SafeWork (NSW) v Gregory Paul Dunn [2016] NSWDC 212

SafeWork (NSW) v Gregory Paul Dunn [2016] NSWDC 212

The offender's breach was in the high range of objective seriousness because he required Mr Pierce to operate the tractor on sloping ground when the roll-over protective structure was folded down and tied down, the seat belt buckle had been removed, the risk of roll-over death or serious injury was obvious from warnings and a prior near miss at the site, and simple available measures could have avoided the risk. General deterrence, some specific deterrence, the substantial harm caused by Mr Pierce's death, and the absence of evidence establishing limited capacity to pay warranted a substantial fine, reduced by 20% for the guilty plea.

Jurisdiction
Australia
Judgment Date
12 September 2016
Procedural Posture
Criminal Prosecution for Work Health and Safety Offence / Sentence After Guilty Plea
Outcome
Offender convicted and fined $160,000; 50% of the fine ordered to be paid to the prosecutor; offender ordered to pay agreed prosecution costs of $26,500.
Legal Topics
['duty of Persons Undertaking Business' 'duty of Employers' 'risk of Death or Serious Injury' 'tractor Roll Over' 'roll Over Protective Structure' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'capacity to Pay a Fine' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['duty of Persons Undertaking Business' 'duty of Employers' 'risk of Death or Serious Injury' 'tractor Roll Over' 'roll Over Protective Structure' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'capacity to Pay a 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 ['Whether the offender failed to comply with a health and safety duty under section 21(2) Work Health and Safety Act 2011 and thereby exposed David Pierce to a risk of death or serious injury contrary to section 32 of the Act.' 'What objective seriousness attached to requiring Mr Pierce to operate the tractor on sloping ground when the roll-over protective structure was folded down and the seat belt buckle had been removed.' 'What weight should be given to general deterrence, specific deterrence, aggravating and mitigating factors, the guilty plea, capacity to pay, victim impact statements and prosecution costs in sentencing.']

Ratio Decidendi

The offender's breach was in the high range of objective seriousness because he required Mr Pierce to operate the tractor on sloping ground when the roll-over protective structure was folded down and tied down, the seat belt buckle had been removed, the risk of roll-over death or serious injury was obvious from warnings and a prior near miss at the site, and simple available measures could have avoided the risk. General deterrence, some specific deterrence, the substantial harm caused by Mr Pierce's death, and the absence of evidence establishing limited capacity to pay warranted a substantial fine, reduced by 20% for the guilty plea.

Court Disposition

Offender convicted and fined $160,000; 50% of the fine ordered to be paid to the prosecutor; offender ordered to pay agreed prosecution costs of $26,500.

Orders

  • ['The offender is convicted.' 'I impose a fine of $160,000.' '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 as agreed in the sum of $26,500."]