The model Act should provide for custodial sentences for individuals for up to five years in circumstances (category 1 offence) where:
there was a breach of a duty of care where there was serious harm to a person (fatality or serious injury) or a high risk of serious harm; and
the duty holder has been reckless or grossly negligent.
Re-offenders
Current arrangements
Although there is no uniformity in the OHS Acts or other sentencing laws, to penalties for persons who have previous convictions for non-compliance with duties of care, there are two broad approaches.
Option one – Leave it to the sentencing court to decide the consequence for a defendant of prior convictions, subject to the requirements of local general sentencing statutes.319 It should be noted that the treatment of prior convictions varies between the various applicable sentencing laws of the Commonwealth, States and Territories.
Option two – Make specific provision in the model Act for an increased fine for a re-offender. Table 14 sets out the position under the OHS Acts.
