A recent amendment to the Criminal Law (Sentencing) Act (SA) 1988 (Sentencing Act) has implications for persons carrying on a business or undertaking (PCBU), officers and others charged with offences under the new Work Health and Safety Act (SA) 2012 (WHS Act).
Background
The South Australian Labor Government’s recent amendment to the Sentencing Act regulates the sentencing discounts given to those who plead guilty to an offence under a State Act.
Under the changes, which have immediate effect, a defendant will be able to obtain a discount of up to 40% of the penalty that would normally apply for the offence. The amount of the discount is dependent on the timing and circumstances of the guilty plea entered by a defendant.
The aim of the amendment was explained by Attorney-General the Honourable John Rau as follows:
The main objective of the bill is to improve the operation and effectiveness of the criminal justice system by reducing current delays and backlogs in cases coming to trial. It encourages offenders who are minded to plead guilty to do so in a timely way.[1]
A defendant will still be able to take advantage of lesser discounts where a guilty plea is entered at a later stage. The discount will be available on a term of imprisonment and/or a statutory fine penalty. However, the discount will not apply to mandatory minimum penalties under a State Act.
Penalties under the WHS Act
South Australia entered 2013 with a new safety regime, following the January 1 commencement of the WHS Act, commonly referred to as the harmonised safety laws. The WHS Act has introduced significantly higher penalties, including an increase in the maximum penalty for a PCBU’s contravention of safety laws to $3m for a first offence.
A summary of the applicable penalties under the WHS Act is contained in the table below:
| Offender | Category 1Reckless conduct exposing a risk of death, serious injury or illness | Category 2Failure to comply with a duty exposing a risk of death, serious injury or illness | Category 3Failure to comply with a duty |
| An individual | $300,000 | $150,000 | $50,000 |
| An individual or officer as a PCBU | $600,000 | $300,000 | $100,000 |
| Body corporate | $3,000,000 | $1,500,000 | $500,000 |
The effect of the amendment on penalties under the WHS Act
All State Acts are impacted by the amendment to the Sentencing Act. A guilty plea under the WHS Act will therefore attract the same discount as applies to offences under other State Acts.
In practice, the maximum discount available – which is dependent upon when the defendant enters a plea of guilty – is identified in the table below:
| The time that the PCBU, officer or other defendant pleads guilty: | The maximum discount which a Court may apply: |
| Up to four weeks after first appearance in a Court | 40% |
| Up to four weeks of the trial date | 30% |
| In any other circumstances as the Court deems fit | 10% |
(Note: exceptions do apply and will be subject to judicial discretion.)[2]
Implications for Employers
The amendment to the Sentencing Act is another reason for employers, in their capacity as PCBUs, to consider obtaining advice as soon as a safety incident occurs.
Such advice will mean that, should the incident become the subject of an investigation by SafeWork SA, the PCBU will be able to determine at an early stage whether they have a defence to a safety prosecution. In the absence of a defence, the PCBU may take advantage of the generous discounts available for an early plea of guilty to a contravention of the WHS Act.
