Attorney General for New South Wales v Macmahon Mining Services Pty Ltd

[2019] NSWCCA 8

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Attorney General for New South Wales v Macmahon Mining Services Pty Ltd [2019] NSWCCA 8
Hearing dates:	11 April 2018
Decision date:	26 February 2019
Before:	Beazley P at [1] Fullerton J at [27] McCallum J at [28]
Decision:	1. Appeal allowed. 2. Quash the monetary penalty imposed in the District Court. 3. In lieu thereof, order that the respondent pay a penalty of $375,000. 4. Note that the respondent is to be given credit for the amount of penalty already paid. 5. The remaining orders of the District Court are confirmed, amended as necessary in accordance with these orders.
Catchwords:	SENTENCING – appeal by Attorney General against inadequacy of sentence – failure by corporation to comply with duty under Work Health and Safety Act to ensure the safety of workers under its direction – category 2 offence – whether fine imposed manifestly inadequate – where worker suffered fatal injury – whether sentencing judge erred in his assessment of the objective seriousness of the offence – whether sentencing judge failed to apply maximum penalty or pay due regard to recent increase – whether sentencing judge failed to place due weight on general deterrence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g) Criminal Appeal Act 1912 (NSW), s 5D(1) Occupational Health and Safety Act 2000 (NSW), ss 8(1), 12 Occupational Health and Safety Amendment Bill 2011 Occupational Health and Safety Bill 2011 Work Health and Safety Act 2011 (NSW), ss 3, 19(1), 19(3)(f), 32
Cases Cited:	Attorney General for the State of New South Wales v Ceerose Pty Ltd [2019] NSWCCA 35 Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33 Barnes v R [2008] NSWCCA 136 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Green v The Queen; Quinn v The Queen (2011) 244 CLR 584; [2011] HCA 49 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Inspector Nash v Macmahon Mining Services Pty Limited (re Junk) [2016] NSWDC 171 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling Pty Ltd v R (2012) 35 VR 399 R v Baker [2000] NSWCCA 85 R v Darwich [2018] NSWCCA 46 R v Slattery (1996) 90 A Crim R 519 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 Yeung v R [2018] NSWCCA 52
Category:	Principal judgment
Parties:	Attorney General for New South Wales (appellant) Macmahon Mining Services Pty Ltd (respondent)
Representation:	Counsel: J Agius SC, C Magee, P Boncardo (appellant) J E Sexton SC, N D Read (respondent)   Solicitors: Crown Solicitor’s Office (appellant) Clyde & Co (respondent)
File Number(s):	2017/270479
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Citation: [2016] NSWDC 171 Date of Decision: 19 August 2016 Before: Kearns DCJ File Number(s): 2015/75525

Headnote

[This headnote is not to be read as part of the judgment]

Macmahon was a mining contractor responsible for extending the depth of a mine shaft at the CSA underground mine near Cobar. Mr Jeremy Junk was a worker in the CSA mine. On 16 March 2013, Mr Junk was fatally injured while riding in a large steel bucket known as a kibble. At the time of the accident, the kibble was being raised through an opening in the centre of a platform in a mine shaft below the surface of the mine. The opening, known as a kibble well, was designed to allow the kibble to pass through the platform vertically but allowed only a very small clearance between the platform and the kibble. Mr Junk extended his head over the edge to call out to a worker below and sustained a severe head injury when the kibble passed through the platform.

Macmahon pleaded guilty to an offence contrary to s 32 of the Work Health and Safety Act. The primary judge found that the offence fell in the low-range of objective seriousness. His Honour imposed a fine of $75,000 after allowing a discount of 25 per cent for Macmahon’s early guilty plea.

The principal issues on appeal were:

1.    Whether the primary judge erred in finding that the objective seriousness of the offence fell at the low end (ground 1);

2.    Whether the penalty imposed was manifestly inadequate (ground 4); and

3.    Whether, in any event, the Court should exercise its residual discretion not to intervene.

The Court held, allowing the appeal by majority:

In relation to ground 1

Per Beazley P (Fullerton J agreeing)

(i) Notwithstanding the advice of recognised experts and departmental authorities, Macmahon should have itself acted on what was a foreseeable and obvious risk of harm. Its responsibility was high and the sentencing judge erred in assessing the objective seriousness of the offence as falling at the “low end”: [19], [27].

Per McCallum J

(ii) The primary judge’s assessment that the case fell at the low end was an assessment of gravity not confined to the objective seriousness of the offence but also having regard to characteristics of the offender including Macmahon’s state of mind. On that basis the finding was open to his Honour: [76].

In relation to ground 4

Per McCallum J (Beazley P and Fullerton J not deciding)

(iii) Accepting that the finding as to the gravity of the offence was open, the sentence was lenient but not manifestly inadequate: [93].

As to the residual discretion

Per Beazley P (Fullerton J agreeing; McCallum J not deciding)

(iv) As the penalty imposed by the primary judge was so grossly inadequate, the Court should refuse to exercise its residual discretion not to intervene, notwithstanding the delay in bringing the appeal: [25], [27].

Judgment

1. BEAZLEY P: The Attorney General for NSW has appealed against the sentence imposed upon the respondent, Macmahon Mining Services Pty Ltd (Macmahon Mining), in respect of a contravention of the Work Health and Safety Act 2011 (NSW), s 32 for failure to comply with its duty under s 19(1) of the Act to “ensure, so far as is reasonably practicable, the health and safety” of one of its workers, the deceased Mr Junk.

