, and an aspect of its heightened culpability, was the operation of the forklift across a slope with a high swinging load contrary to basic safety rules.

58 On the other hand, I also accept that Mr Hanna told Michael to move, and that he believed he had moved when he began to reverse the forklift, although it is hard to understand how he did not notice him in his peripheral vision at that moment.

59 In any event, it was still 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. Had those steps been taken, Michael would not have been killed.

Where company's offence attributable to officer's failure to take reasonable care

60 Turning to the officer's offence by Mr Hanna, s 144(1)(a) of the OHS Act provides as follows:

(1) If a body corporate (including a body corporate representing the Crown) contravenes a provision of this Act or the regulations and the contravention is attributable to an officer of the body corporate failing to take reasonable care, the officer is guilty of an offence and liable to -

(a) if the provision contravened was section 39G(1), a fine not exceeding 10,000 penalty units; ...

61 As we can see from s 144(1)(a), the offence carries a maximum penalty of 10,000 penalty units. At the time of the offending, this equated to $1,817,400 - so one‑tenth the maximum penalty of the offence committed by the company.

62 Mr Hanna's offence arises in circumstances where LH Holding's contravention was attributable to his failure, as an officer of the company, to take reasonable care in his operation of the forklift on this occasion. As Ms Tittensor submitted, it is therefore closely linked to LH Holding's offence.

63 Ms Tittensor also submitted that the nature of Mr Hanna's failure, as an officer of the company, is of great significance, because it involved him being personally responsible for the negligent operation of the forklift that resulted in the death of Michael Tsahrelias.

64 As I understood him, Mr O'Neill accepted that Mr Hanna's offence, as an officer, was also a serious offence.

65 I agree. In my view, the same factors discussed in relation to the company's offence apply, with necessary adaptation, to an assessment of the gravity of Mr Hanna's offence as an officer of the company.

66 I shall now say something of Mr Hanna's personal circumstances.

67 He was born in Iraq in 1977, and is now 47. He is the third child (and eldest boy) of his parents' six children, with three sisters and two brothers.

68 His family is Chaldean Christian, and were never safe from persecution in their homeland.

69 It was in this context that, at the tender age of 16, a year before he would have been required to engage in compulsory military service, Mr Hanna fled Iraq alone. Accordingly, that was the end of his formal secondary schooling.

70 Initially, he travelled to Jordan before travelling to Turkey, where he was able to obtain a visa and some travel paperwork. After a few weeks, he went to Romania for a fortnight, and ultimately to Bulgaria, where he was arrested, and then sent back to Jordan. Next, he went to Macedonia, from where people smugglers took him to the north of Greece. Fortunately, the United Nations gave him a card that entitled him to live and work in Greece. Later, he met up with other Iraqi boys with whom he sneaked into Italy and then France, Belgium, back to Paris, and finally to London. After a two‑year wait in the United Kingdom, Mr Hanna was granted a refugee visa and was permitted to live and work in London, which he did for the next ten years - doing whatever he could. For example, he worked as a cleaner and as a labourer. As his English improved, he was able to work in other industries. He completed two years of study in plumbing, as well as 18 months of study in information technology. He then worked in security as a driver of hire cars and limousines. He was employed for four years exclusively by the royal family of Dubai.

71 Meanwhile, in the years after his departure, Mr Hanna's entire family had fled Iraq.

72 In 2005, Mr Hanna emigrated to Australia. He was married to Sandra in Sydney the same year. Together, Mr Hanna and his wife have four children aged from 16 to four. Their eldest child has special needs as she is autistic and non‑verbal.

73 Initially, he worked in Sydney with Optus as a technician. Later, he studied building part‑time, and then became a builder and started his own business in Sydney.

74 In 2010, Mr Hanna and his family moved to Melbourne to start their building business here.

75 In addition to the studies just outlined, Mr Hanna has a Certificate III in Health and Safety, which he completed about three years ago, and a Certificate IV in Construction, a Diploma of Construction and an Advanced Diploma in Construction from Parker Brent College. He has commenced, but not concluded, a Certificate IV in Training and Assessment Education, which will enable him to train others in the certificates that he holds.

76 Mr Hanna and his family are active members of the Anglican Church in the Craigieburn, Dallas and Dandenong parishes. Through the church, Mr Hanna has done, and continues to do, volunteer work with Iraqi parishioners and has provided significant practical and financial support to refugees.

77 I turn to the mitigating factors the accused are able to call in aid, commencing with Mr Hanna's and the company's admissions and co‑operation.

