WorkCover Authority of New South Wales (Inspector Henson) v Kingstone Constructions Pty Limited and Brian Willis [2006] NSWIRComm 130

WorkCover Authority of New South Wales (Inspector Henson) v Kingstone Constructions Pty Limited and Brian Willis [2006] NSWIRComm 130

The offences were objectively serious because the risk to public safety—particularly to children—by failing to adequately secure the construction site was foreseeable. The defendants' failure to implement adequate risk assessments and site security measures prior to the incident constituted breaches of s 8(2) of the Occupational Health and Safety Act 2000. General deterrence warranted substantial penalties, but pleas of guilty, prompt remedial action, lack of prior convictions, and positive character evidence warranted a reduction in penalty.

Jurisdiction
Australia
Judgment Date
19 April 2006
Procedural Posture
Criminal Prosecution (occupational Health and Safety) / Sentencing After Pleas of Guilty
Outcome
Both defendants found guilty on plea to breaches of s 8(2) of the Occupational Health and Safety Act 2000. Fines imposed and order as to costs made.
Legal Topics
['sentencing' 'workplace Safety' 'duties of Employers' 'duties of Directors' 'general and Specific Deterrence' 'objective Seriousness']
['occupational Health and Safety' 'criminal Law'] ['sentencing' 'workplace Safety' 'duties of Employers' 'duties of Directors' 'general and Specific Deterrence' 'objective Seriousness']

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Procedural Posture

Criminal Prosecution (occupational Health and Safety) / Sentencing After Pleas of Guilty

Legal Issues

  1. 1 ['What is the appropriate penalty for breaches of s 8(2) of the Occupational Health and Safety Act 2000 by a corporation and its director?' 'What is the objective seriousness of the offences considering foreseeability and failure to secure a worksite?' 'How do general and specific deterrence, guilty pleas, and subjective circumstances affect sentencing in this context?']

Ratio Decidendi

The offences were objectively serious because the risk to public safety—particularly to children—by failing to adequately secure the construction site was foreseeable. The defendants' failure to implement adequate risk assessments and site security measures prior to the incident constituted breaches of s 8(2) of the Occupational Health and Safety Act 2000. General deterrence warranted substantial penalties, but pleas of guilty, prompt remedial action, lack of prior convictions, and positive character evidence warranted a reduction in penalty.

Court Disposition

Both defendants found guilty on plea to breaches of s 8(2) of the Occupational Health and Safety Act 2000. Fines imposed and order as to costs made.

Orders

  • ['Kingstone Constructions Pty Limited convicted and fined $35,000.' 'Brian Willis convicted and fined $5,200.' 'A moiety allocated to the prosecutor in usual terms for both matters.' 'Defendants ordered to pay $15,500 in costs to the prosecutor.']