Inspector Stephen Cooper v Franklin Alden Coveney and Another [2008] NSWIRComm 80

Inspector Stephen Cooper v Franklin Alden Coveney and Another [2008] NSWIRComm 80

The defendants, as directors of Whyco, were liable by operation of s 26(1) for Whyco's failures under s 8(1) and s 8(2). The risk of operating a mobile crane under live 11,000 volt overhead power lines was obvious and reasonably foreseeable, and Whyco failed to conduct an adequate site inspection, risk assessment, site-specific training or provide a spotter. Those failures made the offences extremely serious. Mitigating factors, including guilty pleas, absence of prior convictions, good character, cooperation, remorse, assistance to the victim's family, pre-existing safety systems and post-offence safety improvements, warranted reductions, with a 10 per cent utilitarian discount for the...

Jurisdiction
Australia
Judgment Date
18 April 2008
Procedural Posture
Prosecutions Pursuant to S 8(1), S 8(2) and S 26(1) of the Occupational Health and Safety Act 2000 / Sentence Following Pleas of Guilty
Outcome
Both defendants were convicted and fined; Mr Coveney's application for a s 10 discharge was refused; costs were ordered in favour of the prosecutor subject to a set-off for reasonable costs incurred by the defendants on 5 October 2007.
Legal Topics
["directors' Liability" 'failure to Ensure Health, Safety and Welfare of Employees' 'failure to Ensure Safety of Persons Other Than Employees' 'crane Operation Near Overhead Power Lines' 'fatal Workplace Accident' 'general Deterrence' 'specific Deterrence' 'totality' 'costs' 'section 10 Discharge']
['occupational Health and Safety' 'criminal Sentencing'] ["directors' Liability" 'failure to Ensure Health, Safety and Welfare of Employees' 'failure to Ensure Safety of Persons Other Than Employees' 'crane Operation Near Overhead Power Lines' 'fatal Workplace Accident' 'general Deterrence' 'specific Deterrence' 'totality' 'costs' 'section 10 Discharge']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Prosecutions Pursuant to S 8(1), S 8(2) and S 26(1) of the Occupational Health and Safety Act 2000 / Sentence Following Pleas of Guilty

Legal Issues

  1. 1 ['Whether the offences under s 8(1), s 8(2) and s 26(1) of the Occupational Health and Safety Act 2000 were objectively serious.' 'Whether the risk posed by crane work near live overhead power lines was obvious and reasonably foreseeable.' 'What weight should be given to general deterrence and specific deterrence.' "What mitigation should be allowed for the defendants' guilty pleas, absence of prior convictions, good character, cooperation, remorse and post-offence safety measures." 'Whether Franklin Alden Coveney should receive an order under s 10 of the Crimes (Sentencing Procedure) Act 1999.' 'How the principle of totality should apply to overlapping s 8(1) and s 8(2) offences.' 'What fines and costs orders should be imposed.']

Ratio Decidendi

The defendants, as directors of Whyco, were liable by operation of s 26(1) for Whyco's failures under s 8(1) and s 8(2). The risk of operating a mobile crane under live 11,000 volt overhead power lines was obvious and reasonably foreseeable, and Whyco failed to conduct an adequate site inspection, risk assessment, site-specific training or provide a spotter. Those failures made the offences extremely serious. Mitigating factors, including guilty pleas, absence of prior convictions, good character, cooperation, remorse, assistance to the victim's family, pre-existing safety systems and post-offence safety improvements, warranted reductions, with a 10 per cent utilitarian discount for the...

Court Disposition

Both defendants were convicted and fined; Mr Coveney's application for a s 10 discharge was refused; costs were ordered in favour of the prosecutor subject to a set-off for reasonable costs incurred by the defendants on 5 October 2007.

Orders

  • ['In Matter No IRC 3411 of 2006, Franklin Alden Coveney is convicted of the offence.' 'In Matter No IRC 3411 of 2006, Franklin Alden Coveney is fined $8,000 with a moiety to the prosecutor.' 'In Matter No IRC 3411 of 2006, Franklin Alden Coveney is to pay the costs of the prosecutor as agreed, or in the absence of...