Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266

Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266

The appropriate sentence must be fixed by taking into account all relevant objective and subjective considerations without rigid adherence to a staged or mathematical deduction methodology, as clarified by Markarian v R, while giving precedence to the gravity of the offence in view of objective circumstances. The defendants' failure to ensure adequate supervision, information, instruction, and a safe system of work for non-employees on site, despite some existing safety systems, constituted a serious breach justifying significant penalties and costs orders, tempered by discounts for guilty pleas and limited recognition of financial hardship.

Jurisdiction
Australia
Judgment Date
28 July 2005
Procedural Posture
Prosecution / Sentence
Outcome
Guilty verdict, conviction recorded, fines and costs imposed
Legal Topics
['sentencing Principles' 'corporate Liability' 'workplace Safety' 'duty of Care' 'construction Site Incidents']
['occupational Health and Safety' 'criminal Law' 'industrial Law'] ['sentencing Principles' 'corporate Liability' 'workplace Safety' 'duty of Care' 'construction Site Incidents']

Case Brief

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Procedural Posture

Prosecution / Sentence

Legal Issues

  1. 1 ['Appropriate sentence for breach of s 8(2) and s 26(1) Occupational Health and Safety Act 2000' 'Effect of Markarian v R on sentencing methodology in occupational health and safety prosecutions' 'Assessment of objective seriousness versus subjective mitigating factors in sentencing for OH&S offences']

Ratio Decidendi

The appropriate sentence must be fixed by taking into account all relevant objective and subjective considerations without rigid adherence to a staged or mathematical deduction methodology, as clarified by Markarian v R, while giving precedence to the gravity of the offence in view of objective circumstances. The defendants' failure to ensure adequate supervision, information, instruction, and a safe system of work for non-employees on site, despite some existing safety systems, constituted a serious breach justifying significant penalties and costs orders, tempered by discounts for guilty pleas and limited recognition of financial hardship.

Court Disposition

Guilty verdict, conviction recorded, fines and costs imposed

Orders

  • ["Corporate defendant: offence proven, conviction entered, fined $75,000 (half to prosecutor), to pay prosecutor's costs as agreed or as determined by further order." "Personal defendant: offence proven, conviction entered, fined $9,750 (half to prosecutor), to pay 20% of prosecutor's costs as agreed or as...