Citation: Linnane (Department of Planning and Environment) v Peak Gold Mines Pty Ltd [2021] NSWDC 565
Court: District Court of New South Wales
Date: 21 October 2021
Judge: Scotting DCJ
Background
The offender, Peak Gold Mines Pty Ltd, was the appointed operator of the Peak Gold Mine near Cobar, New South Wales. The mine operated underground to depths of approximately 1,500 metres and used a primary ventilation system, including two centrifugal exhaust fans known as the Percy Fans, to circulate fresh air and remove heat and diesel gases from the working environment.
In April 2017, the offender planned a scheduled replacement of the impellers on both Percy Fans, which required taking one fan offline at a time over a five-day period. Despite the known risks this would pose to underground airflow, the offender decided that workers, including jumbo operators employed by contractor Jemrok Pty Ltd, would continue working underground during the outage.
On 3 April 2017, a worker named Mark Brilley, an experienced jumbo operator employed by Jemrok, died underground. The offender initially disputed that the underground working conditions caused his death, but conceded causation a few weeks before the sentence hearing after receiving a strengthened expert report from the prosecution.
Legal Issues
- Whether the offender failed to comply with its primary health and safety duty under s 19(1) of the Work Health and Safety Act 2011, thereby exposing a worker to a risk of death or serious injury, contrary to s 32 of that Act
- The appropriate sentence, including the objective seriousness of the offence
- The weight to be given to aggravating and mitigating factors, including the plea of guilty, the disputed causation issue, co-operation with investigators, remorse, and the offender's character as a corporate citizen
- The appropriate discount to apply to the fine in recognition of the guilty plea
Decision
The offender pleaded guilty to failing to comply with its health and safety duty under s 19(1) of the Work Health and Safety Act 2011, exposing Mr Brilley to a risk of death or serious injury. The maximum penalty for the offence was a fine of $1.5 million.
The court assessed the objective seriousness of the offence in light of the circumstances. The offender had identified some risks associated with the planned fan outage and put certain control measures in place. However, the risk assessment was based on a flawed comparison to a 2016 fan outage that occurred under a differently configured mine. That error led the offender to conclude, incorrectly, that ventilation changes would take six to twelve hours to affect the underground environment, and as a result no morning ventilation or heat stress readings were arranged for 3 April 2017.
On mitigating factors, the court recognised the early guilty plea entered in October 2020, the offender's co-operation with the investigation, its lack of prior convictions, remorse, and its record as a good corporate citizen through charitable and community involvement. The court also acknowledged that the offender's initial dispute of causation was reasonably based on the evidence available at the time, and that the concession was made promptly once a stronger prosecution report was served. These factors informed a 20% discount on the fine.
The court accepted and read the Victim Impact Statement from Mr Brilley's mother, who was present at the mine on the day of his death. The court expressly acknowledged the harm to Mr Brilley's family as harm done to the community.
Orders Made
- Peak Gold Mines Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011
- Fine of $600,000 imposed, reduced by 20% for the guilty plea, resulting in a fine of $480,000
- Offender to pay the prosecutor's costs of the proceedings, as agreed or assessed
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine to be paid to the prosecutor
Key Takeaways
- The District Court confirmed that the utilitarian value of a guilty plea is not fixed and can be reduced by the manner in which the sentence hearing is conducted, including protracted disputes over key factual issues such as causation.
- A mine operator's obligation under s 19(1) of the Work Health and Safety Act 2011 extends to managing risks arising from planned maintenance activities that affect the safety of the underground working environment, including those affecting contractors' workers.
- Where a risk assessment relies on a prior incident that occurred under materially different conditions, that assessment may be fundamentally flawed, and the court treated this as a significant aspect of the offending.
- Conceding a disputed factual issue promptly after receiving substantially stronger prosecution evidence was accepted as preserving, at least in part, the utilitarian benefit of the guilty plea and contributing to an expedient hearing.
- Victim impact material describing the effect of a workplace death on family members was treated as relevant to the harm done to the community for the purposes of sentencing.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW), s 6
- Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(m)
- Fines Act 1996 (NSW), s 122(2)
Cases:
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v AB [2011] NSWCCA 229
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412