Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


The Sentencing Advisory Council for Victoria, has released a Consultation Paper, Sentencing Occupational Health and Safety Offences in Victoria (February, 2024).  

In its report the Sentencing Council indicates that it is “seeking submissions on the sentencing of occupational health and safety offences in Victoria”.

The Council indicates that “[i]n order for the criminal justice system to play its small but important role in ensuring workplace health and safety standards in Victoria, it’s critical that the sentencing of OHS offences – the how, the what and the why – is fit for purpose. If sentencing standards are too inconsistent with community expectations, if injured workers and their loved ones feel improperly excluded from the process, or if fines for unsafe work practices are just ‘the cost of doing business’, then the system is not working” (at page xi).

The Council notes that the “sentencing of OHS offences in Victoria and Australia has been the subject of a number of reviews over the last 30 years or so”. It suggests that “[b]y and large, the findings and recommendations of these reviews have been consistent: that fines for OHS offences are too low to change companies’ behaviour, that sentencing orders other than fines should be available and used in a wider range of OHS cases, and that there should be some improved guidance for courts about the sentencing of OHS offences” (at page xi).

Finally, the Council indicates that “[o]ne factor in particular that warrants further discussion is the extent to which the size of the company should be relevant in setting the value of any fine imposed, and if so, how to measure the size of a company (Questions 5 and 6). In order to achieve the purposes of sentencing, a fine needs to have a ‘real sting’ to it, and arguably the only way to achieve that sting is for larger companies to receive larger fines….We also heard in our preliminary consultations some scepticism about whether companies should be entitled to mitigation based on their ‘good character’, especially when donations seem to sometimes be made to local charities soon after a relevant workplace incident. We are seeking views about the role that good character should play in determining the appropriate sentence in an OHS case (Question 7)” [at page xiii].