MAGISTRATES COURT OF QUEENSLAND
| CITATION: | Guilfoyle v Huckleberry Australia Pty Ltd [2023] QMC 1 | |
| PARTIES: | Aaron John Guilfoyle | |
| (Complainant) | ||
| v Huckleberry Australia Pty Ltd | ||
| (Defendant) | ||
| FILE NO/S: | BNE-MAG- 00025333/20 File No-MAGISTRATE-00151279/20(1) | |
| PROCEEDING: | Criminal proceeding — Offence contrary to Work Health and Safety Act 2011, section 32 — Failure to comply with health and safety duty which arose under section 19(2) of Act — Nature of the duty — Uniform national workplace safety laws. Sentencing decision — Objective seriousness of offending — Aggravation and mitigation — Deterrence, General and Specific — Denouncing offending conduct — Rehabilitation — Capacity to pay a fine. | |
| ORIGINATING COURT: | ||
| Brisbane Magistrates Court | ||
| DELIVERED ON: | 8 February, 2023. | |
| DELIVERED AT: | Brisbane | |
| HEARING DATES: | 24 November and 1 December 2022 | |
| MAGISTRATE: | Costanzo J | |
| ORDERS, | 1. The defendant is convicted and fined $250,000. | |
| DIRECTIONS, and | 2. The conviction is not recorded. | |
| ||
| RECOMMENDATION: | $1099.70 (being $1000 professional costs and $99.70 costs of court). |
4. I direct that pursuant to section 34(2A) of the State Penalties Enforcement Act 1999, the Registrar give particulars of the fine and costs orders to the State Penalties Enforcement Registry for registration and collection.
5. I recommend that the Queensland Government undertake a review of the relevant Codes of Practice relating to the Work Health and Safety Act 2011 to at least include all swimming activities conducted by Australian and international tourists in tour groups.
| REPRESENTATION: | Mr T Ward, Solicitor, Office of the Work Health and Safety Prosecutor, for the complainant. |
| Mr Y Araki of Counsel, instructed by Austral Asia Law, for the defendant. | |
| STATUTES | Acts Interpretation Act 1954; s 36, sch 1. Crimes Act 1914 (Cth); s 16C. Criminal Law (Rehabilitation of Offenders) Act 1986; s 11. Penalties and Sentences Act 1992; ss 4, 5, 9, 12, 48. Safety in Recreational Water Activities Act 2011; s 43. State Penalties Enforcement Act 1999; s 34(2A). Victims of Crime Assistance Act 2009; s 6. Work Health and Safety Act 2011 (NSW); ss 17, 19, 32. Work Health and Safety Act 2011 (Qld); ss 3, 8, 13, 14, 15, 16, 17, 18, 19, 29, 31, 32, 33, 230. |
| CASES | Baiada Poultry Pty Ltd v R [2012] HCA 14. Bennett Developments v Steward [2020] QDC 235. Barbaro v R (2014) 253 CLR 58; (2014) 305 ALR 323; (2014) 88 ALJR 372; (2014) 236 A Crim R 116; [2014] HCA 2. Bulga Underground Operations v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37. Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610; [2000] NSWIRComm 710. Carrington Slipways Pty Ltd v Callaghan (1985) 11 KR 467. Edwards v National Coal Board [1949] 1 All ER 743. Guilfoyle v Queensland Police-Citizens Youth Welfare Association, unreported decision of Magistrate Ho, 16 November 2020. Jahandideh v R [2014] NSWCCA 178. Markarian v R (2005) 228 CLR 357; (2005) 215 ALR 213; (2005) 79 ALJR 1048; [2005]… |
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- Case
- [2023] QMC 1
- Decision Date
CaseChat Overview and Summary
The court found that the defendants had a duty to ensure the safety of the students during the tour, including taking reasonable steps to eliminate or minimise the risk of death or serious injury. The court held that the defendants failed to discharge this duty, as they did not adequately assess the risks associated with the activities around Lake McKenzie and did not take reasonable steps to ensure the students' safety. The court found that the defendants' failure to provide adequate supervision, warnings, and safety measures contributed to the deaths of the two students. The court also noted that the defendants had a history of similar incidents and had not taken sufficient action to prevent future occurrences.
The court imposed a penalty of $180,000 on Huckleberry Australia Pty Ltd, reflecting the seriousness of the breach and the need for deterrence and denunciation. The court considered the comparative sentences in similar cases and the factors that influenced the sentencing decisions, such as the defendants' capacity to pay, cooperation with the investigation, and post-incident measures taken to improve safety. The court also took into account the defendants' history of similar incidents and their failure to take reasonable steps to prevent future occurrences.
The final orders of the court included the imposition of fines on the defendants and the recording of their convictions. The court also ordered the defendants to take specific steps to improve their work health and safety practices, including conducting risk assessments, providing adequate supervision, and implementing safety measures to prevent similar incidents in the future.
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