WorkCover v Robertson [2015] NSWDC 367

WorkCover v Robertson [2015] NSWDC 367

Now Access condoned operation of an incomplete and unenclosed materials hoist by unqualified persons when the dangers were plain and confiscating the key was a reasonably practicable precaution requiring no effort or expense. As sole director attending the site and contact person for the hoist subcontract, the defendant was in a position to influence the company and failed to use due diligence to prevent the contravention. The offence was on the graver side of the spectrum because substantial harm resulted, so despite impecuniosity and mitigating factors a conviction and fine were required; however a 25% discount was allowed for the guilty plea and no costs order was made because it would...

Jurisdiction
Australia
Judgment Date
28 April 2015
Procedural Posture
Criminal Prosecution for Work Health and Safety Offence / Sentence After Plea of Guilty
Outcome
The defendant is convicted and fined $7,500; WorkCover is to have a moiety of the fine; no order is made for costs.
Legal Topics
['duty of Persons Undertaking Business' 'due Diligence by Person in Position to Influence Company Conduct' 'scaffolding and Material Hoist Safety' 'fine and Capacity to Pay' 'general Deterrence' 'specific Deterrence' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['duty of Persons Undertaking Business' 'due Diligence by Person in Position to Influence Company Conduct' 'scaffolding and Material Hoist Safety' 'fine and Capacity to Pay' 'general Deterrence' 'specific Deterrence' 'prosecution Costs']

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Procedural Posture

Criminal Prosecution for Work Health and Safety Offence / Sentence After Plea of Guilty

Legal Issues

  1. 1 ["Whether the defendant, being in a position to influence Now Access, failed to use all due diligence to prevent the company's contravention of s 8(1) of the Occupational Health and Safety Act 2000." 'What sentence should be imposed having regard to objective seriousness, general and specific deterrence, plea of guilty, mitigation, remorse, absence of prior convictions and ability to pay.' 'Whether the defendant should receive the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999.' 'Whether an order for prosecution costs should be made.']

Ratio Decidendi

Now Access condoned operation of an incomplete and unenclosed materials hoist by unqualified persons when the dangers were plain and confiscating the key was a reasonably practicable precaution requiring no effort or expense. As sole director attending the site and contact person for the hoist subcontract, the defendant was in a position to influence the company and failed to use due diligence to prevent the contravention. The offence was on the graver side of the spectrum because substantial harm resulted, so despite impecuniosity and mitigating factors a conviction and fine were required; however a 25% discount was allowed for the guilty plea and no costs order was made because it would...

Court Disposition

The defendant is convicted and fined $7,500; WorkCover is to have a moiety of the fine; no order is made for costs.

Orders

  • ['The defendant is convicted.' 'The defendant is fined $7,500.' 'WorkCover is to have a moiety of the fine.' 'No order for costs.']