Citation: [2018] NSWDC 27
Court: District Court of New South Wales
Date: 26 February 2018
Judge: Judge AC Scotting
Background
Cudal Lime Products Pty Ltd (CLP) operated an open-cut limestone quarry at Cudal in New South Wales. One of its plant operators had lived with his partner, Judith Liehr, in a cottage located about 200 metres from the mine. The cottage received its electricity supply through the mine's electrical infrastructure.
Over several years, the mine accumulated a documented history of electrical problems, including an arc fault in December 2013 that destroyed the main switchboard. That board was replaced in early January 2014. A subsequent fault in the cabling connected to the mine's crusher created conditions that ultimately resulted in Ms Liehr's death by electrocution.
CLP pleaded guilty to recklessly exposing Ms Liehr to a risk of death or serious injury, in breach of its health and safety duty under ss 19(2) and 31 of the Work Health and Safety Act 2011 (the Act). Simon Shannon, a production operator and team leader at the mine, pleaded guilty to a separate charge of failing to comply with his own health and safety duty under s 28 of the Act, thereby exposing Ms Liehr to the same risk, contrary to s 32. CLP also sought to have a further offence involving the exposure of worker Barry Perceval to the same risk taken into account on a Form 1.
Legal Issues
- Whether CLP, as a person conducting a business or undertaking, had a health and safety duty under s 19(2) of the Act and, by its conduct, recklessly exposed Ms Liehr to a risk of death or serious injury contrary to s 31
- Whether Simon Shannon, as a worker, failed to comply with his duty under s 28 of the Act, thereby exposing Ms Liehr to such risk contrary to s 32
- What penalties were appropriate, having regard to objective seriousness, mitigating and aggravating factors, capacity to pay, parity, totality, deterrence, and the victim impact statements
- How the guilty pleas should be reflected in any discount applied to the fines
Decision
Judge Scotting sentenced both offenders following their guilty pleas. The offences arose from a pattern of electrical problems at the mine that had attracted regulatory attention as far back as 2007, when an Electrical Inspector of Mines issued a formal notice identifying deficiencies in the mine's electrical installations and maintenance practices. Despite that history, unqualified electrical work was carried out at the mine, and the conditions that led to Ms Liehr's death were not rectified.
For CLP, the Court assessed the offence as carrying significant objective seriousness. The risk of electrocution was well known, the company had prior regulatory warnings, and the recklessness required by s 31 elevated the gravity of the conduct above a merely negligent failure. The Form 1 offence, relating to the exposure of Mr Perceval, was also taken into account. Mitigating factors included the guilty plea, evidence of remorse, cooperation with investigators, and some limited financial capacity. The Court identified the maximum penalty at $3 million and fixed a pre-discount figure of $1.2 million, then applied a 25% reduction for the guilty plea, arriving at a fine of $900,000.
For Simon Shannon, the Court fixed a pre-discount fine of $64,000 against a maximum of $150,000, reduced by 25% for the guilty plea to $48,000. His limited earning capacity and financial position were taken into account, as was his role as a worker rather than the operator of the business.
The Court considered the victim impact statements from Ms Liehr's three children and from Mr Perceval. Consistent with s 28(4) of the Crimes (Sentencing Procedure) Act 1999, the harm to the deceased's family was treated as an aspect of harm done to the community, relevant to the appropriate punishment. Pursuant to s 122(2) of the Fines Act 1996, the Court ordered that 50% of each fine be paid to the prosecutor. Both offenders were also ordered to pay the prosecutor's costs.
Orders Made
- CLP convicted and fined $900,000 (pre-discount fine of $1.2 million, reduced by 25% for guilty plea)
- 50% of CLP's fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996
- CLP to pay the prosecutor's costs as agreed or assessed
- Simon Shannon convicted and fined $48,000 (pre-discount fine of $64,000, reduced by 25% for guilty plea)
- 50% of Simon Shannon's fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996
- Simon Shannon to pay the prosecutor's costs as agreed or assessed
Key Takeaways
- A person conducting a business or undertaking can be convicted under s 31 of the Work Health and Safety Act 2011 for recklessly exposing a non-worker, such as a residential occupant on nearby premises, to a risk of death or serious injury, where the risk arises from the business's electrical infrastructure.
- Under s 32 of the Act, an individual worker holding a supervisory role can be personally liable for failing to comply with the duty in s 28, even where the harmed person is not a fellow worker.
- The District Court treated a documented history of regulatory notices and known electrical deficiencies as a significant aggravating factor in assessing the objective seriousness of the offences.
- Victim impact statements from family members of a deceased victim are relevant to sentencing under WHS legislation, with the court treating harm to the victim's family as harm done to the community for the purposes of s 28(4) of the Crimes (Sentencing Procedure) Act 1999.
- A 25% discount on the applicable fine was applied for guilty pleas entered by both the corporate and individual offenders, reflecting the utilitarian value of those pleas to the justice system.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 28, 31, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 3A, 21A(2)(g), 21A(3)(e), 21A(3)(f), 21A(3)(h), 21A(3)(i), 21A(3)(k), 21A(3)(m), 28(4)
- Fines Act 1996 (NSW), ss 6, 122(2)
- Mine Health and Safety Act 2004 (NSW)
Cases
- Aubrey v R [2017] HCA 18
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Tuala [2015] NSWCCA 8
- R v Youkhana [2004] NSWCCA 412