Director of Public Prosecutions v LH Holding Management Pty Ltd; Director of Public Prosecutions v Hanna

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0049

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
LH HOLDING MANAGEMENT PTY LTD (ACN 118 908 660)	Respondent

S EAPCR 2024 0050
DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
LAITH HANNA	Respondent

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JUDGES:	PRIEST, McLEISH JJA and GORTON AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2025
DATE OF JUDGMENT:	11 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 75
JUDGMENT APPEALED FROM:	R v LH Holding & Hanna [2024] VSC 90 (Croucher J)

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CRIMINAL LAW – Crown appeal – Sentence – Workplace manslaughter – Negligent operation of a forklift causing death of employee of company – Company fined $1,300,000 – Whether sentence manifestly inadequate – Whether sentence failed to reflect objective seriousness of offence and need for general deterrence – Appeal allowed – Company resentenced to a fine of $3,000,000.

CRIMINAL LAW – Crown appeal – Sentence – Officer of a body corporate that committed workplace manslaughter – Respondent sole director and shareholder of company – Whether community correction order of two years’ duration with 200 hours’ unpaid community work manifestly inadequate – Appeal dismissed.

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Counsel
Appellant		Mr B Kissane KC, DPP with Mr T Bourbon
Respondent		Mr R O’Neill SC with Ms A Beech
Solicitors
Appellant	Ms A Hogan, Solicitor for Public Prosecutions
Respondent	Ward & Co

PRIEST JA
McLEISH JA:

Introduction

On 12 October 2021, Laith Hanna, the sole director and shareholder of LH Holding Management Pty Ltd (‘LH Holding’), was operating a forklift when it toppled, crushing a worker, Michael Tsahrelias, beneath the forklift’s mast, causing injuries to Mr Tsahrelias from which he died.
Subsequently, on 25 July 2023, LH Holding pleaded guilty before a judge in the Supreme Court to workplace manslaughter, under s 39G(1) of the Occupational Health and Safety Act 2004 (‘OHSA’)[1] (charge 1); and Mr Hanna pleaded guilty to being an officer of a body corporate that committed workplace manslaughter, where that contravention was attributable to the officer’s failure to take reasonable care, contrary to ss 39G(1) and 144(1) of the OHSA (charge 2).[2]
[1]For a body corporate, the maximum fine was 10,000 penalty units. At the time of the offending, the value of a penalty unit was $181.74. Hence, the applicable maximum penalty equated to $18,174,000.
[2]By virtue of s 144(1)(a) of the OHSA, the maximum penalty is a fine not exceeding 10,000 penalty units (or $1,817,400).
The prosecution put the charge against LH Holding on the basis that the manner and circumstances in which the forklift was operated caused it to topple. LH Holding’s failure to ensure that the forklift was properly operated constituted a great falling short of the standard of care that would have been taken by a reasonable person in those circumstances. Charge 2 was put on the basis that the contravention by LH Holding was attributable to Mr Hanna’s failure to take reasonable care in his operation of the forklift.
Following a plea in mitigation, conducted over three sitting days, the judge convicted and fined LH Holding the sum of $1,300,000.[3] The judge also convicted Mr Hanna, and sentenced him to a community correction order (‘CCO’) of two years’ duration,[4] with conditions that he perform 200 hours of unpaid community work, and participate in a forklift operation course (whether a refresher course or an advanced course) as directed by the Regional Manager.[5]^, [6]
[3]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for LH Holding’s plea of guilty, he would have imposed a fine ‘in the order of $2,000,000’.
[4]Section 37(a) of the Sentencing Act 1991 permits a court to impose a CCO on an offender if he or she has been convicted of an offence punishable by more than five penalty units.
[5]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for Mr Hanna’s plea of guilty, he would have imposed a CCO ‘in the order of three years’ duration with 300 hours of unpaid community work and the same forklift course’.
[6]By agreement, Mr Hanna and LH Holding also consented to an order under s 85B of the Sentencing Act 1991 that they pay Michael Tsahrelias’ sister, Georgia Tsahrelias, compensation of $120,000.
By notices dated 18 March 2024, the DPP appeals against the sentences under s 287 of the Criminal Procedure Act 2009 (‘CPA’) on the ground that the sentences are manifestly inadequate.[7]
[7]By virtue of s 3(1) of the CPA, DPP ‘means the Director of Public Prosecutions for Victoria’.
In our opinion, the appeal against the sentence imposed on the company, LH Holding, should be allowed; the sentence imposed on it set aside; and in lieu a fine of $3,000,000 imposed. We also consider that the appeal against the sentence imposed on Laith Hanna should be dismissed. Our reasons follow.