78 Mr Hanna, both personally and on behalf of the company, participated in interviews with WorkSafe investigators and made various admissions. He also co‑operated by providing all paperwork and other evidentiary materials requested of him and the company.

79 Secondly, Mr Hanna remained in close contact with Michael's family. He continued to work with Steve Tsahrelias and store his stone in the company's warehouse for many months after the incident. Further, Mr Hanna provided substantial financial assistance to the family after Michael's death, including paying for the funeral expenses of $16,900.

80 Thirdly, Mr Hanna has complied with all improvement notices issued by WorkSafe following the incident.

81 Fourthly, I am satisfied that Mr Hanna is genuinely remorseful for his and his company's offending. He has deep feelings of sadness and guilt about the tragic effect of his actions on Michael Tsahrelias and his family. This is evidenced in some of the character references and in the psychological report of Patrick Newton (dated 23 September 2023), where this is said:

Mr Hanna expressed an abiding sense of regret and remorse for the death of [Michael]. He said that he felt both sad and shocked by what had happened and that he wished to convey his regret to all involved.

82 Further, I accept that Mr Hanna's remorse is reflected in his plea of guilty, to which I turn now.

83 Fifthly, both Mr Hanna's and the company's pleas of guilty are important mitigating factors.

84 Offers to plead guilty to the present charges were made during the committal hearing, which is a relatively early stage. However, the Magistrates' Court refused an application to adjourn the matter while those offers were considered. Further, when the committal continued thereafter, only experts and the informant were cross‑examined, and civilian witnesses (including Michael's father) were spared that ordeal. Immediately upon the filing in this Court of the indictment alleging the current charges, pleas of guilty were entered.

85 The guilty pleas have avoided what would have been a lengthy and complex trial, and a trial that would have been distressing, especially for the Tsahrelias family.

86 The pleas have added weight because they have contributed to an easing of the pressure on the criminal justice system in this State that has built up as a result of the effects of the pandemic, although the delays are not what they once were.

87 Sixthly, neither Mr Hanna nor the company has any prior convictions.

88 Further, Mr Hanna is a person of positively good character. The references, which I accept, describe him as a loyal, caring, diligent, hardworking man who is devoted to his family and his community. It is apparent that, despite the significant challenges he endured before he came to this country, Mr Hanna has worked hard to make a life for himself and his family, and he has made extensive contributions to his local community.

89 Seventhly, I am satisfied that this incident has had a very significant negative impact on Mr Hanna's mental health.

90 In an attempt to deal with his distress, Mr Hanna has attended 13 one‑hour sessions with Joliana Jameel, a counsellor to whom he was referred through a church contact. In Ms Jameel's opinion, which was expressed in her report, it is plain that Mr Hanna's mental state after the incident has been "significantly affecting his daily life, including his role as a father and caregiver".

91 As Mr Newton observed in his report, among other things, Mr Hanna has "significant and persisting anxiety". He has "intrusive recollections" of the incident, which invoke "significant distress", the intensity of which is "increased by ... his abiding sense of responsibility for [Michael's death]". In Mr Newton's opinion, Mr Hanna is experiencing noteworthy symptoms of depression, and suffers from general pessimism, downcast mood, persistent sleep disturbance, and a strong sense of having "let everyone down".

92 I accept that, for a man who, in the face of significant challenges early in his life, was remarkably resilient, the impact upon him of this accident and his involvement in it has been profound.

93 Finally, given his remorse, plea of guilty, previous good character, and history of employment and self‑improvement, the estimations of others as to his qualities, and the active steps he has taken to engage a counsellor to assist him with his mental health, I am satisfied that Mr Hanna has excellent prospects of rehabilitation.

94 I turn now to the purposes of sentencing. The only purposes for which sentences may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, just punishment, protection of the community, and rehabilitation, or any combination of two or more of these purposes.[14]

95 I accept that the principal sentencing purpose in cases of this nature, and in this case, is general deterrence. Companies and their officers must understand that offences that involve negligent conduct in the workplace in breach of duties under the OHS Act, and that result in death, are serious and will attract substantial and just punishment that reflects the profound harm caused to the deceased and his or her loved ones.

96 There is also a need for an element of curial denunciation in sentencing for such offending, although the weight to be accorded to that purpose is moderated to some extent by Mr Hanna's belief that Michael had moved away by the time he began to reverse the forklift, and the very brief nature of his and the company's negligence.

97 In this case, I think that the sentencing purposes of specific deterrence and protection of the community are of only modest weight in view of the co‑operation, admissions, pleas of guilty and previous good character of both accused, and in view of Mr Hanna's remorse and the impact the incident has had on his mental health. It strikes me as very unlikely that Mr Hanna (or his company or any company he might set up in the future) would ever be involved in an incident like this again.

