DISTRICT COURT OF QUEENSLAND CITATION:R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113PARTIES:THE QUEENvBRISBANE AUTO RECYCLING PTY LTDandHUSSAINI, AsadullahandKARIMI, Mohammad Ali JanFILE NO/S:Indictment No. 697/20PROCEEDING:SentenceORIGINATINGCOURT:District Court at BrisbaneDELIVERED ON:11 June 2020DELIVERED AT:BrisbaneHEARINGDATES:27 and 28 May 2020JUDGE:Judge A J Rafter SCSENTENCES:Brisbane Auto Recycling Pty LtdIn respect of Count 1:1. Conviction recorded.2. Order that the defendant be fined the sum of$3 million.Asadulla HussainiIn respect of Count 2:1. Conviction recorded.2. Sentenced to 10 months imprisonment. Order thatthe whole of the term of imprisonment besuspended forthwith. The operational period is 20months. The defendant must not commit anotheroffence punishable by imprisonment within theperiod of 20 months if the defendant is to avoidbeing dealt with for the suspended term ofimprisonment. 2 Mohammad Ali Jan KarimiIn respect of Count 3:1. Conviction recorded.2. Sentenced to 10 months imprisonment. Order thatthe whole of the term of imprisonment besuspended forthwith. The operational period is 20months. The defendant must not commit anotheroffence punishable by imprisonment within theperiod of 20 months if the defendant is to avoidbeing dealt with for the suspended term ofimprisonment.CATCHWORDS:WORK HEALTH AND SAFETY – SENTENCE – where aworkplace injury involving a forklift accident resulted indeath – where the injury resulting in death occurred at thebusiness conducted by Brisbane Auto Recycling Pty Ltd –where the company pleaded guilty to industrial manslaughter– where the directors pleaded guilty to reckless conduct –category 1Anderton (VWA) v Jackson, Unreported, Magistrates Court,Victoria at La Trobe Valley, 19 December 2018Barbaro v The Queen (2014) 253 CLR 58Bulga Underground Operations Pty Ltd v Nash (2016) 93NSWLR 338Chief Executive Officer of Customs v Labrador LiquorWholesale Pty Ltd & Ors (No 2) [2006] QSC 040Elias v The Queen (2013) 248 CLR 483Hili v The Queen (2010) 242 CLR 520Markarian v The Queen (2005) 228 CLR 357Nash v Silver City Drilling (NSW) Pty Ltd; Attorney-Generalfor New South Wales v Silver City Drilling (NSW) Pty Ltd[2017] NSWCCA 96Orr v Cudal Lime Products Pty Ltd; Orr v Shannon [2018]NSWDC 27Ryan v The Queen (2001) 206 CLR 267R v ABE [2019] QCA 83R v Ahmetaj [2015] QCA 248R v Edwards [2011] QCA 331R v GBD [2018] QCA 340R v Goodwin; Ex parte Attorney-General (Qld) (2014) 247 ACrim R 582R v Irvine (2009) 25 VR 75R v Lavin [2019] QCA 109R v Le [1996] 2 Qd R 516R v Levi, Unreported; Court of Criminal Appeal (NSW); 15May 1997R v Norris; ex-parte Attorney-General [2018] 3 Qd R 420R v Ryan and Vosmaer, ex parte Attorney-General [1989] 1Qd R 188 3 R v Soloman [2006] QCA 244R v Tout [2012] QCA 296R v UE [2016] QCA 58R v Verdins (2007) 16 VR 269R v Watts [2020] ACTSC 91Wong v The Queen (2001) 207 CLR 584R v Yarwood [2011] QCA 367Migration Act 1958 (Cth), s 501Penalties and Sentences Act 1992 (Qld), s 5, s 9, s 11, s 48, s144Work Health and Safety Act 2011 (Qld), s 3, s 9, s 18, s 19, s27, s 31, s 34, s 179I, s 179M, s 244COUNSEL:A J Guilfoyle for the CrownN V Weston for the defendantsSOLICITORS:Office of the Work Health and Safety Prosecutor for theCrownMills Oakley for the defendants The charges[1] On 3 April 2020 an indictment was presented charging the defendants with thefollowing offences.[2] Brisbane Auto Recycling Pty Ltd is charged in Count 1 with industrial manslaughtercontrary to s 34C Work Health and Safety Act 2011 (Qld). The charge is as follows:“On or about the 17th day of May 2019 at Rocklea in the State ofQueensland, Brisbane Auto Recycling Pty Ltd was conducting abusiness or undertaking, and a worker, namely Barry James Willis,was injured in the course of carrying out work for the business orundertaking and later died, and the conduct of Brisbane AutoRecycling Pty Ltd caused the death of the worker, and Brisbane AutoRecycling Pty Ltd was negligent about causing the death of the workerby the said conduct.”[3] Mr Hussaini is charged in Count 2 with reckless conduct – category 1 contrary to s31 Work Health and Safety Act 2011 (Qld). The charge is that:“Between about the 1st day of January 2018 and the 17th day of May2019 at Rocklea in the State of Queensland, Asadulla Hussaini had ahealth and safety duty pursuant to s 27 of the Work Health and SafetyAct 2011 to exercise due diligence to ensure Brisbane Auto RecyclingPty Ltd complied with its duty pursuant to s 19(1) of the Work Healthand Safety Act 2011, and, without reasonable excuse, engaged inconduct that exposed an individual, to whom that duty was owed, to arisk of death or serious injury or illness, and was reckless as to the riskto an individual of death or serious injury or illness.”4[4] Mr Karimi is charged in Count 3 with reckless conduct – category 1 contrary to s 31Work Health and Safety Act 2011 (Qld). The charge is that:“Between about the 1st day of January 2018 and the 17th day of May2019 at Rocklea in the State of Queensland, Mohammad Ali JanKarimi had a health and safety duty pursuant to s 27 of the WorkHealth and Safety Act 2011 to exercise due diligence to ensureBrisbane Auto Recycling Pty Ltd complied with its duty pursuant to s19(1) of the Work Health and Safety Act 2011, and, without reasonableexcuse, engaged in conduct that exposed an individual, to whom thatduty was owed, to a risk of death or serious injury or illness, and wasreckless as to the risk to an individual of death or serious injury orillness.”[5] The defendants pleaded guilty upon presentation of the indictment.The antecedents of the defendants[6] Brisbane Auto Recycling Pty Ltd is registered as a proprietary company limited byshares. It was registered on 9 March 2016. It has no previous convictions.[7] Mr Hussaini is 25 years of age. He was aged between 22 and 24 years at the time ofthe offending. He is an Afghani national and a permanent Australian resident. He ismarried with one dependent child aged about five months. He was married inPakistan in 2013. His wife and son live in Afghanistan. He has no criminal history.[8] Mr Karimi is 23 years of age.1 He was aged between 21 to 22 years at the time of theoffending. He is an Afghani national and a permanent Australian resident. He ismarried with two dependent children. He was married in Pakistan in 2015. The olderchild is about three years of age and the younger child is about one month old. Hiswife and daughters live in Afghanistan. Mr Karimi has no previous convictions.The maximum penalties[9] The maximum penalty for an offence of industrial manslaughter committed by a bodycorporate is a fine of $10 million.2[10] The maximum penalty for a reckless conduct – category 1 offence committed by anindividual as an officer of a person conducting a business or undertaking, is a fine of$600,000 (6,000 penalty units) or 5 years imprisonment.The circumstances of the offences[11] The offending relates to a fatality at the auto wrecking business conducted byBrisbane Auto Recycling Pty Ltd at 167 Marshall Road, Rocklea. On 17 May 2019a worker engaged by Brisbane Auto Recycling Pty Ltd, Barry Willis, was struck bya forklift which was being reversed by another worker, Mohammad Yaqubi. On 25May 2019, Mr Willis died from the injuries he sustained. The incident, and theconduct of those present at the site before and after the incident was captured by four1 Mr Karimi’s exact date of birth is not known. His age is based on an arbitrary date of birth chosenby migration lawyers: Affidavit of Mohammad Ali Jan Karimi at para 3.2 The maximum penalty stated in s 34C Work Health and Safety Act 201 (Qld) is 100,000 penalty unitsfor a body corporate. The value of a penalty unit for the Work Health and Safety Act 2011 (Qld) is$100: Penalties and Sentences Act 1992 (Qld), s 5(1)(d).5closed circuit cameras.3 I have viewed the CCTV footage. It is incredibly distressingto see Mr Willis crushed by the force of the forklift.[12] The business operated by Brisbane Auto Recycling Pty Ltd included the purchase ofused motor vehicles for resale, recycling and parts. The company was registered on9 March 2016. There were two directors, Mr Hussaini and Mr Karimi, who held anequal shareholding. Both directors supervised work activities at the Marshall Roadworkplace.[13] Brisbane Auto Recycling Pty Ltd engaged workers including Mr Willis, Mr Yaqubiand Nasrullah Hussaini.4 Mr Willis was engaged on a casual contract basis to collectmotor vehicles from customers and deliver them to the Marshall Road workplace. Hewas engaged to collect motor vehicles using a single cab Hino tilt tray truck whichwas owned by Brisbane Auto Recycling Pty Ltd.