WorkCover Authority of New South Wales (Inspector Paul Jorgensen) v Andrew Daoud [2006] NSWIRComm 37

WorkCover Authority of New South Wales (Inspector Paul Jorgensen) v Andrew Daoud [2006] NSWIRComm 37

Because Formbrace's breaches exposed employees and non-employees to serious risks in circumstances involving inadequately secured cantilevered formwork, work at height without adequate training or fall protection, and absence of barriers or warnings, and because the defendant was the sole director ultimately responsible for the company's conduct, s 10 relief was inappropriate. Allowing for the guilty pleas, first offence, cooperation, contrition, remedial steps, enhanced occupational health and safety commitment, and the totality principle, penalties totalling $20,000 were appropriate, apportioned equally between the two offences.

Jurisdiction
Australia
Judgment Date
16 May 2006
Procedural Posture
Prosecution Under S.26 of the Occupational Health and Safety Act 2000 for Alleged Breaches of Ss 8(1) and 8(2) / Sentencing After Pleas of Guilty
Outcome
Defendant convicted on each charge and monetary penalties, moiety, and costs ordered.
Legal Topics
['director Liability for Corporate Contraventions' 'workplace Safety on Construction Sites' 'guilty Plea Discount' 'section 10 Dismissal or Discharge' 'general and Specific Deterrence' 'totality Principle' 'costs and Moiety']
['occupational Health and Safety' 'criminal Sentencing' 'industrial Law'] ['director Liability for Corporate Contraventions' 'workplace Safety on Construction Sites' 'guilty Plea Discount' 'section 10 Dismissal or Discharge' 'general and Specific Deterrence' 'totality Principle' 'costs and Moiety']

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Procedural Posture

Prosecution Under S.26 of the Occupational Health and Safety Act 2000 for Alleged Breaches of Ss 8(1) and 8(2) / Sentencing After Pleas of Guilty

Legal Issues

  1. 1 ["What penalties should be imposed for the defendant's guilty pleas to two offences arising from Formbrace's contraventions of ss 8(1) and 8(2) of the Occupational Health and Safety Act 2000 by operation of s 26(1)." 'Whether the offences were objectively serious.' 'Whether the defendant should receive the benefit of an order under s 10 of the Crimes (Sentencing Procedure) Act 1999.' 'What discount should be allowed for the utilitarian value of the guilty pleas.' 'How the principle of totality should apply to penalties for the two offences.' 'Whether a costs order and moiety should be made.']

Ratio Decidendi

Because Formbrace's breaches exposed employees and non-employees to serious risks in circumstances involving inadequately secured cantilevered formwork, work at height without adequate training or fall protection, and absence of barriers or warnings, and because the defendant was the sole director ultimately responsible for the company's conduct, s 10 relief was inappropriate. Allowing for the guilty pleas, first offence, cooperation, contrition, remedial steps, enhanced occupational health and safety commitment, and the totality principle, penalties totalling $20,000 were appropriate, apportioned equally between the two offences.

Court Disposition

Defendant convicted on each charge and monetary penalties, moiety, and costs ordered.

Orders

  • ['I find the defendant guilty of each of the charges brought against him and he is convicted accordingly.' 'The defendant is to pay a monetary penalty of $10,000 with respect to each of the charges, with a moiety to the prosecutor.' 'The defendant is to pay the costs of the prosecution in an amount assessed by the...