R v Watts - [2020] ACTSC 91

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Watts
Citation:	[2020] ACTSC 91
Hearing Date:	16 April 2020
DecisionDate:	20 April 2020
Before:	Murrell CJ
Decision:	The offender is sentenced to 12 months’ imprisonment, wholly suspended upon the offender entering into a good behaviour order for 12 months.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Industrial law – Workplace incident resulting in death – Breach of s 31(1) of Work Health and Safety Act 2011 (ACT) – Duty of worker under s 28 of Work Health and Safety Act 2011 (ACT) – Reckless conduct exposing individual to risk of death or serious injury – Unsafe operation of a crane in construction site – Imprisonment
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 7, 12, 33, 35, 36 Occupational Health and Safety Act 2004 (Vic) ss 24, 32, 144(1) Work Health and Safety Act 2011 (ACT) ss 19, 28, 31 Work Health and Safety Act 2011 (NSW) ss 31, 32 Work Health and Safety Act 2011 (QLD) s 31(1) Work Health and Safety Act 2012 (SA) s 31 Work Safety Act 2008 (ACT) s 31(1) (repealed)
Cases Cited:	Campbell v Rowe [2019] SAET 104 Orbit Drilling Pty Ltd v The Queen [2012] VSCA 82 Orr v Cudal Lime Products [2018] NSWDC 27 R v Canberra Contractors Pty Ltd [2016] ACTSC 13 R v De Simoni (1981) 147 CLR 383 R v Lavin [2019] QCA 109 WorkSafe Victoria v Jackson (Latrobe Valley Magistrates Court, 19 December 2018)
Parties:	The Queen (Crown) Michael Watts (Offender)
Representation:	Counsel K Weston-Scheuber with S Janackovic (Crown) J Agius SC with P Boncardo (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Hall Payne Lawyers (Offender)
File Number(s):	SCC 44 of 2019

MURRELL CJ

Introduction

On 12 February 2020, the offender pleaded guilty to the offence that he was a person with a work health and safety duty under s 28 of the Work Health and Safety Act 2011 (ACT) (WHS Act) who, without reasonable excuse, engaged in reckless conduct that exposed an individual to whom that duty was owed to a risk of death or serious injury, and was reckless as to that risk, contrary to s 31(1) of the WHS Act.

When such an offence is committed by an individual, the maximum penalty is $300,000, five years’ imprisonment, or both.

On 4 August 2016, the offender was instructed to use a crane at the University of Canberra Hospital construction site (the construction site) to transport a large generator. In performing the lift, the offender operated the crane in excess of its rated capacity, with insufficient planning, at night with reduced visibility, and on uneven terrain. While transporting the generator, the crane overturned. As it overturned, the boom of the crane impacted a worker, Herman Holtz, crushing him between the boom of the crane and the ground, and killing him.

At the outset, the Court acknowledges the profound loss suffered by Mrs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Watts

Details

AGLC: R v Watts [2020] ACTSC 91
Case: [2020] ACTSC 91
Decision Date: 20 April 2020

CaseChat Overview and Summary

In the matter of the Regina versus Watts, the appellant was convicted of a breach of section 31(1) of the Work Health and Safety Act 2011 (ACT) and was sentenced to 12 months imprisonment, wholly suspended upon the appellant entering into a good behaviour order for 12 months. The appellant, an employee of a construction company, was responsible for operating a crane at a construction site. It was alleged that the appellant recklessly operated the crane, resulting in the death of a colleague. The matter was heard in the Supreme Court of the Australian Capital Territory, where the appellant contested the conviction and sentence. The court was required to consider whether the appellant’s conduct constituted a breach of section 31(1) of the Work Health and Safety Act 2011 (ACT) and whether the sentence imposed was appropriate.

The court considered whether the appellant's conduct constituted a breach of section 31(1) of the Work Health and Safety Act 2011 (ACT) and whether the sentence imposed was appropriate. The court found that the appellant's conduct was reckless and exposed an individual to a risk of death or serious injury, which constituted a breach of section 31(1) of the Act. The court also considered the appellant's duty under section 28 of the Act to take all reasonable steps to ensure the health and safety of themselves and others. The court found that the appellant failed to take reasonable steps to ensure the safety of themselves and others, resulting in the death of a colleague. The court also considered the appellant's previous good character and the impact of the offence on the victim's family.

The court found that the appellant's conduct was reckless and constituted a breach of section 31(1) of the Work Health and Safety Act 2011 (ACT). The court also found that the appellant's duty under section 28 of the Act was breached, as the appellant failed to take reasonable steps to ensure the safety of themselves and others. The court considered the appellant's previous good character and the impact of the offence on the victim's family, and determined that a wholly suspended sentence was appropriate. The court imposed a sentence of 12 months imprisonment, wholly suspended upon the appellant entering into a good behaviour order for 12 months. The court also ordered the appellant to pay a fine of $5,000.

Orders

Orders of the court

The offender is sentenced to 12 months’ imprisonment, wholly suspended upon the offender entering into a good behaviour order for 12 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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