SafeWork NSW v Piergrosse [2022] NSWDC 174

SafeWork NSW v Piergrosse [2022] NSWDC 174

The offence fell within the middle/high range of objective seriousness because the risk of death or serious injury from falling while dismantling the pencil pine at height was obvious, serious and known or ought to have been known to the defendant; the trainee arborist lacked the requisite competencies; no adequate tree assessment or safe rigging system was used; and simple, standard, reasonably practicable measures such as assessing for bark inclusion, using lowering ropes, cutting smaller sections and proper supervision were available. Balancing that seriousness, the substantial harm caused, and the need for general and specific deterrence against the early guilty plea, co-operation, no...

Jurisdiction
Australia
Judgment Date
25 May 2022
Procedural Posture
Criminal Prosecution for an Offence Under S 32 of the Work Health and Safety Act 2011 (nsw) / Sentence Following Plea of Guilty
Outcome
The defendant was convicted and fined $60,000 after a 25% discount for the early plea; 50% of the fine is payable to the prosecutor and the defendant must pay the prosecutor's costs as agreed or assessed.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'tree Removal Work' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'plea of Guilty' 'mitigating Factors' 'aggravating Factors' 'capacity to Pay']
['criminal Law' 'work Health and Safety' 'sentencing'] ['duty of Persons Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'tree Removal Work' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'plea of Guilty' 'mitigating Factors' 'aggravating Factors' 'capacity to Pay']

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Procedural Posture

Criminal Prosecution for an Offence Under S 32 of the Work Health and Safety Act 2011 (nsw) / Sentence Following Plea of Guilty

Legal Issues

  1. 1 ["What penalty should be imposed for the defendant's admitted failure to comply with his duty under s 19(1) of the Work Health and Safety Act 2011 (NSW)." 'How objectively serious the offence was, including the obviousness and gravity of the risk and the availability of reasonably practicable control measures.' 'What effect should be given to aggravating and mitigating factors, including death of the worker, early guilty plea, co-operation, remorse, rehabilitation, mental health issues and financial circumstances.' 'What weight should be given to general and specific deterrence.']

Ratio Decidendi

The offence fell within the middle/high range of objective seriousness because the risk of death or serious injury from falling while dismantling the pencil pine at height was obvious, serious and known or ought to have been known to the defendant; the trainee arborist lacked the requisite competencies; no adequate tree assessment or safe rigging system was used; and simple, standard, reasonably practicable measures such as assessing for bark inclusion, using lowering ropes, cutting smaller sections and proper supervision were available. Balancing that seriousness, the substantial harm caused, and the need for general and specific deterrence against the early guilty plea, co-operation, no...

Court Disposition

The defendant was convicted and fined $60,000 after a 25% discount for the early plea; 50% of the fine is payable to the prosecutor and the defendant must pay the prosecutor's costs as agreed or assessed.

Orders

  • ['The defendant is convicted.' 'The appropriate fine is $80,000.00, but that is to be reduced by 25% for the early plea.' 'I order the defendant to pay a fine in the sum of $60,000.00.' '50% of the fine imposed is to be paid to the prosecutor pursuant to s133(2) of the Fines Act 1996 (NSW).' "The defendant is to pay...