Jersey Unreported Judgments

[2005]JRC085

ROYAL COURT

(Samedi Division)

 

24^th June 2005

 

 

The Attorney General

-v-

Francis William Dempsey

 

Sentencing by the Inferior Number of the Royal Court, on guilty pleas to:

 

1 count of:	Breach of duty under Article 21 (1) (a) Health and Safety at Work (Jersey) Law 1989 breach of duty under Article 3 (1).  (Count 1).
1 count of:	Breach of Regulations  2(1) of the Asbestos Licensing (Jersey) Regulations 1997.

 

 

Age:     59.

 

Plea:    Guilty,

 

Details of Offence:

The Defendant was contracted to "soft strip" buildings comprising the site of the former Chalet Hotel in St Brelade.  This was prior to demolition by another company.  The Defendant was warned by the owner of the site that there was asbestos inside the buildings and not to touch anything other than what was on the inventory.  An asbestos survey had been commissioned.  A specialist company, licensed to remove asbestos, was asked to prepare a quote for the removal of the asbestos.  When an employee of that company attended on site, he was unable to give a quotation on that day because there was no lighting inside the buildings.  He did however warn the Defendant not to touch any parts of the interior of the building which had been marked with a red 'a' which were likely to contain asbestos.  However the Defendant and his three sons, who were his employees, deviated from the instructions of the owner and went beyond the soft strip instructions, damaging asbestos insulation board in several areas by pulling it off the walls and steel columns, causing it to break.  The debris was then swept up into a wheel barrow.  These activities caused asbestos fibres to be released into the atmosphere and thus exposed the Defendant and his three sons to potential injury.

 

Details of Mitigation:

The Defendant had not committed the offence intentionally, but recklessly. He would never knowingly have exposed his sons to such a risk.  The offence had been committed through ignorance and wrong assumptions.  He would have to live the rest of his life with the fear that his sons may fall ill as a result of the activities carried out at the site.  He had entered guilty pleas early in the proceedings and made frank admissions to the Health and Safety Inspector.  Defendant was of limited means on day of sentencing but anticipated the sale of a field, with development permission, in the near future, which would be of considerable value.  This was set out in his Affidavit of Means.

 

Previous Convictions:

Motoring convictions more than thirty years previously.  One Housing Law infraction in 1984.

 

Conclusions:

 

 

Count 1:	£5,000 fine or 3 months' imprisonment in default.
Count 2:	£5,000 fine or 3 months' imprisonment in default, consecutive.

 

Costs £2,500.

 

Sentence and Observations of Court:

Conclusions granted. Defendant given 3 months to pay the fines and costs.  Court granted Defendant leave to return to Court, with a new Affidavit of Means, if he had difficulty in finding the means to pay the fines within the specified period.

 

 

 

Mrs S. Sharpe, Crown Advocate.

Advocate D. Steenson for the Defendant.

 

 

 

JUDGMENT

 

 

 

THE BAILIFF:

1.        The defendant has admitted two infractions under the Health and Safety at Work (Jersey) Law 1989 and Regulations made thereunder, namely the Asbestos (Licensing)(Jersey) Regulations 1997.

2.        Counsel for the defendant made a number of submissions to us.  We accept the submission that these two infractions are really to be regarded as one so far as the penalty to be imposed is concerned.

3.        We do not, however, accept the submission that the deterrent element of the penalty to be imposed is immaterial.  Indeed this Court thinks that the deterrent element is perhaps the most important aspect of the penalty to be imposed. 

4.        The defendant through his Counsel has accepted very candidly and very properly that his actions on these occasions were reckless.  Indeed they were, and it must go out from this Court that to expose others to the risks of asbestosis is a serious matter and one to which all those who are involved in building enterprises should pay attention. 

5.        We sympathise, of course, with the defendant to the extent that the persons to whom he has exposed this risk are his sons, but in fact whether the persons exposed are relatives or not, it is a serious matter to expose others to that kind of risk.

6.        Viewing the matter in the round, we think the conclusions of the Crown Advocate are correct and that a total fine of £10,000 is appropriate for these offences.  We have considered the Affidavit of Means which defence counsel has placed before us, and we accept that the cash available to the defendant at present would not enable him to pay a fine of £10,000.  We would expect, however, particularly bearing in mind the borrowing which the defendant has already been able to achieve that the comparatively modest amount of the fine to be imposed is something which could be the subject of a loan from a bank or other institution.

7.        The sentence of the Court is that the conclusions are granted, and you will be fined on charge 1 the sum of £5,000, or in the alternative 3 months' imprisonment.  On charge 2, £5,000 or in the alternative 3 months' imprisonment, consecutive, making a total fine of £10,000 or in default of payment 6 months' imprisonment.  We also order you to pay the costs of the prosecution up to the sum of £2,500.  We are going to allow 3 months in which to pay the fines and costs; and we give you liberty to come back to the Court if there is any difficulty in finding the means of paying the fines and costs within that period.

Authorities

R -v- Board of Trustees of the Science Museum (1992) 3 All ER 853.

Attorney General -v- H & V Building Services Limited [2000]JRC58.

Attorney General -v- MHS Environmental Limited [2001]JRC239

Attorney General -v- Trant Construction Ltd [2003]JRC114.

Attorney General -v- Julian Revell Smith [2005]JRC076

Health and Safety at Work (Jersey) Law, 1989, Articles 3 and 21.

Asbestos (Licensing) (Jersey) Regulations 1997, R&O - 9119, Article 2.