Citation: Attorney General for New South Wales v Macmahon Mining Services Pty Ltd [2019] NSWCCA 8
Court: Court of Criminal Appeal, NSW
Date: 26 February 2019
Judge(s): Beazley P, Fullerton J, McCallum J
Background
Macmahon Mining Services Pty Ltd was a mining contractor engaged to extend the depth of a shaft at the CSA underground mine near Cobar. As part of its method, workers were transported up and down the shaft in a large steel bucket called a "kibble." The kibble passed through an opening in a platform with very little clearance on each side.
On 16 March 2013, a worker, Mr Jeremy Junk, leaned his head over the side of the kibble to call out to a colleague below. He sustained fatal head injuries as the kibble passed through the platform opening. Before adopting this method, Macmahon had commissioned risk assessments and independent safety audits, all of which identified the foreseeable risk of injury from protruding body parts, yet no physical barrier preventing such movement was installed.
Macmahon pleaded guilty to a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (NSW) for failing to comply with its duty under s 19(1) to ensure, so far as reasonably practicable, the health and safety of its workers. The primary judge assessed the offence as falling at the low end of objective seriousness and imposed a fine of $75,000 after a 25 per cent discount for the early guilty plea. The Attorney General appealed, arguing the fine was manifestly inadequate.
Legal Issues
- Whether the primary judge erred in placing the objective seriousness of the offence at the low end of the range
- Whether the fine of $75,000 was manifestly inadequate
- Whether the Court should exercise its residual discretion to decline to intervene, in light of the delay in bringing the appeal
Decision
The Court allowed the appeal by majority, but the three judges reached their conclusions by different routes, producing a split outcome on each ground.
Objective seriousness (Ground 1): Beazley P (with Fullerton J agreeing) held that the risk was foreseeable and obvious, and that Macmahon bore a high degree of responsibility regardless of the fact that expert assessors and departmental authorities had not themselves identified the precise hazard. Their Honours concluded that the primary judge erred in assessing objective seriousness as falling at the low end. McCallum J disagreed, finding that the primary judge's assessment properly took into account not just the objective elements of the offence but also the offender's state of mind, including Macmahon's extensive safety measures. On that basis, McCallum J held the finding was open to the primary judge.
Manifest inadequacy (Ground 4): McCallum J (the only judge deciding this ground) accepted that the sentence was lenient but concluded it was not manifestly inadequate, given the findings of the sentencing judge that had survived challenge. Her Honour would have dismissed the appeal on this basis. Beazley P and Fullerton J did not find it necessary to resolve this ground separately.
Residual discretion: Beazley P and Fullerton J held that the sentence was so grossly inadequate that the Court should refuse to exercise its residual discretion not to intervene, notwithstanding the delay in bringing the appeal. McCallum J did not decide this point. The majority therefore allowed the appeal and resentenced Macmahon.
Orders Made
• The appeal be dismissed.
Key Takeaways
- A majority of the Court of Criminal Appeal held that a corporation's reliance on expert and departmental assessments does not reduce its own responsibility for a foreseeable and obvious risk of harm to workers, and may not justify a "low end" objective seriousness finding.
- A divergence emerged within the Court on the correct approach to assessing objective seriousness: Beazley P focused on the nature of the risk itself, while McCallum J considered it permissible to weigh the offender's state of mind and proactive safety culture at the same stage.
- Under s 5D of the Criminal Appeal Act 1912 (NSW), the primary purpose of a Crown appeal is to lay down sentencing principles for guidance, not to correct individual errors, but the residual discretion to decline intervention does not apply where the sentence is found to be grossly inadequate.
- Consistency in WHS sentencing was reaffirmed as a requirement of justice, with the Court of Criminal Appeal hearing this appeal sequentially alongside two related appeals to promote coherent principles across comparable offences.
- Where a worker's death constitutes an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), that feature bears significantly on penalty, even where the offender has demonstrated a substantial commitment to workplace safety.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19(1), 19(3)(f), 32
- Criminal Appeal Act 1912 (NSW), s 5D(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g)
- Occupational Health and Safety Act 2000 (NSW), ss 8(1), 12
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
- 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
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- R v Darwich [2018] NSWCCA 46
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- Orbit Drilling Pty Ltd v R (2012) 35 VR 399