Inspector James v Dekorform Pty Ltd & Paul [2010] NSWIRComm 150

Inspector James v Dekorform Pty Ltd & Paul [2010] NSWIRComm 150

Dekorform committed a most serious breach of s 8(1) because the multirip circular saw was manifestly unsafe: internal anti-kickback fingers were missing, rollers and sleeves were damaged, employees were not prevented from standing in line with the in-feed, training and instruction were inadequate, and no adequate risk assessment was undertaken. Taking into account the seriousness, deterrence, cooperation, remorse, lack of prior convictions and a limited guilty plea discount, the appropriate fine for Dekorform was $125,000. Mr Paul was guilty by operation of s 26(1), but his role was remote from day-to-day Dekorform operations, his culpability was materially less than the corporation's,...

Jurisdiction
Australia
Judgment Date
12 November 2010
Procedural Posture
Prosecutions Under S 8(1), and by Way of S 26 in the Proceedings Against Robert Mark Paul, of the Occupational Health and Safety Act 2000 / Judgment on Penalty After Guilty Pleas
Outcome
Each defendant was found guilty. Dekorform Pty Ltd was convicted and fined $125,000 with a moiety to the prosecutor. The charge against Robert Mark Paul was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999, and both defendants were ordered to pay the prosecutor's costs in specified proportions.
Legal Topics
['breach of Employer Duty' 'director Liability' 'guilty Plea' 'objective Seriousness' 'risk Assessment' 'machine Guarding and Kickback Risk' 'general and Specific Deterrence' 'section 10 Dismissal' 'costs']
['occupational Health and Safety' 'sentencing'] ['breach of Employer Duty' 'director Liability' 'guilty Plea' 'objective Seriousness' 'risk Assessment' 'machine Guarding and Kickback Risk' 'general and Specific Deterrence' 'section 10 Dismissal' 'costs']

Case Brief

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Procedural Posture

Prosecutions Under S 8(1), and by Way of S 26 in the Proceedings Against Robert Mark Paul, of the Occupational Health and Safety Act 2000 / Judgment on Penalty After Guilty Pleas

Legal Issues

  1. 1 ['What penalty should be imposed on Dekorform Pty Ltd for breach of s 8(1) of the Occupational Health and Safety Act 2000.' 'Whether Robert Mark Paul, deemed guilty by s 26(1) of the Occupational Health and Safety Act 2000, should receive a monetary penalty or an order under s 10 of the Crimes (Sentencing Procedure) Act 1999.' "How the objective seriousness of the offence and the defendants' mitigating circumstances should be assessed." 'How the relative culpability of a personal defendant should be assessed where liability arises by deeming provision.']

Ratio Decidendi

Dekorform committed a most serious breach of s 8(1) because the multirip circular saw was manifestly unsafe: internal anti-kickback fingers were missing, rollers and sleeves were damaged, employees were not prevented from standing in line with the in-feed, training and instruction were inadequate, and no adequate risk assessment was undertaken. Taking into account the seriousness, deterrence, cooperation, remorse, lack of prior convictions and a limited guilty plea discount, the appropriate fine for Dekorform was $125,000. Mr Paul was guilty by operation of s 26(1), but his role was remote from day-to-day Dekorform operations, his culpability was materially less than the corporation's,...

Court Disposition

Each defendant was found guilty. Dekorform Pty Ltd was convicted and fined $125,000 with a moiety to the prosecutor. The charge against Robert Mark Paul was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999, and both defendants were ordered to pay the prosecutor's costs in specified proportions.

Orders

  • ['Each of the defendants is found guilty of the offence with which it or he has been charged.' 'The defendant Dekorform Pty Ltd is convicted accordingly. The charge against the defendant Robert Mark Paul is dismissed.' 'Dekorform Pty Ltd is fined the sum of $125,000 with a moiety to the prosecutor.' 'The defendants...