Inspector Spence v Shang [2012] NSWIRComm 86

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Spence v Shang [2012] NSWIRComm 86 Hearing dates: 12/04/2012Written submissions: 23/04/2012 Decision date: 14 August 2012 Before: Backman J Decision: (1) The defendant is convicted of the offence under s 9 of the Occupational Health and Safety Act 2000 and fined $12,000 with a moiety to the prosecutor. (2) The defendant is to pay the reasonable costs of the prosecutor as agreed or in the absence of agreement as assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Occupational Health and Safety Act 2000 - plea of guilty under s 9 of the Act - worker seriously injured after falling 3.7 metres through an unsecured penetration onto a concrete floor - defendant as the site manager had day-to-day responsibilities to monitor, co-ordinate and supervise contractors at the site - documented systems of work for the site either not implemented or only partially implemented - other objective factors considered - deterrence - maximum penalty - subjective factors - whether defendant has a reduced capacity to pay a fine - Court unable to properly consider defendant's capacity to pay a fine because of insufficient documentation - orders Legislation Cited: Occupational Health and Safety Act 2000 Fines Act 1996 Cases Cited: Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority (Inspector Glass) (2001) 106 IR 435; [2001] NSWIRComm 190 Category: Principal judgment Parties: Inspector Ronald John Spence (Prosecutor) Yu Peng Shang (Defendant) Representation: Mr M Moir of counsel (Prosecutor) Criminal Law Practice Legal Group WorkCover Authority of NSW (Prosecutor) Yu Peng Shang (self) File Number(s): IRC 1397 of 2011