Director of Public Prosecutions v Minoan Constructions Pty Ltd
[2025] VCC 167
•14 February 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01365
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MINOAN CONSTRUCTIONS PTY LTD (ACN 622 373 611) |
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JUDGE: | HER HONOUR JUDGE BRIMER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 February 2025 | |
DATE OF SENTENCE: | 14 February 2025 | |
CASE MAY BE CITED AS: | DPP v Minoan Constructions Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 167 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – one charge of failure of a person who has management of control of a workplace to ensure that the workplace is safe and without risks to health – risk of falls from height – failure to implement reasonably practicable measures to reduce that risk – general deterrence - small family-operated commercial construction company – extra-curial punishment – financial circumstances - early plea of guilty – no prior convictions
Legislation Cited: Occupational Health and Safety Act 2004 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Chaplin v The Queen [2010] VSCA 145; Dotmar EPP Pty Ltd v The Queen [2015] VSCA 241; DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557; DPP v Andrew Buchanan Engineering Ltd [2021] VCC 2162; DPP v Best Benchtops [2022] VCC 2296; DPP v Brown (2023) 103 MVR 226; DPP v Coates Hire Operations Pty Ltd (2012) 36 VR 361; DPP v Concord Group Pty Ltd [2019] VCC 1846; DPP v D&A Martin Transport Pty Ltd [2024] VCC 1355; DPP v Dalgleish (a pseudonym) [2017] HCA 41; DPP v Frewstal Pty Ltd (2015) 47 VR 660; DPP v Misz Pty Ltd [2024] VCC 1449; DPP v Ourarchi Pty Ltd [2023] VCC 884; DPP v Palladian Three Pty Ltd & Sach Sackl [2022] VCC 325; DPP v Paul Kenneally & Anor [2019] VCC 658; DPP v Seascape Constructions Pty Ltd [2023] VCC 751; DPP v United Access Pty Ltd [2020] VCC 1085; DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55; DPP v WCA (Vic) Pty Ltd [2013] VCC 980; DPP v Yarra Valley Park Lane [2024] VCC 1863; Orbit Drilling Pty Ltd & Anor v The Queen [2012] VSCA 82; R v Daetz [2003] NSWCCA 216; R v Engert (1995) 84 A Crim R 67; R v Mooney (Unreported) Supreme Court of Victoria, CCA 21 June 1978; The Queen v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; Workcover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700
Sentence: Minoan Constructions Pty Ltd convicted and fined a total of $270,000.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T Bourbon | Office of Public Prosecutions |
| For the Accused | Ms F Fox | MinterEllison |
HER HONOUR:
Introduction
1
At about 3:20 pm on Monday, 7 February 2022, Nikolaos Anastasiadis
(Mr Anastasiadis) and Petros Kalimnakis were laying flooring sheets and installing timber guard railing on the mezzanine level of units under construction in Cheltenham (the workplace). They were using ladders to perform the tasks.
2The mezzanine level was about 4.15 metres above the ground. The ladder being used by Mr Anastasiadis was leaning against the post and the steel frame of the mezzanine level but was not secured.
3
As Mr Anastasiadis descended the ladder, the ladder began to move away from the mezzanine. Mr Anastasiadis and the ladder both fell to the ground below.
Mr Anastasiadis died at the scene.
The charge
4Minoan Constructions Pty Ltd (Minoan) has pleaded guilty to one charge of failing, so far as was reasonably practicable, to ensure that the workplace was safe and without risks to health, contrary to s 26(1) of the Occupational Health and Safety Act 2004 (Vic) (OHS Act).
5The maximum penalty for the offence contrary to s 26(1) of the OHS Act committed by a body corporate is 9,000 penalty units.[1] At the time of the offence, the maximum penalty equated to $1,635,660.
[1]At the time of the offending, the value of a penalty unit was $181.74.
Overview of Minoan Constructions
6Minoan is a family-operated, commercial construction company which trades as 'IKOS Group'.[2] It was first registered on 20 October 2017 and has three directors: Peter Kalimnakis, Paul Kalimnakis, and George Anastasiadis.[3]
[2]Exhibit 1 – Summary of Prosecution Opening dated 7 January 2025 at [2].
[3]Summary of Prosecution Opening at [3].
