Jersey Unreported Judgments

Inferior Number Sentencing - contravention of Article 21 of the Health and Safety at Work (Jersey) Law 1989

[2012]JRC221

Royal Court

(Samedi)

23 November 2012

The Attorney General

-v-

Jose Carlos Ventura Delgado t/a J. C. Stonemasons and Builders

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

Plea: Guilty.

Details of Offence:

The defendant was a stonemason and became a sole trader with 3-4 employees undertaking general building and maintenance work.  The defendant undertook refurbishment of a detached garage at domestic premises.  Two employees were exposed to asbestos fibres when they removed the ceiling of the garage, subsequently identified as asbestos insulation board (AIB) totalling approximately 14 square metres.  The AIB was then broken up, the garage floor swept and the AIB placed in the back of an open lorry.  The lorry was parked overnight beside a school before the waste was taken to la Collette for disposal where the AIB was identified.  The defendant had no knowledge or understanding of asbestos - in fact he had never heard of it before: therefore no training was given to employees. 

Details of Mitigation:

The defendant admitted the infractions on the Indictment.  No previous convictions.  Fully co-operative with the investigation.  Suffered anxiety and depression post-offence and was in parlous financial circumstances.  Personal and financial affidavits filed by the defendant indicated an individualised sentence. 

Previous Convictions:

None.

Conclusions:

Total: £5,000 fine plus £2,500 costs.

Sentence and Observations of Court:

Conclusions granted.  Prosecution costs reduced to £1,000.  Fine and costs to be paid at a rate of £400 per month, costs being paid first.  The defendant to come back to Court if at risk of default. 

Total: £5,000 fine plus £1,000 costs with time to pay at a rate of £400 per month. 

Mrs S. Sharpe, Crown Advocate.

Advocate L. A. Ingram for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The defendant has been charged in this case with two charges under the Health and Safety At Work (Jersey) Law and Regulations.  These relate to work carried out on the roof of a disused garage without making any checks whatever as to whether or not there was asbestos in that roof.  Indeed the defendant claimed in a question and answer interview that he had never come across asbestos before and indeed he said he had never even heard of the word asbestos let alone have any risks of what it was or the risks associated with it. 

2.        This is a matter of great concern to the Court and undoubtedly would be of great concern to the Health and Safety Executive in Social Security.  One of the purposes of the Asbestos Regulations is to ensure that the building trade becomes more and more aware of the need to take appropriate safeguards and in this case, this was not a question of making a mistake or making an error of judgment, it is simply that the defendant does not appear to have known of the risks of asbestos at all.  For the continuation of his business it is obviously appropriate that he should learn to recognise what is and what is not asbestos, so that his employees have a safe system of work.  Only last week the Court was dealing with a case where fines of £6,000 on each charge were imposed for similar offending, albeit the defendant company in that case simply made an error of judgment in identifying whether asbestos was of a kind which was covered by the regulations in the work that was being done. 

3.        The fine we are about to impose now is not related in that sense to the seriousness of these offences because if we had simply been imposing a fine for these offences for what they are worth, the fine would be considerably higher than the fine we are about to impose.  It is being reduced only because of the financial circumstances that have been put to us.  It is not a matter of mitigation that the defendant was unaware of the dangers of asbestos.  The purpose of the legislation is to ensure that employers make themselves aware of the dangers of asbestos.  And so this case should not be seen as any form of precedent whatsoever in terms of the fine that is to be imposed. 

4.        We do note the mitigation which the defendant puts forward, his prompt admissions, his guilty plea, his cooperation and his apologies not just to the Court, but more importantly, to his employees for exposing them to health risks.  The Court notes that his risk management practices have improved and that he now has a specialist surveyor to advise him on the premises on which he is going to carry out work.  We certainly have had regard to his financial circumstances. 

5.        We think the right thing to do in this case is to grant the conclusions of the Crown and there will therefore be a fine of £2,500 on each charge with 2 months' imprisonment in default.  We are going to reduce the costs to the sum of £1,000, not least because the case with which the Court has just a moment ago been dealing, was far more complicated than the present one and the reduced costs reflect the relative lack of complication.  The fines and the costs are to be paid at the rate of £400 per month.  If the defendant finds that he is in financial difficulty in meeting that commitment it is his obligation to come back to Court or the default sentences will be imposed.  The monies that are paid at a rate of £400 a month will be applied first towards the payment of costs and thereafter towards the fines on each charge. 

Authorities

AG-v-Jardim t/a Buildrite Builders Property Maintenance and Stonemasons [2008] JRC 183.

AA Langlois Haulage Limited [2010] JRC 023.

R-v-Board of Trustees of the Science Museum [1993] 3 All ER 853.

R-v-F Howe & Sons (Engineers) Ltd [1999] 2 Cr App R (S) 37.

Health and Safety at Work (Jersey) Law 1989.

Health and Safety at Work (Asbestos-Licensing)(Jersey) Regulations 2008.