Inspector James v Paul [2011] NSWIRComm 82

Inspector James v Paul [2011] NSWIRComm 82

The s 10 dismissal was set aside because the offence was objectively very serious, arising from a fatal incident involving an unsafe machine, and the totality of the objective and subjective circumstances did not disclose exceptional circumstances warranting dismissal of the charge. The sentencing judge's reliance on the respondent's remoteness from day-to-day operations failed to relate that circumstance to the respondent's role and culpability as a director, and the judge failed to take account of the respondent's active contribution to Dekorform's failures by appointing an inadequately equipped person and failing to ensure that those inspecting machinery were properly trained and...

Jurisdiction
Australia
Judgment Date
29 June 2011
Procedural Posture
Occupational Health and Safety Sentencing Appeal / Application for Leave to Appeal Pursuant to S 196 of the Industrial Relations Act 1996 and Appeal From a Sentencing Decision of Marks J
Outcome
Leave to appeal granted; appeal upheld; order dismissing the charge set aside; further submissions on sentencing directed; costs reserved.
Legal Topics
['leave to Appeal' 'section 10 Dismissal' 'manifest Inadequacy of Sentence' 'objective Seriousness of Offence' 'director Liability' 'fatal Workplace Incident' 'general Deterrence']
['occupational Health and Safety' 'industrial Law' 'criminal Sentencing' 'appeals'] ['leave to Appeal' 'section 10 Dismissal' 'manifest Inadequacy of Sentence' 'objective Seriousness of Offence' 'director Liability' 'fatal Workplace Incident' 'general Deterrence']

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Procedural Posture

Occupational Health and Safety Sentencing Appeal / Application for Leave to Appeal Pursuant to S 196 of the Industrial Relations Act 1996 and Appeal From a Sentencing Decision of Marks J

Legal Issues

  1. 1 ['Whether Marks J erred in the exercise of discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999.' 'Whether dismissing the charge under s 10 of the Crimes (Sentencing Procedure) Act 1999 was manifestly inadequate having regard to the nature and quality of the offence.' "Whether adequate weight was given to the objective seriousness of the occupational health and safety offence and the respondent's role as a director."]

Ratio Decidendi

The s 10 dismissal was set aside because the offence was objectively very serious, arising from a fatal incident involving an unsafe machine, and the totality of the objective and subjective circumstances did not disclose exceptional circumstances warranting dismissal of the charge. The sentencing judge's reliance on the respondent's remoteness from day-to-day operations failed to relate that circumstance to the respondent's role and culpability as a director, and the judge failed to take account of the respondent's active contribution to Dekorform's failures by appointing an inadequately equipped person and failing to ensure that those inspecting machinery were properly trained and...

Court Disposition

Leave to appeal granted; appeal upheld; order dismissing the charge set aside; further submissions on sentencing directed; costs reserved.

Orders

  • ['Leave to appeal is granted.' 'The appeal is upheld.' 'The order of Marks J on 12 November 2010 in Matter No IRC 1013 of 2008 dismissing the charge against the defendant, Robert Mark Paul, is set aside.' "The appellant shall file and serve any further submissions on sentencing within 14 days of the date of this...