7Peter Kalimnakis is the father of Paul Kalimnakis, the father-in-law of George Anastasiadis, and the brother of Petros Kalimnakis.[4] Peter Kalimnakis made decisions about the works being performed at the workplace.
[4]Summary of Prosecution Opening at [3].
8Paul Kalimnakis would generally work from Minoan's head office.
9George Anastasiadis made decisions about the works being performed if Peter Kalimnakis was not on site.[5] George is the son of the deceased, Mr Anastasiadis.
[5]Summary of Prosecution Opening at [8].
10Keir Morgan is a qualified builder and carpenter, and is the brother-in-law of Peter and Petros Kalimnakis. Mr Morgan performed carpentry works at the workplace such as framing.[6]
[6] Summary of Prosecution Opening at [14].
11Minoan engaged subcontractors to perform the construction works at the workplace.[7] It did not have employees.
[7]Summary of Prosecution Opening at [4] and [7].
Circumstances of the offending[8]
[8]The circumstances of the offending are set out in more detail in the Director of Public Prosecutions’ ‘Summary of Prosecution Opening’, 7 January 2025. I have also read and taken into consideration: ‘Outline of sentencing submissions on behalf of the Director of Public Prosecutions’, 3 February 2024 (Exhibit 2); ‘Prosecution Comparable Cases’, 3 February 2024 (Exhibit 3); ‘Bundle of photographs’, 4 February 2024 (Exhibit 4); ‘Plea submissions on behalf of the accused’, 29 January 2025 (Exhibit A), Supporting material filed by Defence dated 29 January 2025 (Exhibit B), and Authorities filed by Defence dated 29 January 2025 (Exhibit C).
12In around September 2021, Minoan began constructing 10 commercial units, each with a mezzanine level. This was Minoan's first construction project.
13On 2 February 2022, Yellow Tongue flooring sheets for each of the 10 mezzanine levels was delivered.[9]
[9]Summary of Prosecution Opening at [15].
14Between 3 February and 7 February 2022, Mr Anastasiadis, Petros Kalimnakis and Mr Morgan were working at the workplace. Although it is not entirely clear which tasks were being performed and at what times, Mr Anastasiadis and Petros Kalimnakis installed timber guard rails on the mezzanine level of some of the units. They performed this work from ladders until the flooring sheets had been laid, at which point they worked on the floor of the mezzanine level, close to the unprotected edge.[10]
[10]Summary of Prosecution Opening at [18], [21] and [27].
15On the day of the incident, Mr Anastasiadis and Petros Kalimnakis set up two unsecured ladders. They climbed the ladders and started laying the flooring sheets. They drilled posts into the sides of the unit from the ladders so that they could install the timber guard railing. Mr Morgan was performing the same type of work on the other units. No temporary work platform was available. No directors of Minoan were present at the workplace.[11]
[11] Summary of Prosecution Opening at [23] and [26].
16At approximately 3.20 pm, Mr Anastasiadis told Petros Kalimnakis that they needed more timber for the rails. He started climbing down the ladder while speaking to Petros Kalimnakis and that is when the ladder began to move away from the mezzanine. Mr Anastasiadis and the ladder both fell to the ground below.[12]
[12] Summary of Prosecution Opening at [28].
17By its plea of guilty, Minoan accepts that there was a risk that in performing the tasks from unsecured ladders or while standing on the floor of the mezzanine level close to unprotected edges, Mr Morgan, Mr Anastasiadis and Petros Kalimnakis were exposed to the risk of falling from height, which could cause death or serious injury.[13]
[13]Indictment Particulars at [5], [6] and [11].
18Minoan further accepts that it had management and control of the workplace, and that it was reasonably practicable for it to have reduced that risk by:
(a) providing a temporary work platform, such as a mobile scaffold, for persons to use while they performed the tasks;
(b) arranging for the installation of engineered guard railing on both the internal and external sides of the mezzanine level in each commercial unit under construction; and
(c) providing for the appropriate staircases connecting the ground floor to the mezzanine level, for example:
(i)a permanent internal staircase; or
(ii)a temporary staircase; or
(iii)scaffolding staircases.
19Minoan failed to implement any of those measures.
The duty imposed by s 26 of the OHS Act
20The duty imposed by s 26 of the OHS Act is on a person who has, to any extent, management or control of a workplace. Such a person will not necessarily be an employer,[14] as is the case with Minoan.