[14] On Friday 17 May 2019 at about 8.14am, Mr Willis drove the tilt tray truck out of theMarshall Road workplace to collect a motor vehicle. At 9.11am, a gas cylinderdelivery truck reversed into the main delivery area of the Marshall Road workplaceand continued to reverse to an area just outside the workshop shed entrance.[15] At about 9.19am Mr Willis returned to the workplace, having collected a white vanwhich was secured on the tray of the truck. He drove the vehicle to the delivery areaoutside the entrance to the workshop shed and parked next to the gas cylinder deliverytruck that had arrived several minutes earlier. He alighted from the tilt tray andcommenced removing the restraints which were securing the white van.[16] Mr Willis walked from where the tilt tray was parked, across the delivery area to themain office area. The gas cylinder delivery truck driver moved three more gas bottlesinto the workshop shed.[17] At about 9.26am, Mr Yaqubi drove a forklift from the workshop shed to the deliveryarea, and manoeuvred a partial car body adjacent to the driver’s side front corner ofthe tilt tray and driver’s side rear of the gas cylinder truck. Mr Yaqubi returned theforklift to the workshop shed and started sweeping an area inside the shed.[18] There were three Mitsubishi forklifts in use at the workplace. Brisbane AutoRecycling Pty Ltd purchased its first forklift in 2016 and the others between 1 January2017 and September 2017.[19] At about 9.28am Nasrullah used a separate forklift to reposition a partial car body inthe main delivery area before removing the white van from the tilt tray driven by MrWillis. The gas cylinder truck had been moved from adjacent to the tilt tray towardsthe front gate, away from the tilt tray, only moments earlier, to permit access to thetilt tray. It left the premises shortly after it was moved. Nasrullah positioned thewhite van on the ground approximately four metres from the driver’s side front cornerof the tilt tray, and returned the forklift to the workshop shed.[20] Over the next minute or so, Mr Willis moved four tyres from the outside wall of theworkshop shed, placing them on the tray of the truck, towards the cabin.3 Exhibit 2.4 Referred to as Nasrullah to avoid confusion with the defendant Asadullah Hussaini.6[21] At about 9.30am Mr Yaqubi drove a forklift from the workshop shed into the deliveryarea. Mr Willis commenced strapping down the four tyres while he was standing onthe driver’s side of the tilt tray. Mr Yaqubi repositioned the white van that waspreviously on the tilt tray.[22] Over the course of just over one minute from 9.31am to 9.32am, the following eventsoccurred. Mr Willis moved from the driver’s side of the tilt tray to the passenger side.Mr Yaqubi picked up a partial car body with the forklift approximately seven to eightmetres from the front driver’s side front corner of the tilt tray. Mr Willis moved fromthe passenger side of the tilt tray to the front of the tilt tray. Mr Yaqubi reversed withthe partial car body to within approximately three to four metres from the driver’sside of the tilt tray. Mr Willis moved back to the passenger side of the tilt tray. MrYaqubi attempted to reposition the forklift forks underneath the partial car body. MrWillis moved around the front of the tilt tray to the driver’s side front corner. MrYaqubi lifted the partial car body in the air. Mr Willis moved to the driver’s side ofthe tilt tray and continued securing the tyres on the tray. Mr Yaqubi moved forwardwith the suspended partial car body and attempted to place it on top of another carbody, lowering the forks of the forklift.[23] Inside the workshop shed, Nasrullah, with a car body suspended by only one forklifttine, drove out of the workshop shed towards the delivery area. Mr Yaqubicommenced to remove the forks from between the partial car body and it felluncontrolled to the ground. Mr Yaqubi reversed the forklift to allow Nasrullah todrive past him, turning the forklift toward the tilt tray where Mr Willis was standing.The forklift driven by Mr Yaqubi struck Mr Willis, crushing him between the backof the forklift and the tilt tray, and moving the body of the tilt tray in a jolting manner.Mr Yaqubi had reversed the forklift whilst looking forwards, turning to look behindhim only at about the point in time at which Mr Willis was struck. Nasrullahcontinued to drive towards the front of the forklift driven by Mr Yaqubi. Mr Yaqubidrove forward and Mr Willis fell to the ground.[24] Mr Hussaini and two other workers ran to Mr Willis to render assistance. Mr Hussainiwent back towards the office entrance and returned with a mobile phone and calledthe ambulance. He informed the operator that Mr Willis had fallen a distance ofapproximately one metre from the back of the truck. At about 9.38am a QueenslandAmbulance Service vehicle arrived and paramedics provided assistance to Mr Willis.At about 10.07am Mr Willis was taken by ambulance to the Princess AlexandraHospital. He died from the injuries sustained eight days later on 25 May 2019.The investigation[25] The investigation was conducted by Queensland Police and Workplace Health andSafety Queensland (WHSQ).[26] Before Mr Willis was taken to hospital, Mr Hussaini stated to a treating QueenslandAmbulance Service paramedic that Mr Willis had fallen from the truck.[27] Approximately one or two hours after the incident on 17 May 2019 Mr Hussainibecame aware of the precise mechanism of the injury to Mr Willis, but he did notadvise the Queensland Ambulance Service or treating doctors of that fact.[28] On the evening of 17 May 2019 Mr Hussaini and Mr Karimi attended the PrincessAlexandra Hospital where Mr Willis was being treated. Mr Willis’ daughter,7Josephine Cleeland was present at the hospital. Mr Karimi advised her that Mr Willishad fallen from his truck.[29] On the morning of 18 May 2019, an extract of CCTV footage showing the incidentwas provided to the partner of Laura Willis. Ms Willis contacted Ms Cleeland andtold her that Mr Willis had not fallen from the truck.[30] On 18 May 2019 Mr Hussaini and Mr Karimi attended the Princess AlexandraHospital. Mr Karimi spoke with Ms Cleeland. She requested that Mr Karimi adviseher how Mr Willis was injured and to provide her with a copy of the CCTV footageof the incident. Mr Karimi suggested that the CCTV footage might not be required.He proposed that a version of the incident could be put, that Mr Willis did not wincha car properly and that it rolled back on to him. Ms Cleeland refused to agree to theproposal and Mr Karimi said that he did not wish to get Mr Willis into trouble. MrHussaini did not hear this conversation.[31] Mr Karimi agreed on 18 May 2019 to provide a copy of the CCTV footage to MsCleeland the following day. On 19 May 2019, Ms Cleeland contacted Mr Karimi bytelephone and requested the copy of the CCTV footage. Mr Karimi advised that hehad not been to the yard and would provide the footage on 20 May 2019.[32] On 20 May 2019 Ms Cleeland contacted Mr Karimi by telephone and requested thecopy of the CCTV footage. Mr Karimi agreed to provide the footage.[33] On 21 May 2019 Ms Cleeland spoke with Mr Karimi who explained that he did notwish to give Ms Cleeland a copy of the CCTV footage as he did not want her to seeit due to its distressing nature, and that it would need to be sent off to “IT” todownload, which would take another three days.[34] Ms Cleeland arranged for a family friend to attend the Brisbane Auto Recycling PtyLtd workplace on 21 May 2019 to obtain a copy of the CCTV footage. Mr Karimiinitially refused, but ultimately permitted the footage to be viewed and recorded.After Ms Cleeland viewed the footage of Mr Willis being crushed by the forkliftdriven by Mr Yaqubi, she notified the police.[35] On 21 May 2019 a police constable stationed at the Princess Alexandra Hospital wasapproached by a treating doctor of Mr Willis. The doctor informed the policeconstable that Mr Willis’ injuries were not consistent with the QueenslandAmbulance Service report that he had fallen from a tow truck. The police constablewas informed that Mr Willis had vascular injuries as a result of trauma to the pelvicregion and may have been involved in a high impact incident, such as being hit by anobject or vehicle. The police constable attended the workplace to investigate thematter and make enquiries, in the course of which he spoke to Ms Cleeland.