Inspector Hinton v David Tanti [2011] NSWIRComm 97

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Hinton v David Tanti [2011] NSWIRComm 97 Hearing dates: 3 June 2011 Decision date: 07 June 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: (1) In Matter No IRC1159 of 2010, I find the defendant guilty of the offence as charged. (2) The defendant is fined in the sum of $15,000 with a moiety to the prosecutor. (3)The defendant to pay the costs of the prosecutor. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(2) of the Occupational Health and Safety Act 2000 by defendant - demolition of building - no scaffold or a hoarding erected - no bracing on wall - fall of brick wall 32 metres long into public thoroughfare - known safety features not in place - blatant breach of known Australian Standards - failure to properly risk assess - foreseeability a factor - gravity of the potential risk - general and specific deterrence - remorse shown and contrition expressed - some consideration of financial circumstance - penalty Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 22, 23, 34 Fines Act 1996 s 6 Occupational Health and Safety Act 2000 (NSW) ss 8(2), 26(1) Cases Cited: Cahill v State of NSW (Department of Community Services (No 4) [2008] NSWIRComm 201 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Inspector Morgenthal v Houghton [2010] NSWIRComm 192 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 R v Olbrich (1999) 199 CLR 270 at 281 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR 104 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Tyler v Sydney Electricity (1993) 47 IR 1 Weininger v The Queen [2003] HCA 14; 140 A Crim R 184; 196 ALR 451; (2003) 212 CLR 629 WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited (unreported decision of Schmidt J dated 25 February 1994) Veen v The Queen (No.2) (1988) 164 CLR 465 WorkCover Authority (NSW) (Inspector Howard) v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm92; (2009) 186 IR 125 Category: Principal judgment Parties: Inspector Jamie Hinton (Prosecutor) David Victor Tanti (Defendant) Representation: D Chin of Counsel (Prosecutor) Crown Solicitor for NSW (Prosecutor) Self Represented (Defendant) File Number(s): IRC 1159 of 2010