The South Australian Government proposed that there should be an express provision in the model Act to deal with re-offenders.
Discussion
Providing for an additional penalty may add to the deterrent effect of the sanctions for non-compliance and demonstrate the community’s intolerance of reoffending where the consequences of non-compliance can be extremely severe for those to whom the duty was owed.
On the other hand, such a provision limits the discretion of the sentencing court and assumes a high level of culpability, which may not exist, when further non-compliance occurs. Maxwell Review recommended the repeal of such a provision which existed in the then Victorian OHS legislation,320 observing that:321
“… courts ultimately have regard to fundamental principles, including the principle that a court ought not to impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which sentence is imposed.”’
We note that provisions concerning re-offending could sometimes operate unfairly. There will usually be a variety of factors that need to be considered when a person has prior convictions, including whether the previous non-compliance is relevant to the matter before the court. Even where it is, other factors might lead the court to discount the previous conviction in all the circumstances of the case then before it. In practice, legal arguments might effectively limit the opportunities for imposing the additional penalty.
Since we are recommending significant increases in maximum penalties, it will be possible for a sentencing court to impose substantial fines that take account of prior convictions, where it is appropriate to do so.322 We also note that we are recommending a range of sentencing options that should allow a sentencing court a wider range of suitably targeted responses to deal with such cases.
