District Court New South Wales Medium Neutral Citation: Workcover Authority v Craig Jarrett [2014] NSWDC 283 Hearing dates: 11 November 2014 Decision date: 11 November 2014 Jurisdiction: Criminal Before: Curtis, J Decision: Dismiss the charge pursuant to section 10 Legislation Cited: Occupational Health and Safety Act 2000 Category: Sentence Parties: Workcover Authority of New South Wales (Prosecutor) Craig Jarrett (Defendant) Representation: Counsel: M Moir appeared for the Prosecutor Y Shariff appeared for the Defendant Solicitors: Workcover Authority of New South Wales Legal Services Maddocks Lawyers (Defendant) File Number(s): 2012/296417 Remarks on Sentence 1. Mr Craig Jarrett is charged pursuant to s 10(1) of the Occupational Health and Safety Act that being a person in control of premises he failed to ensure the health and safety of persons not in his employment. I think this charge is misconceived. Mr Jarrett had no control of the premises. That charge is dismissed. 2. Mr Jarrett is also charged with contravention of s 8(2) of the Act in that he failed by his acts or omissions to ensure the health and safety of persons not in his employment.. Mr Jarrett pleads guilty to this charge and is convicted. 3. The circumstances of the accident are addressed in WorkCover v Buildcorp Group Pty Ltd number 297677 of 2012. Mr Jarrett adds to the factual matrix material contained within his affidavit of 7 November 2014. 4. In his affidavit Mr Jarrett says that in over 20 years of operating his business no employees have ever been involved in any safety breaches or accidents. 5. Having accepted the contract with Buildcorp, Mr Jarrett attended upon the premises on 10 June 2010 to inspect the work site with a view to addressing safety concerns. He viewed the scaffolding and, deciding that it was unsafe, refused to permit his workers to work on that day. 6. He spoke to Mr Hutchinson, who said that a scaffolder was coming to sign off the scaffolding. A couple of weeks later Mr Hutchinson phoned Mr Jarrett to say that the scaffolding had been fixed and he should arrange for his workers to return to the premises. 7. Before his men commenced work, Mr Jarrett again inspected the scaffolding to satisfy himself the scaffolding was safe. 8. Mr Jarrett says that up until the date of the accident, Peninsula had been performing work on different balconies located at the front façade of the building which work did not require the use of the subject hoist. This was because there was another lift available at the premises to provide access to the worksite. 9. Prior to the accident, Mr Jarrett did not observe either Mr Samuel, Mr Barton or Mr Reay operating the hoist in question. 10. The prosecution does not assert that Mr Jarrett knew that the hoist was being operated by his employees. There is no agreed fact to the effect that Mr Jarrett ought to have known of that circumstance. When pressed, the prosecutor said that the failing of Mr Jarrett was that he should have asked whether the employees were using the hoist. 11. It seems to me that a requirement that he should make such a specific enquiry is impractical. Such a requirement would logically extend to a continuous duty to enquire whether his employees were engaged in any specified unsafe practice on the site. 12. Following the incident, Mr Jarrett took steps to improve Peninsula's safety systems and engaged a consultant from Grant Training Services to conduct a complete review of those systems. 13. Insofar as Mr Jarrett may have by instruction prevented the injury, it is relevant to note that Mr Reay knew that the hoist should not have been operated by anybody but a licensed operator, and instruction to him in those terms would have been unnecessary and redundant. 14. A conviction would operate disproportionately upon Mr Jarrett because of his particular circumstances. He wishes to become a teacher in TAFE and in this respect apparently criminal convictions are relevant to his appointment. In the alternative he wishes to obtain a building licence and a conviction may place the grant of that licence in jeopardy. 15. Mr Jarrett has agreed to pay costs in the sum of $10,000, which is nearly 20% of the penalty otherwise available in the particular case. 16. Mr Jarrett has no previous convictions. Given the extremely minor culpability recognised by Mr Jarrett in his plea, his personal circumstances, his limited financial means, the extenuating circumstances in which the offence was committed, and his mental condition, it is appropriate that without proceeding to conviction I find Mr Jarrett guilty but order the relevant charge be dismissed pursuant to s10. 17. In relation to his mental condition it is relevant that this matter is now four years old, during which time Mr Jarrett has suffered significant personal stress 18. I note the gravity of the injuries suffered to Mr Cash but believe that the penalty imposed upon the principal, Buildcorp, sufficiently recognises that suffering. 19. I dismiss the charge pursuant to s10. . 20. By consent I order that the defendant pay the prosecution's costs in the sum of $10,000. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2015