98 Rehabilitation is an important sentencing purpose for Mr Hanna, particularly given that his prospects of reform are so strong.

99 Section 5(2)(b) of the Sentencing Act provides that, in sentencing an offender, a court must have regard to current sentencing practices.

100 The difficulty, however, is that there are no current sentencing practices for either of these offences because this is the first prosecution for workplace manslaughter and also the first prosecution for an officer's offence where workplace manslaughter was attributable to the officer's failure to take reasonable care.

101 Sometimes, case comparisons can be useful in gauging current sentencing practices.

102 With this in mind, Ms Tittensor, helpfully, referred me to R v Brisbane Auto Recycling Pty Ltd & Ors[15] ("Brisbane Auto") as a relevant case comparator, at least in part. This matter included a sentence imposed by Judge Rafter in the District Court of Queensland for an offence of industrial manslaughter contrary to s 34C of the Work Health and Safety Act 2011 (Qld) ("the WHS Act"). This, as I understand it, is one of the provisions on which Victoria's workplace manslaughter provisions are broadly based. Accordingly, it was thought that this decision might be of some assistance in gauging sentencing practices, and in the articulation of applicable sentencing principles, notwithstanding that it is case from a different jurisdiction.

103 Brisbane Auto Recycling Pty Ltd, which operated an auto wrecking business, had two directors and owners, both of whom supervised work activities, and up to eight employees. A worker (Mr Willis) who had been engaged on a casual contract basis was crushed by a forklift that reversed into him at the company's business premises. Sadly, Mr Willis died about a week later from the injuries he sustained.

104 In respect of the three forklifts that were in use at the workplace, the business had been operating without a traffic management plan in place for a very long time. Further, the worker driving the forklift involved in the incident did not have a high‑risk work licence to operate a forklift, and the company had made insufficient enquiries to establish whether he held one.

105 Judge Rafter found that the company's conduct caused Mr Willis's death because it failed to control the interaction of mobile plant and workers at the workplace, failed effectively to separate pedestrian workers and mobile plant, and failed effectively to supervise operators of moving plant and workers.

106 The company pleaded guilty at an early stage and had no prior criminal history. It would not have the funds to meet a substantial fine.

107 The company's two directors each pleaded guilty to a charge under s 31 of the WHS Act, which is similar to the offence under s 32 of the OHS Act. Over a period of around 17 months, the directors were reckless as to the risk to workers and members of the public who had access to the workplace. They failed to ensure that the company controlled the interaction of mobile plant and pedestrians, failed to ensure that the company effectively separated pedestrians and mobile plant, and failed to ensure that the company effectively supervised operators of moving plant. Further, both directors initially engaged in conduct that was designed to deflect responsibility for the incident. Each director was convicted and sentenced to a wholly suspended term of imprisonment.

108 At the time the company was sentenced, the maximum penalty for industrial manslaughter by a body corporate was set at 100,000 penalty units, as it is for workplace manslaughter in Victoria. However, in Queensland, this equated to $10,000,000 (or about $8,000,000 less than the maximum penalty applicable in Victoria).

109 Judge Rafter convicted the company and imposed a fine of $3,000,000. His Honour said that a fine of that magnitude, which is less than one third of the available maximum penalty, was appropriate, and he considered that a lesser penalty would not adequately punish the company or adequately serve to deter others. The judge accepted that, while it was necessary to have regard to the financial circumstances of the company and the nature of the burden a fine would impose, the fact that the company did not have capacity to pay a substantial fine did not preclude the imposition of an appropriate financial penalty in the circumstances.[16]

110 Ms Tittensor submitted that Judge Rafter's remarks are apposite to the present case.

111 I have been very much assisted by the reasons in Brisbane Auto. Further, I accept that 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 penalty, are apposite to matters of this type in Victoria and to this case in particular.

112 However, notwithstanding that, in real terms, the maximum fine for a company for workplace manslaughter in Victoria is far greater in monetary terms than it is for industrial manslaughter in Queensland, I do not consider that a fine anywhere nearly as heavy as $3,000,000 would be an appropriate sentence in LH Holding's case.

113 The two cases are quite different in four very important respects. First, in Brisbane Auto, the worker driving the forklift had no forklift licence, and the company, through its directors, had failed to ensure that only those with such a licence could operate a forklift. LH Holding, in contrast, through Mr Hanna, ensured that he had the appropriate licence.