[14]DPP v Yarra Valley Park Lane [2024] VCC 1863 at [17] (Yarra Valley).
21The duty imposed by this statutory provision is to ensure, so far as is reasonably practicable, that the workplace (and the means of entering and leaving) is safe and without risks to health. Those protected by s 26 are those who are at the workplace (as well as those who enter and leave).
22Where a person protected by the s 26 duty is not an employee of the duty holder, the person has no duty such as that imposed on employees. Rather, 'they will be entirely dependent on the person in management or control of the workplace for the protection of their health and safety.'[15]
[15] Yarra Valley at [25].
Objective seriousness of the offending
23Offences under the OHS Act are risk-based rather than outcome-based. The occurrence of death or serious injury is not an element of the offence charged. That means I am sentencing Minoan for the gravity of its failure to reduce the risk, as far as was reasonably practicable, of falling from height and not for the consequences of that failure: in this case, the death of Mr Anastasiadis.
24The primary sentencing factor is the objective seriousness of the offending. It is well established that this is the most important factor in determining the appropriate sentence to be imposed for a contravention of the OHS Act.[16]
[16] DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557, 565 at [35]
(Amcor Packaging), quoting with approval Workcover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700, 714 at [31].
25Factors that are subjective to an offender, to which I will come, must play a subsidiary role in the sentencing exercise.[17]
[17] Amcor Packaging, 565 at [35].
26The gravity of the breach of duty is measured by two factors:[18]
(a) the seriousness of the breach itself, that is, the extent to which the defendant departed from its statutory duty; and
(b) the extent of the risk of death or serious injury which might result from the breach; 'the foreseeable potential consequences' of the breach.[19]
[18]DPP v Frewstal Pty Ltd (2015) 47 VR 660, 686 at [127] (Frewstal).
[19]Amcor Packaging, 565 at [35]; Dotmar EPP Pty Ltd v The Queen [2015] VSCA 241 (Dotmar), at [22]-[23]; DPP v Coates Hire Operations Pty Ltd (2012) 36 VR 361, 22 at [68].
27An assessment of the extent of the risk of death or serious injury itself involves consideration of two factors:
(a) the likelihood of the occurrence of a safety endangering event; and
(b) the potential gravity of the consequence of such an event.
28The fact that the breach 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 and safety resulting from the breach.[20]
[20]Frewstal, 686 at [127].
29Mr Bourbon contended that the offending was very serious. There was a substantial departure from the duty owed by Minoan.
30Ms Fox submitted that the objective gravity of the offending ought to be seen as mid-range and not in the higher range due to the following:
(a)
There was a Safe Work Method Statement (SWMS) in relation to general carpentry relevant to Mr Morgan's work and a toolbox meeting held with
Mr Morgan on the day the flooring was delivered. It was decided a secured ladder would be used.
(b) There was not a high likelihood of the risk occurring. There is no evidence to suggest that Minoan knew or ought reasonably to have known that Mr Anastasiadis or Petros Kalimnakis (or any person other than Mr Morgan) would be working at height in the manner that was ultimately undertaken by them. No direction was given to them to perform the tasks. There was no general risk to persons on the worksite that was left unattended.
(c) It could not be said that Minoan was reckless or that there was a wanton disregard for safety or that the company adopted a cavalier or corner-cutting approach to safety. Minoan had considered that the use of a secured ladder and timber guard rails was appropriate to guard against the risk of falls from height.
31I find that Minoan's offending is objectively serious:
(a) Minoan knew of the risk of falls from height.
(i)Indeed, the risk is self-evident and notorious.[21]
[21] The Queen v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181 at [39].
(ii)The risk was identified in the carpentry SWMS.
(iii)The risk was inherent in the tasks that were being performed, namely the fitting of guard rails and laying of mezzanine flooring.
(b) Minoan ought reasonably to have known about ways of mitigating the risk:
(i)WorkSafe has ample guidance material available about the risk and the means of eliminating or reducing the risk.[22]
[22]Prosecution outline of sentencing submissions at [18] identified guidance material available about the risks and the means of eliminating or reducing the risk, including WorkSafe Victoria, Compliance Code: Prevention of falls in general construction, Edition 2, December 2019 (HUB, Exhibit 12) and WorkSafe Victoria, Compliance Code: Prevention of falls in housing construction, Edition 2, December 2019 (HUB, Exhibit 11).