2. The appeal was heard sequentially following two other appeals against sentence by the Attorney General in respect of convictions for the same offence: see Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33 and Attorney General for the State of New South Wales v Ceerose Pty Ltd [2019] NSWCCA 35. Those other two appeals were related in that they concerned the same fatal accident on a construction site. The present matter involved a fatal accident in a mining operation.

3. It was appropriate that this matter be heard sequentially with the other two appeals. Not only do general sentencing principles and the Crimes (Sentencing Procedure) Act 1999 (NSW) apply in respect of sentencing for an offence under the Work Health and Safety Act, but consistency in sentencing is as important in relation to industrial accident convictions as it is in respect of offending generally.

4. The importance of consistency in sentencing has been recognised by the High Court on a number of occasions. In Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, Gleeson CJ observed that:

“[6]   One of the legitimate objectives of such guidance is to reduce the incidence of unnecessary and inappropriate inconsistency. All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.

[7]   Most sentencing of offenders is dealt with as a matter of discretionary judgment. Within whatever tolerance is required by the necessary scope for individual discretion, reasonable consistency in sentencing is a requirement of justice. The Judicial Officers Act 1986 (NSW) identifies sentencing consistency as a legislative objective…” (emphasis added)

5. The High Court cited Gleeson CJ’s statement with approval in Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45. The High Court also explained the meaning of “consistency”: see at [46]-[57]. In essence, their Honours held that “the consistency that is sought is consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence”.

6. It also needs to be noted at the outset that this is a Crown appeal against sentence: see the Criminal Appeal Act 1912 (NSW), s 5D(1). The principles governing Crown appeals were stated in Green v The Queen; Quinn v The Queen (2011) 244 CLR 584; [2011] HCA 49 as follows:

“[1] The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (Crown appeals) under s 5D of the Criminal Appeal Act 1912 (NSW) is ‘to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.’ That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the ‘residual discretion’.

…

[36] A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is ‘to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.’ That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.” (footnotes omitted)

7. That statement of principle has been understood and applied so as not to preclude resentencing where the sentence is manifestly inadequate: see R v Darwich [2018] NSWCCA 46.

8. I have had the advantage in the present case of reading in draft the reasons of McCallum J. I respectfully adopt her Honour’s recitation of the facts, but respectfully disagree with her Honour’s conclusion. In that regard, whilst I agree with her Honour’s analysis of the relevant authorities, I have come to a different view in respect of the objective seriousness of the offence. Consequentially, the penalty which I consider ought to have been imposed is starkly different from the sentence imposed by the primary judge. As my conclusion essentially turns upon one central consideration, I am able to express my reasons briefly.

9. As McCallum J has explained, Macmahon Mining undertook certain excavation works in respect of a vertical mine shaft by using a technique known as the “blind sink technique”. That involved mine personnel being conveyed up and down the mine shaft in a kibble. Before implementing this technique, Macmahon Mining undertook a risk assessment. It also commissioned a safety audit of the winders used to operate the kibble and a further independent report to assess the risks that needed to be addressed. The relevant assessments in those reports are reviewed by McCallum J at [37]-[39] below.

10. There was no dispute in those reports, on the sentence hearing or on the appeal that there was a foreseeable risk of injury, namely, that a person might be seriously harmed should any part of their body protrude over the side of the kibble as it passed through the pinch points of the shaft through which the kibble travelled. Any harm was likely to be substantial should the risk materialise. Importantly, the measures to avoid the risk of harm were relatively simply to implement and, in this case, were implemented within two weeks of the incident occurring. Again, these matters are set out fully at [56]-[62] of McCallum J’s judgment.

11. The author of the safety audit, having assessed the risk of “pinch points between the kibble and stage operations” as a “smaller personal injury risk” recommended that this risk be addressed within six months. This recommendation was adopted by the Department of Primary Industry, which imposed, as a requirement of the registration of the winding system design, that the recommendations in this part of the safety audit report be implemented within six months.

12. A fundamental object of the legislation is to protect workers and other persons from harm. This is apparent from the Work Health and Safety Act, s 3, which provides, relevantly:

“3   Object

(1)   The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by:

(a)   protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work …

…

(2)   In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work … as is reasonably practicable.”

13. Section 19(3)(f) provides:

“(3)   … a person conducting a business or undertaking must ensure, so far as is reasonably practicable:

…

(f)   the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking …”

14. Macmahon Mining had taken some steps in performance of its obligations under this provision. In that regard, the following statement was included in a work procedure document relating to the work method that had been adopted: “Caution: Keep body parts inside the confines of the kibble”. In addition, the deceased had correctly referred to this as a safety concern in a theory assessment prior to the introduction of the “blind sink technique”.

15. In Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96, Basten JA (Hoeben CJ at CL and Walton J agreeing), referred, at [34], to the sentencing judge’s statement in that case that:

“… ‘[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely’.”

16. Basten JA then observed:

“However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors.”

17. In the present case, I consider that the seriousness of the risk, should any part of a person protrude from the kibble, whether through inadvertence, forgetfulness, inattention to where the kibble was at a critical point as it moved through the shaft, or as a natural human reaction to some emergency or alarm, was such that given the very simple means available to not only alleviate but also obviate the risk, the objective seriousness of the offending was not low, as found by the primary judge. In coming to that conclusion, I accept the principles that govern the assessment of objective seriousness and, in particular, that that assessment is quintessentially a matter for the sentencing judge.

18. However, contrary to the view taken by McCallum J, I do not accept that the fact that recognised experts and departmental authorities saw fit to allow what they considered was the low probability of an accident such as this occurring, to be a reason to defer the implementation of simple safety measures to prevent what would almost invariably be serious harm should a person allow any part of his or her body to protrude from the kibble.