[36] On 21 May 2019, police notified WHSQ of the incident. Queensland Police andWHSQ investigators attended the workplace the same day and the investigationcommenced.[37] Mr Hussaini provided a statement to police on 21 May 2019. He said that hecommenced work on 17 May 2019 at 7.00am. At approximately 9.00am he heardsomeone call out. He then approached Mr Willis who was lying down and conscious,but not talking. He called 000 immediately. Mr Hussaini said that he told theambulance officers that someone had fallen from the truck. About one or two hours8later he checked the CCTV footage to see what had occurred and observed a forkliftreverse into Mr Willis. He said that he believed after watching the CCTV footageand speaking to Mr Karimi that the driver of the forklift was Sayed Ali Jan Athar. Hesaid he spoke to Mr Athar and asked him what happened and he replied, “I was puttinga car body there and the ground was slippery, when I reversed it I couldn’t control itand it slipped out”.[38] On 22 May 2019 Mr Hussaini was interviewed by a WHSQ investigator. He madeadmissions to the effect that there were no written safety policies or procedures withinthe workplace. He said that he had seen Mr Willis on the ground and made a quickenquiry and assumed that he had fallen off the truck. He said that he did notimmediately report the matter to Work Health and Safety Queensland because hedidn’t really know about such matters. When asked who managed the safety ofworkers, he said that he advises them verbally to be safe and to look after themselves.He said that forklift operators are required to be licensed, although he had not seenthe workers’ licences and simply relied on what he was told. He maintained that MrAthar was operating the forklift which struck Mr Willis. He said that they did nothave a WorkCover policy because he was not aware of the requirement to have one.He said that they had public liability and business insurance.[39] Mr Karimi provided a statement to police on 30 May 2019. He said that on the dayof the incident he left home at around 9.00am and drove to another business in whichhe had an interest, Blue Sky Auto Scrap Metal. At about 9.30am he received a callfrom Mr Hussaini about the incident and then travelled to Brisbane Auto RecyclingPty Ltd, arriving at about the time the ambulance was preparing to leave. He said thathe viewed the CCTV footage of the incident on 22 May 2019 and identified the driverof the forklift as Mr Yaqubi. He said that the other forklift in the vicinity of theincident was being driven by Nasrullah.[40] Mr Hussaini provided a further statement to police on 7 November 2019 in which hesaid that although Mr Athar did not say that he was the forklift driver involved in theincident, the words he used led him to assume that he was the operator. He said thatat a meeting on 22 May 2019 Mr Yaqubi told him that he was the driver of the forklift,and he then made an addendum statement to the police to that effect on 22 May 2019.[41] The investigation revealed that Brisbane Auto Recycling Pty Ltd had no safetysystems in place. In particular, there was no traffic management plan at the worksite,across which a number of forklifts operated constantly in close proximity to workersand members of the public.[42] The investigation also disclosed that Mr Yaqubi did not hold a high risk work licenceto operate a forklift. Brisbane Auto Recycling Pty Ltd had made no sufficientenquiries to confirm whether he held one. Mr Yaqubi was inexperienced, and therewas no sufficient assessment of his competency to operate a forklift.[43] Mr Yaqubi has been charged with dangerous operation of a motor vehicle causingdeath.The statutory regime[44] The Work Health and Safety Act 2011 (Qld) commenced operation on 1 January 2012.One of the main objects of the Act is to provide for a balanced and nationallyconsistent framework to secure the health and safety of workers and workplaces by9protecting workers and other persons against harm to their health, safety and welfarethrough the elimination or minimisation of risks arising from work or from particulartypes of substances or plant.5 A person conducting a business or undertaking mustensure, so far as is reasonably practicable, the health and safety of workers at theworkplace.6 Officers of corporations and unincorporated bodies have a duty toexercise due diligence to ensure that the person conducting the business orundertaking meets its work, health and safety obligations.7[45] Compliance with all duties under the Work Health and Safety Act 2011 (Qld) must beto the extent that compliance is reasonably practicable. Reasonably practicablemeans that which is, or was at a particular time, reasonably able to be done in relationto ensuring health and safety, taking into account and weighing up all relevant mattersincluding – (a)(b)(c)the likelihood of the hazard or the risk concerned occurring; andthe degree of harm that might result from the hazard or the risk; andwhat the person concerned knows, or ought reasonably to know, about(i)(ii)the hazard or the risk; andways of eliminating or minimising the risk; and(d)the availability and suitability of ways to eliminate or minimise therisk; andafter assessing the extent of the risk and the available ways ofeliminating or minimising the risk, the cost associated with availableways of eliminating or minimising the risk, including whether the costis grossly disproportionate to the risk.8(e) [46] The offence of industrial manslaughter contained in Part 2A Work Health and SafetyAct 2011 (Qld) was inserted by the Work Health and Safety and Other LegislationAmendment Act 2017. The provisions commenced on 23 October 2017.[47] Brisbane Auto Recycling Pty Ltd pleaded guilty to the offence of industrialmanslaughter in s 34C which provides:“34C Industrial manslaughter—person conducting business orundertaking (1)A person conducting a business or undertakingcommits an offence if—(a)a worker—(i)dies in the course of carrying out workfor the business or undertaking; oris injured in the course of carrying outwork for the business or undertakingand later dies; and(ii)(b)the person’s conduct causes the death of theworker; andthe person is negligent about causing the deathof the worker by the conduct.(c)Maximum penalty—(a)(b)for an individual—20 years imprisonment; orfor a body corporate—100,000 penalty units. 5 Work Health and Safety Act 2011 (Qld), s 3(1)(a).6 Work Health and Safety Act 2011 (Qld), s 19.7 Work Health and Safety Act 2011 (Qld), s 27.8 Work Health and Safety Act 2011 (Qld), s 18.10Note—See section 244 or 251 in relation to imputing to a body corporate or publicauthority particular conduct of employees, agents or officers of the bodycorporate or public authority. (2)An offence against subsection (1) is a crime.”Mr Hussaini and Mr Karimi pleaded guilty to reckless conduct – category 1, contraryto s 31 which provides:“31Reckless conduct—category 1 [48] (1)A person commits a category 1 offence if—(a)(b)the person has a health and safety duty; andthe person, without reasonable excuse, engagesin conduct that exposes an individual to whomthat duty is owed to a risk of death or seriousinjury or illness; andthe person is reckless as to the risk to anindividual of death or serious injury or illness.”(c) Sentencing principles[49] The purposes of sentencing set out in s 9(1) Penalties and Sentences Act 1992 (Qld)are: “9Sentencing guidelines(1)The only purposes for which sentences may beimposed on an offender are—(a)to punish the offender to an extent or in a waythat is just in all the circumstances; orto provide conditions in the court’s order thatthe court considers will help the offender to berehabilitated; orto deter the offender or other persons fromcommitting the same or a similar offence; orto make it clear that the community, actingthrough the court, denounces the sort of(b)(c)(d) conduct in which the offender was involved;or (e)to protect the Queensland community from theoffender; ora combination of 2 or more of the purposesmentioned in paragraphs (a) to (e).”(f) [50] In sentencing for offences against the Work Health and Safety Act 2011 (Qld) thecourt must have regard to the matters in s 9(2) Penalties and Sentences Act 1992. Theprosecution accepts that the principles in s 9(2)(a) that a sentence of imprisonmentshould only be imposed as a last resort, and that a sentence that allows the offenderto stay in the community is preferable, apply to the sentencing of Mr Hussaini andMr Karimi. Those principles do not apply to the sentencing of an offender for anoffence that resulted in physical harm to another person.9 The prosecution does notallege that the offending by Mr Hussaini and Mr Karimi caused the death ofMr Willis.10 In those circumstances, the Crown does not allege that their offending9 Penalties and Sentences Act 1992 (Qld), s 9(2A)(b).10 Crown submissions on sentence at para 24.11resulted in physical harm to Mr Willis. Therefore the principles in s 9(2)(a) that asentence of imprisonment should only be imposed as a last resort, and that a sentencethat allows the offender to stay in the community is preferable, are applicable.