Safe Work NSW v Alejandro Bocaz [2017] NSWDC 271

Safe Work NSW v Alejandro Bocaz [2017] NSWDC 271

Although the offender's failure exposed three workers to a risk of serious injury and caused substantial harm to Mr Caboteja, the risk was foreseeable but not obvious, the likelihood of the risk materialising was low, the offender's lack of training was the most significant causal factor, the required precautions were simple, and there were strong mitigating factors including no prior convictions, good character, remorse, low risk of reoffending, a late guilty plea warranting a 10% discount, limited capacity to pay a fine, and agreed payment of $30,000 prosecution costs. In those circumstances the appropriate sentence was conviction with no further penalty under section 10A Crimes...

Jurisdiction
Australia
Judgment Date
09 October 2017
Procedural Posture
Criminal Prosecution for Work Health and Safety Offence / Sentence After Plea of Guilty
Outcome
The offender was convicted and no further penalty was imposed pursuant to section 10A Crimes (Sentencing Procedure) Act 1999; the offender was ordered to pay the prosecutor's agreed costs of $30,000.
Legal Topics
['duty of Individual Under Work Health and Safety Act 2011' 'risk of Death or Serious Injury' 'foreseeability of Risk' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'capacity to Pay Fine' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['duty of Individual Under Work Health and Safety Act 2011' 'risk of Death or Serious Injury' 'foreseeability of Risk' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'capacity to Pay Fine' 'prosecution Costs']

Case Brief

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Procedural Posture

Criminal Prosecution for Work Health and Safety Offence / Sentence After Plea of Guilty

Legal Issues

  1. 1 ['Whether the offender failed to comply with a health and safety duty under section 28 Work Health and Safety Act 2011 and thereby exposed workers to a risk of death or serious injury contrary to section 32 of the Act.' "What penalty was appropriate having regard to objective seriousness, aggravating and mitigating factors, deterrence, the offender's plea of guilty, remorse, lack of prior convictions, capacity to pay a fine, and agreed prosecution costs."]

Ratio Decidendi

Although the offender's failure exposed three workers to a risk of serious injury and caused substantial harm to Mr Caboteja, the risk was foreseeable but not obvious, the likelihood of the risk materialising was low, the offender's lack of training was the most significant causal factor, the required precautions were simple, and there were strong mitigating factors including no prior convictions, good character, remorse, low risk of reoffending, a late guilty plea warranting a 10% discount, limited capacity to pay a fine, and agreed payment of $30,000 prosecution costs. In those circumstances the appropriate sentence was conviction with no further penalty under section 10A Crimes...

Court Disposition

The offender was convicted and no further penalty was imposed pursuant to section 10A Crimes (Sentencing Procedure) Act 1999; the offender was ordered to pay the prosecutor's agreed costs of $30,000.

Orders

  • ['The offender is convicted.' 'I have considered the Victim Impact Statement of Mr Caboteja.' 'I impose no further penalty pursuant to section 10A Crimes (Sentencing Procedure) Act 1999.' 'I order that the offender pay the prosecutors costs as agreed in the sum of $30,000.']