Commissioner for NSW Fair Trading, Department of Finance and Services v Luo [2016] NSWSC 1774

Commissioner for NSW Fair Trading, Department of Finance and Services v Luo [2016] NSWSC 1774

The defendant's offending was serious because the electrical cabling did not meet Australian safety standards and created a significant fire and safety risk, but her criminality was less than in Hua Yang because she held an honest belief in compliance and took some, although inadequate, steps to obtain compliant manufacture and testing. The offence was not proved to have been committed for financial gain, and lack of regard to public safety could not be counted as an aggravating factor because public safety was the gist of the offence. Mitigating factors included the absence of planned or organised criminal activity, no prior convictions, low risk of reoffending, good prospects of...

Jurisdiction
Australia
Judgment Date
12 April 2017
Procedural Posture
Criminal Prosecution for an Executive Liability Offence Under the Electricity (consumer Safety) Act 2004 (nsw) / Sentence Following Guilty Plea
Outcome
Defendant fined and ordered to pay agreed prosecution costs.
Legal Topics
['selling Electrical Articles That Did Not Comply With Prescribed Specifications' 'executive Liability of Company Director' 'electrical Cable Safety Standards' 'general Deterrence and Mental Illness' 'guilty Plea Discount']
['criminal Law' 'consumer Safety' 'sentencing'] ['selling Electrical Articles That Did Not Comply With Prescribed Specifications' 'executive Liability of Company Director' 'electrical Cable Safety Standards' 'general Deterrence and Mental Illness' 'guilty Plea Discount']

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Procedural Posture

Criminal Prosecution for an Executive Liability Offence Under the Electricity (consumer Safety) Act 2004 (nsw) / Sentence Following Guilty Plea

Legal Issues

  1. 1 ['What penalty should be imposed on the defendant for selling, through the company, electrical cable that did not comply with prescribed safety specifications.' 'Whether the offending was aggravated by financial gain or lack of regard to public safety under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).' "What mitigating effect should be given to the defendant's guilty plea, lack of prior convictions, prospects of rehabilitation and mental health conditions." "Whether the defendant's mental illness reduced the significance of general and personal deterrence."]

Ratio Decidendi

The defendant's offending was serious because the electrical cabling did not meet Australian safety standards and created a significant fire and safety risk, but her criminality was less than in Hua Yang because she held an honest belief in compliance and took some, although inadequate, steps to obtain compliant manufacture and testing. The offence was not proved to have been committed for financial gain, and lack of regard to public safety could not be counted as an aggravating factor because public safety was the gist of the offence. Mitigating factors included the absence of planned or organised criminal activity, no prior convictions, low risk of reoffending, good prospects of...

Court Disposition

Defendant fined and ordered to pay agreed prosecution costs.

Orders

  • ['The defendant is fined the sum of $18,000.00.' 'The fine in Order (1) is to be paid within 28 days.' "The defendant is to pay the Prosecutor's costs as agreed in the sum of $15,000.00."]