19. Macmahon Mining was an experienced operator and should have itself acted on what was a foreseeable and, with respect, obvious risk of harm. Its responsibility in that regard was high and I consider that the sentencing judge erred in assessing the objective seriousness of the offence as falling at the “low end”. Accordingly, I would allow the appeal.

20. Given that the safety measures that could and should have been adopted were simple, I consider that the objective seriousness of the offence was mid-range and that the appropriate penalty should be substantial. In this regard, reference can be made to the penalties that have been imposed in DSF Constructions and Ceerose.

21. In those cases, a fatality occurred in circumstances where there appears to have been a simple break-down in communication between the principal contractor and the sub-contractors. There was also a failure to implement very simple measures to protect against the risk of harm, including ensuring there was a physical barrier to prevent persons walking in the area where the accident occurred. The penalties imposed were $225,000 in the case of DSF Constructions after allowing a 25 per cent discount for an early guilty plea and as imposed on the appeal in the case of Ceerose, $600,000 after allowing a discount of 25 per cent for an early guilty plea.

22. As Macmahon Mining has a strong safety record and acted on advice in respect of the procedures to be adopted to minimise or eliminate the relevant harm, I would impose a fine in the sum of $500,000. Were it not for those matters, I would have imposed a higher penalty. I would allow a discount of 25 per cent for the early guilty plea.

23. A question arises as to whether this Court, having found error, should exercise its residual discretion not to re-sentence Macmahon Mining. This question also arose for consideration in the appeals of DSF Constructions and Ceerose. The relevant principles and authorities are discussed in DSF Constructions and the point in contention is the same in this case as it was in DSF Constructions and Ceerose, namely, whether the delay in bringing the appeal was such that this court ought not to re-sentence Macmahon Mining.

24. As has been pointed out in Ceerose and DSF Constructions, the explanation given for the delay in bringing the appeal was, as Fullerton J noted in Ceerose, “less than adequate”. That would tend to point in favour of not re-sentencing, particularly in circumstances where Macmahon Mining has paid the fine, did so in a timely manner, and where it sought advice on more than one occasion as to whether the Attorney General proposed to appeal.

25. However, having come to the view that the penalty imposed by the sentencing judge was so grossly inadequate, I am of the opinion that as a matter of principle and proper sentencing practice, this Court ought not to exercise its residual discretion and should proceed to re-sentence Macmahon Mining.

26. Accordingly, I propose the following orders:

1.   Appeal allowed.

2.   Quash the monetary penalty imposed in the District Court.

3.   In lieu thereof, order that the respondent pay a penalty of $375,000.

4.   Note that the respondent is to be given credit for the amount of penalty already paid.

5.   The remaining orders of the District Court are confirmed, amended as necessary in accordance with these orders.

27. FULLERTON J: I agree with Beazley P.

27. McCALLUM J: Mr Jeremy Junk was a worker at the CSA underground mine near Cobar. On 16 March 2013, Mr Junk suffered fatal injuries while riding in a large steel bucket known as a kibble. The accident occurred when the kibble was being raised through a platform in a mine shaft over 1,000 metres below the surface of the mine. As the kibble was being raised, Mr Junk extended his head over the edge to call out to a member of his crew on the platform below, obviously not mindful of how close the kibble was to the platform above. When the kibble reached the point where it passes through the upper platform, Mr Junk sustained a severe head injury. He showed no signs of life upon his arrival at Cobar District Hospital and was pronounced dead shortly afterwards.

28. Macmahon Mining Services Pty Ltd was the mining contractor responsible for underground drilling at the mine. Pursuant to s 19(1) of the Work Health and Safety Act2011 (NSW), Macmahon was under a duty to ensure, so far as was reasonably practicable, the safety of workers under its direction. The Act creates three categories of offence for failure to comply with such a duty. Macmahon pleaded guilty to a category 2 offence contrary to s 32 of the Act, which applies where the failure exposed an individual to a risk of death or serious injury.

29. The maximum penalty for that offence for a corporation is a fine in the sum of $1.5 million. After allowing a discount of 25% for the utilitarian value of the guilty plea, the sentencing judge (Kearns DCJ) imposed a fine in the sum of $75,000: Inspector Nash v Macmahon Mining Services Pty Limited (re Junk) [2016] NSWDC 171. His Honour also ordered Macmahon to pay the prosecutor’s costs of the proceedings. The Attorney General for New South Wales seeks leave to appeal against that sentence.

Circumstances of the offending

31. A substantial amount of material was put before the sentencing judge. The following summary of the facts is drawn principally from the amended statement of facts relied upon by the prosecutor.

32. Macmahon is a mining contractor based in Perth that provides underground drilling and ground support services to the mining sector. In October 2011, Macmahon was contracted by Cobar Management Pty Ltd, the operator of the mine, to undertake works to extend the No 1 shaft of the mine to a depth of 1,500 metres below the surface.

33. There are several methods of excavating a vertical mine shaft. The extension of the No 1 shaft at Cobar was to be undertaken using a technique known as the “raise bore and shrink strip and line technique”. Under that technique, a pilot hole is drilled from the surface to an existing lower level of the mine and a bore is raised from the bottom of the shaft. A single-platform shaft-sinking stage is suspended in the shaft above the pilot hole. As the shaft is excavated by drilling and blasting, the cuttings and materials fall down the pilot hole to the bottom of the shaft where they are removed by a front-end loader or “bogger”.

