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Court of Criminal Appeal 26 February 2019

Attorney General for New South Wales v Macmahon Mining Services Pty Ltd

[2019] NSWCCA 8

Other
SENTENCING CATEGORY 2 OFFENCE WHERE WORKER SUFFERED FATAL INJURY

Citation: Attorney General for New South Wales v Macmahon Mining Services Pty Ltd [2019] NSWCCA 8
Court: Court of Criminal Appeal
Date: 26 February 2019
Judges: Beazley P (at [1]), Fullerton J (at [27]), McCallum J (at [28])

Background

Macmahon Mining Services Pty Ltd was a mining contractor engaged to extend a mine shaft near Cobar. The works used a technique involving a large steel bucket, known as a kibble, to transport personnel and materials up and down the shaft. On 16 March 2013, a worker, Mr Junk, extended his head over the edge of the kibble while it was being raised through a platform over 1,000 metres underground. His head struck the upper platform at a pinch point in the shaft and he died from his injuries.

Macmahon pleaded guilty to a category 2 offence under section 32 of the Work Health and Safety Act 2011 (NSW), which applies where a failure to comply with a health and safety duty exposes an individual to a risk of death or serious injury. The maximum penalty for a corporation is $1.5 million. The sentencing judge in the District Court imposed a fine of $75,000 after allowing a 25 per cent discount for the guilty plea.

The Attorney General appealed on the basis that the sentence was manifestly inadequate, and that the sentencing judge erred in assessing objective seriousness, in failing to give adequate weight to the maximum penalty, and in failing to give adequate weight to general deterrence.

Legal Issues

  • Whether the sentencing judge erred in characterising the objective seriousness of the offence as falling at the low end of the spectrum
  • Whether the sentencing judge failed to apply or pay due regard to the maximum penalty, including the legislative increase in maximum penalties introduced by the Work Health and Safety Act 2011
  • Whether the sentencing judge failed to place sufficient weight on general deterrence
  • Whether, in the result, the sentence of $75,000 (after discount) was manifestly inadequate
  • Whether, if error were established, the Court should exercise its residual discretion not to re-sentence given the delay in bringing the appeal

Decision

The Court was divided. McCallum J (dissenting) would have dismissed the appeal. Beazley P (with Fullerton J agreeing) allowed the appeal and re-sentenced Macmahon to a fine of $375,000.

Ground 1: Objective seriousness

McCallum J examined the sentencing judge's findings in detail. The judge had found the risk was foreseeable, the consequences were grave, and simple measures could have obviated the risk. However, the judge also had regard to Macmahon's comprehensive safety systems, the low probability of the incident occurring, and the fact that multiple experienced professionals had not anticipated this particular risk. McCallum J accepted that the sentencing judge's conclusion incorporated both objective features and the offender's state of mind, and that this approach was consistent with the holistic sentencing methodology required by Markarian. She concluded the low-end assessment was open on the evidence (at [76]).

Beazley P disagreed. Her Honour held that the severity of the potential harm, combined with the very simple nature of the measures that could have prevented it, meant the objective seriousness was not properly characterised as low. Beazley P found that an experienced operator such as Macmahon should have acted on what was a foreseeable and obvious risk, regardless of expert assessments that deferred action on the relevant pinch point risk (at [17]-[19]). Her Honour assessed objective seriousness as mid-range (at [20]).

Grounds 2 and 3: Maximum penalty and general deterrence

McCallum J found no specific error on either ground. The sentencing judge had correctly identified the maximum penalty and acknowledged the legislative intention that such offences be treated seriously (at [84]). The judge had also addressed general deterrence in the sentencing remarks, and the weight given to that factor was a matter within his discretion (at [87]-[90]). Both grounds were treated as aspects of the manifest inadequacy submission rather than grounds of discrete error.

Ground 4: Manifest inadequacy

McCallum J acknowledged the sentence was lenient but, on the strength of unchallenged findings by the sentencing judge, was not persuaded that a pre-discount fine of $100,000 was outside the range of available sentences (at [93]). Beazley P, having found error in the assessment of objective seriousness, held the penalty was grossly inadequate and that the Court should proceed to re-sentence despite the delay in bringing the appeal and the fact that the fine had already been paid (at [25]).

Re-sentencing

Beazley P imposed a fine of $500,000 before discount, reduced by 25 per cent for the early guilty plea, yielding a penalty of $375,000. Her Honour took into account Macmahon's strong safety record and the fact that it had acted on expert advice in adopting its safety procedures (at [22]).

Orders Made

  • Appeal allowed
  • Monetary penalty imposed in the District Court quashed
  • In lieu thereof, the respondent is ordered to pay a penalty of $375,000
  • The respondent is to be given credit for the amount of penalty already paid
  • Remaining orders of the District Court confirmed, amended as necessary in accordance with these orders

Key Takeaways

  • A divided Court of Criminal Appeal re-sentenced a mining contractor for a fatal workplace incident, with the majority finding that the availability of simple and easily implemented safety measures was a strong indicator that objective seriousness should not be assessed as low-end, even where expert assessments had deferred action on a particular risk (at [17]-[19]).

  • Consistency in sentencing for industrial accident convictions is required in the same way as for general criminal offending, with "consistency" meaning consistency in the application of legal principles rather than numerical equivalence across cases (at [3]-[5]).

  • Grounds of appeal framed as failure to give "adequate" or "proper" weight to a factor do not ordinarily identify discrete House v The King error; absent an assertion that the sentencing judge took no account of the relevant matter at all, such grounds generally fall to be resolved by asking whether the sentence was manifestly inadequate or excessive (at [49]-[50]).

  • The Court confirmed that there is no separate requirement for a sentencing judge to pronounce a precise quantification of objective seriousness that expressly excludes subjective features; imposing such a requirement would risk inviting impermissible two-stage reasoning (at [70]).

  • Where a Crown appeal is substantially delayed and the respondent has already paid the fine, the residual discretion not to re-sentence remains available, but where the majority finds the original penalty grossly inadequate, that discretion will not be exercised to prevent re-sentencing as a matter of principle and proper sentencing practice (at [25]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g)
- Criminal Appeal Act 1912 (NSW), s 5D(1)
- Occupational Health and Safety Act 2000 (NSW), ss 8(1), 12
- Occupational Health and Safety Amendment Bill 2011
- Occupational Health and Safety Bill 2011
- Work Health and Safety Act 2011 (NSW), ss 3, 19(1), 19(3)(f), 32

Cases
- Attorney General for the State of New South Wales v Ceerose Pty Ltd [2019] NSWCCA 35
- Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33
- Barnes v R [2008] NSWCCA 136
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 584; [2011] HCA 49
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Inspector Nash v Macmahon Mining Services Pty Limited (re Junk) [2016] NSWDC 171
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mulato v R [2006] NSWCCA 282
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Orbit Drilling Pty Ltd v R (2012) 35 VR 399
- R v Baker [2000] NSWCCA 85
- R v Darwich [2018] NSWCCA 46
- R v Slattery (1996) 90 A Crim R 519
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80
- Yeung v R [2018] NSWCCA 52