Insp Carmody v George Agapiou [2001] NSWIRComm 268

Insp Carmody v George Agapiou [2001] NSWIRComm 268

The defendant, as owner-builder and a person with control of non-domestic premises made available as a workplace, created and left in place a serious and reasonably foreseeable risk by demolishing structures that had provided lateral restraint to a large brick boundary wall without qualifications, advice or temporary bracing. Although other parties' conduct was considered, the defendant's acts and omissions created the pre-existing risk that led to the wall collapse, death and serious injury. The offence was most serious, but penalty was mitigated by remorse, personal circumstances and a 15% discount for the utilitarian value of the guilty plea.

Jurisdiction
Australia
Judgment Date
01 November 2001
Procedural Posture
Prosecution Under S17(1)(a) of the Occupational Health and Safety Act 1983 / Judgment on Penalty Following Plea of Guilty
Outcome
Defendant found guilty and fined $22,500, with a moiety to the WorkCover Authority.
Legal Topics
['control of Non Domestic Premises Made Available as a Place of Work' 'owner Builder Demolition Work' 'failure to Ensure Premises Safe and Without Risks to Health' 'fatal Workplace Injury' 'assessment of Objective Seriousness' 'contrition and Guilty Plea Discount']
['occupational Health and Safety' 'industrial Relations' 'criminal Sentencing'] ['control of Non Domestic Premises Made Available as a Place of Work' 'owner Builder Demolition Work' 'failure to Ensure Premises Safe and Without Risks to Health' 'fatal Workplace Injury' 'assessment of Objective Seriousness' 'contrition and Guilty Plea Discount']

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Procedural Posture

Prosecution Under S17(1)(a) of the Occupational Health and Safety Act 1983 / Judgment on Penalty Following Plea of Guilty

Legal Issues

  1. 1 ['Whether the defendant, as a person with control of non-domestic premises made available to non-employees as a place of work, failed to ensure the premises were safe and without risks to health contrary to s17(1)(a) of the Occupational Health and Safety Act 1983.' 'How the objective seriousness of the offence should be assessed where demolition work left an unsupported wall that collapsed, causing fatal and serious injuries.' "Whether alleged contributions by the engineer, builder or Council reduced the defendant's culpability." 'What mitigation should be allowed for remorse, contrition, financial circumstances and the utilitarian value of an early guilty plea.']

Ratio Decidendi

The defendant, as owner-builder and a person with control of non-domestic premises made available as a workplace, created and left in place a serious and reasonably foreseeable risk by demolishing structures that had provided lateral restraint to a large brick boundary wall without qualifications, advice or temporary bracing. Although other parties' conduct was considered, the defendant's acts and omissions created the pre-existing risk that led to the wall collapse, death and serious injury. The offence was most serious, but penalty was mitigated by remorse, personal circumstances and a 15% discount for the utilitarian value of the guilty plea.

Court Disposition

Defendant found guilty and fined $22,500, with a moiety to the WorkCover Authority.

Orders

  • ['The defendant is fined in the sum of $22,500 with a moiety to the WorkCover Authority.' "The defendant is to pay the prosecutor's costs to be agreed or assessed." 'The WorkCover Authority is to negotiate with the defendant for time to pay.']