Citation: NSW Resources Regulator v Rockwoods Investment Group Pty Ltd [2024] NSWDC 39
Court: District Court of New South Wales
Date: 28 February 2024
Judge(s): Russell SC DCJ
Background
Rockwoods Investment Group Pty Ltd owned and operated the Cootamundra Quarry, located south of Cootamundra in New South Wales. The quarry adjoined several neighbouring properties, including a concrete batching plant managed by Steven Armstrong and a residential and agricultural property occupied by Adam Bell.
On 8 April 2021, a blast was fired at the quarry while both Armstrong and Bell were within the designated blast exclusion zone. Flyrock ejected from the blast and landed in Armstrong's vicinity on the adjoining batching plant property. A contributing factor was that the blast, originally scheduled for 1:00 pm, had been delayed to approximately 2:23 pm, but Armstrong was never informed of that delay.
The NSW Resources Regulator prosecuted Rockwoods for failing to comply with its work health and safety duty under s 19(2) of the Work Health and Safety Act 2011 (NSW), specifically by exposing persons other than workers to a risk of death or serious injury, contrary to s 32 of that Act. Rockwoods entered a plea of guilty.
Legal Issues
- What was the appropriate level of objective seriousness for the offence?
- What mitigating and aggravating factors applied to the sentence?
- What discount, if any, was warranted for the early guilty plea?
- What fine was proportionate, having regard to the maximum penalty of $1,766,130 and the need for general and specific deterrence?
- How should the two additional Form 1 charges (relating to worker exposure) affect the primary sentence?
Decision
The court identified multiple failures by Rockwoods in its blast management procedures. These included failing to display the blast time on notification boards at the quarry entrance, failing to notify neighbouring residents of the delay, failing to have a documented system for clearing and monitoring the Tegra property before blasting, and failing to ensure the entire exclusion zone was clear of people. Rockwoods had a documented safety management system that identified the relevant hazards, meaning the failures were not ones of ignorance but of implementation.
The court treated the objective seriousness of the offence as significant. The risk materialised: flyrock landed near a person who had not been adequately warned. Two additional charges relating to exposure of workers were not separately prosecuted but were placed on a Form 1, requiring the court to give greater weight to specific deterrence and retribution in fixing the primary sentence, without separately quantifying the Form 1 effect.
In mitigation, the court accepted that Rockwoods had no prior convictions, cooperated fully with the regulator by providing documents promptly, and demonstrated remorse. Rockwoods received a 25% discount on the fine for its early guilty plea. The court fixed an appropriate fine of $200,000 before applying that discount, arriving at a final figure of $150,000. No submission was made regarding Rockwoods' capacity to pay, so the court did not reduce the fine on that basis.
Orders Made
- Rockwoods Investment Group Pty Ltd convicted of the primary offence under ss 19(2) and 32 of the Work Health and Safety Act 2011 (NSW).
- Fine of $150,000 imposed (reflecting a 25% reduction from a base fine of $200,000 for early guilty plea).
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine directed to the prosecutor.
- Rockwoods ordered to pay the prosecutor's agreed costs of $84,500.
Key Takeaways
- A quarry operator's documented safety management system did not shield it from liability where the system identified blast-related hazards but was not properly implemented or enforced on the day of the incident.
- The court confirmed that Form 1 charges admitted by a defendant do not attract a separate quantified penalty; instead, they increase the weight given to specific deterrence and retribution in sentencing for the primary offence, consistent with the guideline in Attorney-General's Application No. 1 of 2002.
- Under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the timing and circumstances of a guilty plea are material; an early plea attracted a 25% discount here, reducing the fine from $200,000 to $150,000.
- Where a defendant does not raise capacity to pay as a live issue, the court proceeds without adjusting the fine on that basis, even though s 6 of the Fines Act 1996 (NSW) requires capacity to be considered in principle.
- Adequate neighbour notification of blast timing, including notification of any delays, is treated by the court as a core, reasonably practicable measure under the WHS Act; failure to update neighbours when a blast is rescheduled was identified as a distinct causal factor in the incident.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
- Explosives Act 2003 (NSW)
Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- 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
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432