SafeWork NSW v CRS NSW Pty Ltd; SafeWork NSW v Jay McGeachie Jenkins [2017] NSWDC 312

SafeWork NSW v CRS NSW Pty Ltd; SafeWork NSW v Jay McGeachie Jenkins [2017] NSWDC 312

The offenders' culpability was in the mid-range because they created and failed to control an obvious and reasonably foreseeable risk of death or serious injury: the Autopatch Vehicle had been modified to store kerosene contrary to its design, kerosene was used to clean pipelines, an LPG open flame gas torch was used near pressurised lines and flammable substances without a risk assessment, the manufacturer's safe systems were not used, training and safety systems were inadequate, and simple remedial steps were available at little or no cost. The serious injuries to Mr Pollard were a manifestation of the risk. Taking into account the substantial harm, deterrence, the offenders' lack of...

Jurisdiction
Australia
Judgment Date
03 November 2017
Procedural Posture
Criminal Prosecution for Work Health and Safety Offences / Sentence After Pleas of Guilty
Outcome
Both offenders convicted and fined; 50% of each fine ordered to be paid to the prosecutor; each offender ordered to pay the prosecutor's costs as agreed or assessed.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'officer Due Diligence Duty' 'risk of Death or Serious Injury' 'objective Seriousness' 'aggravating and Mitigating Factors' 'guilty Plea Discount' 'general and Specific Deterrence' 'capacity to Pay Fine' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['duty of Persons Conducting a Business or Undertaking' 'officer Due Diligence Duty' 'risk of Death or Serious Injury' 'objective Seriousness' 'aggravating and Mitigating Factors' 'guilty Plea Discount' 'general and Specific Deterrence' 'capacity to Pay Fine' 'prosecution Costs']

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Procedural Posture

Criminal Prosecution for Work Health and Safety Offences / Sentence After Pleas of Guilty

Legal Issues

  1. 1 ['What penalty should be imposed on CRS NSW Pty Ltd for failing to comply with its health and safety duty and exposing Mr Pollard to a risk of death or serious injury contrary to s 32 of the Work Health and Safety Act 2011.' 'What penalty should be imposed on Jay McGeachie Jenkins for failing to exercise due diligence to ensure CRS complied with its duty and exposing Mr Pollard to a risk of death or serious injury contrary to s 32 of the Work Health and Safety Act 2011.' 'How objective seriousness, aggravating factors, mitigating factors, deterrence, pleas of guilty, remorse, post-incident remedial measures, capacity to pay, and costs should affect sentence.']

Ratio Decidendi

The offenders' culpability was in the mid-range because they created and failed to control an obvious and reasonably foreseeable risk of death or serious injury: the Autopatch Vehicle had been modified to store kerosene contrary to its design, kerosene was used to clean pipelines, an LPG open flame gas torch was used near pressurised lines and flammable substances without a risk assessment, the manufacturer's safe systems were not used, training and safety systems were inadequate, and simple remedial steps were available at little or no cost. The serious injuries to Mr Pollard were a manifestation of the risk. Taking into account the substantial harm, deterrence, the offenders' lack of...

Court Disposition

Both offenders convicted and fined; 50% of each fine ordered to be paid to the prosecutor; each offender ordered to pay the prosecutor's costs as agreed or assessed.

Orders

  • ['In relation to CRS NSW Pty Ltd: The offender is convicted.' 'In relation to CRS NSW Pty Ltd: Order the offender to pay a fine of $160,000.' 'In relation to CRS NSW Pty Ltd: Order that 50% of the fine is to be paid to the prosecutor.' "In relation to CRS NSW Pty Ltd: Order the offender to pay the prosecutor's costs...