34. The mine at Cobar was forced to abandon that technique due to geotechnical complications. After the works had commenced, a decision was made to move to a technique known as the “blind sink technique”. As I understand the evidence, a feature of the change was that, because the blind sink technique does not involve the use of a pilot hole, the cuttings and materials from drilling and blasting would be required to be conveyed back up to the surface. To adapt to the blind sink technique, it was necessary for the mine to design and install powered winding systems which attached two conveyances, a dual-platform stage and a kibble. The stage was cylindrical and consisted of an upper deck and a lower deck that were four metres apart. The kibble was a heavy steel bucket used to extract cuttings and materials from the shaft and also to transport personnel.

35. The stage was connected by two cables to two winders programmed to operate in unison to raise and lower the stage within the shaft. The stage was designed so as to allow the kibble to pass through it via a “kibble well” running vertically through the centre of the stage. The kibble was connected to a third winder and could be raised and lowered within the mine shaft, including by passing through the stage. The stage winders were isolated from the kibble winder so that the stage and the kibble could not be moved simultaneously; when the kibble was moving, the stage remained static. All three winders were operated by a winder driver who was located in a control room. The winder driver had no direct line of sight to the shaft sinking works and accordingly a shaft signalling system was used.

36. The design dimensions of the stage and kibble allowed 70 millimetres clearance between the kibble and the inside diameter of the kibble well. However, because the kibble was raised and lowered by cable, it could swing horizontally. Any swing of the kibble on its winder could bring the kibble into contact with the surfaces it passed. There were three hazardous “pinch point” areas in the kibble well: the lower platform bell mouth, the centre core bracing of the kibble well (which, from the photographs in evidence, appears as a broad metal grid) and the upper platform of the stage.

37. Before changing to the blind sink technique, Macmahon conducted formal risk assessments. A document was developed setting out the methodology for the project, referred to as the Blind Sink Methodology. That document identified risks of personal injury from the use of equipment. In respect of the kibble, the preventative measure identified was to “ensure no personnel’s body parts are outside the kibble”.

38. Macmahon also commissioned an independent safety audit of the winders from Mr Gearing of Gearing Engineering & Associates. Such an audit was required as part of the process of obtaining design registration for the winders as required by the Department of Primary Industry. Extracts from Mr Gearing’s report (dated November 2012) were included in the Agreed Tender Bundle at the proceedings on sentence. In the section of his report setting out his comments on site testing and commissioning of the equipment, Mr Gearing said (apparently by way of recommendation): “consider raising potential risk of pinch points between the kibble and stage during operations”. In the executive summary of the report, this was identified as one of a number of “smaller personal injury risks” recommended to be addressed within 6 months (part 4.2 of the report) as opposed to being recommended as a precondition to the registration of the design. In granting registration of the winding system design, the Department of Primary Industry imposed a requirement that the recommendations in part 4.2 of the report be addressed within six months. The incident involving Mr Junk occurred within that period.

39. Macmahon also commissioned a firm specifically to address the risks that needed to be assessed as part of the change of methodology to the blind sink technique (the “Gap Analysis Report”). That report identified a risk of personal injury during the “mucking cycle” (the removal of material from the shaft using the kibble) while hoisting the full kibble. However, that was a reference to the possibility of the kibble swinging on its winder below the stage. The Gap Analysis Report recommended that the Safe Work Method Statements (SWMS) for the operations should include instruction “for safe hoisting of kibble that incorporates the management of crush/pinch points”. The hazard of pinch points at the interaction of the two platforms of the stage and the kibble was not identified in that report.

40. Presumably for that reason, riding in the kibble was not addressed in the SWMS. However, it was addressed in a separate procedure document known as the “Man Riding in Kibble Procedure”, which included the following statement:

“Caution: Keep body parts inside the confines of the kibble.”

41. Before the accident, Mr Junk was required to undertake a theory assessment relating to the Man Riding in Kibble Procedure. He correctly identified the content of that caution as a safety concern.

42. In addition to the prosecutor’s statement of facts, there was a considerable amount of evidence before the sentencing judge directed to the assessments undertaken in respect of the winder system during the process of registration of the design. That evidence established, as the judge accepted at [30]-[32], that the system conformed to industry standard and that a number of independent assessments by highly experienced professionals had not anticipated or addressed the particular risk that materialised. It was emphasised on behalf of Macmahon, both at the proceedings on sentence and in this Court, that the purpose of adducing that evidence was not to seek to excuse the offence but rather to differentiate it from a case involving a wilful failure to adhere to well-known safety procedures or, for example, a case involving a direction to a worker to use plant or equipment known to be dangerously defective, either of which would warrant a sterner assessment of moral culpability.

43. There was also a considerable amount of evidence before the sentencing judge directed to Macmahon’s comprehensive safety procedures, its good safety record and the steps it took promptly after the incident to address the risk that materialised.

Grounds of Appeal

44. The Attorney General relies on the following grounds of appeal:

“(1)   The sentencing judge erred in finding that the objective seriousness of the offence ‘falls at the low end’.

(2)   The sentencing judge erred by failing to properly have regard to the maximum penalty for the offence.

(3)   The sentencing judge erred in failing to give due emphasis to the need for general deterrence.

(4)   The sentence imposed on the respondent is manifestly inadequate.”

45. The present appeal was heard together with two other sentence appeals by the Attorney General in prosecutions under the Work Health and Safety Act also involving the death of a worker. The judgments in those appeals are to be published together with this judgment: Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33 and Attorney General for the State of New South Wales v Ceerose Pty Ltd [2019] NSWCCA 35. In each of those appeals, the appellant’s grounds similarly combined a ground of manifest inadequacy with grounds alleging specific error in the assessment of the objective seriousness of the offence and in failure to pay “appropriate attention” to the sentencing yardstick of the maximum penalty. The appeal in Ceerose also included a ground that the judge erred in failing to have “adequate regard” to a prior conviction.