(ii)The guidance material notes that the use of ladders is a lower-level control measure than the use of temporary work platforms, a reasonably practicable measure which Minoan accepts ought to have been implemented
(c) What it ought reasonably to have known is to be considered in light of:
(i)the principles of health and safety protection in s 4 of the OHS Act, in particular ss 4(1) and (2):
(1)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.
(2)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 reasonably practicable…”.
(ii)the proactive nature of the duty under the OHS Act carries with it a concomitant responsibility actively to seek out information about risks and the means of controlling the risks.[23]
(d) Minoan accepts that the reasonably practicable control measures that should have been implemented were simple, inexpensive and well-known.
(e) I find that the likelihood of the risk eventuating was high given the nature of the work being performed at height on ladders and close to unprotected edges.
(i)Ms Fox's submission as to what Minoan knew or ought reasonably to have known in respect of the tasks being performed by Mr Anastasiadis and Petros Kalimnakis unduly narrows the scope of the duty and the evaluation of the likelihood of the risk eventuating.
(ii)The charge concerns the risk of falls from height and protects persons at the workplace, including Mr Morgan. Mr Morgan was performing those tasks at height.
(iii)Even if one were to focus on Mr Anastasiadis and Petros Kalimnakis, the likelihood of the risk eventuating was high. They would come to site from time to time to 'help out'.[24] It was likely they would help Mr Morgan in laying the flooring and installing the guard rails. Minoan knew those tasks had to be conducted at height.
[23] Yarra Valley at [54].
[24]Summary of Prosecution Opening at [12]-[13].
(f) Minoan accepts that the potential gravity of the consequences of the risk eventuating was serious including the potential for death or serious injury.
32For the reasons just given, I consider Minoan to have departed substantially from its statutory duty. I accept, however, that the existence of the SWMS shows some attention was given to measures to guard against the risk of falls from height, albeit the identified measure was inadequate. A secured ladder was not the highest level of protection against the risk that was reasonably practicable in the circumstances. In considering the degree of Minoan's departure from its duty I have taken into account that this is not a case of no attention having been given to the safety risk.
33I accept Ms Fox's submission that it could not be said that there was a wanton disregard for safety, or that the company adopted a cavalier or corner-cutting approach to safety. The absence of those aggravating features does not mean, however, that the extent of the departure from its statutory duty was not substantial for the reasons set out above.
General deterrence
34It is uncontroversial that general deterrence is the most prominent sentencing purpose in cases of this kind.
35The Court of Appeal has repeatedly confirmed that in occupational health and safety prosecutions, general deterrence will 'normally assume considerable significance' and is a 'consideration of great importance'.[25] As the Court of Appeal further stated in Vibro-Pile:[26]
“…. general deterrence is of particular importance in offending of this kind. The sentences imposed need to draw attention to the importance of workplace safety, and to send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment.”[27]
[25]Orbit Drilling Pty Ltd & Anor v The Queen [2012] VSCA 82 at [60].
[26]DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55 (Vibro-Pile).
[27]Vibro-Pile at [233].
36Ms Fox contended that the primacy of general deterrence in sentencing does not preclude its moderation in the circumstances of this case.
(a)
Minoan is a small, family-owned business. The salutary loss of life of a family member of the company's directors has a punishing effect, as does the mere participation in the court process having regard to the death. The consequence of the breach (i.e. the death of a family member) serves the purpose of deterring other relevant members of the community (here,
family-owned businesses) such that there is no need to impose a significant fine to effect general deterrence.
(b) Ms Fox relied on:
(i)R v Mooney[28] in support of her submission that the consequence of the breach serves the purpose of deterring others. Lush J observed:
[28] Unreported, Supreme Court of Victoria, CCA 21 June 1978 (Young CJ, Lush and Jenkinson JJ) (R v
Mooney).
“The concept of the deterrence of others by the punishment of an offender is that an understanding that an offence is followed by substantial adverse consequences will prevent others from committing the offence. Regard to this consideration must, I think, be relevant to the use of the law as an instrument of social administration. Its significance in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.”
(ii)Director of Public Prosecutions v WCA (Vic) Pty Ltd[29] in support of her submission that the event itself has a strong deterrent effect. In that case, her Honour Judge Cohen stated:
[29][2013] VCC 980 (DPP v WCA).