The offending

At the time of the offending, Mr Hanna conducted a stonemasonry business out of a factory in Somerton (‘the workplace’), which was leased to LH Holding. The business involved Mr Hanna arranging stonemasonry jobs and then engaging subcontractors to prepare the stone at the workplace which they then installed. One of those subcontractors was a business, All Emporium Stone, owned by members of the Tsahrelias family. Steve Tsahrelias, a stonemason, and his son, Michael Tsahrelias, worked in the business. Slabs of stone were stored at the workplace on A-frame steel racks. Empty A-frame racks were moved using a Crown counterbalance forklift.
Closed circuit television (‘CCTV’) cameras at or near the workplace captured video and audio footage of the critical incident on 12 October 2021 and the immediate events preceding it.
Mr Hanna arrived at the workplace at around 3.00 pm. Steve and Michael Tsahrelias were already present.
The evidence showed that there was an A-frame rack located just inside the roller door of the factory with two slabs of stone on it. Mr Hanna used an overhead gantry crane to remove the slabs from the A-frame rack, since he wanted to remove the A-frame rack from inside the factory. Shortly after 5.00 pm, he had a discussion with Steve Tsahrelias — which at times also included Michael Tsahrelias — about where to put it. Ultimately, it was decided that Mr Hanna would use the forklift to place the A-frame rack between a skip bin and the cyclone fence which bordered the front of the property.
The forklift was parked in a parking bay next to the skip. CCTV footage showed that Mr Hanna got into the forklift and that:
·he reversed the forklift from its parking spot, so that the front of the forklift was facing the entrance to the factory;
·he then drove the forklift forward, stopping it at the entrance and lowering the mast of the forklift;
·Michael Tsahrelias used a loading rope to attach the A-frame rack to the jib that was attached to the forklift, positioning the rack so that it was hanging roughly from the middle point of the jib;
·once the rack had been attached, Mr Hanna raised the mast for a period of about eight seconds, so that, by the end of the lift, the bottom of the rack was close to the ground;
·Mr Hanna reversed the forklift in a straight line into the front yard of the factory, stopping at the point where the back wheels of the forklift were near the grate, Michael Tsahrelias remaining in the factory;
·once he stopped the forklift, Mr Hanna started raising the mast;
·Mr Hanna then drove forward and turned right so that the forklift was fully facing the front of the skip, while at all times the mast of the forklift continued to be raised, so that the bottom of the A-frame rack was approximately two metres off the ground and swinging in the air;
·he then reversed so that the front of the forklift was facing towards the street;
·Mr Hanna drove forwards, veering left, so that the front of the forklift was facing more towards the area on the right-hand side of the skip;
·at that point, Michael Tsahrelias walked out of the factory, walked behind the forklift and then around to the right-hand side of it;
·at the time that Michael Tsahrelias was walking around its right-hand side, the forklift was stationary across an incline, with the right wheels on lower ground than the left wheels, and the bottom of the A-frame rack was still approximately two metres off the ground, swinging past the right-hand side of the forklift;
·Michael Tsahrelias, who had taken up a position between the forklift and the cyclone fence, then stretched his arm out towards the bottom right-hand corner of the A-frame rack, apparently trying to steady it;
·while Michael Tsahrelias remained in that position, Mr Hanna started reversing the forklift, turning so that the back of it veered slightly right, across the slope;
·about two seconds after Mr Hanna commenced to reverse it, the forklift toppled to its right side;
·Michael Tsahrelias took a step backwards, into the path of the falling forklift, and was knocked to the ground by it and pinned under the mast;
·Mr Hanna jumped out of the forklift as it toppled over, onto the high side of the driveway; and
·while on its side, the forklift skidded slightly down the driveway, continuing to pin Michael Tsahrelias underneath the mast.
About a minute later, a worker from premises opposite the workplace used another forklift to lift the mast of the toppled forklift off the severely injured Michael Tsahrelias. Mr Hanna and a person from a neighbouring factory performed cardiopulmonary resuscitation (‘CPR’) on him. Paramedics and members from Victoria Police arrived and took over CPR. Personnel from Fire Rescue Victoria also attended and took steps to make the scene safe.
Michael Tsahrelias was pronounced dead at approximately 6.02 pm. A forensic pathologist performed an external examination on 14 October 2021, and a post-mortem CT scan ‘showed large bilateral haemothoraces and anterior buckle rib fractures’. In the pathologist’s opinion, the cause of death was a lack of oxygen supply to the body and chest injuries.
WorkSafe investigators attended the workplace shortly after the incident. Mr Hanna agreed to be interviewed by investigators on 14 October 2021. He told investigators that Mr Tsahrelias had said that he was trying to hold the A-frame rack when he was on the right-hand side of the forklift. Mr Hanna said that he told Mr Tsahrelias to stay away from the forklift before it tipped over. He asserted that he believed that Mr Tsahrelias was in ‘a safe place’ when he was reversing the forklift. Later in the interview, he stated that he ‘wasn’t sure’ where Mr Tsahrelias was. During the interview, Mr Hanna acknowledged that people should not be close to an operating forklift and that, if someone comes within 2.5 to 3 metres of one, the forklift operator needs to stop. He also acknowledged that the A-frame rack was an ‘irregular load’, meaning that he needed to ‘be extra careful’.
Expert evidence was that the downward slope from the entrance of the factory to the footpath outside the workplace generally changed from approximately six degrees to four degrees and then to nine degrees. There was a section of the driveway (measuring approximately 300 mm x 400 mm), which had an incline of 12 to 13 degrees. The changes in slope made turning and moving a forklift across the slope hazardous.
To lawfully operate a forklift a person must have a high-risk work licence. Mr Hanna obtained a forklift licence on 20 March 2021. To obtain his forklift licence, Mr Hanna was required to successfully complete an assessment consisting of three parts: Knowledge Assessment, Calculations Assessment and Performance Assessment. In the Knowledge Assessment, Mr Hanna was required to answer 57 out of 61 questions correctly concerning the safe operation of forklifts. Among those questions were the following:
·Give two reasons why it is unsafe to turn a loaded forklift on a sloping surface.
·What is the risk of travelling with the load raised high?
·When driving a forklift, what is a ‘safe’ height to carry the load at?
·What are three actions that may cause a forklift to tip over sideways while travelling?
·What are three actions that may cause a forklift to tip over frontwards or backwards while travelling?
At the time of the offending, WorkSafe had published a webpage, ‘Forklifts – Everything about forklifts in one place’, and a number of publications were available on WorkSafe’s website directed to controlling risks associated with forklifts, including the compliance code for plant; instructions about developing a forklift traffic management plan; and safety posters illustrating that ‘forklifts and people don’t mix’. Further, on 6 June 2019, WorkSafe had issued a Safety Alert about hazards and risk controls associated with forklifts. That Alert stated that ‘forklifts are one of the most hazardous workplace vehicles’, and that their ‘improper use is a common cause of serious incidents’, and recommended that forklift operators should always operate forklifts in accordance with their high risk work licence training; and forklifts are only used in accordance with manufacturer’s recommendations and in accordance with guidance contained in operations manuals.
Initially, LH Holding was not charged. Instead, Mr Hanna was charged personally with workplace manslaughter. During the committal hearing, Mr Hanna offered to plead guilty to the offence pursuant to ss 39G(1) and 144(1) of the OHSA, and for the company to plead guilty to workplace manslaughter. That offer was accepted by the prosecution shortly after the conclusion of the committal hearing.

The judge’s sentencing reasons

The judge’s sentencing reasons were comprehensive. Having set out the circumstances of the offending, the judge discussed the ‘profound’ impact of the offending on Michael Tsahrelias’ family, summarising salient aspects of the various victim impact statements that had been received.
The judge noted that the instant case was the first of workplace manslaughter prosecuted in this State. He discussed the elements of the offence and maximum penalties, before turning to the applicable sentencing principles.
With respect to the company’s offence, the judge observed:
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.
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.
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.
As to Mr Hanna’s offence, the judge said:
[Prosecuting counsel] 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.
As I understood him, [counsel for Mr Hanna] accepted that Mr Hanna’s offence, as an officer, was also a serious offence.
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.
The judge then set out Mr Hanna’s personal circumstances — which we will return to below[8] — before summarising mitigating features, including:
·first, Mr Hanna’s and the company’s admissions and co-operation;
·secondly, the fact that Mr Hanna provided substantial financial assistance to Michael Tsahrelias’ family after his death (including paying for the funeral expenses of $16,900);
·thirdly, Mr Hanna complied with all improvement notices issued by WorkSafe following the incident;
·fourthly, Mr Hanna was genuinely remorseful for his and his company’s offending (and ‘has deep feelings of sadness and guilt about the tragic effect of his actions on Michael Tsahrelias and his family’);
·fifthly, both Mr Hanna and the company pleaded guilty at a ‘relatively early stage’, avoiding ‘what would have been a lengthy and complex trial … that would have been distressing, especially for the Tsahrelias family’;
·sixthly, neither Mr Hanna nor the company has any prior convictions, Mr Hanna being ‘a person of positively good character’;
·seventhly, the ‘incident has had a very significant negative impact on Mr Hanna’s mental health’; and
·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, … Mr Hanna has excellent prospects of rehabilitation’.
[8]See [68] below.
Turning to sentencing purposes, the judge accepted that ‘the principal sentencing purpose in cases of this nature, and in this case, is general deterrence’. The judge also considered there to be ‘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’. 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’. The judge thought it to be ‘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’. He also observed that rehabilitation was an important sentencing purpose for Mr Hanna, ‘particularly given that his prospects of reform are so strong’.
The judge noted that presently there were no current sentencing practices for the 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’. Having then discussed an interstate sentencing case[9] at some length, the judge observed that
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.
[9]R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113.
Next the judge turned to the financial circumstances of the company and Mr Hanna, making reference to ss 52 and 53 of the Sentencing Act 1991. He observed that the evidence was that LH Holding continued to trade, and had assets of between $300,000 and $400,000; and that Mr Hanna had ‘approximately $400,000 of equity in heavily mortgaged properties registered in his wife’s name’. Having noted that Mr Hanna and the company had agreed to pay $120,000 to Michael Tsahrelias’ sister, the judge said:
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.

Finally, turning to the imposition of a CCO on Mr Hanna, the judge observed:
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.
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).
[Prosecuting counsel] 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.
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.
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.

