SafeWork NSW v Matthew Charles Colwell [2019] NSWDC 740

SafeWork NSW v Matthew Charles Colwell [2019] NSWDC 740

The offender breached his work health and safety duty by failing to conduct an adequate risk assessment and failing to develop, implement and enforce an adequate safe work system for removing a heavy hydraulic cylinder. Although the potential consequence was catastrophic and Mr Bryant died, the offender's culpability was in the low range because the risk was not actually foreseen, its likelihood was very low, the task occurred as a one-off operation in a remote rural setting, and the steps required would have involved significant burden. Taking into account general and specific deterrence, the aggravating fact of substantial harm, numerous mitigating factors, the early guilty plea, and...

Jurisdiction
Australia
Judgment Date
12 December 2019
Procedural Posture
Criminal Prosecution for Work Health and Safety Offence Contrary to S 32 of the Work Health and Safety Act 2011 (nsw) / Sentence After Plea of Guilty
Outcome
Offender convicted and fined $15,000; each party to pay its or his own costs.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'failure to Comply With Work Health and Safety Duty' 'risk of Death or Serious Injury' 'objective Seriousness' 'mitigating Factors' 'aggravating Factors' 'general Deterrence' 'specific Deterrence' 'capacity to Pay Fine' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['duty of Persons Conducting a Business or Undertaking' 'failure to Comply With Work Health and Safety Duty' 'risk of Death or Serious Injury' 'objective Seriousness' 'mitigating Factors' 'aggravating Factors' 'general Deterrence' 'specific Deterrence' 'capacity to Pay Fine' 'prosecution Costs']

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Procedural Posture

Criminal Prosecution for Work Health and Safety Offence Contrary to S 32 of the Work Health and Safety Act 2011 (nsw) / Sentence After Plea of Guilty

Legal Issues

  1. 1 ["What penalty should be imposed for the offender's failure to comply with a work health and safety duty exposing Scott William Bryant to a risk of death or serious injury." "The objective seriousness and culpability of the offender's conduct in devising and implementing the system of work for removing the hydraulic cylinder." 'The extent to which mitigating factors, including good character, remorse, no prior convictions, assistance, and an early plea of guilty, should reduce the penalty.' "Whether the offender's limited capacity to pay justified moderating the fine." "Whether the offender should be ordered to pay the prosecutor's costs."]

Ratio Decidendi

The offender breached his work health and safety duty by failing to conduct an adequate risk assessment and failing to develop, implement and enforce an adequate safe work system for removing a heavy hydraulic cylinder. Although the potential consequence was catastrophic and Mr Bryant died, the offender's culpability was in the low range because the risk was not actually foreseen, its likelihood was very low, the task occurred as a one-off operation in a remote rural setting, and the steps required would have involved significant burden. Taking into account general and specific deterrence, the aggravating fact of substantial harm, numerous mitigating factors, the early guilty plea, and...

Court Disposition

Offender convicted and fined $15,000; each party to pay its or his own costs.

Orders

  • ['The offender is convicted.' 'The appropriate fine is $60,000 but that will be reduced to $20,000 by reason of capacity to pay and further reduced by 25% to reflect the plea of guilty.' 'Order the offender to pay a fine of $15,000.' 'Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to...