“As has been noted in other cases, the primary purpose of this and similar legislative provisions is to focus on prevention of the risk of harm - specifically of injury or death to others. That makes deterrence of high importance, that is to deter others conducting similar types of businesses from taking risks with the safety of their customers, whether deliberately or by lack of due care and attention.
While I regard such general deterrence as having an important role in this case, I take into account that there has already been a strong general deterrent effect from the event itself. In the comparatively small field of adventure activity operators, in particular those in surf activities, the events the subject of this case are widely known, and will have been a very salutary reminder to all involved of the need to constantly re-assess risks and safety considerations. Similarly amongst schools organising such excursions or activities, the tragedy of these events will have become known very quickly, and will have acted as a reminder of the need to check and even question if all safety measures are adequate. In this way, I regard the events themselves as having acted as a significant deterrent to potential further breaches.”[30] (emphasis added)
(c)
Alternatively framed, Ms Fox submitted that given the death of a family member, Minoan is not an appropriate vehicle for general deterrence.
Ms Fox relied on a passage in R v Engert,[31] in the context of justification for general deterrence being moderated for offenders suffering from a mental impairment. In that case, Allen J, with whom Sully J agreed, observed:
“General deterrence is simply the deterrence of others and characteristics personal to an offender might make him an unpersuasive vehicle for the deterrence of others in the sight of those others. It must be emphasised that general deterrence is directed to deterring others. So one must look to the impact upon others. Even in a case where an offender has a mental disability which is unrelated to the commission of the crime the sympathy which his condition must attract in the eyes of others in the community generally may be such that to sentence him with full weight given to general deterrence might have no impact at all upon others. Human sympathy would say: 'Well, you would not expect him to get the same sentence as someone else'.”[32]
[30]DPP v WCA at [21]-[22] (emphasis added).
[31] (1995) 84 A Crim R 67 (R v Engert).
[32] R v Engert, 72. Defence outline of submissions at [42].
37I am not persuaded that the weight to be given to general deterrence ought to be moderated in the circumstances of this case as contended for by Ms Fox.
(a) The submission focuses the community of 'others' to be deterred too narrowly. I accept Mr Bourbon's submission that the need for general deterrence extends beyond other family-owned companies to those persons with management and control of workplaces.
(b) The sentence imposed needs to draw attention to the importance of workplace safety for all persons at the workplace, including to potential 'blind spots' where persons attend a workplace to 'help out' in undefined roles.
(c) I do not consider that this is a case where the characteristics personal to Minoan are such that it would be inappropriate to give general deterrence considerable weight in accordance with principle:[33]
(i)In R v Mooney, it was accepted that the offender was an inappropriate person to be made the medium of a deterrent sentence. At the time of the offending, which involved assaulting police officers, the offender was suffering a chronic mental illness which caused the offending. Since the offending, the illness had been brought under control and any repetition of the offences themselves was found unlikely. The Court's consideration of deterrence of others by their understanding that an offence 'is followed by substantial adverse consequences', was in the context of the question whether the imposition of a custodial sentence to protect the community from those who might be disposed to imitate him was appropriate given those circumstances.
(ii)Having regard to the need for general deterrence to extend to those with management and control of the workplace more broadly than to family-owned construction businesses, it could not be said in the present circumstances that a sentence with deterrence in view might have no impact on others, as was considered the case in R v Engert. The circumstances of that case were very different. The defendant had an intellectual disability.
(iii)The circumstances present in DPP v WCA, which included the 'small field of adventure operators' and that the events were 'already widely known', are not present here.
[33] This is consistent with DPP v Brown (2023) 103 MVR 226 at [50], [97] and [101] in which the respondent
pleaded guilty to the offence of dangerous driving causing death in relation to the death of his young son. General deterrence remained an “important consideration” notwithstanding that the respondent was sentence in relation to his son’s death and the respondent was profoundly remorseful and suffering PTSD.
38Nevertheless, that does not mean that the profound impact of the tragic death of Mr Anastasiadis, as the father of one of Minoan's directors and the experience of the court process in that family context, is not taken into account in arriving at the appropriate fine to be imposed.
39In my view, the principled approach is to give weight to general deterrence as a consideration of great importance consistent with authority, but to moderate the sentence appropriately to punish Minoan to an extent which is just having regard to its particular circumstances and to reflect what I accept is the very little need for specific deterrence.
