Citation: [2018] NSWDC 370
Court: District Court of New South Wales
Date: 3 December 2018
Judge(s): Scotting DCJ
Background
The offender, a major mining corporation, operated the Cadia Valley Operations mine near Orange, NSW. A contractor's employee, Mr Lee Peters, worked at the mine as a Mine Services Operator under the offender's day-to-day direction and safety management system.
The mine used mobile water cannons, converted from concrete-spraying vehicles called Jacon Maxijets, to clear blockages (hang-ups) in underground draw points. Because the vehicle cabin was small, hot and offered poor visibility, the safe work procedure required operators to stand outside the cabin on the north side of the vehicle. This placed workers in a position between the vehicle and the mine wall.
On 6 September 2015, Mr Peters was killed when he was crushed between the water cannon plant and the mine wall. The circumstances arose directly from the documented procedure that required workers to occupy that exposed position. The offender pleaded guilty to failing to comply with its health and safety duty under the Work Health and Safety Act 2011, thereby exposing Mr Peters to a risk of death or serious injury.
Legal Issues
- Whether the offender failed to comply with its primary duty of care under section 19(1) of the Work Health and Safety Act 2011, contrary to section 32 of that Act
- The appropriate penalty, including the objective seriousness of the offence
- What aggravating and mitigating factors applied to sentencing
- The appropriate discount for a guilty plea and cooperation with investigators
- Whether prosecution costs should be awarded
Decision
Scotting DCJ accepted the agreed facts and convicted the offender. The court assessed the objective seriousness of the offence as above the mid-range. The offender's own documented safe work procedure, which had been in use for several years, required workers to stand in a position exposed to the hazard that ultimately killed Mr Peters. The procedure created and entrenched the very risk it should have eliminated.
Several aggravating factors applied. The risk was foreseeable and the means of addressing it were readily available. The harm was of the most serious kind, namely a worker's death. The offender was a large corporation with substantial resources, and the cost savings and production priorities that shaped the water cannon design were commercially motivated. The court noted the importance of both general and specific deterrence in work health and safety prosecutions.
Mitigating factors were also identified. The offender had no prior relevant convictions, cooperated fully with the regulator's investigation, made significant safety improvements following the incident, and demonstrated genuine remorse. The court accepted evidence of good prospects of rehabilitation and noted the practical steps taken to prevent recurrence.
A 25% discount was applied to reflect the utilitarian value of the guilty plea, consistent with the principles in R v Thomson & Houlton and R v Borkowski. Starting from a fine of $600,000, the court imposed a final penalty of $450,000.
Orders Made
- The offender was convicted.
- A fine of $450,000 was imposed.
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor.
- The offender is to pay the prosecutor's costs as agreed or assessed.
Key Takeaways
- A documented safe work procedure that itself exposes workers to a foreseeable risk of death or serious injury can form the basis of a section 32 Work Health and Safety Act 2011 offence, even where the procedure was formally approved and in longstanding use.
- Objective seriousness was elevated where the hazard was foreseeable, the means of mitigation were available, and the offender's operational and commercial decisions contributed to maintaining the unsafe procedure.
- Under the sentencing framework, a guilty plea attracted a 25% discount, consistent with R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1, reflecting both utilitarian value and an indication of remorse.
- Victim impact statements were taken into account not as a separate aggravating factor but as evidence of harm done to the community under section 28(4) of the Crimes (Sentencing Procedure) Act 1999.
- Large corporations with significant resources are not insulated from substantial fines in work health and safety prosecutions; the availability of resources to address a known hazard can heighten, rather than reduce, the court's assessment of culpability.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 28(4)
- Fines Act 1996 (NSW), s 122(2)
Cases:
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- 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