In sentencing for Category 2 offences under the Work Health and Safety Act 2011 (NSW), the risk to be assessed is the risk arising from the failure to take reasonably practicable steps, not the risk of the consequence materialising; discounting seriousness by reference to the unlikelihood of injury is apt to lead to error. The proportionality of the sentence must be assessed in the context of the gradation from Category 3 to Category 1 offences and the maximum penalties. The award of a moiety of the fine to the prosecutor under s 122(2) of the Fines Act 1996 (NSW) does not displace the prosecutor's entitlement to costs under s 257B of the Criminal Procedure Act 1986 (NSW).
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