Inspector Hamilton v ACN 061 447 621 Pty Limited [2012] NSWIRComm 109

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Hamilton v ACN 061 447 621 Pty Limited [2012] NSWIRComm 109 Hearing dates: 13/04/2012 Decision date: 05 October 2012 Before: Backman J Decision: In matter No IRC 1991 of 2007: (1) the defendant is convicted of the offence and fined an amount of $60,000 with a moiety to the prosecutor; (2) the defendant shall pay the costs of the prosecutor as agreed or assessed. In matter No IRC 1992 of 2007: (1) the defendant is convicted of the offence and fined an amount of $80,000 with a moiety to the prosecutor; (2) the defendant shall pay the costs of the prosecutor as agreed or assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Occupational Health and Safety Act 2000 - defendant under external administration - sentence hearing following findings of guilt against defendant in ex parte proceedings - sentence hearing also proceeds ex parte - collapse of large section of tunnel roof during construction of the Lane Cove Tunnel exposing workers carrying out excavation works to risk to their safety - residents of adjacent unit block also placed at risk to safety - defendant seconded to the Lane Cove Tunnel project because of requisite expertise and experience of geological conditions in the Sydney basin - risks to safety reasonably foreseeable - likely consequences of the breach of each offence were serious - simple steps available to defendant to avoid the risks - principle of general deterrence applied - maximum penalty - subjective factors considered - no assessment of defendant's culpability by reference to other entities prosecuted in relation to the tunnel collapse - principle of totality applied - leave granted under s 20(1)(a) of the Criminal Procedure Act 1986 to amend both charges to reflect the defendant's change of name following placement under external administration - orders Legislation Cited: Criminal Procedure Act 1986 Occupational Health and Safety Act 2000 Cases Cited: Inspector Dall v Ullrich Aluminium Pty Ltd [2011] NSWIRComm 156 Inspector Hamilton v Parsons Brinckerhoff Australia Pty Ltd (ACN 078 004 798) [2012] NSWIRComm 28 Inspector Nathan Hamilton v Pells Sullivan Meynink Pty Ltd [2012] NSWIRComm 2 Category: Principal judgment Parties: Inspector Nathan Hamilton (Prosecutor) ACN 061 447 621 Pty Limited (Defendant) Representation: Mr B Docking of counsel with Mr R Reitano of counsel (Prosecutor) No appearance (Defendant) WorkCover Authority of New South Wales (Prosecutor) File Number(s): IRC 1991 of 2007 IRC 1992 of 2007