[51] In Nash v Silver City Drilling (NSW) Pty Ltd; Attorney-General for New South Walesv Silver City Drilling (NSW) Pty Ltd,11 the New South Wales Court of CriminalAppeal considered the relevant principles for sentencing under the equivalent NewSouth Wales legislation. Basten JA, with whom Hoeben CJ at CL and Walton Jagreed said:“[34] The sentencing judge commenced his consideration with theproposition that ‘[g]reater culpability attaches to the failure toguard against an event the occurrence of which is probablerather than an event the occurrence of which is extremelyunlikely.’ However, the truth of that proposition dependsupon other considerations, including (a) the potentialconsequences of the risk, which may be mild or catastrophic,(b) the availability of steps to lessen, minimise or remove therisk and (c) whether such steps are complex and burdensomeor only mildly inconvenient. Relative culpability dependsupon an assessment of all those factors.…[41] Broadly speaking, the degree of culpability of the respondentmay properly be assessed by reference to the risk againstwhich steps falling within the definition of what is‘reasonably practicable’ are to be taken.…[42] The culpability of the respondent is not necessarily to bedetermined by the remoteness of the risk occurring, nor by astep-by-step assessment of the various elements. Culpabilitywill turn upon an overall evaluation of various factors, whichmay pull in different directions. Culpability in this case isreasonably high because, even if the pressure event of theforce which occurred might not be expected to occur often,the seriousness of the foreseeable resultant harm is extremeand the steps to be taken to avoid it, which were not evenassessed, were straightforward and involved only minorinconvenience and little, if any, cost. That assessment willinvolve both objective considerations and a consideration ofwhat the respondent’s responsible officers knew or ought tohave known.”[52] The factors to which a sentencing court must have regard include the maximumpenalty;12 the nature of the offence and how serious the offence was, including anyphysical, mental or emotional harm done to a victim, including harm mentioned ininformation relating to the victim given to the court under s 179K;13 the extent towhich the offender is to blame for the offence;14 the offender’s character, age andintellectual capacity;15 the presence of any aggravating or mitigating factor11 [2017] NSWCCA 96.12 Penalties and Sentences Act 1992 (Qld), s 9(2)(b).13 Penalties and Sentences Act 1992 (Qld), s 9(2)(c).14 Penalties and Sentences Act 1992 (Qld), s 9(2)(d).15 Penalties and Sentences Act 1992 (Qld), s 9(2)(f).12concerning the offender;16 the prevalence of the offence;17 how much assistance theoffender gave to law enforcement agencies in the investigation of the offence or otheroffences;18 and any other relevant circumstance.19[53] In the present case other relevant circumstances to be taken into account pursuant tos 9(2)(r) Penalties and Sentences Act 1992 (Qld) are the risk of deportation ofMr Hussaini and Mr Karimi, and the impact of any sentences upon their dependants.In Mr Hussaini’s case it is also necessary to have regard to the psychiatric andpsychological reports tendered on his behalf.[54] The pleas of guilty by the defendants must be taken into account, and may result in areduction in sentence.20[55] In Elias v The Queen,21 French CJ, Hayne, Kiefel, Bell and Keane JJ said:“As this Court has explained on more than one occasion, the factorsbearing on the determination of sentence will frequently pull indifferent directions. It is the duty of the judge to balance oftenincommensurable factors and to arrive at sentence that is just in all ofthe circumstances.”[56] The balancing of all relevant factors in order to determine a sentence that is just in allthe circumstances is arrived at by the process of instinctive synthesis, as explained bythe High Court in Wong v The Queen:22“[T]he task of the sentencer is to take account of all of the relevantfactors and to arrive at a single result which takes due account of themall. That is what is meant by saying that the task is to arrive at an‘instinctive synthesis’. This expression is used, not as might besupposed, to cloak the task of the sentencer in some mystery, but tomake plain that the sentencer is called on to reach a single sentencewhich, in the case of an offence like the one now under discussion,balances many different and conflicting features.”The nature and seriousness of the offences[57] Mr Hussaini admitted that there were no safety systems in place. Whether theinaction by the defendants was due to expedience for commercial gain orcomplacency, or both, the moral culpability of each is high. The defendants knew ofthe potential consequences of the risk, which were catastrophic. Steps to lessen,minimise or remove the risk posed by mobile plant were available. Those steps wereneither complex nor overly burdensome. After the incident, Brisbane Auto RecyclingPty Ltd engaged Geoff Gallagher of RiskMan Group to develop a risk managementsystem to ensure it complied with its duties and any notices issued under the WorkHealth and Safety Act 2011 (Qld). The report indicates that apart from a system ofsupervision, the measures consisted of little more than the installation of signage,plastic bollards and marked exclusion zones. The cost of implementing suchmeasures was quite modest.16 Penalties and Sentences Act 1992 (Qld), s 9(2)(g).17 Penalties and Sentences Act 1992 (Qld), s 9(2)(h).18 Penalties and Sentences Act 1992 (Qld), s 9(2)(i).19 Penalties and Sentences Act 1992 (Qld), s 9(2)(r).20 Penalties and Sentences Act 1992 (Qld), s 13(1)21 (2013) 248 CLR 483 at 494 [27] (footnote references omitted).22 (2001) 207 CLR 584 at 611 [75] per Gaudron, Gummow and Hayne JJ13[58] The failure by the defendants to control the risk posed by mobile plant was consistentwith their attitude to safety at the workplace. By their pleas of guilty Mr Hussainiand Mr Karimi accept that they knew of the risk to the safety of their workers, butconsciously disregarded that risk. The offending by Mr Hussaini and Mr Karimi wasnot a momentary or isolated breach. The business commenced operation in 2016. Bythe commencement of 2018, it had grown in size, in terms of employees, turnoverand the presence of mobile plant, to the point where the conduct of Mr Hussaini andMr Karimi, in not taking steps to ensure the risk posed to workers was controlled,amounted to recklessness. The period of offending alleged in counts 2 and 3 isbetween 1 January 2018 and 17 May 2019.[59] Brisbane Auto Recycling Pty Ltd accepts by its plea of guilty to industrialmanslaughter that it caused the death of Mr Willis. The conduct of employees andofficers is imputed to a body corporate by s 244 Work Health and Safety Act 2011(Qld) which provides:“244 Imputing conduct to bodies corporate(1) For this Act, any conduct engaged in on behalf of abody corporate by an employee, agent or officer of thebody corporate acting within the actual or apparentscope of his or her employment, or within his or heractual or apparent authority, is conduct also engagedin by the body corporate.”[60] The extended period of time over which workers were placed at risk is relevant to anassessment of the criminality of Brisbane Auto Recycling Pty Ltd.[61] The imputed conduct of Mr Hussaini and Mr Karimi led to the death of Mr Willis, asdid the conduct of the forklift driver, Mr Yaqubi which flowed from the prolongedfailures.[62] There was no real attempt to assess or control the risks posed by mobile plant.The harm done to the victims23[63] The Willis family have suffered a profound loss. A victim impact statement waswritten by his eldest child, Josephine Cleeland.24 The victim impact statement wasread out by the prosecutor.25[64] Mr Willis was the father of four children. He had six grandchildren aged between 3and 11. Although he had separated from his wife 20 years ago, they were still marriedand remained close friends.