46. Both Macmahon and the respondent in the Ceerose appeal addressed the nature of the error required to be established by the appellant on those grounds. Macmahon submitted that the grounds fail to point to any specific error in the sentencing judge’s discretion but instead merely complain of the weight given by the sentencing judge to the various factors within his discretion, thus seeking (impermissibly) to re-open the sentencing process.

47. That contention was developed by counsel for the respondents in the Ceerose appeal (Mr Jordan SC) in oral submissions which I understood to have been embraced by Mr Sexton SC on behalf of Macmahon. Mr Jordan submitted that a ground complaining of a failure to have “adequate regard” to a fact asserts error that is “clearly not House v The King error” and invites review of a kind that falls outside the limited jurisdiction of this Court.

48. Interestingly, the vice of giving “undue weight to some of the facts” was in fact included as an illustration of the kind of error that might warrant appellate intervention in a less often cited passage of House v The King (1936) 55 CLR 499 at p 505; [1936] HCA 40. However, as subsequent decisions have explained, the errors that might warrant appellate intervention in the exercise of a sentencing discretion in accordance with those principles are ultimately of two kinds: specific error revealed on the face of the judgment and manifest inadequacy or excess judged by reference to the sentence imposed and whether it was plainly unjust. Mr Jordan drew the Court’s attention in this context to the decision of the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 in which that dichotomy is explained both in the judgment of the plurality and in the helpful separate judgment of Gageler J. Justice Gageler said (at [51]-[53]):

“To enliven the discretion of the Court of Criminal Appeal, under s 5D of the Criminal Appeal Act 1912 (NSW), to vary a sentence and impose such sentence as to it seems proper, the Director of Public Prosecutions must establish that the sentence under appeal either: (1) turned on one or more specific errors of principle or of fact; or (2) in the totality of the circumstances was unreasonable or plainly unjust.

The Director’s first ground of appeal to the Court of Criminal Appeal clearly invoked the second of those categories of appellate intervention. To establish that ‘the sentence pronounced was manifestly inadequate’, it was incumbent upon the Director to establish that the sentence was outside the range of available sentences in all the circumstances of the case.

The Director’s three ‘additional grounds of appeal’ to the Court of Criminal Appeal were not clearly framed to invoke either category of appellate intervention. The first and second were framed in terms of a failure ‘properly’ to determine or acknowledge relevant considerations. They would be capable of invoking the first category of appellate intervention only if the asserted impropriety rose to the level of a failure to take those considerations into account. As demonstrated in the joint reasons for judgment, they were not analysed by the Court of Criminal Appeal in those terms. The third was framed only in terms of ‘weight’. It was incapable of establishing an error in the first category of appellate intervention. It pointed at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category.” (footnotes omitted)

49. In accordance with those principles, this Court will be wary in its approach to a ground of appeal that rests on a term of indeterminate or evaluative reference such as failure to have “proper regard” or give “sufficient weight” to some factors. So much was recognised almost two decades ago in R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ; Grove and Hidden JJ agreeing). The decision in Bugmy confirms the orthodox proposition that, within a range of sentences appropriate for the particular offence and the particular offender, matters of weight are for the sentencing judge to determine within his or her discretion. To establish specific error consisting in failure to give “due” weight to a particular factor relevant to sentence, it is necessary to establish failure to take that matter into account: Bugmy at [53] per Gageler J; see also the judgment of the plurality at [22]. Absent specific error, one is left to consider whether the sentence was unreasonable or plainly unjust. Unless it is asserted that a failure to take a relevant matter into account can be inferred from the language of the judgment, a ground of failure to give due weight to a relevant factor will ordinarily fall to be determined by considering whether, in the result, the sentence imposed was outside the range of available sentences in all the circumstances of the case, in which case it is enough to plead a ground that the sentence was manifestly excessive or inadequate.

50. For the reasons expanded upon below, there is force in the respondents’ submissions concerning the formulation of the grounds in the present appeal. Absent an assertion that the judge had no regard to the factors identified in grounds 2 and 3, those grounds do not identify discrete error and must, upon analysis, be regarded as aspects of the submission that the sentence is manifestly inadequate. Ground 1 is in a different category in that it does identify specific error, the question being whether the particular characterisation of objective seriousness made by the sentencing judge was open on the evidence: Mulato v R [2006] NSWCCA 282 at [37] per Spigelman CJ; at [46] per Simpson J. Accordingly, it is appropriate to determine that ground first.

Objective seriousness

51. Ground 1 is:

“The sentencing judge erred in finding that the objective seriousness of the offence ‘falls at the low end’.”

52. The respondent takes issue with the premise of that ground. I will return to that issue.

53. The appellant submitted that, in sentencing for offences under work health and safety legislation, the objective seriousness of the offence is the primary consideration, citing the decision of the Victorian Court of Appeal in Orbit Drilling Pty Ltd v R (2012) 35 VR 399 at [61]. With respect, any statement of principle which pre-empts the primacy of one factor over other factors relevant to sentence sits uncomfortably with the principles stated in Bugmy considered above and with the principles concerning the proper approach to sentencing stated in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] (McHugh J) affirmed more recently in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]. I would nonetheless accept, having regard to the object of the Work Health and Safety Act, that the objective seriousness of the offending will always be an important consideration in the sentencing task in such matters.