40In that way, the Court may ensure that the sentence that is imposed with deterrence in view does not have an inappropriate retributive effect on Minoan.[34]
[34] R v Mooney (Lush J).
Just punishment
41The Court is required to take into account all material facts as required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment:
“How much weight a judge will give to extra-curial punishment would depend on all the circumstances of the case.”[35]
[35] R v Daetz [2003] NSWCCA 216 applied in Victoria in Chaplin v The Queen [2010] VSCA 145.
42I accept the prosecution submission that the need to punish Minoan ought to be moderated having regard to the unusual familial connections between the directors and Mr Anastasiadis. George Anastasiadis is both a director of the offender and a victim of the offending as the son of the deceased.
43The complexity of the impact of Mr Anastasiadis's death on the company was eloquently articulated by the directors in a joint letter to the Court. They describe how each director experiences the loss in their own way and how each must confront the reality of Mr Anastasiadis's death, both in terms of the impact on the business but also on their private but closely interconnected lives. Their profound loss is felt not only at work, but at family gatherings and milestones.
44Mr Anastasiadis's death has deeply affected the company’s ability to plan or pursue new projects. To date, Minoan has not undertaken another construction project at any scale and is primarily focusing on design-based works obtained through word-of-mouth as the company recovers and considers its future.
45I accept and have taken into account that the company through its directors has suffered significant extra-curial punishment by Mr Anastasiadis's death.
46I also accept that the company, through its directors, is remorseful and unlikely to re-offend.
Victim impact statements
47The prosecution and defence agreed that the Court ought to consider George Anastasiadis's and his mother, Vicki Anastasiadis's letters to the Court as victim impact statements,[36] and I have done so. There is no issue that Mr Anastasiadis's death was a direct result of the offending.
[36]Index of Supporting Material, pp 6-9.
48George Anastasiadis bears a tremendous sense of responsibility for the experiences his father will miss out on, the loneliness his mother feels, that his brother will never get the chance to make peace with his father, and the impact that his own experience of loss has had and continues to have on his own wife and children.
49Mrs Anastasiadis feels not only her own overwhelming sense of loss but also responsibility to ensure that she helps her sons and finds ways to console them. She lives with the grief day in and day out. The case has been hanging over their heads for three years, and Mrs Anastasiadis worries about the impact of a fine on her son and family.
Subjective factors
50Minoan has no prior convictions nor history of safety issues. Although this history must be seen in the context that the company was registered in 2017 and this was its first construction project, I have had regard to the fact that each of the directors has a long history of working in the broader family business.
51Peter Kalimnakis is a founder of Minoan and has decades of experience in building and architectural design. He is a registered commercial and residential builder with a Diploma in Architecture. He has been in the construction industry for approximately 40 years and there has not been a safety incident in that time. I have also had regard to Peter Kalimnakis's standing in the community.
52I have considered the references tendered on the plea in support of Minoan and its approach to safety. The prosecution accepts that the company is a good corporate citizen.
53In the aftermath of the incident, the directors cooperated with the WorkSafe investigation and complied with the prohibition notices. No further works were conducted until the prohibition notices were lifted.[37]
[37]Defence outline of submissions at [27].
54I accept that Minoan now places greater emphasis on workplace safety and has taken remedial action. The changes it has made are set out in detail in the directors' joint letter to the Court.[38]
[38]Index of Supporting Material, p 3 at [12].
55Minoan accepted responsibility and indicated its intention to plead guilty at the earliest opportunity.[39] The plea of guilty demonstrates a willingness to facilitate the course of justice and is of strong utilitarian value. By pleading guilty, Minoan has avoided the need for a trial, in which witnesses would be required to give evidence.
[39]Defence outline of submissions at [27].
56I have also taken into account the unexplained delay of 12 months between the incident and the charging of Minoan by WorkSafe. The prosecution accepts there was some delay in the finalisation of this matter, which is not attributable to the accused.
Financial circumstances
57Pursuant to s 52 of the Sentencing Act 1991 (Vic) (Sentencing Act), the Court must, 'take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose.'
