Safe Work NSW v Essential Energy P/L [2016] NSWDC 219

Safe Work NSW v Essential Energy P/L [2016] NSWDC 219

The offence was objectively serious because the offender operated in a high risk industry, the workers were exposed to an extreme and reasonably foreseeable risk of electrocution from an 11,000 volt live wire, and Mr Tooze died. Although the offender had substantial safety systems, the failure occurred at a higher organisational level by not recognising that the top circuit conductors should have been de-energised before the work. The sentence also had to reflect general and specific deterrence, the offender's prior work health and safety convictions and the substantial harm caused. Mitigating factors included good character, genuine remorse, support for the family and workers,...

Jurisdiction
Australia
Judgment Date
02 September 2016
Procedural Posture
Criminal Prosecution for Breach of Work Health and Safety Duty Contrary to Section 32 of the Work Health and Safety Act 2011 / Sentence After Guilty Plea
Outcome
Offender convicted and fined $300,000, with 50% of the fine payable to the prosecutor and agreed prosecution costs of $30,000 ordered.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'fatal Electrocution of Employee' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'aggravating and Mitigating Factors' 'early Guilty Plea' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['duty of Persons Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'fatal Electrocution of Employee' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'aggravating and Mitigating Factors' 'early Guilty Plea' 'prosecution Costs']

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Procedural Posture

Criminal Prosecution for Breach of Work Health and Safety Duty Contrary to Section 32 of the Work Health and Safety Act 2011 / Sentence After Guilty Plea

Legal Issues

  1. 1 ["What fine should be imposed for the offender's failure to comply with its health and safety duty, exposing Trevor Tooze to a risk of death or serious injury." "How the objective seriousness of the offence should be assessed having regard to the foreseeable risk of electrocution and Mr Tooze's death." 'What weight should be given to deterrence, prior convictions, substantial harm, remorse, good character, cooperation and the early plea of guilty.' 'Whether the victim impact statements should be considered in determining punishment.' 'Whether part of the fine should be paid to the prosecutor and whether prosecution costs should be ordered.']

Ratio Decidendi

The offence was objectively serious because the offender operated in a high risk industry, the workers were exposed to an extreme and reasonably foreseeable risk of electrocution from an 11,000 volt live wire, and Mr Tooze died. Although the offender had substantial safety systems, the failure occurred at a higher organisational level by not recognising that the top circuit conductors should have been de-energised before the work. The sentence also had to reflect general and specific deterrence, the offender's prior work health and safety convictions and the substantial harm caused. Mitigating factors included good character, genuine remorse, support for the family and workers,...

Court Disposition

Offender convicted and fined $300,000, with 50% of the fine payable to the prosecutor and agreed prosecution costs of $30,000 ordered.

Orders

  • ['I impose a fine of $300,000.' 'I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.' "I order that the offender pay the prosecutor's costs agreed in the sum of $30,000."]