Inspector McGrath v Cooper [2013] NSWIRComm 14

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector McGrath v Cooper [2013] NSWIRComm 14 Hearing dates: 27/06/20126/07/2012, 16/07/2012, 27/07/2012, 13/08/2012 - Written Submissions Decision date: 27 February 2013 Before: Backman J Decision: (1) The defendant is convicted of the offence. (2) The defendant is fined $6,500 with a moiety to the prosecution. (3) The defendant is to pay the prosecution's costs as agreed, or in the absence of agreement, leave is granted to the parties to approach the Court for a determination Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Occupational Health and Safety Act 2000 (the Act) - plea of guilty to amended charge under s 9 of the Act - store manager injured after falling 2.9 metres from the unprotected edge of a mezzanine floor under construction - defendant contracted to build the mezzanine floor - defendant's responsibility to ensure fall protection measures were in place - conduct of injured person taken into account in mitigation of objective seriousness of the offence - offence objectively serious - deterrence principles considered - specific deterrence not applied - subjective factors - costs - whether costs order should be proportionate to fine imposed - orders Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Occupational Health and Safety Act 2000 Cases Cited: Department of Mineral Resources (Chief Inspector McKensey v Berrima Coal Pty Ltd and Another (2001) 105 IR 348 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Inspector McGrath v Cooper [2011] NSWIRComm 142 Inspector Robert Johnston v Hire N' Higher Scaffolding Pty Ltd; Inspector Robert Johnston v Lipman Pty Ltd [2006] NSWIRComm 103 Inspector Stephen Cooper v Franklin Alden Coveney and Another [2008] NSWIRComm 80 McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353; 137 IR 310 Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 WorkCover Authority (Insp Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 213 WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 WorkCover Authority (Inspector Yeung) v Wilson (t/as Wilson's Tree Service) (2005) 143 IR 187 Category: Principal judgment Parties: Inspector Cherie McGrath (Prosecutor) John Elmore Cooper (Defendant) Representation: Mr C Magee of counsel (Prosecutor) Mr G Bennett of counsel (Defendant) Criminal Law Practice Legal Group WorkCover Authority of New South Wales (Prosecutor) Bridgeford & Associates (Defendant) File Number(s): IRC 1055 of 2010