[65] The family have struggled with the loss of Mr Willis. They have sufferedemotionally. Ms Cleeland concluded her victim impact statement by saying, “Wewere all robbed of a relationship so dear to each and every single one of us and weare all suffering because of it.”23 A victim includes a person who has suffered harm – (a) because a crime is committed against theperson; or (b) because the person is a family member or dependent of a person who has died becausea crime is committed against that person: Penalties and Sentences Act 1992 (Qld), s 179I; Victims ofCrime Assistance Act 2009 (Qld), s 5(1).24 Exhibit 16.25 Penalties and Sentences Act 1992 (Qld), s 179M(2)(b).14The maximum penalties[66] In sentencing an offender the court must have regard to the applicable maximumpenalties.26[67] In Markarian v The Queen27 the plurality said:“[C]areful attention to maximum penalties will almost always berequired, first because the legislature has legislated for them; secondly,because they invite comparison between the worst possible case andthe case before the court at the time; and thirdly, because in that regardthey do provide, taken and balanced with all of the other relevantfactors, a yardstick.”[68] However, it is not appropriate to “look first to a maximum penalty, and to proceed bymaking a proportional deduction from it.”28Character, age and mitigating factors[69] Brisbane Auto Recycling Pty Ltd has no previous convictions.[70] In Ryan v The Queen29 McHugh J referred to the observations of Gleeson CJ in R vLevi:30“[T]here is a certain ambiguity about the expression ‘good character’ [in thesentencing context]. Sometimes it refers only to an absence of priorconvictions and has a rather negative significance, and sometimes it refers tosomething more of a positive nature involving or including a history ofprevious good works and contribution to the community.”[71] A lack of previous convictions may reveal very little about the character of a person:R v Soloman.31 In Ryan v The Queen32 McHugh J explained that:“In the sentencing context, however, being of otherwise good character mayin some circumstances suggest that the prisoner’s actions in committing theoffence for which he or she is being sentenced were ‘out of character’ andthat he or she is unlikely to re-offend. For that purpose, the absence ofprevious convictions is usually regarded as evidence of good character.”[72] A body corporate may be a good corporate citizen by involvement in community andcharitable work: see for example, Orr v Cudal Line Products Pty Ltd; Orr vShannon.33[73] The prosecution pointed out that according to the forensic accountant’s report,Brisbane Auto Recycling Pty Ltd was behind in superannuation liabilities.34 Further,it did not hold a WorkCover policy.26 Penalties and Sentences Act 1992 (Qld), s 9(2)(b).27 (2005) 228 CLR 357 at 372 [31].28 Markarian v The Queen (2005) 228 CLR 357 at 372 [31].29 (2001) 206 CLR 267 at 276 [27].30 Unreported; Court of Criminal Appeal (NSW); 15 May 1997 at 5.31 [2006] QCA 244 at [24].32 (2001) 206 CLR 267 at 276 [29].33 [2018] NSWDC 27 at [151].34 Exhibit 9 at 5.10 to 5.13.15[74] However the forensic accountant’s report states that from May 2019 to the date of thereport on 30 April 2020, the company had incurred $47,430 on health and safetyremediation, with a further $3,485 yet to be conclusively verified.35[75] The absence of previous convictions is a relevant matter to be taken intoconsideration.[76] Mr Hussaini is 25 years of age. He has no previous convictions.[77] Mr Karimi is 23 years of age. He has no previous convictions.[78] In determining the character of an offender a court may consider any significantcontributions made to the community by the offender and such other matters that thecourt considers relevant.36[79] Mr Hussaini swore an affidavit setting out his background, personal circumstances,community involvement and other matters.37 Mr Karimi swore an affidavit settingout his personal circumstances, background and contribution to the community.38[80] Mr Hussaini and Mr Karimi are both young men who were exposed to extremeviolence in Afghanistan. At the age of 16, Mr Hussaini was abducted, assaulted andheld captive by men who claimed to have killed his father.39 When Mr Karimi was ateenager he was kidnapped and held prisoner for two weeks.40[81] At the instigation of their families Mr Hussaini and Mr Karimi fled Afghanistan asteenage refugees.[82] Mr Hussaini and Mr Karimi have worked exceptionally hard and built up a successfulbusiness with a turnover in excess of $2.5 million a year. The business providesemployment for up to eight persons, predominantly also former refugees. Aconsiderable amount of the income from the business is derived from exports to theMiddle East.[83] Mr Hussaini and Mr Karimi are permanent residents.[84] Mr Hussaini’s wife and child live in Afghanistan, and are awaiting processing of theirspousal visa application. Mr Karimi’s wife and children also reside in Afghanistanand are awaiting processing of their spousal visa application. In the case of bothdefendants, they are the sole source of financial support for their families.[85] Mr Hussaini and Mr Karimi are well regarded within the community. Members ofthe community as well as employees have provided character references as to theirgeneral good character, kindness and industry.41[86] Mr Hussaini and Mr Karimi have made contingency plans in the event that BrisbaneAuto Recycling Pty Ltd becomes insolvent as the result of the imposition of a35 Exhibit 9 at 2.8.36 Penalties and Sentences Act 1992 (Qld), s 11(b) and (c).37 Exhibit 6.38 Exhibit 4.39 Affidavit of Asadullah Hussaini at paras 14 to 38 (Exhibit 6).40 Affidavit of Mohammad Ali Jan Karimi at paras 21 to 41 (Exhibit 4).41 Exhibit 13.16substantial fine.42 Mr Hussaini and Mr Karimi had a meeting with 21 members ofthe Hazara community in Brisbane on 17 May 2020. The purpose of the meeting wasto ascertain whether any members of the community would be willing to invest orlend money towards the establishment of a new business in the event that BrisbaneAuto Recycling Pty Ltd is placed into liquidation. As a result of the discussions, MrHussaini and Mr Karimi are confident that they will be able to raise sufficient fundsto establish a new business. They say they will be very careful to observe all healthand safety obligations.Psychiatric and psychological reports in relation to Mr Hussaini[87] Mr Hussaini was referred by his general practitioner to Dr Mohsen Goki, psychiatristbecause of concerns about the deterioration in his mental state associated with theincident. Dr Goki saw Mr Hussaini on 22 June 2019 and on 11 subsequent occasions.In his report dated 21 April 2020,43 Dr Goki says that Mr Hussaini is remorseful.According to Dr Goki, the defendant has intense nightmares and flashbacks whichpersist to the present time. Mr Hussaini described that as a result of the incident, hebegan to experience the re-activation of nightmares and flashbacks of the trauma heendured in Afghanistan. Dr Goki is of the opinion that Mr Hussaini had undiagnosedpost-traumatic stress disorder because of his previous exposure to violence. MrHussaini’s present symptoms meet the diagnostic criteria for post-traumatic stressdisorder. He is being treated with medication for anxiety and insomnia, as well asnightmares and flashbacks. Mr Hussaini has been receiving psychotherapy focusingon distress tolerance and emotional regulation. Dr Goki is of the opinion that it ishighly likely that incarceration would exacerbate Mr Hussaini’s post-traumatic stressdisorder. He considers that it is highly doubtful that Mr Hussaini could endure a termof imprisonment and return to normal function, making his prognosis most likely tobe poor.[88] Mr Hussaini was assessed by Dr Luke Hatzipetrou, psychologist on 30 March 2020.Dr Hatzipetrou says that Mr Hussaini was visibly distressed when discussing theincident. He considers that Mr Hussaini is a very low risk of reoffending. DrHatzipetrou considers that the result of imprisonment would be that Mr Hussainiwould be re-traumatised and suffer a greater risk of further decline in his mental state.Mr Hussaini also has persistent fears of being deported and returned to Afghanistan.