The appellant’s submissions: LH Holding

In this Court, acknowledging that the respondent company is the first offender to be sentenced for the new offence of workplace manslaughter, the DPP submitted that workplace manslaughter objectively is an extremely serious offence, and that the company’s offending represented a serious example of it.
The DPP submitted that, although the new offence under s 39G(1)(b) operates within the existing framework of the general risk-based duties contained in Part 3 of the OHSA, the negligent conduct required is far more serious than a failure to take all reasonably practicable measures to eliminate or reduce risks to health and safety elsewhere provided for. By introducing the offence of workplace manslaughter, the DPP submitted, Parliament intended to create an offence that is objectively extremely serious, with the clear objective of preventing workplace deaths from occurring by strongly deterring negligent conduct in workplaces. The very high objective seriousness of the new offence is demonstrated by its prescribed maximum (which is five times greater than the maximum penalty provided for a breach of s 32).
General deterrence, the DPP submitted, must be of paramount importance in the sentencing exercise for workplace manslaughter. The objective seriousness of the offending should be the primary factor in determining the appropriate penalty, so that subjective factors — such as a guilty plea, previous good character, and an offender’s financial circumstances — must play a subsidiary role in the sentencing exercise. While agreeing that some of the principles relating to sentencing for the common law offence of manslaughter by criminal negligence — such as the degree of negligence, and the period over which the negligent conduct occurred — are apposite, the DPP submitted that the workplace context in which the death occurs must influence sentencing for workplace manslaughter, the objects in s 39A emphasising the importance of general deterrence as a sentencing consideration.
Focussing on several aspects of the unsafe operation of the forklift, the DPP submitted that the objective seriousness of the company’s offending in this case was very high. The company’s conduct was highly negligent, notwithstanding that it engaged in negligent conduct over a relatively brief period. Given Mr Hanna’s recently completed training in safe forklift operations, the DPP submitted, the extreme danger that was posed to Michael Tsahrelias by standing on the right-hand side of the forklift must have been obvious to Mr Hanna (and thereby the company). Counsel submitted that the judge’s ‘generous’ finding that he believed that Mr Tsahrelias had moved away from the forklift when he was reversing it, appears to have led the sentencing judge to misapprehend the seriousness of the respondent’s offending. With respect to the foreseeable consequences of the company’s conduct, given the way in which the forklift was operated, and the proximity of Michael Tsahrelias to it, Mr Tsahrelias’ death was reasonably foreseeable.
Ultimately, the DPP contended that the sentence imposed — which constitutes a mere seven per cent of the applicable maximum penalty — fails to reflect the primacy, as a sentencing factor, of the objective seriousness of the company’s offending. The sentence imposed fails to give proper weight to the principle of general deterrence, to the importance of which the judge purported to give recognition. Further, the sentence fails to give sufficient weight to victim impact. While each of the subjective factors relied on by the company were relevant, the DPP submitted that they were required to play a subsidiary role to the objective seriousness of the offence in the exercise of the sentencing discretion. It would appear from the sentence imposed that too much weight was given to these factors, which has resulted in a sentence that fails to adequately reflect the seriousness of the offence. Counsel submitted that it was not reasonably open for the sentencing judge to impose the sentence that he did if proper weight had been given to the objective gravity of the offending, the predominance of general deterrence as a sentencing purpose, and to the applicable maximum penalty. In all the circumstances, the sentence is manifestly inadequate.

The appellant’s submissions: Laith Hanna

In support of the contention that the sentence imposed on Mr Hanna is manifestly inadequate, the DPP submitted in this Court that the offence under ss 39G(1) and 144(1) of the OHSA is objectively very serious, but the sentence imposed upon Mr Hanna fails properly to reflect the gravity of his offending and the substantial weight that needed to be given to general deterrence. The DPP submitted that the subjective factors relied upon by Mr Hanna were given too much weight in the sentencing exercise with the overall consequence that the sentence imposed is manifestly inadequate.
Much of what the DPP had submitted concerning the objective seriousness of the offence of workplace manslaughter, and the applicable sentencing principles, when dealing with the company’s offending, was relied upon when dealing with Mr Hanna’s offence.
Recognising that there was ‘a certain logic’ in imposing a fine on the company and a CCO on the individual, the DPP submitted that the CCO was ‘not of significant magnitude to reflect the seriousness of the offence’. On the plea, the prosecution had accepted that it would be reasonably open to the court to impose a CCO on Mr Hanna, ‘[d]epending on the nature of the CCO and what it involved’. The prosecution had noted that a pre-sentence report would be required if the court were considering imposing a CCO with more than 300 unpaid community work hours, and submitted that a pre-sentence report ‘should be obtained in the circumstances of this case’.
Further, the DPP submitted that the subjective factors relied upon by Mr Hanna were required to play a subsidiary role in the sentencing exercise compared with the seriousness of his offending. The DPP submitted that the length of the CCO that was imposed, and the modest number of unpaid community work hours, reflect that too much weight was given to these factors in the sentencing exercise. It was not reasonably open for the sentencing judge to impose the sentence that he did if proper weight had been given to the objective gravity of the offending, the predominance of general deterrence as a sentencing purpose, and to the applicable maximum penalty. A much longer CCO with a much higher number of unpaid community work hours — or a CCO and a fine — needed to be imposed for the sentence to fall within the permissible range.
Finally, the DPP submitted that there was no occasion in Mr Hanna’s case to apply the residual discretion to dismiss the appeal.

LH Holding’s submissions in this Court

Counsel for LH Holding submitted that, although workplace manslaughter is a serious offence, the offending in this case can only be considered at the low end of the range of objective seriousness. In developing that submission, counsel submitted that: first, the negligent conduct itself occurred over a matter of seconds; secondly, at interview, Mr Hanna on behalf of the company indicated that he attempted to prevent the tragedy occurring by telling Michael Tsahrelias to move before the forklift tipped; thirdly, Mr Hanna said when interviewed that he believed that Michael Tsahrelias had in fact moved when he had asked him to do so, indicating his belief that the deceased was no longer at risk; fourthly, the company, through Mr Hanna, ensured that the company had the appropriate licence for the task he was completing when the incident occurred; and, fifthly, Mr Hanna, on behalf of the company, made admissions in his records of interview within two days of the incident and thereafter provided the investigators with documents in response to their requests.
With respect to the DPP’s submission that the sentencing judge’s ‘generous’ acceptance of Mr Hanna’s account in his records of interview (that he told Michael Tsahrelias to move and believed he had moved), appears to have led the sentencing judge to misapprehend the seriousness of the respondent’s offending, counsel submitted that this was a new argument that was not advanced in the court below. Counsel submitted that, while the degree of negligence involved in the offending is an objective question, it is to be considered in the light of the information available to the person at the relevant time. The offender’s state of mind must be relevant to the appropriate punishment. For those reasons, Mr Hanna’s belief was highly relevant to, and mitigatory of, the gravity of the offending.
Counsel submitted that care must be taken in using the percentage of the maximum penalty as a comparator between sentences in different cases. Among other things, the quantum of a fine needs to be considered in light of s 52 of the Sentencing Act 1991, which provides that the sentencing court must take into account, as far as practicable, the financial circumstances of the offender. Nothing that the judge said indicates that he failed to give appropriate weight to the need for general deterrence, and the sentence itself adequately reflects the seriousness of the offence.
Counsel indicated that he did not contend that the residual discretion should be exercised with respect to LH Holding.

