Generally, we found that to the extent that the submissions considered the matter and from our consultations with various parties there is general support for the differentiation of offences by reference to the levels of culpability, risk and seriousness involved.
Discussion
We consider that it is clearly preferable to specify particular penalties for particular offences, so that the relative seriousness of the offences is clear.
With that in mind, we propose that, in relation to each type of duty of care, there should be three categories of offence. The first category would address the most serious breaches, that is, where there was a high level of risk of serious harm and the duty holder was reckless or grossly negligent. The second category would apply to circumstances where there was high level of risk of serious harm but without recklessness or gross negligence. The third category would apply to a breach of the duty without the aggravating factors present in the first two categories.
We consider that this approach allows a differentiation that takes account of culpability and risk.294 We also consider that it would allow sufficient room for a sentencing court to adjust the penalty within each category to suit the circumstances of the offence. Such an approach should also allow the potential legal consequences of a breach to be clearly and simply explained to duty holders when advice and information is being given. It might also facilitate warning a duty holder, if that is required, about the implications of particular conduct.