[89] In R v Yarwood44 the Court of Appeal explained the relevance of an offender’spsychiatric condition, adopting the propositions stated by the Victorian Court ofAppeal in R v Verdins:45“Impaired mental functioning, whether temporary or permanent (‘thecondition’), is relevant to sentencing in at least the following six ways:(a) The condition may reduce the moral culpability of the offendingconduct, as distinct from the offender’s legal responsibility. Wherethat is so, the condition affects the punishment that is just in all thecircumstances; and denunciation is less likely to be a relevantsentencing objective.42 Affidavit of Asadullah Hussaini at paras 157-167 (Exhibit 6); Affidavit of Mohammad Ali JanKarimi at paras 125-135 (Exhibit 4).43 Exhibit 8.44 [2011] QCA 367 at [24].45 (2007) 16 VR 269.17 (b)The condition may have a bearing on the kind of sentence that isimposed and the conditions in which it should be served.Whether general deterrence should be moderated or eliminated as a(c) sentencing consideration depends upon the nature and severity of thesymptoms exhibited by the offender, and the effect of the condition onthe mental capacity of the offender, whether at the time of theoffending or at the date of sentence or both.(d) Whether specific deterrence should be moderated or eliminated as asentencing consideration likewise depends upon the nature andseverity of the symptoms of the condition as exhibited by the offender,and the effect of the condition on the mental capacity of the offender,whether at the time of the offending or at the date of the sentence orboth. (e)The existence of the condition at the date of sentencing (or itsforeseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normalhealth.(f) Where there is a serious risk of imprisonment having a significantadverse effect on the offender’s mental health, this will be a factortending to mitigate punishment.”[90] It was not suggested that Mr Hussaini’s mental condition reduced his moralculpability for the offending. The consideration of general deterrence is notnecessarily eliminated by an offender’s impaired mental functioning, as explained inR v Ahmetaj46 by Morrison JA:“Deterrence is moderated, not eliminated, by consideration of the mentalimpairment. However, as was said by Hunt CJ at CL in R v Wright:‘The full understanding of the authority and requirements of the lawwhich is attributed to the ordinary individual of adult intellectualcapacities cannot be expected of a person whose intellectual functionis insufficient to have that understanding. The means by which thecourts give effect to that principle (as an instrument of socialadministration) is to moderate the consideration of general deterrenceto the circumstances of the particular case. But, if the offender actswith knowledge of what he is doing and with knowledge of the gravityof his actions, the moderation need not be great.’”[91] The opinions expressed by Dr Goki and Dr Hatzipetrou were not challenged by theprosecution. Where the offender’s mental condition is caused or contributed to bythe offending itself, the factor may not attract significant weight. Mr Hussaini’spresent condition is that he is experiencing recurrent, involuntary and distressingmemories of the incident. Although Dr Goki said that as a result of the incident, MrHussaini started to experience the reactivation of the trauma endured in Afghanistan,all of his present symptoms relate to the workplace incident.[92] In the circumstances, although the impact of imprisonment on Mr Hussaini’s mentalcondition is a relevant factor, it should not be given significant weight.46 [2015] QCA 248 at [53]18The prevalence of the offences[93] The prosecution does not contend that the offences can be characterised as prevalent,although it is pointed out that the offence of industrial manslaughter was only enacted18 months prior to the commission of the offence by Brisbane Auto Recycling PtyLtd.[94] However, the prosecution contends that the incidence of workplace deaths inQueensland is prevalent as illustrated in the following table:Queensland Workplace Fatalities YearTotal number ofWorkplace, Work RelatedDeathsForklift relatedWorkplace Deaths201744120183912019282 [95] The court is required by s 9(2)(h) Penalties and Sentences Act 1992 (Qld) to haveregard to the prevalence of the offence, rather than the prevalence of workplaceincidents. The increasing prevalence of a particular offence may be an importantfactor to be taken into account in the sentencing process.47General and specific deterrence[96] The prosecution accept that having regard to the post-incident measures taken by thedefendants and their lack of criminal history, there is little need for an element ofspecific deterrence in the penalties to be imposed.[97] It was submitted that the nature of the offending was such that general deterrence isa paramount sentencing consideration.[98] In Bulga Underground Operations Pty Ltd v Nash48 the New South Wales Court ofCriminal Appeal cited with approval the following observations of the VictorianCourt of Appeal in R v Irvine49:“Workplace safety requires employers to take the obligations imposedby the Act very seriously. The community is entitled to expect thatboth small and large employers will comply with safety requirements.General deterrence is therefore a significant sentencing factor whensafety obligations are breached.”[99] The sentences imposed should make it clear to persons conducting a business orundertaking, and officers, that a failure to comply with obligations under the WorkHealth and Safety Act 2011(Qld) leading to workplace fatalities will result in severepenalties.47 R v Ryan and Vosmaer, ex parte Attorney-General [1989] 1 Qd R 188 at 193.48 (2016) 93 NSWLR 338 at 373, [180].49 (2009) 25 VR 75 at 85, [52].19Assistance to law enforcement agencies in the investigation of the offence orother offences[100] Mr Hussaini participated in an interview, in which he admitted that Brisbane AutoRecycling Pty Ltd had no safety systems, beyond in effect telling the workers toensure their own safety. However, he misled investigators as to the identity of theworker who was driving the forklift. He did so in a written statement to police andin an interview with WHSQ investigators. He had viewed the CCTV footage shortlyafter the incident, so the only reasonable inference is that he deliberately misled theinvestigators. He provided an implausible account that Mr Athar was driving theforklift.[101] Both defendants subsequently provided statements to the police identifying MrYaqubi as the driver of the forklift. They cooperated fully with the investigationconducted by Workplace Health and Safety Queensland.Pleas of guilty[102] All defendants entered pleas of guilty at an early stage of the proceeding. The chargeswere laid by complaint made on 24 October 2019, which was first returnable on1 November 2019. All defendants had indicated on 17 October 2019, prior to beingcharged, that they proposed to plead guilty.[103] On 29 November 2019, Brisbane Auto Recycling Pty Ltd was committed to theDistrict Court for sentence. Mr Hussaini and Mr Karimi were committed for trial byway of registry committals.[104] An indictment was presented on 20 February 2020. A substituted indictment waspresented on 3 April 2020, and all defendants pleaded guilty on that date. The matterwas adjourned for sentence to 28 May 2020.[105] The pleas of guilty entered by the defendants have facilitated the administration ofjustice and together with other materials, provide a basis for concluding that they areremorseful.The prospect of deportation[106] The prosecution accepts that Mr Hussaini and Mr Karimi face the prospect ofdeportation by virtue of the operation of s 501 Migration Act 1958 (Cth).[107] The Migration Act 1958 (Cth) provides in s 501(3) that the Minister may cancel avisa if the Minister reasonably suspects that the person does not pass the charactertest50 and the Minister is satisfied that cancellation is in the national interest. By s501(3A) the Minister must cancel a visa if the Minister is satisfied that the persondoes not pass the character test and the person is serving a sentence of imprisonment,on a full-time basis in a custodial institution, for an offence against a law of theCommonwealth, or a State or Territory.[108] The prospect of deportation is a proper matter for consideration in determining theappropriate sentence, although a sentence should not be imposed solely for the50 The Migration Act 1958 (Cth), s 501(6)(a) states that a person does not pass the character test if theperson has a substantial criminal record, as defined in s 501(7). A person has a substantial criminalrecord if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).20purpose of circumventing the possibility of deportation: R v Norris; ex-parteAttorney-General.51 In R v GBD52 Fraser JA, with whom Sofronoff P and Mullins Jagreed, summarised the principles in R v Norris; ex-parte Attorney-General (Qld) asfollows: “[52]R v Norris; Ex-Parte Attorney-General (Qld) is authority forthe following conclusions:(a)The legislative intent underlying the Migration Act and reflected in s 501CA(6) is that a person who fails thecharacter test and is released from criminal custody wouldremain in immigration detention whilst revocation of adecision by the Minister to cancel the person’s visa ispursued.