Laith Hanna’s submissions in this Court

Laith Hanna, his counsel submitted, is a 47-year-old refugee from Iraq. He fled Iraq when aged 16 years, and settled first in England before migrating to Australia. Throughout his adult life, Mr Hanna worked hard, learnt English, obtained various qualifications, and ultimately established a successful business in Australia as a builder. He has no criminal history. Counsel submitted that Mr Hanna’s criminality occurred over a matter of seconds. In his role as an officer of LH Holding, he failed to take reasonable care when he breached rules regarding safe forklift use and a combination of some of those breaches led to the death.
Counsel submitted that the sentence imposed on Mr Hanna was consistent with the authorities and principles relied upon by the prosecution as going to the proper exercise of the sentencing discretion. The ground of manifest inadequacy is not made out. The offending was serious and the outcome tragic, but the sentence imposed on Mr Hanna reflects a proper balancing of all the relevant considerations. It is not outside the permissible range. Indeed, the DPP makes no complaint that a CCO was not within the permissible range, but simply that the length of the CCO, and the number of community work hours, is manifestly inadequate.
But even if the sentence is regarded as being overly lenient, counsel submitted that there are powerful circumstances that attract the exercise of the residual discretion, among them that the imposition of a significantly heavier penalty would be to disregard Mr Hanna’s rehabilitation.

Discussion and analysis

The appellate regime

The DPP’s right to appeal against sentence is found in s 287 of the CPA — headed Right of appeal – inadequate sentence — which is located in Division 3 of Part 6.3, itself headed Crown appeal against sentence. Section 287 permits the DPP to appeal to this Court against a sentence imposed by an originating court if the DPP ‘(a) considers that there is an error in the sentence imposed and that a different sentence should be imposed’, and ‘(b) is satisfied that an appeal should be brought in the public interest’. This Court’s power to intervene on an appeal by the DPP is governed by s 289(1), which provides that the Court must allow the appeal if the DPP satisfies the Court that ‘(a) there is an error in the sentence first imposed’; and ‘(b) a different sentence should be imposed’.
In oral submissions, the DPP confirmed that a purpose of bringing the present appeals was to permit the Court to lay down principles for the guidance of sentencing judges when sentencing for workplace manslaughter. As to that, in relatively recent times the High Court has maintained that Crown appeals are to be distinguished from ‘offender appeals’ against sentence in that their primary purpose is not directed to the correction of error in the particular case, but instead to laying down principles for the guidance of sentencing judges. Thus, in Green,[10] a case which concerned the question whether the New South Wales Court of Criminal Appeal had erred by increasing the sentence of two co-offenders, thus creating a disparity between the sentences imposed on them following a Crown appeal and the sentence imposed on a co-offender (against which the Crown had not appealed), French CJ, Crennan and Kiefel JJ observed:[11]
The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (Crown appeals) under s 5D of the Criminal Appeal Act 1912 (NSW) is ‘to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons’.[12] That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the ‘residual discretion’.
[10]Green v The Queen (2011) 244 CLR 462 (‘Green’).
[11]Ibid 465–6 [1] (citations as in original).
[12]Griffıths v The Queen (1977) 137 CLR 293 at 310 (Barwick CJ) (‘Griffiths’); Everett v The Queen (1994) 181 CLR 295 at 300 (Brennan, Deane, Dawson and Gaudron JJ), discussed in Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 578–584 [8]–[20] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also R v Borkowski (2009) 195 A Crim R 1 at 18 [70].
French CJ, Crennan and Kiefel JJ also observed:[13]
A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is ‘to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons’.[14] That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.[15]
[13]Green, 477 [36]. (Citations as in original).
[14]Ibid 465–6 [1].
[15]In Director of Public Prosecutions (Vic) v Karazisis (2010) 206 A Crim R 14 at 39–42 [104]–[115] it was suggested that relevant factors in Victoria include delay, parity, the totality principle, the rehabilitation of the offender and the conduct of the Crown.
As we have said, the DPP’s sole ground of appeal with respect to the sentences imposed on each of the two respondents contends that they are manifestly inadequate. In developing the arguments directed to manifest inadequacy, the DPP has also made extensive submissions concerning the principles that must guide the imposition of sentence in cases of workplace manslaughter.
Axiomatically, a finding that a sentence is manifestly excessive is a conclusion that does not depend upon the identification of specific error. As Gleeson CJ and Hayne J observed in Dinsdale (in an oft-cited passage):[16]
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion.
[16]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (‘Dinsdale’).
A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) inadequate in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate. As was observed in Weybury:[17]
The members of the appellate court will weigh for themselves all relevant features of the respondent and the offending — including those that aggravate and those that mitigate — and intuitively synthesise each factor bearing on the exercise of the sentencing discretion. In so doing the court must balance the often incommensurable factors bearing on the exercise of the sentencing discretion, those factors frequently pulling in different directions.[18] Ultimately, appellate intervention on the ground of manifest inadequacy is not warranted unless, having regard to all of the relevant sentencing factors — including the degree to which the impugned sentence differs from sentences that have been imposed in cases which are truly comparable — the appellate court is ‘driven to conclude that there must have been some misapplication of principle’.[19]
[17]DPP v Weybury (2018) 84 MVR 153, [50] (Priest JA) (‘Weybury’). See also Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA).
[18]See Elias v R (2013) 248 CLR 483; 298 ALR 637; [2013] HCA 31 at [27] per French CJ, Hayne, Kiefel, Bell and Keane JJ; Dalgliesh [(2017) 349 ALR 37; [2017] HCA 41] at [4] per Kiefel CJ, Bell and Keane JJ; at [79] per Gageler and Gordon JJ.
[19]See R v Pham (2015) 256 CLR 550; 325 ALR 400; [2015] HCA 39 at [28] per French CJ, Keane and Nettle JJ; Dalgliesh at [59] per Kiefel CJ, Bell and Keane JJ. See also Director of Public Prosecutionsv Zhuang (2015) 250 A Crim R 282; [2015] VSCA 96 at [39]–[49]; Director of Public Prosecutions v McInnes [2017] VSCA 374 at [75].
It was made clear in the passage from Dinsdale set out above that manifest inadequacy of sentence is a conclusion that does not depend on the attribution of identified specific error, and frequently does not admit of much amplification. And importantly, it was observed in Lowndes:[20]
The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass[21] and R v Clarke.[22] Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic.[23] The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.
[20]Lowndes v The Queen (1999) 195 CLR 665, 671–2 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
[21](1993) 72 A Crim R 561.
[22][1996] 2 VR 520.
[23]See House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).