54. For that purpose, however, it is not necessary to pinpoint objective seriousness at an exact point along a hypothetical line, for the reasons I explained in Yeung v R [2018] NSWCCA 52 at [19]-[30] (Hoeben CJ at CL and Simpson JA agreeing). The task is to undertake an evaluative assessment of the gravity of the offending so as to inform the task of determining an appropriate, proportionate sentence.

55. The judge plainly recognised the importance of making such an assessment. His Honour identified three factors which informed that assessment “in part”, saying (at [28]):

“I start my analysis with a consideration of the gravity of the offence. This may be determined in part by the foreseeability of the risk of injury, the foreseeability of the consequences of the risk coming home and the measures available to avoid the risk.”

56. It may be accepted that, as to those matters, his Honour made findings mostly pointing to a grave assessment of seriousness. The risk averred in the amended summons to which Macmahon had pleaded guilty was as follows:

“Mr Junk and the Shaft Crew were exposed to a risk of death or serious injury in performing the Work, arising from having exposed parts of their body struck and/or crushed between pinch points between the Platform Stage and the Kibble, while they used the Kibble as a means of conveyance in the Shaft.”

57. The judge found that the foreseeability of that risk was clear (at [29]). At the same time, however, he accepted a submission put on behalf of Macmahon concerning the probability of such an incident, saying (at [30]):

“I accept the defendant’s submission that though the risk existed and the occurrence of fatal injury was foreseeable, the probability of such an incident was low. This is supported by industry history, the defendant’s history, the issue of warning, common sense and the understanding by the workers of warning. That the understanding was clear is demonstrated by the material in Exhibit DX 1. In Mr Junk’s case, it is heightened by the fact that he was a shift supervisor and responsible for the supervision of the defendant’s ‘shift crew A’ on the project.”

58. In his submissions in this Court, the appellant noted that the degree of foreseeability of a risk to safety is different from the probability of an incident occurring in particular circumstances and that it is important not to confuse the two. It was submitted that the judge’s finding at [30] set out above reveals that his Honour conflated foreseeability with probability.

58. I am not persuaded that the judge misconceived that important distinction; his Honour made separate findings as to each separate consideration. However, it is clear that his honour placed significance on the low probability of an incident of this kind occurring and that his assessment of that probability informed his conclusion that the case fell at the low end of the spectrum of objective seriousness.

59. As to the foreseeability of the consequences of the risk coming home, the judge found that that foreseeability was also clear (at [35]).

60. As to the measures available to avoid the risk, the prosecutor made the following allegations in the amended summons (pars 15-16):

“The defendant failed to ensure, so far as was reasonably practicable, that the shaft sinking infrastructure, which included the Platform Stage and Kibble, was safe and without risk to health in that persons who extended parts of their bodies beyond the confines of the Kibble were exposed to pinch points when the Kibble traversed through the Kibble Well. In particular, the defendant failed to design a mesh webbing barrier (the Barrier) which was able to be affixed to the Kibble while it was being used as a conveyance when traversing through the Kibble Well in proximity to pinch points to reduce the risk of a worker riding in the Kibble extending his or her body outside the confines of the Kibble.

The defendant failed to ensure, so far as was reasonably practicable, that a safe system of work was provided for the raising and lowering of the Kibble when used as a shaft conveyance for workers. In particular, the defendant failed to provide a system of work that included the following measures:

(a)   affixing the Barrier to the Kibble whilst it was being used a conveyance for personnel;

(b)   a designated signalman who was responsible for the operation and safe use of the Kibble as a conveyance;

(c)   a specific signal identifying when workers were using the Kibble as a means of conveyance in the Shaft;

(d)   mandatory “stop and hold” points during raising and lowering of the Kibble relative to the location of pinch points between the Kibble and the Platform Stage;

(e)   a flashing warning light to alert workers about the movement of the Kibble through the Kibble Well;

(f)   an audible alarm to alert workers about the movement of the Kibble through the Kibble Well; and

(g)   a documented safe work procedure that incorporated the measures particularised in (a) to (f) above.”

62. The judge accepted that those measures were available to the respondent (at [36]) and noted that they were able to be implemented within about two weeks of the incident (at [37]). Significantly, his Honour found that “the use of mesh webbing, signals and alarms would have such a significant effect in minimising the risk that it would in all probability be eliminated in most working situations” (at [38]). He accepted that those measures could and should have been adopted (at [39]).

63. However, in assessing those matters, the judge also had regard to Macmahon’s evidence as to its strong safety systems, saying (at [40]-[41]):

“It is not in doubt that prior to the incident the defendant was safety conscious and had an extensive system in place for health and safety. The defendant’s safety systems in place at and before the incident are set out extensively in the Ross affidavit from [33] to [64]. There is no need to detail that material. It is not in doubt that its processes were extensive. Briefly, it may be noted that its approach to safety was project specific [47], processes were supervised and monitored [58], processes were reviewed and audited [62].

The defendant’s thinking that its warnings and common sense were good enough to cover the risk in this case was well-founded in industry practice, in the lack of any suggestion from anybody to the contrary, and in the understanding of the workforce. In this regard, however, this thinking was deficient, but not for the want of attention to safety. It was more in the nature of a want of imagination.”

64. The judge expressed his conclusion as to objective seriousness as follows (at [42]):

“Risk exposing somebody to the possibility of serious injury or death is serious. In the overall spectrum of grades of seriousness, however, I think this case falls at the low end.”

65. The appellant submitted that it was not open on the material put before the Court and the findings made by his Honour to characterise the objective seriousness of the offence as falling at the low end of the spectrum. As noted at the outset of this discussion, the respondent does not accept the premise of that contention. As explained in Yeung, the term “objective seriousness” has a particular meaning in the context of offences punishable by imprisonment which carry a standard non-parole period. The assessment required for that purpose must disregard characteristics of the offender: Muldrock at [27].