(b) Street CJ’s conclusion in R v Chi Sun Tsui that ‘the prospectof deportation is not a relevant matter for consideration by asentencing judge, in that it is the product of an entirelyseparate legislative and policy area of the regulation of oursociety’ is ‘explained by, and limited to, the statutory contextin which it arose and the particular issue which the court wasaddressing – that of the fixing of a non-parole period’ underthe New South Wales law applicable in that case.(c) The prospect of deportation may be a relevant factor to beconsidered in mitigation of a sentence where it makes theperiod of incarceration more onerous and also where, uponrelease, the fact of imprisonment will deprive the offenderof the opportunity of permanently residing in Australia,providing that the prospect of deportation or its impacts arenot merely speculative.(d) Even if the evidence before the sentencing judge does notjustify a finding that deportation would harm the offender ineither of those two ways, a sentencing judge should take intoaccount when imposing a sentence the relevance of likelydeportation on the efficacy of court ordered parole and thepotential consequences of that for the offender. (e)A sentencing judge should not adjust a sentence or impose alesser sentence for the purpose of defeating, avoiding or circumventing the operation of the provisions in theMigration Act. (f)That principle is not infringed by the adjustment of asentence to take into account the risk of interruption to an offender’s rehabilitation that immigration detention beyonda fixed release date would entail.”[109] The automatic cancellation of the defendants’ residency visas would result in thembeing placed in refugee detention for an indefinite period of time before having anyprospect of being resettled in a third country. The principle of non-refoulement meansthat it is unlikely that they would be returned to Afghanistan.51 [2018] 3 Qd R 420.52 [2018] QCA 340 at [52] (footnote references omitted).21[110] In the circumstances it is appropriate to have regard to the fact that the burden ofimprisonment will be greater for Mr Hussaini and Mr Karimi than for someone whodoes not face the risk of deportation. The fact that they may lose the opportunity ofsettling permanently in Australia is also relevant.53Impact on dependants[111] Mr Hussaini and Mr Karimi are the sole source of financial support for their families.Their wives are living in Afghanistan in a conflict zone with young children to carefor. A sentence of imprisonment may impact on their ability to continue to supporttheir families.[112] The hardship to an offender’s family resulting from imprisonment can be relevant,although it cannot overwhelm other factors such as retribution and generaldeterrence.54[113] Hardship to an offender’s family cannot be a basis for imposing a non-custodialsentence unless the hardship is of an exceptional character.55[114] The forensic accountant’s reports in relation to Mr Hussaini and Mr Karimi56 indicatethat they have sufficient financial resources to support their families for at least ashort period of time. However, I accept the submission made by Mr Weston on behalfof Mr Hussaini and Mr Karimi that even a short term of actual imprisonment wouldbe exceptionally disruptive to their prospects of re-establishing their business. Thiswould certainly impact on their ability to provide financial support to their families.[115] I conclude that the impact of a sentence of actual imprisonment upon the dependantsof Mr Hussaini and Mr Karimi is a relevant factor to be considered.Comparable cases[116] There are no comparable sentences for industrial manslaughter.[117] Comparable sentences assist in promoting consistency in the application ofsentencing principles as they provide guidance and stand “as a yardstick againstwhich to examine a proposed sentence”: Hili v The Queen.57 In R v Goodwin; Exparte Attorney-General (Qld)58 Mullins J made observations on the task of sentencingin the absence of comparable cases:“[37] The lack of comparable sentences may deprive the sentencingjudge of the assistance of ‘the yardstick’ for testing theproposed sentence, but it does not preclude the sentencingjudge from otherwise finding the relevant facts for thepurpose of the sentencing, weighing up the relevant factorsrelating to the offence and the offender, and applying theprinciples of sentencing found in the relevant legislation andthe common law, in order to reach the appropriate sentencefor that offending. The sentencing judge may very well find53 R v UE [2016] QCA 58 at [13].54 R v Le [1996] 2 Qd R 516 at 522; R v Tout [2012] QCA 296 at [19].55 R v ABE [2019] QCA 83 at [39]; R v Edwards [2011] QCA 331 at [69].56 Exhibit 10 and 11.57 (2010) 242 CLR 520 at 537 [53]-[54].58 (2014) 247 A Crim R 582 at 590 [37].22the exercise of the discretion to be more difficult, in theabsence of, and without the usual assistance afforded by,comparable sentences, but as a matter of principle thesentencing judge will have available sufficient material fromthe evidence adduced on the sentence and the relevant law toundertake the well-defined process of sentencing.”[118] The prosecution cited three cases of reckless conduct involving fatalities. Howeverit was submitted that none of the cases were particularly useful as yardsticks becauseof factual differences with the present matters.[119] In Orr v Cudal Lime Products Pty Ltd; Orr v Shannon,59 Cudal Lime Products PtyLtd (CLP) pleaded guilty to an offence that being a person who had a health and safetyduty pursuant to s 19(2) Work Health and Safety Act 2011 (NSW), without reasonableexcuse engaged in conduct that exposed a person to a risk of death or serious injuryand was reckless as to the risk. The maximum penalty was a fine of $3 million.Mr Shannon pleaded guilty to an offence that being a person who had a health andsafety duty pursuant to s 28 of the Act, failed to comply with that duty and therebyexposed a person to a risk of death or serious injury. The maximum penalty was$150,000. The circumstances of the offences were that CLP operated an open cutlimestone quarry. Mr Shannon was a worker for the company. At the direction ofCLP Mr Shannon conducted electrical work on a switchboard as part of its installationat the quarry in the absence of a qualified electrician or electrical engineer.Mr Shannon was acting within the scope of his employment, but was not a qualifiedelectrician nor electrical engineer. The electrical installation supply was alsoconnected to a residence on the quarry grounds. An occupant of a residence waselectrocuted when a fault originating from a combination of earthing, cabling andswitchboard failures energised a metallic shower hose and the other metallic fittings.CLP was fined $900,000. Mr Shannon was fined $150,000.[120] In R v Watts,60 the offender pleaded guilty to an offence that he was a person with ahealth and safety duty and, without reasonable excuse, engaged in reckless conductthat exposed an individual to whom that duty was owed to a risk of death or seriousinjury, and was reckless as to that risk. The maximum penalty for an offencecommitted by an individual was a fine of $300,000 or five years imprisonment, orboth. The offender was operating a non-slewing “pick and carry” crane beyond itscarrying capacity, and on significantly sloped ground. He was moving a largegenerator in darkness with poor artificial lighting. The crane overturned, killinganother co-worker who was assisting with guiding the crane operation. The offenderwas sentenced to 12 months imprisonment wholly suspended upon the offenderentering into a good behaviour order for 12 months.