Sentencing for workplace manslaughter

Workplace manslaughter, an indictable offence found in s 39G, located in Part 5A, was introduced into the OHSA by the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019, with operation from 1 July 2020.
At the time that the new offence was introduced, the provisions contained in Part 3 of the OHSA — which spell out the general duties with respect to health and safety — were left undisturbed. Hence, Division 1 (s 20) sets out the concept of ensuring health and safety; Division 2 (ss 21, 22 and 23) sets out the main duties of employers; Division 3 (s 24) contains the duties of self-employed persons; Division 4 (s 25) deals with the duties of employees; Division 5 (ss 26 to 32) sets out the duties of other persons; and Division 6 (ss 33 and 34) refers to other matters.
According to its terms, the offence of workplace manslaughter may be committed by two classes of persons: a person who is not a volunteer (s 39G(1)); or a person who is an officer of an ‘applicable entity’, and who is not a volunteer (s 39G(2)). The offence is committed if the relevant person engages in conduct that: first, is ‘negligent’; secondly, constitutes a breach of an applicable duty (under Part 3)[24] that the person or entity owes to another person; and, thirdly, causes the death of that other person.
[24]See [59] below.
By virtue of s 39G(3), an applicable entity is a body corporate; an unincorporated body or association; or a partnership. If committed by a natural person who is not a volunteer,[25] or a person who is an officer of an applicable entity who is not a volunteer, the maximum penalty is 25 years’ imprisonment. In the case of an offence under s 39G(1) committed by a body corporate, the maximum penalty is 100,000 penalty units.
[25]By virtue of s 5(1), a volunteer is ‘a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses)’.
The particular objects applicable to Part 5A are contained in s 39A:
(a)to prevent workplace deaths; and
(b)to deter persons who owe certain duties under Part 3 from breaching those duties; and
(c)to reflect the severity of conduct that places life at risk in the workplace.
Those objects, specific to Part 5A, are, of course, complementary of the general objects of the OHSA set out in s 2:
2Objects
(1)The objects of this Act are—
(a) to secure the health, safety and welfare of employees and other persons at work; and
(b) to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work; and
(c) to ensure that the health and safety of members of the public is not placed at risk by the conduct of undertakings by employers and self-employed persons; and
(d) to provide for the involvement of employees, employers, and organisations representing those persons, in the formulation and implementation of health, safety and welfare standards—
having regard to the principles of health and safety protection set out in section 4.
(2)It is the intention of the Parliament that in the administration of this Act regard should be had to the principles of health and safety protection set out in section 4.
Section 4 sets out the relevant ‘principles of health and safety protection’. Among them, s 4(1) provides that the ‘importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances’. Another principle, in s 4(2), is that persons ‘who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable’.
Returning to Part 5A, s 39B defines ‘applicable duty’ to be a duty imposed by Division 3 (other than duties imposed by ss 25 or 32);[26] and s 39F spells out those situations in which a person owes an applicable duty to another person. Further, s 39D provides that ‘conduct’ — which under s 39C may be constituted by an act, or an omission to perform an act — may constitute a breach of an applicable duty for the purposes of the offence of workplace manslaughter created by s 39G whether or not any other conduct also contributed to the breach (and whether or not any proceeding has been commenced in respect of that breach).
[26]Section 25 relates to the duties of employees; and, in context, the duty imposed by s 32, the duty not to recklessly endanger persons at a workplace, relates to a person who is an employee, but not an officer, at the relevant workplace.
In terms redolent of the common law test,[27] s 39E sets out those circumstances in which conduct is ‘negligent’:
[27]In R v Nydam [1977] VR 430, the Full Court (Young CJ, McInerney and Crockett JJ) said (at 448):
In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.
This formulation was approved in Wilson v The Queen (1992) 174 CLR 313, 333 (Mason CJ, Toohey, Gaudron and McHugh JJ); R v Lavender (2005) 222 CLR 67, 75 [17] (Gleeson CJ, McHugh, Gummow and Hayne JJ); King v The Queen (2012) 245 CLR 588, 601 [29] (French CJ, Crennan and Kiefel JJ), 620–1 [82] (Bell J); and Burns v The Queen (2012) 246 CLR 334, 345 [19] (French CJ).
39E When is conduct negligent?
(1)Conduct is negligent for the purposes of this Part 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—
(i)death; or
(ii)serious injury; or
(iii)serious illness.

(2)In determining whether conduct engaged in by a body corporate is “negligent” for the purposes of this Part—
(a) what matters is the conduct engaged in by the body corporate itself; and
(b) it does not matter whether the conduct is, or is not, conduct imputed to the body corporate under section 143; and
(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 subsection (1)(a) 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.

Part 3 of the OHSA imposes two principal safety duties on employers: the first, recognised in s 21, is the employer’s duty to provide, so far as is reasonably practicable, a safe working environment for employees; and the second, set out in s 23, is the employer’s duty to ensure, so far as is reasonably practicable, that persons other than employees are not exposed to safety risks as a result of the conduct of the employer’s undertaking. With respect to both those duties, the employer is obliged (by virtue of s 20) to eliminate safety risks or, where that is not reasonably practicable, to mitigate the risks, so far as is reasonably practicable.
Perhaps with the exception of an offence constituted by a breach of s 32,[28] the legislative scheme in Part 3 of the OHSA is concerned with risk, not result. Hence, in Frewstal,[29] which related to offences arising out of a company’s breach of duties under s 21, Priest and Kaye JJA set out the principles that should guide a sentencing judge when a death or serious injury has resulted from a breach of a provision of Part 3:[30]
In our opinion, sentencing judges should be guided by the following principles:
•First, unlike cases of unlawful homicide, the occurrence of death or serious injury is not an element of the offences charged. An accused is punished according to the gravity of the breach of duty owed under the OHSA, not according to the result or consequences of the breach.
•Secondly, the gravity of the breach is measured by two factors — the seriousness of the breach itself (that is, the extent to which the defendant has departed from its statutory duty); and, the extent of the risk of death or serious injury which might result from the breach.
•Thirdly, an assessment of the extent of the risk itself involves consideration of two factors — the likelihood of the occurrence of an event as a result of the breach (such as the event that occurred in the particular case) endangering the safety of employees or others; and, the potential gravity of the consequence of such an event (in particular, whether there is a risk of death or serious injury).
•Fourthly, the fact that the breach in the particular case resulted in death is relevant only in the sense that it might manifest or demonstrate the degree of seriousness of the relevant threat to health or safety resulting from the breach.[31]
[28]See Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399, 414–5 [62]–[63] (Maxwell P, Bongiorno JA and Kyrou AJA).
[29]DPP v Frewstal Pty Ltd (2015) 47 VR 660 (‘Frewstal’).
[30]Ibid 686 [127].
[31]Sentencing Act 1991, s 5(2)(b).
Unlike offences arising from breaches of Part 3 duties, however, negligent conduct which embodies the breach of a duty owed to a person under Part 3 constitutes the offence of workplace manslaughter under s 39G only if it ‘causes the death of that other person’. Hence, whereas offences under Part 3 are concerned with risks to the health and safety of employees and others in the workplace, the offence contained in Part 5A is concerned not only with risk, but with the result of conduct which constitutes a breach of the duties owed under Part 3, since it is an element of the offence under s 39G that the negligent conduct that breaches a relevant duty must cause death.
Given the similarities between the offence of negligent manslaughter at common law, and the offence of workplace manslaughter under s 39G of the OHSA, the principles that guide the imposition of sentence for the common law offence will provide a useful guide for the imposition of sentence for an offence under s 39G. In particular, although the conduct under s 39G already must amount to 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 a high risk of death or serious injury (or illness), for sentencing purposes both the degree of negligence, and the period of time over which the negligent conduct continued, will (among other things) be relevant to a determination of the gravity of the offence.
Thus, all other things being equal, negligent conduct continued or repeated over an extended period in the face of obvious risks to health and safety, where an employer has been complacent or has deliberately tolerated the risks, or which represents a blatant disregard for the health and safety of persons in the workplace, will generally be considered more culpable than negligent conduct which represents an aberration or temporary lapse in an offender’s otherwise satisfactory conduct. As with other offences under the OHSA, to a substantial extent the seriousness of the particular offence under Part 5A must be assessed by reference to the measure of evidenced disregard for the safety of employees in the particular circumstances.[32]
[32]DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557, 565 [35] (Vincent, Eames and Nettle JJA).
Moreover, it is plain that the principal sentencing purpose animating sentences for workplace manslaughter will generally be general deterrence. Indeed, one of the specific objects of Part 5A, enshrined in s 39A, is to deter persons who owe certain duties under Part 3 from breaching those duties.
As we have said, in his sentencing reasons, the judge accepted that ‘the principal sentencing purpose in cases of this nature, and in this case, is general deterrence’, but the DPP contends that despite that acceptance, the sentences imposed fail to give proper weight to that purpose.

