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District Court 29 October 2021

Orr v Burgess Earthmoving Pty Ltd

[2021] NSWDC 583

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: Orr v Burgess Earthmoving Pty Ltd [2021] NSWDC 583
Court: District Court of New South Wales
Date: 29 October 2021
Judge: Russell SC DCJ

Background

Burgess Earthmoving Pty Ltd owned and operated the Albury Quarry, a hard rock quarry involving drilling and blasting operations. On 10 April 2018, a blast was fired at the quarry that ejected flyrock (rock fragments propelled by an explosion) into areas occupied by both workers and members of the public. Twelve individuals in total were placed at risk.

The company engaged Hamiltons Blasting Services to conduct the blast and separately relied on untrained workers to assist with stemming blast holes. The quarry's production manager, who held no current practising certificate as a qualified Quarry Manager, provided no meaningful briefing on exclusion zones, risks, or the Explosives Management Plan before the blast was fired.

SafeWork NSW prosecuted Burgess Earthmoving for two separate offences under the Work Health and Safety Act 2011 (NSW): one for exposing workers to a risk of death or serious injury, and one for exposing members of the public (including tanker drivers who happened to be on or near the site) to the same risk.

  • Whether the defendant's conduct in relation to each offence warranted conviction under s 32 of the Work Health and Safety Act 2011 (NSW) for breach of the primary duty of care under ss 19(1) and 19(2).
  • How to assess the objective seriousness of each offence for sentencing purposes, including consideration of the relevant aggravating and mitigating factors.
  • What weight to give to the early guilty plea, the defendant's financial circumstances, and general and specific deterrence in fixing appropriate fines.
  • How to apply the totality principle (the principle that the combined punishment for multiple offences should reflect the overall criminality and not be disproportionate) across the two separately prosecuted offences.

Decision

The court convicted Burgess Earthmoving on both counts following guilty pleas. The failures identified were threefold: the company did not enforce compliance with its own Explosives Management Plan; it failed to provide workers with any training on that plan; and it failed to ensure the person acting as Quarry Manager held a current practising certificate, as required under the Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW).

On objective seriousness, the court found both offences were serious, noting that flyrock from blasting carries a well-recognised potential for death or grievous injury. The production manager's morning toolbox meeting made no mention of exclusion zones, risks associated with blasting, or any relevant documentation. Two workers were assigned to assist with stemming holes despite having no blasting training and no awareness of the dangers of under-stemming or overloading explosives.

The court treated the s 19(2) offence (exposure of members of the public) as the more serious of the two. Five members of the public were inside the quarry without any understanding of the risks involved, without protective equipment, and without having been excluded from the blast zone. Their presence, the court noted, was itself a product of the systemic failures in the defendant's blasting procedures.

Applying the totality principle, the court fixed the base fine for the s 19(2) offence at $180,000 and for the s 19(1) offence at $140,000. Both were reduced by 25% to reflect the early guilty pleas. The s 19(1) fine was further reduced to $45,000 to ensure the combined total reflected the overall criminality rather than punishing the defendant twice for conduct arising from the same incident.

Orders Made

  • Burgess Earthmoving Pty Ltd convicted of both offences.
  • s 19(2) offence (exposure of members of the public): Fine of $135,000 (reduced from $180,000 by 25% for early guilty plea); 50% of the fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW); prosecution costs of $27,500.
  • s 19(1) offence (exposure of workers): Fine of $45,000 (reduced from $140,000 by 25% for early guilty plea to $105,000, then further reduced for totality); 50% of the fine to be paid to the prosecutor; prosecution costs of $27,500.
  • Total fines: $180,000. Total costs: $55,000.

Key Takeaways

  • The District Court confirmed that where a quarry operator places both workers and members of the public at risk through the same blasting incident, two separate WHS offences can be charged and sentenced, with the totality principle applied to ensure the combined outcome is proportionate to the overall offending.
  • Exposure of uninformed members of the public, who lacked any protective equipment and had no awareness of the risk, was treated as more serious than exposure of workers in the same blast event.
  • Failure to enforce a company's own Explosives Management Plan, failure to train workers on that plan, and failure to ensure a qualified Quarry Manager held a current practising certificate were each identified as discrete, independently actionable failures to comply with WHS duties.
  • An early guilty plea produced a 25% reduction in the base fine for each offence, consistent with the discount contemplated under the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Under the totality principle, the fine for the less serious offence was reduced substantially beyond the guilty plea discount to prevent the aggregate penalties from exceeding what was just and appropriate for the total criminality involved.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW), cll 31, 137, 185, Sch 10
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Explosives Act 2003 (NSW)
- Fines Act 1996 (NSW), ss 6, 122

Cases
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- SafeWork NSW v Elgas Ltd [2021] NSWDC 101
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683
- Pearce v The Queen (1998) 194 CLR 610
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465