Bulga Underground Operations Pty Ltd v Nash

(2016) 2016 NSWLR 338; [2016] NSWCCA 37

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Occupational health and safety
3. › Duty of employer
4. › Failure to ensure health, safety and welfare of employees
5. › Whether failure to take steps that only minimise or manage risk can constitute breach of duty
6. › Whether causal nexus between omission and risk established
7. › Occupational Health and Safety Act 2000 (NSW), s 8(1)
1. Criminal Law
2. › Appeal
3. › Appeal under s 5AA Criminal Appeal Act 1912 (NSW)
4. › Power of appellate court
5. › Whether court can find appellant should have been convicted on different particular from that found by trial judge
6. › Whether power to order retrial exists under s 5AA
7. › Criminal Appeal Act 1912 (NSW), s 5AA
1. Criminal Law
2. › Sentence
3. › Appeal against inadequacy of sentence
4. › Occupational health and safety offence
5. › Objective seriousness
6. › General and specific deterrence
7. › Remorse
8. › Whether trial judge failed to give proper weight to general deterrence
9. › Whether remorse established where offender did not accept responsibility
10. › Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A(3)
11. › Criminal Appeal Act 1912 (NSW), s 5D
1. Practice and Procedure
2. › Costs
3. › Criminal proceedings
4. › Apportionment of costs
5. › Whether trial judge erred in apportioning costs on basis of number of particulars succeeded upon
6. › Duty of prosecutor to put all material issues before court

Quick Take

An employer's failure to take steps that only minimise or manage a risk to employee safety, without eliminating it, can constitute a breach of s 8(1) of the OHS Act 2000 (NSW). General deterrence must be given weight of some substance in sentencing for OHS offences in all but the most exceptional cases, following Capral Aluminium. Offering rehabilitation and reparation to an injured employee does not constitute remorse under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) where the offender has not accepted responsibility for the offence.