Mr Hanna’s personal circumstances and the circumstances of the company

LH Holding is a ‘one man company’. Its interests, and those of Mr Hanna, are inextricably interwoven. Mr Hanna, aged 48 years, is not only without prior convictions, but is a man of positive good character. As a Chaldean Christian born in Iraq, he was never safe from persecution in his homeland. His formal secondary schooling ended when he fled Iraq when aged 16 to avoid compulsory military service. After a period moving between countries, he was granted refugee status in the United Kingdom, where he was permitted to live in London, where he had a range of employment.
In 2005, Mr Hanna migrated to Australia, and married his wife in Sydney the same year. He and his wife have four children aged from 16 to four years, their eldest child having special needs as she is autistic and non-verbal. Mr Hanna and his family moved to Melbourne in 2010 to start their building business.
Among his qualifications, Mr Hanna has a Certificate III in Health and Safety; a Certificate IV in Construction; a Diploma of Construction; and an Advanced Diploma in Construction. He commenced, but has not concluded, a Certificate IV in Training and Assessment Education.
The judge was satisfied that Mr Hanna ‘is genuinely remorseful for his and his company’s offending’, and ‘has deep feelings of sadness and guilt about the tragic effect of his actions on Michael Tsahrelias and his family’. Both personally and on behalf of the company, Mr Hanna participated in interviews with WorkSafe investigators and made various admissions; and both he and the company pleaded guilty at a relatively early stage. The judge was satisfied that Mr Hanna ‘has excellent prospects of rehabilitation’.
Moreover, the judge was satisfied that ‘this incident has had a very significant negative impact on Mr Hanna’s mental health’. The judge observed 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’. A counsellor who had provided counselling to Mr Hanna reported that Mr Hanna’s mental state after the incident has been ‘significantly affecting his daily life, including his role as a father and caregiver’. And a psychologist who assessed Mr Hanna reported that, 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 Tsahrelias’ death. In the psychologist’s opinion, Mr Hanna experienced noteworthy symptoms of depression, and suffered from general pessimism, downcast mood, persistent sleep disturbance, and a strong sense of having ‘let everyone down’.
WorkSafe cancelled Mr Hanna’s forklift licence on 20 September 2024, almost three years after the fatal incident. Without a forklift licence Mr Hanna has been unable to operate his business and earn an income. To support his family, Mr Hanna had to sell most of LH Holding’s material and equipment. The company now has few assets left. It is incapable of paying the fine imposed by the judge. Apart from a payment of $5,000, Mr Hanna has been unable to satisfy the compensation order.

The fine imposed on the company is manifestly inadequate

As we have indicated, counsel for LH Holding submitted that the company’s offending can only be considered at the ‘low end of the range of objective seriousness’. In our view, however, beyond saying that the maximum penalty must be reserved for cases in the ‘worst category’, and that a sentencing judge in every case is bound to consider where the facts of the particular offence and offender lie on a spectrum that extends from the least serious instances of the offence to the worst category (properly so called), attempts to categorise offending falling into an ‘upper’, ‘middle’ or ‘low’ range of seriousness are rarely productive.[33]
[33]Weybury, 165 [33]–[34] (Priest JA); Walsh v The Queen [2018] VSCA 334, [28] (Priest and Weinberg JJA); Lee v The Queen [2018] VSCA 343, [32] (Ferguson CJ, Priest and Beach JJA); DPP v Ristevski [2019] VSCA 287, [66] (Priest JA, Ferguson CJ and Whelan JA concurring at [1]).
On any view, the company’s offending was not in the worst category. It lacked aggravating features, such as complacency when it came to safety in the workplace, or a blatant disregard for the health and safety of workers. Certainly, the offending did not represent a course of unsafe work practices tolerated over an extended period. This was a single unsafe incident rather than the result of a systemic failure to comply with workplace safety obligations.
On the other hand, the offending could not properly be categorised as being among the least serious examples of workplace manslaughter. In order to become licensed, Mr Hanna had, only a few months before his negligent operation of the forklift caused Michael Tsahrelias’ death, completed a course concerned with the safe operation of forklifts, so that the dangers associated with his operation of the forklift should have been obvious to him. There can be little doubt, however, that notwithstanding his recent completion of that course, Mr Hanna’s operation of the forklift involved a very significant departure from acceptable safety standards. Thus, Mr Hanna operated the forklift in a manner contrary to established principles for safe forklift operation: first, with the mast extended high into the air, with the A-frame rack raised approximately two metres off the ground; secondly, with the mast in that position for 50 seconds, notwithstanding the fact that the A-frame rack was swinging freely; thirdly, by driving forwards down a slope, rather than in reverse; fourthly, by turning across a slope; and, fifthly, by continuing to operate the forklift while Michael Tsahrelias was standing at a point dangerously close to it. Mr Hanna had known that Mr Tsahrelias was near the forklift, and, while he was not aware of his exact position, he was negligent in failing to ensure that he was out of harm’s way before continuing to operate the forklift.
In our view, therefore, notwithstanding that Mr Hanna’s conduct occurred over a relatively brief period, viewed within the spectrum of grossly negligent conduct falling within the definition in s 39E, it could not be seen as falling within the least serious category of offending.
When it came to sentencing the company, the principal sentencing considerations were the objective seriousness of the offending and general deterrence. Moreover, since the only realistic sentencing option available to the judge with respect to the company was a fine,[34] by virtue of s 52(1) of the Sentencing Act 1991, when ‘determining the amount and method of payment of the fine’, the judge was required to ‘take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose’.
[34]Although other sentencing options — such as, without recording a conviction, ordering the dismissal of the charge, or recording a conviction and ordering the discharge of the offender — were theoretically available, in the circumstances of this case they could not have been considered realistic options.
The first step in the process, however, is for the court to determine that a fine is appropriate. It is only once a decision has been made to fine that a court should consider the offender’s means. Thus, in Cheshire,[35] the Court observed that the predecessor to s 52(1)
requires that the sentencer, if he decides to impose a fine, ‘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’. Obviously the section is designed in the case of offenders possessed of widely disparate wealth to prevent as far as possible the accusation that in the case of a monetary penalty there is ‘one law for the rich and another for the poor’. Also monetary penalties that can only be seen to be empty orders ought not to be made: Reader (1988) 10 Cr App R (S) 210 at 214.
The inquiry is to be made only if there has in the first place been a decision to impose a fine. The means of an offender cannot be relevant to the decision as to whether a fine is the appropriate disposition. Moreover, the court is not prevented from fining an offender because it has not been possible to ascertain his financial circumstances …
[35]R v Cheshire (1994) 76 A Crim R 261, 269 (Phillips CJ, Crockett and Nathan JJ).

