WorkCover Authority of NSW (Inspector Mansell) v Robert Josef [2003] NSWIRComm 421

WorkCover Authority of NSW (Inspector Mansell) v Robert Josef [2003] NSWIRComm 421

The applicable maximum penalty was $50,000 because the WorkCover Legislation Amendment Act 1995 clearly gave the increased penalty retrospective operation before s19 of the Crimes (Sentencing Procedure) Act 1999 commenced, and s19 did not retrospectively alter the law as at its commencement. The defendant was deemed by s50 to have contravened s15, and s15 contained the applicable penalty. The offences were of extreme objective seriousness due to the obvious and foreseeable danger of using excavating machinery near a charged gas line, the grave consequences, and the simple steps available to avoid the risk. No subjective mitigation justified reduction. Applying totality, the monetary fines...

Jurisdiction
Australia
Judgment Date
21 November 2003
Procedural Posture
Prosecutions Pursuant to Sections 50, 15(1) and 16(1) of the Occupational Health and Safety Act 1983 / Judgment on Sentence After the Defendant Was Found Guilty
Outcome
Defendant convicted on the s15 offences with no further penalty imposed; fined on the s16 offences for a total fine of $45,000, with a moiety of the fine remitted to WorkCover.
Legal Topics
['retrospective Increase in Maximum Penalty' 'workplace Demolition Near Charged Gas Line' 'general Deterrence' 'specific Deterrence' 'parity' 'totality Principle']
['occupational Health and Safety' 'sentencing'] ['retrospective Increase in Maximum Penalty' 'workplace Demolition Near Charged Gas Line' 'general Deterrence' 'specific Deterrence' 'parity' 'totality Principle']

Case Brief

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Procedural Posture

Prosecutions Pursuant to Sections 50, 15(1) and 16(1) of the Occupational Health and Safety Act 1983 / Judgment on Sentence After the Defendant Was Found Guilty

Legal Issues

  1. 1 ['Whether the applicable maximum penalty was $25,000 or $50,000 following amendments to the Occupational Health and Safety Act 1983 by the WorkCover Legislation Amendment Act 1995.' 'Whether s19 of the Crimes (Sentencing Procedure) Act 1999 prevented application of the retrospectively increased penalty.' 'Whether the offence was an offence against s15 of the Occupational Health and Safety Act 1983, with s50 deeming the contravention, or an offence constituted by s50 not subject to the increased penalty.' 'How the objective seriousness, general deterrence, specific deterrence, parity, subjective features and totality principle affected sentence.' 'Whether additional penalties should be imposed for overlapping s15 and s16 offences arising from the same acts or omissions.']

Ratio Decidendi

The applicable maximum penalty was $50,000 because the WorkCover Legislation Amendment Act 1995 clearly gave the increased penalty retrospective operation before s19 of the Crimes (Sentencing Procedure) Act 1999 commenced, and s19 did not retrospectively alter the law as at its commencement. The defendant was deemed by s50 to have contravened s15, and s15 contained the applicable penalty. The offences were of extreme objective seriousness due to the obvious and foreseeable danger of using excavating machinery near a charged gas line, the grave consequences, and the simple steps available to avoid the risk. No subjective mitigation justified reduction. Applying totality, the monetary fines...

Court Disposition

Defendant convicted on the s15 offences with no further penalty imposed; fined on the s16 offences for a total fine of $45,000, with a moiety of the fine remitted to WorkCover.

Orders

  • ['In relation to Charge Number 5487, the s16 offence occurring between 20 and 23 November 1995, the defendant is fined $35,000.' 'In relation to Charge Number 5486, the s15 offence on that date, the defendant is convicted, but no further penalty is imposed.' 'In relation to Charge Number 5489, the s16 offence...