Inspector Cooper v Schwarz [2012] NSWIRComm 107

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Cooper v Schwarz [2012] NSWIRComm 107 Hearing dates: 17 September 2011 Decision date: 17 September 2011 Jurisdiction: Industrial Court of NSW Before: Staff J Decision: Matters adjourned part heard to a date to be fixed Catchwords: OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 8(1) and s 26(1) of the Occupational Health and Safety Act 2000 - pleas of guilty - four separate prosecutions against other defendants where defendants plead not guilty - matters before another member of the court - whether sentencing judge can apply principle of parity where trial of principal defendants not concluded - sentencing hearing adjourned to await determination of other matters. Legislation Cited: Occupational Health and Safety Act 2000 Category: Procedural and other rulings Parties: Inspector Stephen Cooper (Prosecutor) Harold Ernest Schwarz (First Defendant) Harry Schwarz Consulting Pty Ltd (Second Defendant) Representation: Counsel: Mr A Casselden with Mr J Malouf (Prosecutor) Mr I Latham (Defendant) Solicitors: WorkCover Authority of New South Wales (Prosecutor) Gillis Delaney Lawyers (First and Second Defendants) File Number(s): IRC 1621 and 1623 of 2011

Judgment

EX TEMPORE 1The Court has before it for sentencing two defendants, Harry Schwarz Consulting Pty Limited (a labour hire company) and Harold Ernest Schwarz (the sole corporate director). Each of the defendants has been prosecuted for a contravention of s 8(1) of the Occupational Health and Safety Act 2000 for failing to ensure the health, safety and welfare at work of its employees and in particular Lance Shiels. 2The particular of the risk was the risk of employees being injured by coming into contact with an unguarded nip point of a KBA 142 Varimat printing press. 3Each defendant has pleaded guilty to the charge. 4During the sentencing hearing I was informed by Mr A Casselden of counsel, who appeared with Mr J Malouf of counsel, for the prosecutor that there were four other defendants had been charged in respect of the incident that has given rise to the prosecution against these defendants. The other defendants I am informed have pleaded not guilty to the charges that have been brought against them. 5During submissions on behalf of the defendants, Mr I Latham of counsel submitted that the Court should have regard to the principles of parity. 6Mr Latham further submitted that the Court was entitled to refer to the significantly greater culpability of two other organisations. Counsel accepted that this exercise in respect of these defendants was complicated by the fact that the prosecutions in respect of the other companies had not been finalised. These matters are before another member of the court. 7I should note that both parties opposed an adjournment of the sentencing hearing. 8In circumstances where an issue has arisen in respect of applying the principle of parity, I do not see how I can proceed with these matters when there are prosecutions of other defendants yet to be determined that arise out of the same incident that has given rise to the prosecutions brought against the corporate and personal defendants in this matter. 9Furthermore I do not see how I can resolve the question of parity without, what I might describe as, the principal defendants having their matters determined. 10For these reasons I therefore propose to treat the sentencing hearings in respect of each of these defendants as part-heard. Regrettably, and particularly in light of the personal defendant's position and the submissions put to me by Mr Latham that the personal defendant wished the sentencing to be completed today, I propose to adjourn the hearing to another date. 11A hearing date will occur after, what I have described as, the principal defendants having their matters determined. It is regrettable, but in all the circumstances, in my view it is the appropriate course to adopt in order to ensure that justice is done in respect of the two defendants before me today. 12Therefore I adjourn each of these matters to a date to be fixed. I will have my associate make inquiries as to when the related matters are likely to be finalised. These matters will then be restored to the list for the finalisation of the sentencing hearing. 13The only issue I would envisage that remains to be dealt with, is the question of parity. It may well be that issue could be dealt with by way of written submissions in order to further minimise any costs to the parties. 14These matters are adjourned part heard to a date to be fixed.