Inspector Fraser v Karabelas [2011] NSWIRComm 56

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Fraser v Karabelas [2011] NSWIRComm 56 Hearing dates: 16 March 2011 Decision date: 05 May 2011 Jurisdiction: Industrial Court of NSW Before: Boland P, Walton VP, Haylen J Decision: The Full Bench makes the following orders: (1) The appeal is upheld. (2) In accordance with this judgment the defendant shall have 21 days from the date of this judgment to file and serve evidence and submissions in relation to his personal circumstances regarding the payment of any increased penalty and the appellant is to have a further 14 days to submit any evidence and submissions in reply to those filed by Mr Karabelas. (3) Should a further hearing be required to determine any outstanding issues, the parties are to notify the Court and provide an estimate of the time necessary to finalise the appeal. Catchwords: APPEAL - OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1) s 26(1) - three charges laid alleging risk of falling from formwork - offences occur in short time span at same workplace - pleas of guilty entered - director with prior conviction - higher level of maximum penalties available - at first instance principle of totality identified as applicable - reasons for decision do not disclose matters taken into account in reducing three penalties for totality - on appeal each offence found to be an aggravated offence - prior warnings as to risk of falling given by Inspector - serious accident followed by two further breaches in similar circumstances - persistent disregard for safety of employees working at height - some common elements between first and second offence - third offence most serious - limited common elements requires offences to be separately considered - penalties imposed manifestly inadequate - principle of totality considered - re-sentencing required Legislation Cited: Crimes (Appeal and Review) Act 2001 s 68A Crimes Act 1900 s 33 s 110 Criminal Appeal Act 1912 s 5D Fines Act 1996 s 6 Industrial Relations Act 1996 s 196 Occupational Health and Safety Act s (8)1 s 26 Cases Cited: Pearce v The Queen (1998) 194 CLR 610; (1988) 156 ALR 684; (1998) 72 ALJR 1416; [1998] 15 Leg Rep C1; (1998) 103 A Crim R 372; [1988] HCA 57 Postigilione v The Queen (1997) 189 CLR 295; (1997) 145 ALR 408; (1997) 71 ALJR 875; [1997] 15 Leg Rep C1; (1997) 94 A Crim R 397; [1997] HCA 26 R v Todd (1992) 2 NSWLR 517 Sherras v Interland Constructions Pty Ltd & ors [2008] NSWIRComm 65 State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No 2) [2011] NSWIRComm 33 The Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 Wong v The Queen (2001) 207 CLR 584; (2001) 185 ALR 233; (2001) 76 ALJR 79; (2001) 22(19) Leg Rep C1; [2001] HCA 64 Category: Principal judgment Parties: Inspector Colin Fraser (Appellant) Peter Karabelas (Respondent) Representation: Mr C Magee of counsel (Appellant) Mr P Barham of counsel (Respondent) Criminal Law Practice Legal Group WorkCover Authority of NSW (Prosecutor) Law Corporation Pty Limited (Respondent) File Number(s): IRC 1014 of 2010 Decision under appeal Citation: [2010] NSWIRComm 114 Date of Decision: 2010-08-20 00:00:00 Before: Backman J File Number(s): IRC 1087 of 2008 IRC 1088 of 2008 IRC 1089 of 2008 IRC 1090 of 2008 IRC 1091 of 2008 IRC 1092 of 2008