Citation: NSW Resources Regulator, Department of Regional NSW v Young Mining Company Pty Ltd [2026] NSWDC 359
Court: District Court of New South Wales
Date: 30 September 2026
Judge(s): Scotting DCJ
Background
The defendant company operated an open-surface magnesite mine located near Young, New South Wales. The company's Managing Director served as its guiding mind and held responsibility for financial and safety decisions at the site. Following several months of difficult wet-weather conditions that caused frequent blockages in the processing plant, workers had developed a practice of walking on elevated conveyor guarding to clear blockages and spray water onto equipment.
On 10 August 2021, a worker climbed onto the guarding above the PS25 conveyor to investigate a blockage. He slipped on loose material, fell into an unguarded chute, and was struck by a moving plate feeder. He was partially buried in material before being dug free by colleagues. He suffered serious crush injuries, fractured ribs, and a lumbar spine injury, and was hospitalised for three days.
Both the company and its Managing Director were convicted at trial of serious work health and safety offences. The company faced an additional charge for failing to comply with a statutory information notice issued by the regulator after the incident. This judgment dealt with the sentences to be imposed on both offenders.
Legal Issues
- What fine was appropriate for the company's Category 1 offence under section 31 of the Work Health and Safety Act 2011, having regard to objective seriousness, deterrence, mitigating factors, and capacity to pay?
- What fine was appropriate for the Managing Director's Category 2 offence under section 32 of the Act as an officer who failed to exercise due diligence?
- What penalty, if any, was appropriate for the company's offence of failing to comply with a section 155 information notice?
- Whether the company and its Managing Director had established mitigating factors including good prospects of rehabilitation and genuine remorse.
Decision
Issue 1: Objective seriousness of the section 31 offence (company)
The court found the objective gravity of the section 31 offence to be significant. The company had actual knowledge of the risk of a worker falling into the chute, which was expressly identified in its own safety management system and in incorporated guidance material (at [35], [86]). The risk included a real possibility of death: but for the swift intervention of a colleague, the injured worker could have died from crush injuries, entrapment, or engulfment (at [87]). The likelihood of the risk materialising was high because workers had been regularly walking on loose material atop the conveyor guarding for months prior to the incident (at [88]). The company engaged in grossly negligent conduct, ignored its own documented safety procedures, and persistently prioritised production expenditure over safety expenditure (at [90]).
Issue 2: Objective seriousness of the section 32 offence (Managing Director)
The court also rated the objective gravity of the Managing Director's offence as significant. He had authorised the safety management system and its incorporated documents, was aware they were not being implemented, and knew that funds were being withheld from safety-related initiatives including repair of the emergency stop lanyards (at [100], [101]). He was required by section 27 of the Act to inspect records and plant to inform himself of risks but failed to do so (at [102]). His failure to exercise due diligence directly contributed to the conditions in which the incident occurred (at [103]).
Issue 3: Objective seriousness of the section 155(5) offence (company)
The court found the objective gravity of this offence to be relatively low. The offence was only established in relation to 19 of the 51 questions in the relevant notice, with one breach found to be trivial (at [93], [94]). The court also noted that the regulator's investigation was not hampered by the non-compliance, that the regulator had itself acted unreasonably to some extent in administering the notice regime, and that the issuing of multiple overlapping notices had bordered on an abuse of process (at [96], [97]). Nevertheless, the court emphasised that the section 155 procedure is an important enforcement mechanism and that compliance obligations on duty holders must be taken seriously (at [95]).
Issue 4: Deterrence
General deterrence was treated as a significant sentencing factor. The court noted that duty holders, including small businesses and their officers, must take work health and safety obligations seriously, and the community is entitled to expect that (at [109]). Specific deterrence remained necessary for both offenders. The company intends to continue operating a mining business with genuine risks to workers, and its safety improvements since the incident were not comprehensive, having occurred largely while the mine was operating at minimal capacity (at [110]). The Managing Director remains the company's guiding mind and was involved in the financial decisions that deprioritised safety (at [111]).
Issue 5: Aggravating and mitigating factors
The serious physical injuries suffered by the worker constituted an aggravating factor, as they exceeded what would ordinarily be expected for an offence that requires only the creation of a risk of death or serious injury (at [112]). The company's limited prior record was a mitigating factor for the section 31 offence but not for the section 155(5) offence, given the similarity of those prior convictions to the notice-compliance charge (at [113]). Both offenders expressed remorse and accepted responsibility, though the court gave this reduced weight because they had contested the charges at trial rather than pleading guilty (at [119]). Neither offender satisfied the court on the balance of probabilities that they had good prospects of rehabilitation, given the incomplete nature of safety improvements and the Managing Director's ongoing belief that the company was being unfairly persecuted by the regulator (at [117], [118]).
Issue 6: Capacity to pay
The company did not squarely assert a limited capacity to pay. Its annual turnover was approximately $2.5 million, and the financial relationship with a related company that had provided financial support was described as opaque (at [121]). The court was not satisfied the company had demonstrated a reduced capacity to pay. The Managing Director held assets and income from which an appropriate fine could be paid (at [122]).
Orders Made
- Young Mining Company Pty Ltd convicted and fined $750,000 for the section 31 offence.
- Young Mining Company Pty Ltd convicted and no further penalty imposed under section 10A of the Crimes (Sentencing Procedure) Act 1999 for the section 155(5) offence.
- Aditya Jhunjhunwala convicted and fined $50,000 for the section 32 offence.
- 50% of each fine to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996.
- Both the company and the Managing Director ordered to pay the prosecutor's costs of the proceedings against each of them, as agreed or assessed.
Key Takeaways
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A company's actual knowledge of a risk, documented in its own safety management system but left unimplemented, is a serious aggravating feature when sentencing for a Category 1 offence under the Work Health and Safety Act 2011. The District Court treated that knowledge as central to its finding of gross negligence and to the overall objective seriousness of the section 31 offence (at [35], [86], [90]).
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Under section 32 of the Act, an officer's failure to exercise due diligence can be established where that officer authorised safety documentation, knew it was not being implemented, and made financial decisions that consistently deprioritised safety over production. Authorising a safety system is insufficient if the officer takes no steps to ensure it operates in practice (at [100], [101], [102]).
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Where offenders contest charges at trial and are convicted, any post-conviction expressions of remorse carry significantly reduced mitigating weight compared with an equivalent plea of guilty (at [119]).
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Good prospects of rehabilitation as a mitigating factor under section 21A(3)(h) of the Crimes (Sentencing Procedure) Act 1999 may be difficult to establish where safety improvements are made while a mine is operating at minimal capacity and their effectiveness in live conditions has not been tested (at [117], [118]).
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For a section 155(5) offence involving non-compliance with a regulator's information notice, the court may impose no further penalty where the objective gravity is low, particularly where the regulator's own conduct in administering the notice regime was found to have been unreasonable to some extent. This did not, however, diminish the court's broader emphasis on the importance of compliance with statutory information notices as an enforcement tool (at [93]-[97], [126]).
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999
- Fines Act 1996
- Mining Act 1992
- Work Health and Safety Act 2011
- Work Health and Safety (Mines and Petroleum Sites) Regulation 2014
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- NSW Resources Regulator, Department of Regional NSW v Young Mining Company Pty Ltd and Aditya Jhunjhunwala [2026] NSWDC 100
- NSW Resources Regulator, Department of Regional NSW v Young Mining Company Pty Ltd and Aditya Jhunjhunwala [2026] NSWDC 101
- R v Youkhana [2004] NSWCCA 412