114 Second, in Brisbane Auto, the directors' reckless conduct placed workers at risk over an extended period of about 17 months and led to the death of the worker, as did the conduct of the employee forklift driver on the day in question. Judge Rafter found that this extended period of conduct by the directors, which was imputed to the company, was relevant to an assessment of the company's criminality.[17] In contrast, LH Holding's criminally negligent conduct, through the behaviour of Mr Hanna, was measured in seconds, not days, weeks, or months.

115 Thirdly, the directors in Brisbane Auto engaged in conduct designed to deflect responsibility from the company for the incident. In the immediate aftermath of the accident, one director deliberately nominated another worker as the driver when he must have known this was not true. The other director told the deceased's daughter that her father had fallen from a truck, and he later proposed a version of the accident that placed responsibility for it on the deceased. As Judge Rafter said, this was disgraceful behaviour, occurring as it did at a time when the Mr Willis's daughter would have been incredibly distressed.[18] There was no equivalent behaviour by Mr Hanna on behalf of LH Holding. On the contrary, on behalf of the company and himself, he immediately assisted Michael Tsahrelias as best he could at the scene, made admissions in his interview two days later, and thereafter assisted WorkSafe by complying with their requests.

116 Fourthly, I understood these three features of the company's behaviour (imputed to it via its directors' conduct) in Brisbane Auto to be among the reasons why the judge concluded that the gravity of the company's offending and its moral culpability was high.[19] While LH Holding's offence was serious and involved some moral culpability, it was not, in my view, as serious, and did not involve the same level of moral culpability, as applied to the company in Brisbane Auto.

117 Thus, as much as the discussion of sentencing principles in Brisbane Auto was of assistance, I did not find the sentence imposed to be a useful comparator. But this is not surprising. In the area of sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. Further, this process of comparison is even more difficult, and likely to be less useful, when the comparator arises from another jurisdiction, notwithstanding the similarities in the offence provisions across the States. And, in any event, even at the best of times, sentences are not precedents to be applied or distinguished.

118 Instead, in the end, as is usually the case, I have been driven to rely on the particular circumstances of this offence of workplace manslaughter and of the company, as well as sentencing principles and purposes, in arriving at the appropriate sentence. The same is true when considering the appropriate sentence to be imposed on Mr Hanna for his offence as an officer of LH Holding.

Fines, financial circumstances and compensation

119 Section 52(1) of the Sentencing Act provides that, "[if] a court decides to fine an offender, it must in determining the amount and method of payment of the fine take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose".

120 Relevantly, s 53 provides as follows:

(1) In considering the financial circumstances of the offender, the court must take into account any other order that it or any other court has made or that it proposes to make -

(b) requiring the offender to make restitution or pay compensation.

(2) The court must give preference to imposing an order on the offender to make restitution or pay compensation, though it may impose a fine as well on the offender, if the court considers -

(a) that the offender has insufficient means to pay both a fine and a restitution or compensation order; and

(b) that it would be appropriate both to impose a fine and to make a restitution or compensation order.

121 The evidence before me is that LH Holding, which still continues to trade, has assets of between $300,000 and $400,000.

122 As for Mr Hanna's personal financial circumstances, there is evidence that there is approximately $400,000 of equity in heavily mortgaged properties registered in his wife's name.

123 Further, LH Holdings and Mr Hanna have agreed with Georgia Tsahrelias that they should be ordered to pay her $120,000 in compensation as settlement of her application under s 85B of the Sentencing Act. Mr O'Neill accepted that the company and Mr Hanna will be jointly and severally liable for payment of that amount so ordered.

124 I have taken the company's financial circumstances into account in considering the appropriate fine to impose upon it. As will be seen, the fine I have arrived at well exceeds the company's assets. Notwithstanding the likelihood that that fine will not be met in full because of the company's limited assets, I consider it is appropriate and consistent with sentencing principles to impose the fine I have selected.

125 That said, in order that at least the spirit of s 53(2)(a) is honoured, and because I think it the right thing to do anyway, I would urge those who have responsibility for collecting fines to ensure that the $120,000 ordered by way of compensation against the company is paid to Georgia Tsahrelias first, and before any assets of the company are used to pay its fine (or part of it).[20]

126 I received a pre‑sentence report from Corrections on Mr Hanna's suitability for a CCO. Unsurprisingly, he was found suitable for such an order.

127 In the report, recommendations were made for additional conditions requiring unpaid community work, mental health assessment and treatment, and a forklift operation course (whether it be a refresher course or, given Mr Hanna's training, perhaps an advanced course).