58Ms Fox submitted that as a small business with a limited number of ongoing projects and no substantial future work planned, Minoan cannot absorb the cost of a penalty. A significant fine will have a ruinous effect on the company and its directors personally. The limited financial capacity of Minoan ought be given considerable weight in the instinctive synthesis but Ms Fox accepted that it does not override general deterrence:[40]
(a) Minoan operated at a loss $464,823 in the 2023-2024 financial year.[41] Its net asset position is negative $476,773.31.
(b) The directors, in their letter to the Court, stated that they will take personal responsibility for their share of any fine deemed appropriate by the Court, that all legal costs to date have been covered by the directors themselves and that they have a clean financial history with no prior involvement in bankruptcy proceedings and are firmly committed to maintaining this record.
(c) There was no evidence of the directors' personal financial positions. Ms Fox stated from the Bar table that, for this year, Peter Kalimnakis anticipates earning less than $100,000, George Anastasiadis less than $60,000, and Paul Kalimnakis less than $135,000. George Anastasiadis and Paul Kalimnakis both have mortgages.
[40]Defence outline of submissions at [22].
[41]Defence outline of submissions at [17]-[18] and [21].
59Mr Bourbon submitted that the material filed on behalf of Minoan falls short of establishing that the imposition of a significant fine would have a ruinous effect on the company and its directors personally. The prosecution accepted, however, that Minoan is a small construction company with modest assets, for which the payment of a significant fine will be burdensome.
60As general deterrence takes precedence in imposing a fine, Minoan's financial circumstances are not the primary consideration in determining the level of the fine. I have had regard to the material before me as to the financial capacity of the company and the position of the directors in determining the fine whilst keeping in mind the need to give effect to general deterrence. As the Court of Appeal accepted in Di Tonto v The Queen,[42] the directors' intention to meet any fine imposed on behalf of the company is to their credit.[43]
[42]Aldo Di Tonto; AM Design and Construction Pty Ltd v The Queen [2018] VSCA 312 (Di Tonto).
[43]Di Tonto at [29].
Current sentencing practice
61Section 5(2)(b) of the Sentencing Act requires the Court to have regard, among a range of other matters, to 'current sentencing practices' in sentencing an offender. I have had regard to the comparable cases provided to the Court.[44] Limited assistance can be derived from comparing this case to other cases,[45] however I have had regard to their similarities and their differences, and the submissions made about them.
[44]DPP v D&A Martin Transport Pty Ltd [2024] VCC 1355: $350,000 fine with conviction; DPP v Ourarchi Pty Ltd [2023] VCC 884: $370,000 fine with conviction; DPP v Palladian Three Pty Ltd & Sach Sackl [2022] VCC 325: $250,000 fine imposed on company with conviction and $70,000 fine with conviction imposed on the sole director; DPP v Seascape Constructions Pty Ltd [2023] VCC 751: $420,000 fine with conviction; DPP v W.F. Montague Pty Ltd [2018] VCC 1553: $380,000 with conviction; DPP v Concord Group Pty Ltd [2019] VCC 1846: $325,000 fine on each breach with conviction (two breaches in total); DPP v Paul Kenneally & Anor [2019] VCC 658: $300,000 fine imposed on company with conviction and $30,000 fine imposed with conviction on the director; DPP v Andrew Buchanan Engineering Ltd [2021] VCC 2162: $300,000 aggregate fine; DPP v Best Benchtops [2022] VCC 2296: $325,000 aggregate fine with conviction; DPP v Misz Pty Ltd [2024] VCC 1449: $160,000 fine with conviction; Di Tonto: on appeal, a $190,000 fine imposed on the company with conviction and a $50,000 fine imposed on the director with conviction; DPP v United Access Pty Ltd [2020] VCC 1085: $85,000 aggregate fine imposed with conviction (following a trial). In this case, the sentencing judge found the departure to be in the ‘lower mid-range’.
[45] DPP v Dalgleish (a pseudonym) [2017] HCA 41 at [82].
The sentence
62It is important to make clear that the sentence I impose is in no way a measure of the worth of Mr Anastasiadis's life. Rather, it is a reflection of the risk-based offences under the OHS Act and the significant number of factors which I am required by law to take into account.
63On the single charge of failing to ensure that the workplace is safe and without risks to health, with conviction, I fine Minoan Constructions Pty Ltd $270,000.
64Pursuant to s 6AAA of the Sentencing Act, I indicate that but for the plea of guilty, with conviction, I would have fined Minoan Constructions Pty Ltd $380,000.
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