If, having formed a view of the appropriate level of the fine, the court is satisfied that the offender would be unable to pay that amount on account of lack of means, the sentencer is entitled to reduce the amount of the fine (or consider giving the offender time to pay, or the opportunity to pay by instalments).[36] At the same time, however, the section does not prevent the imposition of a fine which the offender will not be able to pay, provided the court has taken that fact into account before determining the sentence.
[36]R v Rahme (1989) 43 A Crim R 81, 86–7.
Importantly, an offender’s capacity to pay cannot result in the imposition of a fine that fails to reflect the objective seriousness of the offence or the need for general deterrence. Thus, when dealing with s 16C of the Crimes Act 1914 (Cth) — which, like s 52 of the Sentencing Act 1991, requires a court imposing a fine to take the financial circumstances of the offender into account[37] — Wigney J observed in Aussie Skips:[38]
Section 16C(1) of the Crimes Act requires the Court to take into account the financial circumstances of an offender before imposing a fine for a federal offence. Section 16C(2) provides, however, that the inability to determine an offender’s financial circumstances does not prevent the Court from imposing a fine. Nor does the offender’s financial circumstances dictate the fine to be imposed. Capacity to pay is only one of many factors to be considered: Jahandideh v The Queen [2014] NSWCCA 178 at [15]–[17]; CDPP v WWO at [297]; see also Darter v Diden (2006) 94 SASR 505; [2006] SASC 152 at [30]. Perhaps more significantly, a ‘person’s capacity to pay cannot result in the imposition of fines that do not reflect the objective seriousness of the conduct or have the necessary general deterrent effect’: CDPP v Alkaloids at [220] citing Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2006) 65 ATR 547; [2006] QCA 558 at [96]–[98]; Chief Executive Officer of Customs v Jing [2007] NSWSC 1354 at [25]; see also Smith v The Queen (1991) 25 NSWLR 1 at 23–24; Environment Protection Authority v Hanna [2018] NSWLEC 80 at [267].
[37]Unlike s 52 of the Sentencing Act 1991, however, s 16C of the Crimes Act 1914 (Cth) does not require a court imposing a fine to take into account ‘the nature of the burden that its payment will impose’.
[38]Commonwealth Director of Public Prosecutions v Aussie Skips Bin Services Pty Ltd [2024] FCA 122, [177]. See also R v Denbo Pty Ltd (1994) 6 VIR 157, 159 (Teague J).
It seems clear that the fine of $1,300,000 imposed on LH Holding is beyond its capacity to pay. Taking into account — as s 52(1) of the Sentencing Act 1991 requires — the financial circumstances of the company, it is plain that LH Holding will be incapable of bearing the burden that its payment will impose. Quite clearly, the imposition of a fine of greater magnitude will be ruinous for the company, and will very likely remain unpaid. Notwithstanding that is so, however, the company’s financial circumstances cannot immunise it absolutely from the consequences of its offending, which demand the imposition of a fine of a magnitude which is commensurate with the objective seriousness of that offending, and which adequately reflects the need for general deterrence.
In our view, once it is apparent that any fine imposed must necessarily exceed the company’s capacity to pay, the issue largely resolves to whether the sentence imposed by the judge adequately reflects the objective seriousness of the offending and the need for general deterrence.
As we have indicated, we are satisfied that the fine imposed by the sentencing judge is manifestly inadequate. Bearing in mind the maximum fine of some $18 million for this offence, the fine imposed fails to reflect the objective seriousness of the offence — which, whilst not in the worst category for the offence was not in the least serious category — and fails to reflect the need for general deterrence. Whilst each of the subjective factors relied on by the company were relevant, in the proper exercise of the sentencing discretion they were required to play a subsidiary role to the objective seriousness of the offence, including the impact of the offending upon its victims. In our opinion, the fine imposed is altogether outside the range of sentences reasonably open to the judge had proper weight been afforded to those two factors.
For the foregoing reasons, we would allow the appeal in the case of LH Holding and set aside the sentence imposed. Endeavouring to balance, as best we are able, all relevant considerations, and being cognisant of the fact that the sentence we would substitute will be ruinous for the company, we would impose a fine of $3,000,000.
In imposing a fine of that order, we are not unmindful of the fact that, in all probability it will remain unpaid. It is necessary, however, that the level of the fine imposed fulfil the aims of general deterrence.
Finally, pursuant to s 6AAA we would declare that, but for the company’s plea of guilty, we would have imposed a fine of $4,500,000.

The appeal against the sentence imposed on Laith Hanna should be dismissed

Prosecuting counsel before the sentencing judge accepted that it was open to him to impose a CCO on Mr Hanna, but submitted it should be coupled to a fine.
The sentencing judge considered a CCO alone to be more appropriate, since to impose a fine in addition to the CCO to be imposed would be in breach of the principle of parsimony. Further, the judge considered that, notwithstanding that the company is a separate person in law and that Mr Hanna and the company have each committed an offence, the reality was that any fine imposed on LH Holding will also have an impact upon him personally. Additionally, the judge considered that the CCO will involve an element of punishment by way of community work, and will have a rehabilitative and protective component, requiring that Mr Hanna complete a forklift operation course.
As we have said, the DPP did not submit that, of itself, a CCO was not within the permissible range, but that the length of the CCO, and the number of community work hours, is manifestly inadequate. For the sentence to have fallen within the appropriate range, it was necessary that a much longer CCO with a much higher number of unpaid community work hours, or a CCO and a fine, needed to be imposed.

Had an appropriately severe fine been imposed on the company at first instance — given that Mr Hanna is, for all practical purposes, the company — there would have been little point in also imposing a fine upon him when making Mr Hanna subject to a CCO. For that reason, we do not find persuasive that aspect of the DPP’s submissions contending that the CCO should have been accompanied by a fine.
Of more moment is the complaint that the CCO should have been more punitive, of longer duration and more community work hours, to reflect the objective seriousness of the offending and the needs of general deterrence.
Had we been sentencing at first instance, we would have been inclined to impose a CCO of greater duration, and a more punitive element reflected in more community work hours. But that is not to the point. The issue is whether the CCO imposed was altogether outside the range of sentences open to the judge in the sound exercise of the sentencing discretion. Ultimately, we have concluded that the sentence, although lenient, was indeed open to the judge, so that for that reason the appeal concerning Mr Hanna should be dismissed.
But even had we concluded that the sentence imposed on Mr Hanna was manifestly inadequate, we would still have dismissed the appeal in the exercise of the residual discretion, in circumstances where Mr Hanna’s partial completion of the CCO indicates that his rehabilitation is at an advanced stage.
In our view, the appeal in Mr Hanna’s case should be dismissed.

Conclusion

The appeal involving LH Holding should be allowed; the sentence first imposed set aside; and, in lieu, a fine of $3,000,000 should be imposed.
The appeal against the sentence imposed on Laith Hanna should be dismissed.

GORTON AJA:

I respectfully agree with and gratefully adopt the summary of the facts, submissions and principles contained in the majority’s decision. Unlike the majority, however, I am not persuaded that the fine of $1.3 million ordered against LH Holding Management Pty Ltd, particularly if considered together with the order that it also pay compensation of $120,000,[39] is manifestly inadequate in the sense that it is outside the range reasonably open to the trial judge and justifies the inference that the exercise of the sentencing

discretion must have miscarried notwithstanding that no specific error can be identified in the reasoning process contained in the sentencing remarks.[40]
[39]Sentencing Act 1991 (Vic), s 53(1)(b).
[40]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); Clarkson v R (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); DPP v Macarthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA); Landale (a pseudonym) v The Queen [2022] VSCA 121, [77] (Kyrou, T Forrest and Walker JJA).

