SafeWork NSW v KD & JT Westbrook Pty Ltd (No 2) [2019] NSWDC 15

SafeWork NSW v KD & JT Westbrook Pty Ltd (No 2) [2019] NSWDC 15

The offender's breach was objectively serious because the risk of serious injury or death from motorcycle falls or collisions was foreseeable, significant, known or ought to have been known, and included a risk of death; compliant helmets were available, and requiring and enforcing helmet use was simple, low-cost and minimally inconvenient. The court was satisfied beyond reasonable doubt that Mr Staker suffered skull fractures in the fall, that the fractures were substantial harm and were sustained because he was not wearing a helmet, and that his death was a direct result of the offence. Taking into account deterrence, aggravating and mitigating factors, remorse, rehabilitation...

Jurisdiction
Australia
Judgment Date
19 February 2019
Procedural Posture
Criminal Prosecution for Work Health and Safety Offence Contrary to Section 32 Work Health and Safety Act 2011 / Sentence After the Offender Was Found Guilty After Trial
Outcome
The offender was convicted, fined $180,000, ordered to publish an adverse publicity notice, and ordered to pay the prosecutor's costs as agreed or assessed.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'employer Health and Safety Duty' 'risk of Death or Serious Injury' 'motorcycle Helmet Use in Mustering Work' 'objective Seriousness' 'aggravating and Mitigating Factors' 'general Deterrence and Specific Deterrence' 'adverse Publicity Order' 'victim Impact Statement']
['criminal Law' 'work Health and Safety' 'sentencing'] ['duty of Persons Conducting a Business or Undertaking' 'employer Health and Safety Duty' 'risk of Death or Serious Injury' 'motorcycle Helmet Use in Mustering Work' 'objective Seriousness' 'aggravating and Mitigating Factors' 'general Deterrence and Specific Deterrence' 'adverse Publicity Order' 'victim Impact Statement']

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Procedural Posture

Criminal Prosecution for Work Health and Safety Offence Contrary to Section 32 Work Health and Safety Act 2011 / Sentence After the Offender Was Found Guilty After Trial

Legal Issues

  1. 1 ["What penalty should be imposed for the offender's breach of its health and safety duty exposing Ethan Staker to a risk of death or serious injury." 'Whether the offence was objectively serious, including the foreseeability and likelihood of the risk of serious injury or death from motorcycle use without helmets.' 'Whether substantial harm, injury, loss or damage was an aggravating factor under section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.' 'What mitigating factors applied, including absence of prior convictions, good character, prospects of rehabilitation, remorse, and likelihood of reoffending.' 'Whether an adverse publicity order should be made and in what publications.' "Whether the Victim Impact Statement could be taken into account on the basis that Mr Staker's death was a direct result of the offence."]

Ratio Decidendi

The offender's breach was objectively serious because the risk of serious injury or death from motorcycle falls or collisions was foreseeable, significant, known or ought to have been known, and included a risk of death; compliant helmets were available, and requiring and enforcing helmet use was simple, low-cost and minimally inconvenient. The court was satisfied beyond reasonable doubt that Mr Staker suffered skull fractures in the fall, that the fractures were substantial harm and were sustained because he was not wearing a helmet, and that his death was a direct result of the offence. Taking into account deterrence, aggravating and mitigating factors, remorse, rehabilitation...

Court Disposition

The offender was convicted, fined $180,000, ordered to publish an adverse publicity notice, and ordered to pay the prosecutor's costs as agreed or assessed.

Orders

  • ['The offender is convicted.' 'The offender is fined $180,000.' 'Pursuant to section 122(2) Fines Act 1996, 50% of the fine is to be paid to the prosecutor.' 'The offender must publish the Notice set out in Annexure A on or before 19 March 2019, or the first edition of the relevant publication after that date, in...