Citation: Linnane (NSW Department of Planning and Environment) v Cummings [2020] NSWDC 755
Court: District Court of NSW
Date: 14 December 2020
Judge: Scotting DCJ
Background
The defendant was the owner of mining equipment, including a hoist, installed at an opal mine on the Grawin Opal Fields near Lightning Ridge, NSW. He had entered into an agreement with the mine's occupant to work the mine together, supplying the equipment in exchange for an equal share of profits. The defendant was therefore a person conducting a business or undertaking with management or control of plant, within the meaning of the Work Health and Safety Act 2011 (the Act).
The hoist was used to raise and lower a heavy bucket down the mine's main shaft. A known design risk was that if the bucket failed to trigger the lower limit switch at the bottom of the shaft, the hoist's cable could "overspool." If power was then cut, the bucket would free fall uncontrolled down the shaft. The mine owner, Mark Siegel, was killed when precisely this sequence of events occurred and the 130 kg bucket struck him while he was in the sump at the shaft's base.
This decision concerned sentencing only. The defendant had been found guilty after trial in earlier proceedings (reported at [2020] NSWDC 587) of a Category 2 offence under s 32 of the Act, carrying a maximum fine of $300,000.
Legal Issues
- What fine was appropriate given the nature and circumstances of the offence?
- What weight should be given to mitigating factors, including the defendant's good character, prospects of rehabilitation, and cooperation with authorities?
- What aggravating factors were relevant to the sentence?
- Whether an adverse publicity order should be made, and if so, in what form.
Decision
The court weighed the seriousness of the offence, which resulted in a worker's death, against a range of mitigating factors personal to the defendant. The defendant had no prior criminal history, demonstrated good character through testimonials, had good prospects of rehabilitation, and had cooperated with investigators. The court also took into account victim impact statements from the deceased's mother and younger brother.
On the question of deterrence, the court acknowledged the importance of general deterrence in work health and safety prosecutions, particularly the principle that a person conducting a business or undertaking with management or control of plant may be required to modify commercially manufactured equipment if it contains a design fault that creates risk. The court considered this message important for the broader opal mining community.
The court declined to make an adverse publicity order requiring newspaper publication, finding that local newspapers were unlikely to reach the target audience of mineral claim holders effectively. Instead, the court noted that the regulator had the practical ability to notify all mineral claim holders of the outcome directly, which was considered the more effective means of communication in the circumstances.
A fine of $70,000 was imposed, representing a significant reduction from the $300,000 maximum. The court also ordered that 50% of the fine be paid to the prosecutor under the Fines Act 1996, and directed the defendant to pay the prosecutor's costs.
Orders Made
- The defendant was convicted of the offence under s 32 of the Work Health and Safety Act 2011.
- A fine of $70,000 was imposed.
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine was ordered to be paid to the prosecutor.
- The defendant was ordered to pay the prosecutor's costs as agreed or assessed.
- No adverse publicity order was made.
Key Takeaways
- A person conducting a business or undertaking with management or control of plant can be held criminally liable under s 32 of the Work Health and Safety Act 2011 where a failure to ensure safety results in exposure to risk of death or serious injury, even where the plant involved is commercially manufactured equipment.
- The District Court confirmed that the duty to ensure safety may extend to modifying commercially manufactured machinery to address known design faults, not merely maintaining it in its supplied condition.
- Mitigating factors, including good character, genuine rehabilitation prospects, and cooperation with authorities, were applied to reduce the fine substantially below the statutory maximum of $300,000.
- Adverse publicity orders are not automatically appropriate in WHS prosecutions: the court declined to make one where newspaper publication was unlikely to reach the relevant target audience effectively, preferring the regulator's own communication channels as a more practical alternative.
- Victim impact statements from the deceased's family were treated as relevant and admissible considerations in determining the appropriate penalty for a WHS offence.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), particularly s 32 (Category 2 offence)
- Work Health and Safety (Mines and Petroleum) Sites Act 2013 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122(2)
Cases:
- Linnane (NSW Department of Planning and Environment) v Cummings [2020] NSWDC 587 (verdict judgment)
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- SafeWork NSW v Investa Asset Management Pty Ltd [2019] NSWDC 472
- SafeWork NSW v KD & JT Westbrook Pty Ltd (No.2) [2019] NSWDC 15
- Jahandideh v R [2014] NSWCCA 178
- R v Thangavelautham [2016] NSWCCA 141
- R v Youkhana [2004] NSWCCA 412