I agree with the majority’s decision and have nothing to add to the reasoning in the appeal against the sentence imposed on Mr Laith Hanna.
As the majority point out, the Director’s principal submission in the appeal against the sentence given to LH Holding Management Pty Ltd was that the level of the fine was too low for it to provide general deterrence and properly to reflect the seriousness of the offending and the maximum sentence available; that is, that, having regard particularly to those sentencing considerations, the fine was outside the range reasonably open and therefore such as to justify an inference that the sentencing discretion had miscarried.
The role that the maximum sentence available plays and the use of percentages is not straightforward. The maximum fine of approximately $18 million certainly indicates that workplace manslaughter is, unsurprisingly, a very serious offence. But s 52(1) of the Sentencing Act 1991 provides that if the court decides to fine an offender, it must ‘in determining the amount … 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’. A charge of workplace manslaughter will often, but not necessarily always, be made against a corporate employer and the circumstances of corporate employers in particular will vary enormously. That is, the maximum sentence provided must be seen in a context where an offender might be a large multinational corporation with a turnover in the hundreds of millions of dollars each year that has engaged in systemic improper conduct over time with a view to saving costs and where a fine of several millions of dollars will have no real impact on its finances, or the offender might, as is the case here, be a corporation with relatively modest assets where a fine of even one million dollars will result in its probable liquidation. That makes any submission dependent on the fine as a percentage of the maximum problematic. The fact that this fine is only 7% of the maximum certainly causes one to pause, but is not decisive of its being unreasonably low.
I accept LH Holding Management Pty Ltd’s submission that this is a ‘less-serious’ example of this serious offence. Every occasion of workplace manslaughter is serious because a person is only guilty of workplace manslaughter if they have engaged in conduct that involves ‘a great falling short’ of the standard of care required, involves a ‘high risk’ of death or serious injury, and in fact causes the death of another person.[41] But even so, some workplace manslaughters will be more egregious examples of the offence than others. The factors that moderate the degree of seriousness of LH Holding Management Pty Ltd’s conduct in this case include the following:
(a)First, it was an isolated and one-off event rather than a predictable result from an ongoing breach of duty, such as is the case with an unguarded piece of machinery regularly used or a repeated but unsafe work process developed by an employer for its employees;
(b)Second, when Mr Hanna embarked on the task of moving the A-frame, he did not ask for assistance or expect that anyone else would be participating in that task whose safety would be put at risk;
(c)Third, LH Holding Management Pty Ltd did not direct Mr Tsahrelias to engage in the unsafe work activity;
(d)Fourth, and relatedly, when Mr Tsahrelias appeared alongside the upright forklift, Mr Hanna, on the findings made by the sentencing judge, told Mr Tsahrelias to move and believed that Mr Tsahrelias had moved out of harm’s way before he returned to his task;
(e)Fifth, there is no suggestion that the accident occurred because LH Holding Management Pty Ltd chose to adopt a cheaper system of work that carried with it a higher risk of injury so as to advance its own interests above those of its employees. Indeed, the controlling mind of LH Holding Management Pty Ltd, Mr Hanna, was himself engaged in the high risk conduct and was putting his own safety at risk. This is not a case where the company’s management was exposing its workers to dangers while remaining safe themselves; and
(f)Sixth, and although this does not excuse the conduct, LH Holding Management Pty Ltd had ensured that Mr Hanna had obtained proper training in the use of forklifts. It was grossly negligent that Mr Hanna breached the principles of that training on this occasion, but that is still, in my view, less of a breach on the company’s part than allowing persons to engage in dangerous work activities without having first ensured that such training was obtained.
[41]Occupational Health and Safety Act 2004 (Vic), ss 39E, 39G.
As I hope is clear, these factors do not mean that LH Holding Management Pty Ltd through the actions of Mr Hanna was not, that afternoon, criminally negligent.
I agree, with respect, with the majority’s conclusion that general deterrence should ordinarily play a principal role when the sentencing discretion is exercised and their reasons for that conclusion. But the extent to which a fine of $1.3 million will act as a deterrent to others must be assessed on the assumption that the others under consideration have a proper understanding of the circumstances of this offending as revealed by the sentencing remarks. These circumstances include not just the matters set out above relating to the offending itself but also:
(a)LH Holding Management Pty Ltd has no prior convictions and there is no suggestion that it has other than an unblemished safety record;
(b)LH Holding Management Pty Ltd cooperated with the Victorian WorkCover Authority by providing statements and making admissions, and by an early plea of guilty it prevented the need for a ‘lengthy and complex’ trial that would have been distressing for Mr Tsahrelias’s family;[42]
(c)Mr Hanna, the sole owner and director and the effective mind of LH Holding Management Pty Ltd, and the person who embodied or acted as LH Holding Management Pty Ltd’s agent for the purpose of committing the negligent act, is deeply remorseful. He experiences ‘deep feelings of sadness and guilt about the tragic effect of his actions on [Mr Tsahrelias] and his family’.[43] He has ‘significant and persisting anxiety’ and ‘intrusive recollections’ of the incident that invoke ‘significant distress’ which is ‘increased by … his abiding sense of responsibility for [Mr Tsahrelias’s] death’.[44] The ‘impact upon him of this accident and his involvement in it has been profound’.[45] In my view, Mr Hanna’s remorse may properly be attributed to LH Holding Management Pty Ltd and justifies minimal weight being given to the sentencing objectives of specific deterrence and rehabilitation;[46] and
(d)LH Holding Management Pty Ltd is a company of modest size and resources. It has accumulated assets of between $300,000 and $400,000.[47] Mr Hanna and his wife together have equity in mortgaged properties of approximately $400,000,[48] and there is no suggestion that funds have in some way been funnelled out of the company or that they have the option of making good any shortfall out of their own resources. The fine imposed on the company, therefore, represents more than three times its assets and very likely imposes ruination on it and the loss of its business.
[42]R v LH Holding & Hanna [2024] VSC 90, 17 [84]-[85].
[43]Ibid 16 [81].
[44]Ibid 18 [91].
[45]Ibid 18 [92].
[46]Cf: Director of Public Prosecutions v Esso Australia Pty Ltd (2001) 124 A Crim R 200, 207 [40]-[48] (Cummins J); Australian Competition and Consumer Commission v Woolworths Ltd [2016] FCA 44, [126], [183]; Edelman J); Environment Protection Agency v Waste Recycling and Processing Corp (2006) 148 LGERA 299, 339 [215] (Preston J); Chief Executive of the Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1, 21 [81] (Pepper J).
[47]R v LH Holding & Hanna [2024] VSC 90, 24 [121].
[48]Ibid 24 [122].
A fine of $1.3 million, even though it is a relatively small fraction of the maximum fine that might be ordered, is still a substantial fine. Its deterrent effect and the extent to which it reflects the seriousness of the underlying conduct must be evaluated in circumstances where the death was caused by an isolated act of negligence by the owner of the company while engaged in a work task where he was himself at risk and he (wrongly but genuinely) believed that others were not at risk, where there was real, genuine and deep remorse and full cooperation, where there was little to no call for specific deterrence, where the company was a small proprietary company with modest means that will likely be put out of business by the fine and the obligation to pay compensation, and where fines might in other circumstances have to be imposed for the same offence on large multinational corporations that cause death through negligence associated with ongoing systemic failures or even deliberate decisions to cut corners on safety to protect their bottom lines. In my view, the $1.3 million fine, although low for a case of workplace manslaughter, when assessed in all the above circumstances, is consistent with adequate weight having been given to the considerations of general deterrence and the objective seriousness of the offence, and with due weight having been given to the subjective circumstances of LH Holding Management Pty Ltd – or at least I am not satisfied to the contrary.
For the above reasons, and while agreeing with the majority in the appeal against the sentence imposed on Mr Hanna, I would have dismissed the appeal against the fine imposed on LH Holding Management Pty Ltd.

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[2025] VSCA 75

11 April 2025