Prosecutions for the most serious breaches (i.e. category 1 offences, see recommendation 55) should be brought on indictment, with other offences dealt with summarily.
Page 98
54
There should be provision for indictable offences to be dealt with summarily where the Court decides that it is appropriate and the defendant agrees.
Page 98
55
There should be three categories of offences for each type of duty of care,
Category 1 for the most serious breaches, where there was a high level of risk of serious harm and the duty holder was reckless or grossly negligent;
Category 2 for circumstances where there was a high level of risk of serious harm but without recklessness or gross negligence; and
Category 3 for a breach of the duty without the aggravating factors present in the first to categories;
with maximum penalties that:
relate to the seriousness of the breach in terms of risk and the offender’s culpability;
allow the courts to impose more meaningful penalties, where that is appropriate.
Page 100
56
The model Act should provide that in a case of very high culpability (involving recklessness or gross negligence) in relation to non-compliance with a duty of care where there was serious harm (fatality or serious injury) to any person or a high risk of such harm, the highest of the penalties under the Act should apply, including imprisonment for up to five years.
Note: This would be a Category 1 case in our recommended 3 category system. Recommendation 57 proposes a range of penalties for each category and for the holders of the various recommended types of duty.
