Workcover Authority of New South Wales v JML Tree Services Pty Ltd [2015] NSWDC 253

Workcover Authority of New South Wales v JML Tree Services Pty Ltd [2015] NSWDC 253

Although the offence resulted in the death of Mr Bard and required general deterrence, the particular risk mechanism was remote and not reasonably foreseeable, simple preventative measures were available, the offender had no prior convictions, had shown genuine remorse and cooperation, had taken substantial remedial safety steps, entered an early guilty plea, and had limited capacity to pay a fine. Giving full effect to the guilty plea discount, the appropriate disposition was conviction without any other penalty under section 10A Crimes (Sentencing Procedure) Act 1999, with agreed prosecution costs ordered.

Jurisdiction
Australia
Judgment Date
12 May 2015
Procedural Posture
Criminal Prosecution for Work Health and Safety Offence / Sentence After Guilty Plea
Outcome
Offender convicted without any other penalty pursuant to section 10A Crimes (Sentencing Procedure) Act 1999 and ordered to pay prosecution costs of $14,000.
Legal Topics
['duty of Person Conducting a Business or Undertaking' 'failure to Comply With Health and Safety Duty' 'risk of Death or Serious Injury' 'death of Employee' 'objective Seriousness' 'deterrence' 'mitigating Factors' 'capacity to Pay Fine' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['duty of Person Conducting a Business or Undertaking' 'failure to Comply With Health and Safety Duty' 'risk of Death or Serious Injury' 'death of Employee' 'objective Seriousness' 'deterrence' 'mitigating Factors' 'capacity to Pay Fine' 'prosecution Costs']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["What penalty should be imposed for the offender's failure to comply with its health and safety duty under section 19(1) of the Work Health and Safety Act 2011, contrary to section 32 of the Act." 'How the objective seriousness of the offence should be assessed, including the foreseeability of the risk, the death of Mr Bard, and available risk control measures.' 'What weight should be given to deterrence, aggravating and mitigating factors, the guilty plea, remorse, prior good character, cooperation, and capacity to pay a fine.' 'Whether an order should be made for prosecution costs.']

Ratio Decidendi

Although the offence resulted in the death of Mr Bard and required general deterrence, the particular risk mechanism was remote and not reasonably foreseeable, simple preventative measures were available, the offender had no prior convictions, had shown genuine remorse and cooperation, had taken substantial remedial safety steps, entered an early guilty plea, and had limited capacity to pay a fine. Giving full effect to the guilty plea discount, the appropriate disposition was conviction without any other penalty under section 10A Crimes (Sentencing Procedure) Act 1999, with agreed prosecution costs ordered.

Court Disposition

Offender convicted without any other penalty pursuant to section 10A Crimes (Sentencing Procedure) Act 1999 and ordered to pay prosecution costs of $14,000.

Orders

  • ['The offender is convicted without imposing any other penalty pursuant to section 10A Crimes (Sentencing Procedure) Act 1999.' "The offender is to pay the prosecutor's costs in the sum of $14,000."]