P F Thearle & Co Pty Limited v WorkCover Authority of New South Wales (Inspector Reynolds) [2002] NSWIRComm 102

Industrial Relations Commission of New South Wales in Court Session

CITATION : P F Thearle & Co Pty Limited v WorkCover Authority of New South Wales (Inspector Reynolds) [2002] NSWIRComm 102 APPELLANT P F Thearle & Co Pty Limited PARTIES : RESPONDENT WorkCover Authority of New South Wales FILE NUMBER: IRC 4369 of 2001 CORAM: Wright J President; Walton J Vice-President; Kavanagh J CATCHWORDS : Appeal - Appeal against severity of penalty imposed - OH&S Prosecution under s15(1) of OH& S Act - Two defendants pleaded guilty for breaches arising from the same incident - Defendants convicted of an offence and fined - Alleged disparity in sentences imposed - Parity principle of fundamental importance - Seriousness of offence - Appellant's offence of significantly greater gravity than other respondent - No system of work to ensure safety in workplace by appellant - Insufficient training provided by appellant and no provision of safety equipment or protective clothing - Appellant's employees not authorised to carry out work required - Aggravated features to be taken into account in assessing objective circumstances of offence - Extreme and self-evident risks to safety and gravity of risk - Foreseeability will result in significant increase to assessment of gravity of offence - Notions of specific and general deterrence - Submission regarding failure to have sufficient regard to financial standing of appellant rejected - Previous conviction for offence of similar nature - Warrant of nearly equal penalties - Appeal dismissed Criminal Appeal Act 1912 s 5AA LEGISLATION CITED : Electricity (Workers Safety) Regulation 1992 Industrial Relations Act 1996 s 196 Occupational Health and Safety Act 1983 s 15 s 16 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 Fletcher Constructions Australia Limited v WorkCover Authority of NSW (Inspector Fisher) (1999) 91 IR 66 House v King (1936) 55 CLR 499 R v Reid [2000] NSWCCA 166 Signato v The Queen (1998) 194 CLR 656 CASES CITED : WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd and anor (No 2) (2000) 99 IR 163 Warman Ltd v WorkCover Authority of New South Wales (1998) 80 IR 326 WorkCover Authority of New South Wales (Inspector Reynolds) v North Power [2001] NSWIRComm 104 WorkCover Authority of New South Wales (Inspector Reynolds) v P F Thearle & Co Pty Limited [2001] NSWIR 105 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (1999) 95 IR 383 WorkCover Authority of New South Wales (Inspector Viesis) v Thiess Contractors Pty Limited (1996) 85 IR 12 HEARING DATES: 03/28/2002 EXTEMPORE JUDGMENT DATE : 03/28/2002