Citation: McAndrew v Simmons [2020] NSWDC 81
Court: District Court of New South Wales
Date: 3 April 2020
Judge: Scotting DCJ
Background
The offender, an individual who operated a coal haulage business at an open-cut mine in New South Wales through a partnership with his wife, pleaded guilty to a category 2 offence under the Work Health and Safety Act 2011 (WHS Act). The offence was that he, as a person conducting a business or undertaking (PCBU), failed to comply with his health and safety duty and thereby exposed a worker to a risk of death or serious injury.
The worker, a long-serving employee who had transitioned from driving to a maintenance and back-up driving role, was seriously injured while cleaning the interior of a coal haulage trailer. The injury occurred when the worker entered the trailer after having been told by the offender not to use the mine's wash bay for cleaning. The offender had received information suggesting the wash bay was unavailable to the Partnership and, in a telephone call on the morning of the incident, directed that the wash bay not be used, without providing any safe alternative method or conducting any risk assessment.
The Partnership had a documented safety management system dating from 2005, but had never implemented it, had no safe work procedures, and had not updated the system to reflect changes in legislation. The offender was infrequently present at the mine and relied on informal telephone check-ins for oversight, rather than any structured supervision arrangement.
Legal Issues
- What was the objective seriousness of the offence under s 32 of the WHS Act?
- What weight should be given to aggravating and mitigating factors in sentencing?
- What discount should apply for the early guilty plea?
- What fine was appropriate, having regard to the offender's capacity to pay?
Decision
Scotting DCJ assessed the offence as being of moderate objective seriousness. The risk of harm was high, serious physical injury resulted, and the offender had significant responsibility as the person directing the workers' activities on the day. The failure to implement any safe work procedures, and the absence of any risk assessment before directing an alternative cleaning method, were central to that assessment.
A number of aggravating factors were identified. These included the seriousness of the harm caused to the worker, the offender's significant relevant experience operating at the mine for approximately 30 years, and the fact that the inadequacy of the safety management system had been a longstanding and known issue. The court also noted that the worker had a documented safety history that the offender was or should have been aware of, which heightened the need for supervision.
In mitigation, the court accepted the offender's lack of prior convictions, his cooperation with SafeWork's investigation, his early guilty plea entered at a very early stage of proceedings, and evidence of genuine remorse. The early plea attracted a 25% discount, consistent with the principles in R v Thomson & Houlton and R v Borkowski.
On capacity to pay, the court considered financial accounts showing the Partnership could sustain a fine of around $140,000, but acknowledged uncertainty from the COVID-19 pandemic. The court settled on a pre-discount fine of $120,000, reduced to $90,000 after applying the 25% guilty plea discount, holding that the seriousness of the offence and the need for general deterrence required a substantial fine notwithstanding financial pressures.
Orders Made
- The offender was convicted of the offence under s 32 of the Work Health and Safety Act 2011.
- A fine of $90,000 was imposed (reflecting a 25% reduction from $120,000 for the early guilty plea).
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine was ordered to be paid to the prosecutor.
- The offender was ordered to pay the prosecutor's costs of the proceedings as agreed or assessed.
Key Takeaways
- A PCBU who is an individual (rather than a corporation) remains personally liable under s 32 of the WHS Act where a failure to comply with a health and safety duty exposes a worker to a risk of death or serious injury, even where another entity also had supervisory responsibilities on site.
- Having a documented safety management system is insufficient where that system is never implemented, contains no safe work procedures, and is not updated to reflect current legislation.
- Under s 6 of the Fines Act 1996, an offender who seeks a reduction in a fine based on limited capacity to pay bears the evidentiary onus of demonstrating that capacity, though even a demonstrated limitation does not necessarily displace the need for a substantial fine where the offence is serious and general deterrence is a significant sentencing consideration.
- An early guilty plea attracted a 25% discount in this case, consistent with the approach in R v Thomson & Houlton and R v Borkowski, and was also treated as indicative of remorse.
- The District Court treated the offender's 30 years of experience in the industry as relevant to objective seriousness, given that experience informed what risks he ought reasonably to have foreseen and addressed.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1) and 32
- Occupational Health and Safety Act 2000 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Fines Act 1996 (NSW), ss 6 and 122(2)
Cases:
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412