[121] In Anderton (VWA) v Jackson,61 the offender pleaded guilty to an offence contrary tos 32 Occupational Health and Safety Act 2004 (Vic) of having a duty not to recklesslyendanger persons at workplaces. The offender was a business owner who was liftinga large industrial bin containing scrap metal utilising a forklift. An employee waslocated inside the bin. The bin was being balanced on the tines of the forklift and wasbeing lifted up in the air with the worker inside, to enable him to throw scrap metalfrom the bin into a larger bin. The bin fell from the forklift tines. The worker’s head59 [2018] NSWDC 27.60 [2020] ACTSC 91.61 Unreported, Magistrates Court, Victoria at La Trobe Valley, 19 December 2018.23was crushed by the corner of the bin resulting in fatal injuries. The business ownerwas not the holder of a forklift licence. The sentence imposed was six monthsimprisonment.[122] In R v Lavin,62 the appellant was convicted by a jury of an offence against s 31 WorkHealth and Safety Act 2011 (Qld). He was sentenced to 12 months imprisonment,suspended after the appellant had served 4 months. The conviction was set aside onappeal because of errors in the directions to the jury. The Court of Appeal orderedthat there be a new trial. The appellant’s company had been subcontracted to performroofing work at a factory that was being refurbished. The quote included the supplyand installation of a safety rail. However a safety rail was not installed and instead aplan was adopted whereby workers used harnesses which were attached to ropessecured to the ground and then secured to fixing points on the roof. It was notcontemplated that all workers on the roof would use harnesses. The workersundertaking work away from the edge would not wear a harness as they were not indanger of falling from the roof. A worker who was working away from the edge andtherefore not wearing a harness approached the edge at some stage and tripped in agutter and fell off the roof. The worker fell a distance of almost six metres. Theground below the roof edge was covered in places by a concrete slab and in otherplaces by hard rubble. The worker suffered fatal injuries.Submissions on sentence[123] In Barbaro v The Queen63, the High Court held that a submission as to the bounds ofthe available range of sentences was a statement of opinion and not a submission oflaw.64 It was therefore held that a sentencing judge need not, and should not, take intoaccount a statement of opinion as to the range of available sentences.65 The positionin Queensland has been altered by s 15(1) Penalties and Sentences Act 1992 (Qld)which provides that a court may receive “a sentencing submission made by a party tothe proceedings, that it considers appropriate to enable it to impose the propersentence.” The term “sentencing submission” is defined in s 15(3):“(3) In this section—sentencing submission, made by a party, means a submissionstating the sentence, or range of sentences, the party considersappropriate for the court to impose.”[124] Accordingly, the parties made submissions in relation to the appropriate penalties tobe imposed.[125] Mr Guilfoyle for the Crown submitted that in respect of Brisbane Auto Recycling PtyLtd, a fine in the vicinity of $3 million should be imposed. In written submissions MrWeston accepted that a substantial fine should be imposed but submitted that it shouldbe somewhat less than $3 million. However, in oral submissions that contention wasnot maintained.[126] In respect of Mr Hussaini and Mr Karimi, it was submitted by Mr Guilfoyle for theCrown that the appropriate range of sentence was between 9 and 15 months62 [2019] QCA 109.63 (2014) 253 CLR 58.64 (2014) 253 CLR 58 at 75 [42].65 (2014) 253 CLR 58 at 76 [49].24imprisonment with an actual period in custody of no less than one third of the headsentence.[127] Mr Weston for Mr Hussaini and Mr Karimi accepted that they were equallyresponsible for the offending and there was no material distinction to be drawnbetween them.66 Mr Weston submitted that in each case sentences of imprisonmentof less than 12 months should be imposed, and that the sentences should be whollysuspended or served by way of an intensive correction order.Conclusions[128] The gravity of the offending and the moral culpability of each defendant is high.[129] The conduct of Brisbane Auto Recycling Pty Ltd caused the death of Mr Willisbecause it failed to control the interaction of mobile plant and workers at theworkplace, failed to effectively separate pedestrian workers and mobile plant, andfailed to effectively supervise operators of moving plant and workers.[130] Mr Hussaini and Mr Karimi were reckless as to the risk to workers and members ofthe public who had access to the workplace. They failed to ensure that Brisbane AutoRecycling Pty Ltd controlled the interaction of mobile plant and pedestrians, failed toensure that Brisbane Auto Recycling Pty Ltd effectively separated pedestrians andmobile plant, and failed to ensure that Brisbane Auto Recycling Pty Ltd effectivelysupervised operators of moving plant.[131] There are significant mitigating factors to be taken into account in each case.[132] In respect of Brisbane Auto Recycling Pty Ltd, I have concluded that a fine of$3 million is appropriate. A fine of that magnitude, which is less than one third of theavailable maximum penalty, is appropriate. A lesser penalty would not adequatelypunish Brisbane Auto Recycling Pty Ltd or serve to adequately deter others. Whenimposing a fine, it is necessary to have regard to the financial circumstances of theoffender, and the nature of the burden that payment of the fine will be on theoffender.67 The forensic accounting report in relation to Brisbane Auto Recycling PtyLtd indicates that it does not have the capacity to pay a fine of that magnitude or anysubstantial fine. However, that does not preclude the imposition of an appropriate finein the circumstances.68[133] Mr Hussaini and Mr Karimi engaged in conduct that was designed to deflectresponsibility for the incident. Mr Hussaini deliberately named Mr Athar as the driverof the forklift when he must have known that that was not the case. Mr Karimiinitially told Mr Willis’ daughter that he had fallen from the truck. Mr Karimisuggested to Mr Willis’ daughter that CCTV footage might not be required andproposed a version of the incident that placed responsibility for it on Mr Willis. Thatwas disgraceful behaviour occurring as it did at a time when Mr Willis’ daughterwould have been incredibly distressed.[134] However, despite having initially attempted to deflect responsibility in a somewhatinept manner Mr Hussaini and Mr Karimi have cooperated with the investigators,66 Outline of Submission for Asadullah Hussaini and Mohammad Ali Jan Karimi at para 4.67 Penalties and Sentences Act 1992 (Qld), s 48(1).68 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors (No 2) [2006] QSC040 at [17]-[22].25entered early pleas of guilty and they are clearly remorseful. The cooperationincluded providing statements identifying Mr Yaqubi as the driver of the forklift.They are both relatively young men with strong mitigating factors. Having regard totheir personal circumstances including their upbringing in Afghanistan, the prospectof deportation and their prior good character, I consider that the appropriate sentenceis 10 months imprisonment. The Crown submitted that the defendants should berequired to serve a relatively short period of no less than one third of the headsentence. I am satisfied that having regard to the significant mitigating factors, it isappropriate that the sentences be wholly suspended for an operational period of 20months.69 The imposition of wholly suspended sentences is consistent with theprinciple in s 9(2)(a)(ii) Penalties and Sentences Act 1992 (Qld) that a sentence thatallows the offender to stay in the community is preferable.[135] In the circumstances, I have concluded that wholly suspended sentences areappropriate.Sentences[136] Brisbane Auto Recycling Pty Ltd:In respect of Count 1:1. Conviction recorded.2. Order that the defendant be fined the sum of $3 million.Asadullah HussainiIn respect of Count 2:1. Conviction recorded.2. Sentenced to 10 months imprisonment. Order that the whole of the termof imprisonment be suspended forthwith. The operational period is 20months. The defendant must not commit another offence punishable byimprisonment within the period of 20 months if the defendant is to avoidbeing dealt with for the suspended term of imprisonment.Mohammad Ali Jan KarimiIn respect of Count 3:1. Conviction recorded.2. Sentenced to 10 months imprisonment. Order that the whole of the termof imprisonment be suspended forthwith. The operational period is 20months. The defendant must not commit another offence punishable byimprisonment within the period of 20 months if the defendant is to avoidbeing dealt with for the suspended term of imprisonment.69 Penalties and Sentences Act 1992 (Qld), s 144(2).