66. However, the jurisprudence relating to standard non-parole periods does not apply here. Macmahon submitted that it is clear from his Honour’s judgment that the conclusion that the case falls at the low end of the spectrum reflected an assessment of the gravity of the offence having regard to all of its features, including not only its objective features but also Macmahon’s state of mind. I accept that submission. So much is clear from [40]-[41] of the sentencing judgment set out above.

67. The Attorney General addressed this issue in lengthy written submissions in reply. The submissions made a number of assertions as to what could be inferred from his Honour’s use of the term “gravity of the offence” interchangeably with the concept of objective seriousness of the offence and from the order in which various matters were addressed in the judgment. The submission went so far as to contend that it was apparent from the use of those terms that his Honour was making findings as to objective seriousness and that, “to the extent that it is found that he took into account matters personal to the respondent in undertaking that assessment, it may be concluded that he erred at law in adopting that approach”. With respect, the submission inverts the logic that should be applied to this analysis. The fact that the judge had regard to “the defendant’s thinking” concerning the adequacy of its existing safety systems dictates the conclusion that the assessment was not confined to objective seriousness, at least as that phrase is comprehended in the Attorney General’s submissions.

68. The Attorney General further contended in the reply submissions that, if Macmahon’s submission was right (that the judge included subjective factors in the conclusion that the case falls at the low end of the spectrum), then arguably the judge “failed to make findings as to the objective seriousness of the offending” which it was submitted would also represent an error of law.

69. The submission must be rejected. The proper approach to sentencing is that stated by McHugh J in Markarian:

“the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case”.

70. There is no discrete requirement to pronounce a precise quantification of the objective seriousness of the offence which expressly puts subjective features out of account; to impose such a requirement would be an invitation down the path of two-stage reasoning.

71. The reply submissions further contended that it could not be reasonably found (in light of Macmahon’s admitted failures, the judge’s findings as to foreseeability and the availability of simple remedial measures) that the failure to ensure Mr Junk’s safety resulted from a failure of imagination. It is important in this context to record that the characterisation of the offence as one stemming from a want of imagination rather than a want of attention to safety reflected a concession made by the prosecutor in the Court below. Mr Sexton, who appeared for Macmahon in this Court and in the Court below, submitted (by reference to the transcript of the oral submissions in the Court below) that the evidence put on by Macmahon, with the agreement of the prosecutor, sought to differentiate the case from “a case involving a wilful failure to apply well-known safety procedures or, for example, cases involving a direction to a worker to use plant or equipment which is known to be dangerously defective”. As submitted by Mr Sexton, that is the kind of egregious behaviour which would justify a finding of high level culpability. Macmahon’s state of mind was accordingly a significant factor in the assessment of the gravity of the offending.

72. Separately, the appellant submitted that the judge’s determination as to objective seriousness was influenced by a misapplication of the principles in relation to the foreseeability of the risk of death or serious injury. As noted above, I accept that his Honour placed some significance on the low probability of an incident of this kind occurring. The appellant submitted that the fact that the probability of an incident occurring in a particular manner is low does not mean that the degree of foreseeability of the risk of death or serious injury is low, citing Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 at [18]-[21]. The point reference appears to be wrong but in any event the point made in Nash (decided after sentence was imposed in the present case) does not end there. In that case, Basten JA (with whom Hoeben CJ at CL and Walton J agreed at [80] and [81]) said at [34]:

“The sentencing judge commenced his consideration with the proposition that ‘[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely.’ However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors.” (footnotes omitted)

73. Those remarks indicate that it is not wrong to have regard to the probability of the occurrence of the event against which the offender failed to guard but that the significance of that consideration will necessarily be informed by other considerations. A high degree of culpability might attach to an extremely unlikely occurrence if its potential consequences are catastrophic and able to be obviated by measures that are only mildly inconvenient. Without more, it cannot be said that failure to guard against a highly improbable occurrence will entail low culpability. Ultimately, however, the assessment of all those factors is a matter for the sentencing judge.

74. The appellant further submitted that the judge did not have “proper regard” to the availability of simple remedial measures that would have obviated the risk. However, as already explained, the weight to be afforded to that factor was a matter for his Honour. The question is whether the conclusion that the case fell at the low end of the spectrum was open having regard to all of the relevant circumstances.

75. The appellant finished with the overall submission that the judge’s conclusion as to objective seriousness was incompatible with the following facts and findings:

“(a)   the risk of injury included that of a fatal injury (at [30]);

(b)   the risk was foreseeable (at [29], [30] and [35]);

(c)   the gravity of the potential risk to safety flowing from the breach included serious injury and death (at [35]);

(d)   the risk was a serious one (at [42]);

(e)   the remedial measures pleaded were available and were able to be implemented within about two weeks of the incident (at [36]-[37]);

(f)   if implemented, those remedial measures would in all probability have eliminated the risk in most working situations (at [38]); and

(g) the fatal injury caused by the offence was ‘plainly substantial’ being a specific aggravating factor pursuant to s 21A(2)(g) of the CSP Act (at [45]).”

76. A consideration of those findings alone would point to a graver assessment. However, as submitted by Mr Sexton, it is clear that the sentencing judge also had regard to characteristics of the offender. The findings at [40]-[41] of the sentencing judgment pulled in the other direction, pointing to a more favourable assessment. The respective weight to be given to those competing considerations was a matter for the sentencing judge. I am not persuaded that the conclusion his Honour reached was not open.

