R v LH Holding & Hanna - [2024] VSC 90

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0161; S ECR 2023 0102

Between:
THE KING
-and-
LH HOLDING MANAGEMENT PTY LTD	First Accused
-and-
LAITH HANNA	Second Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	10 & 16 October & 4 December 2023
DATE OF SENTENCE & SUMMARY OF REASONS:	19 February 2024
DATE OF FULL REASONS:	6 March 2024
CASE MAY BE CITED AS:	R v LH Holding & Hanna
MEDIUM NEUTRAL CITATION:	[2024] VSC 90

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CRIMINAL LAW — Sentencing — Forklift operated negligently by LH at his company’s factory toppled and killed MT — MT employed by business contracting to LH’s company at factory — LH’s company charged with workplace manslaughter — LH, as sole director and shareholder of company, charged as officer of company that committed workplace manslaughter attributable to officer’s failure to take reasonable care — First prosecution of workplace manslaughter — Serious offences — Accident reasonably foreseeable — Co‑operation — Pleas of guilty — Remorse — Previous good character — Excellent prospects of rehabilitation — Agreed compensation of $120,000 to MT’s sister — Limited financial resources of company and LH — Company convicted and fined $1,300,000 — LH convicted and placed on two‑year CCO with 200 hours’ unpaid community work and forklift safety course — Occupational Health and Safety Act 2004 (Vic), Part 5A & s 144(1)(a); Sentencing Act 1991 (Vic), ss 5 & 6AAA, Part 3A, Part 3B & Part 4 (Division 2).

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M Tittensor SC with Ms A French	Abbey Hogan, Solicitor for Public Prosecutions
For the accused	Mr R O’Neill with Ms A Beech	Ward & Co Legal Consultants
For the deceased’s family	Mr Z Partos	Carbone Lawyers

HIS HONOUR:

Overview

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

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

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

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

Summary of circumstances of offending

Background

In October 2021, Mr Hanna was the sole director and shareholder of LH Holding.…

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: [2024] VSC 90
Decision Date: 6 March 2024

CaseChat Overview and Summary

In the County Court of Victoria, the case of R v LH Holding & Hanna involved charges against the company LH Holding and its director, LH, related to the death of MT. MT was killed when a forklift operated by LH at the company's factory toppled over. MT was employed by a business contracting to LH's company at the factory. The company faced charges under the Occupational Health and Safety Act 2004 (Vic) for workplace manslaughter, while LH was charged as an officer of the company for the offence attributable to his failure to take reasonable care. This case marked the first prosecution of workplace manslaughter under the amended provisions of the Act.

The court had to determine the appropriate sentencing for the company and LH, considering the serious nature of the offences, the foreseeability of the accident, and the cooperation shown by the defendants. Both pleaded guilty and demonstrated remorse, and the court took into account their previous good character and prospects of rehabilitation. The company had limited financial resources, and LH's personal financial situation was also constrained. The court also considered the agreed compensation of $120,000 to be paid to MT’s sister.

After weighing these factors, the court convicted the company and imposed a fine of $1,300,000. LH was convicted and sentenced to a two-year community correction order, requiring him to complete 200 hours of unpaid community work and undertake a forklift safety course. The court's decision was guided by the relevant statutory provisions under the Occupational Health and Safety Act 2004 (Vic) and the Sentencing Act 1991 (Vic).

The final orders were that LH Holding pay the fine of $1,300,000, and LH complete the specified community service and training. This outcome reflects the court's consideration of the severity of the incident, the defendants' cooperation, and the need for deterrence and rehabilitation.

Orders