WorkCover Authority of NSW (Inspector Moore) v E & T Bricklaying Pty Ltd [2016] NSWDC 16

WorkCover Authority of NSW (Inspector Moore) v E & T Bricklaying Pty Ltd [2016] NSWDC 16

The incident was readily foreseeable, the consequences of electric shock or electrocution were readily foreseeable, and measures were readily available to avoid the risk. E & T had a positive statutory duty to ensure so far as practicable Mr Rahimi's health, welfare and safety and did not do what was required. Its responsibility was less than JMW's but not a mere fraction of it. General and specific deterrence were relevant. The submissions seeking no penalty or no conviction for Mr Kose on parity grounds, and the submissions of remorse or contrition, were unsupported by evidence and rejected. Appropriate penalties were fines of $80,000 for E & T and $10,000 for Mr Kose, with a moiety to...

Jurisdiction
Australia
Judgment Date
24 February 2016
Procedural Posture
Criminal Sentencing for Offences Under the Work Health and Safety Act 2011 / Sentence After Convictions Entered on 16 December 2015
Outcome
E & T Bricklaying Pty Ltd was fined $80,000 and Eyup Kose was fined $10,000; in both instances a moiety was to be paid to the prosecutor, and the defendants were ordered to pay the prosecutor's costs.
Legal Topics
['work Health and Safety Act 2011 Offences' 'gravity of Offence' 'foreseeability of Risk' 'parity Principle' 'general Deterrence' 'specific Deterrence' 'remorse and Contrition' 'victim Impact Statement' 'costs']
['criminal Law' 'work Health and Safety' 'sentencing'] ['work Health and Safety Act 2011 Offences' 'gravity of Offence' 'foreseeability of Risk' 'parity Principle' 'general Deterrence' 'specific Deterrence' 'remorse and Contrition' 'victim Impact Statement' 'costs']

Case Brief

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Procedural Posture

Criminal Sentencing for Offences Under the Work Health and Safety Act 2011 / Sentence After Convictions Entered on 16 December 2015

Legal Issues

  1. 1 ['What penalties should be imposed on E & T Bricklaying Pty Ltd and Eyup Kose for offences under the Work Health and Safety Act 2011.' 'Whether the parity principle applied between E & T and JMW Developments Pty Ltd and how it affected sentence.' 'Whether general deterrence and specific deterrence should be taken into account.' 'Whether an order under s 10A(1) of the Crimes (Sentencing Procedure) Act 1999 or s 239 of the Work Health and Safety Act 2011 should be made in respect of Mr Kose.' 'Whether there was evidence of remorse or contrition.']

Ratio Decidendi

The incident was readily foreseeable, the consequences of electric shock or electrocution were readily foreseeable, and measures were readily available to avoid the risk. E & T had a positive statutory duty to ensure so far as practicable Mr Rahimi's health, welfare and safety and did not do what was required. Its responsibility was less than JMW's but not a mere fraction of it. General and specific deterrence were relevant. The submissions seeking no penalty or no conviction for Mr Kose on parity grounds, and the submissions of remorse or contrition, were unsupported by evidence and rejected. Appropriate penalties were fines of $80,000 for E & T and $10,000 for Mr Kose, with a moiety to...

Court Disposition

E & T Bricklaying Pty Ltd was fined $80,000 and Eyup Kose was fined $10,000; in both instances a moiety was to be paid to the prosecutor, and the defendants were ordered to pay the prosecutor's costs.

Orders

  • ['E & T be fined the sum of $80,000.' 'Mr Kose be fined the sum of $10,000.' 'In both instances a moiety is to be paid to the prosecutor.' "The defendants are to pay the prosecutor's costs."]