Kanawati v L'HARIDON Bight Mining Pty Ltd - [2023] WASC 262

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   KANAWATI -v- L'HARIDON BIGHT MINING PTY LTD [2023] WASC 262
CORAM:   STRK J
HEARD:   1 SEPTEMBER 2021
DELIVERED          :   17 JULY 2023
FILE NO/S:   SJA 1021 of 2021
BETWEEN:   MAHAMMED SALIM KANAWATI
Appellant
AND
L'HARIDON BIGHT MINING PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE E DE VRIES
File Number            :   CA 708/2019

Catchwords:

Criminal law - State appeal against sentence - Respondent convicted on plea of guilty - Fine imposed - Whether sentence imposed manifestly inadequate

Legislation:

Criminal Appeals Act 2004 (WA)
Mines Safety and Inspection Act 1994 (WA)
Mines Safety and Inspection Regulations 1995 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal granted
Appeal allowed
Sentence set aside
Respondent to be resentenced

Category: B

Representation:

Counsel:

Appellant	:	J T Bishop
Respondent	:	B W Standish

Solicitors:

Appellant	:	State Solicitor's Office
Respondent	:	Max Crispe

Cases referred to in decision:

Al Hussein v Commissioner for Consumer Protection [2014] WASC 296
Ausdrill Ltd v Hanekom [2009] WASC 307
Ayton v City of Armadale [2020] WASCA 39
Balla v Jason Aaron Nominees Pty Ltd [2019] WASC 161
BHP Billiton Iron Ore Pty Ltd v Capon [2014] WASC 267
BHP Billiton Iron Ore Pty Ltd v Capon [2014] WASC 267 (S)
C E Oates & Sons Pty Ltd t/as Narrogin Retravision v Balla [2015] WASC 144
CMB v Attorney General for New South Wales [2015] HCA 9; (2015) 256 CLR 346
Debri Pty Ltd t/as R & K Installations v Morrison [2012] WASC 364
Fremantle Steam Laundry Pty Ltd v Shepherd [2000] WASCA 17
Gaskell v The State of Western Australia [2018] WASCA 8
Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435
Henry Walker Eltin Contracting Pty Ltd v Briggs [2002] WASCA 53
Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586
Kalgoorlie Consolidated Gold Mines Pty Ltd v Hanekom [2010] WASC 259
Keating v Fry [2012] WASC 15; (2012) 217 IR 186
Morrison v Winton (Unreported, WASC, Library No 960698, 12 December 1996)
Ninyette v Holmes [2015] WASC 287
Palynolab Resources Pty Ltd v Morrison (Unreported, WASC, Library No 960477, 22 August 1996)
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scherini v Cleveland Freightlines Pty Ltd [2018] WASC 5
Sgroi v The Queen (1989) 40 A Crim R 197
Shepherd v Co‑operative Bulk Handling [2001] WASCA 413
The State of Western Australia v AHD [2021] WASCA 13
The State of Western Australia v Saleh [2020] WASCA 205
The State of Western Australia v Wilson [2015] WASCA 119

STRK J:

Introduction

On 8 December 2020, the respondent pleaded guilty to a charge that on 18 May 2017, being an employer at a mine, it failed, so far as it was practicable, to provide and maintain a working environment in which its employee was not exposed to hazards, and by that contravention caused serious…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WASC 262
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia granted leave to the State to appeal the sentence imposed on L'Haridon Bight Mining Pty Ltd (the respondent) by the Magistrates Court, finding the sentence manifestly inadequate. The respondent was convicted of a breach of its duty under the Mines Safety and Inspection Act 1994 (WA) to provide and maintain a safe working environment, which resulted in an employee suffering serious harm. The maximum penalty applicable was $400,000, but the respondent was fined $20,000. The Court found the fine imposed was manifestly inadequate and unreasonable or plainly unjust, having regard to the seriousness of the offence and the mitigating factors. The appeal was allowed, and the sentence set aside, with the respondent to be resentenced.

Orders