The existence of a safety system that would have been effective if followed does not necessarily reduce the objective seriousness of a WHS offence where the system was deficient or inadequately implemented. Employee failures to follow safety procedures do not mitigate the employer's culpability where the employer failed to ensure the system was capable of operating effectively. Sentencing practice for category 2 offences under the WHS Act 2011 (NSW) is still developing, and a single prior sentence does not establish a constraining sentencing practice. The significantly increased maximum penalties under the WHS Act must be reflected in sentences imposed.
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