SafeWork NSW v Bennett (No.2) [2022] NSWDC 453

SafeWork NSW v Bennett (No.2) [2022] NSWDC 453

Mr Bennett's culpability for both offences was in the mid range because he knew of the risk, or it was foreseeable, the likelihood of the risk was high when he permitted an unlicensed and inexperienced offsider to operate the crane, the potential consequences were death or serious injury, and simple, well-known steps were readily available without great burden or inconvenience. The s 19(2) offence was more serious because two persons were exposed to risk and suffered serious injuries. Although conviction and fines were required because of the seriousness of the offences, deterrence and the harm caused, the fines were reduced to reflect Mr Bennett's little or no present capacity to pay and...

Jurisdiction
Australia
Judgment Date
07 October 2022
Procedural Posture
Criminal Prosecution for Work Health and Safety Offences / Sentence
Outcome
Mr Nigel Bennett was convicted on both summonses and fined; 50% of each fine was ordered to be paid to the prosecutor and he was ordered to pay the prosecutor's costs.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'aggravating and Mitigating Factors' 'capacity to Pay a Fine' 'parity' 'totality' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['duty of Persons Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'aggravating and Mitigating Factors' 'capacity to Pay a Fine' 'parity' 'totality' 'prosecution Costs']

Case Brief

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Procedural Posture

Criminal Prosecution for Work Health and Safety Offences / Sentence

Legal Issues

  1. 1 ['What penalties should be imposed for the s 19(1) and s 19(2) Work Health and Safety Act 2011 (NSW) offences contrary to s 32 of the Act.' 'How objective seriousness and culpability should be assessed where a crane came into contact with, or close proximity to, live overhead power lines and workers were exposed to a risk of death or serious injury.' 'What weight should be given to general deterrence and specific deterrence.' 'What aggravating and mitigating factors should be taken into account.' 'How the parity principle should be applied having regard to the related penalty imposed on Arkwood.' "How Mr Bennett's limited capacity to pay should affect the fines." 'How the totality principle should affect fines for two offences arising from the same facts.' "Whether Mr Bennett should pay the prosecutor's costs."]

Ratio Decidendi

Mr Bennett's culpability for both offences was in the mid range because he knew of the risk, or it was foreseeable, the likelihood of the risk was high when he permitted an unlicensed and inexperienced offsider to operate the crane, the potential consequences were death or serious injury, and simple, well-known steps were readily available without great burden or inconvenience. The s 19(2) offence was more serious because two persons were exposed to risk and suffered serious injuries. Although conviction and fines were required because of the seriousness of the offences, deterrence and the harm caused, the fines were reduced to reflect Mr Bennett's little or no present capacity to pay and...

Court Disposition

Mr Nigel Bennett was convicted on both summonses and fined; 50% of each fine was ordered to be paid to the prosecutor and he was ordered to pay the prosecutor's costs.

Orders

  • ['In District Court proceedings 2020/303207 (s 19(1) Summons): Mr Nigel Bennett was convicted on 12 August 2022.' 'In District Court proceedings 2020/303207 (s 19(1) Summons): Order Mr Nigel Bennett to pay a fine of $2,500.' 'In District Court proceedings 2020/303207 (s 19(1) Summons): Order pursuant to Section...