128 Ms Tittensor submitted that, were I to impose a CCO on Mr Hanna, I should impose a fine as well. I do not agree. I think that a CCO alone is a more appropriate sentence for Mr Hanna than either a fine alone or a CCO combined with a fine. To impose a fine in addition to the CCO to be imposed would be in breach of the principle of parsimony.

129 Further, notwithstanding that the company is a separate person in law and that Mr Hanna and the company have each committed an offence, the reality is that, given that Mr Hanna is the sole director and shareholder of the company, the fine imposed on LH Holding will also impact upon him personally.

130 In addition, as will be seen, the CCO will involve an element of punishment by way of community work, and a rehabilitative and protective component by requiring that he complete a forklift operation course.

133 Balancing all considerations, for the workplace manslaughter of Michael Tsahrelias, LH Holding is convicted and fined $1,300,000.

134 Pursuant to s 6AAA of the Sentencing Act, I declare that, but for LH Holding's plea of guilty, I would have imposed a fine in the order of $2,000,000.

135 Balancing all considerations, for the offence of being an officer of a company that committed workplace manslaughter where that offence was attributable to the officer's failure to take reasonable care, Laith Hanna is convicted and placed on a CCO for two years, with additional conditions that he complete 200 hours of unpaid community work and that he complete a course in forklift operation (whether that be a refresher course or an advanced course).

136 In circumstances where Mr Hanna has already been receiving treatment for his mental health concerns, I do not think the mental health and treatment condition recommended in the pre‑sentence report is necessary.

137 But for Mr Hanna's plea of guilty, I would have imposed a CCO in the order of three years' duration with 300 hours of unpaid community work and the same forklift course.

138 As for the compensation applications by the Tsahrelias family under s 85B of the Sentencing Act, I received helpful submissions from counsel for the parties, including Mr Partos, who appeared for the Tsahrelias family. Those submissions extended to thorny issues that I need not resolve now. This is because, ultimately, I was advised that the applications had settled on the terms I am about to reflect in orders to be made.

139 Thus, pursuant to agreements between the parties, I make the following orders:

a) The application for compensation by Georgia Tsahrelias is granted; LH Holding and Mr Hanna are ordered to pay Georgia Tsahrelias $120,000 in compensation (liability for which is joint and several); and there is no order as to costs.

b) The applications for compensation by Phyllis Tsahrelias and Efstathios ("Steve") Tsahrelias are dismissed; and there are no orders as to costs.

[1] Contrary to s 39G(1) of the Occupational Health and Safety Act 2004 (Vic).

[2] Contrary to s 144(1)(a) of the Occupational Health and Safety Act 2004 (Vic).

[3] Victoria, Parliamentary Debates, Legislative Assembly, Second Reading Speech, Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Vic), Attorney‑General, Ms Jill Hennessey, 30 October 2019, p 3884.

[4] See s 39A of the Occupational Health and Safety Act 2004 (Vic).

[5] See s 39G(1) of the Occupational Health and Safety Act 2004 (Vic).

[6] Section 39E(1)(b) also includes a high risk of "serious illness", which is not relevant in the present case.

[7] See the Explanatory Memorandum to the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Vic) at p 3.

[8] See s 39E(2) of the Occupational Health and Safety Act 2004 (Vic).

[9] As to those duties, see ss 21-24 and 26-31 of the Occupational Health and Safety Act 2004 (Vic).

[10] Explanatory Memorandum to the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Vic) at p 5.

[11] See s 39G(1) of the Occupational Health and Safety Act 2004 (Vic). The maximum penalty for a natural person who commits the offence is imprisonment for 25 years, as is the maximum penalty for an officer of an applicable entity who commits an offence against s 39G(2). The maximum penalty for a natural person originally was 20 years' imprisonment to be "consistent with the penalty prescribed for manslaughter" (Victoria, Parliamentary Debates, Legislative Assembly, Second Reading Speech, Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Vic), 30 October 2019, Ms Jill Hennessey, Attorney‑General, p 3884), but was later increased to 25 years' imprisonment when the maximum penalty for manslaughter was increased to that term.

[12] This is because a penalty unit was $181.74 in the financial year in which the offence was committed.

[13] Victoria, Parliamentary Debates, Legislative Assembly, Second Reading Speech, Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Vic), 30 October 2019, p 3884.

[14] See s 5(1) of the Sentencing Act 1991 (Vic).

[15] R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 (Judge Rafter).

[16] R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 at [132].

[17] R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 at [59]- [62].

[18] R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 at [133].

[19] R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 at [128].

[20] For the same reasons, I would urge Mr Hanna to ensure that LH Holding pays the $120,000 ordered against it and in favour of Georgia Tsahrelias forthwith.