Inspector Batty v David Smith t-as David Smith Roofing and Guttering [2009] NSWIRComm 203

Industrial Court of New South Wales

CITATION: Inspector Batty v David Smith t-as David Smith Roofing and Guttering [2009] NSWIRComm 203

Inspector Ian Batty (Prosecutor) PARTIES: David Smith t/as David Smith Roofing and Guttering (Defendant)

FILE NUMBER(S): IRC 3185 of 2006

CORAM: Haylen J

CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1) - guilty plea entered - workplace death - criminal proceedings alleging felonious slaying of worker under s 18(1)(b) Crimes Act 1990 - defendant pleads guilty in District Court - sentenced to two years imprisonment but sentence suspended and two year good behaviour bond imposed - occupational health and safety prosecution proceeds in relation to same accident particularly regarding risks to other workers - team of five performing re-roofing work on factory - work involved replacing whole roof and installing polycarbonate sheeting at intervals to allow light into factory - polycarbonate sheeting to be laid with safety mesh underneath to prevent falling through sheeting - failure to ensure safety mesh properly fitted and fixed - failure to properly supervise work including fixing of safety mesh - failure to provide adequate training, information and instruction - failure to ensure suitable restraint devices available for all workers and were worn by all workers - lack of safe access and egress to and from roof - serious breach found - difficulty in establishing extent occupational health and safety prosecution overlapped with Crimes Act conviction - double jeopardy a serious issue - benefit of doubt to be given to defendant - general and specific deterrence - significant subjective factors - penalty imposed.

Crimes Act 1990 s 18(1)(b) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, ss 10, 12, 21A (3)(i) Occupational Health and Safety Act 2000 s 8(1)