Consideration of the maximum penalty

77. Ground 2 is:

“The sentencing judge erred by failing to properly have regard to the maximum penalty for the offence.”

78. The appellant relied on the remarks of Basten JA in Nash at [54] where his Honour said, by way of emphasis: “the proportionality of the sentence should depend upon an assessment of the particular offence in the context of the penalties imposed by the Act”. The appellant asserted, without elaboration, that the sentencing judge did not apply that principle.

79. The judge did refer to the maximum penalty. The burden of the appellant’s submission appeared to be that the process nonetheless miscarried in its application as it is not apparent what weight was given to the maximum penalty and because there was “no indication that his Honour took into account the substantial increase in the maximum penalties pursuant to the enactment of the [Work Health and Safety Act] as an indication of legislative intention that sentences for occupational safety offences should be commensurately increased”: see appellant’s written submissions, 5 September 2017 at [56].

80. The appellant relied in that context on the decision of the High Court in Muldrock where the Court said (at [31]):

“The maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence. An increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased.” (footnotes omitted)

81. The appellant also relied on R v Slattery (1996) 90 A Crim R 519 where Hunt CJ at CL commented on the increase of the maximum penalty for culpable driving offences (at 524):

“The action of the legislature in almost tripling the maximum sentence for a particular type of offence must be taken by the courts as reflecting community standards in relation to the seriousness of that offence, and the courts are required to give effect to the obvious intention of the legislature that the existing sentencing patterns are to move in a sharply upward manner.” (footnotes omitted)

82. The maximum penalties for occupational safety offences were substantially increased when the Occupational Health and Safety Act 2000 (NSW) was repealed and replaced by the Work Health and Safety Act. Under the old Act, the maximum penalty for a corporation breaching its duty to ensure the health, safety and welfare at work of all employees (under s 8(1) of the Act) was $550,000 for a first offender and $825,000 for a previous offender: s 12. Since 2011, the maximum penalty for a body corporate that has a health and safety duty and fails to comply with that duty where the failure exposes an individual to a risk of death or serious injury or illness is $1.5 million: s 32 of the Work Health and Safety Act.

83. The authorities relied upon by the appellant make the obvious point that sentences imposed having regard to a higher yardstick will yield a higher range. However, as submitted on behalf of Macmahon, it does not follow that the sentencing judge was obliged to refer to and discuss the fact of a recent legislative increase, nor that he was bound to give the maximum penalty greater weight amongst other relevant factors. The requirement was to have regard to the applicable maximum as a “yardstick”: Markarian at [31].

84. In the present case, the sentencing judge correctly stated the maximum penalty, noting that the maximum is reserved for the worst case but also acknowledging that the figure of $1,500,000 serves as “an indication that the legislative intent is that offences under the Act are to be treated seriously” (at [52]). In light of those remarks, it cannot be concluded that his Honour failed to take the maximum penalty into account. Specific error is not established.

85. For the reasons explained above, this ground should otherwise be treated as an aspect of the submission that the sentence was manifestly inadequate.

General deterrence

86. Ground 3 is:

“The sentencing judge erred in failing to give due emphasis to the need for general deterrence.”

87. As with ground 2, this ground should be treated as an aspect of the contention that the sentence was manifestly inadequate. It is clear that the judge had regard to general deterrence as a factor relevant to sentence. His Honour said (at [43]):

“General deterrence needs to be factored in, particularly bearing in mind that other facilities do utilise this system of mining and it is a high risk industry. To some extent, but I think only slight, general deterrence as a factor is ameliorated by the fact that another mine which used a similar process on a project in Western Australia has not completed a shaft project where personnel travel in a kibble through a stage kibble well subsequent to the completion of that project in July 2012 and ‘after the incident at the CSA mine on 16 March 2013’. Fully enclosed conveyers are now used…”

88. The appellant’s submissions on this issue focussed on the judge’s finding that the offence arose from a “want of imagination”. The burden of the submission was to emphasise the importance of motivating other potential offenders to be “imaginative and pro-active in addressing the risks to safety” (at [65]).

89. The appellant noted that the courts have emphasised the need for a pro-active approach to addressing safety risks for the purpose of general deterrence, noting the remarks of Hill J in WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 approved by the Full Bench of the Industrial Relations Commission in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [82]:

“This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offence to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace.”

90. That is an unexceptionable statement of principle but the fact remains that the determination of the weight to be given to general deterrence was a matter for the sentencing judge. The appellant submitted that the judgment discloses no indication that his Honour sought to impose a sentence that would deter other potential offenders from the “want of imagination” that gave rise to the offence and indeed submitted that the judge’s remarks at [41] set out above tended “to condone an unimaginative reliance upon ‘industry practice’”. I do not accept that submission. The judge had a wealth of evidence before him as to the very comprehensive safety procedures Macmahon had in place. As already noted, the so-called “failure of imagination” involved the imagination of a number of highly experienced professionals. There is no warrant for concluding that Macmahon had been less than proactive. Accepting that those under a duty under the Act must be held to the highest of standards, it is difficult to understand, having regard to the evidence, what conduct it is suggested other potential offenders ought to have been deterred from engaging in. I do not accept that the judgment condoned complacency; it acknowledged that there had been a high measure of vigilance but that it had failed.

The sentence is manifestly inadequate

91. Ground 4 is:

“The sentence imposed on the respondent is manifestly inadequate.”

92. The appellant’s submissions in support of this ground rested heavily on the success of the other grounds, together with the fact that the offence was aggravated by the fact that the injury suffered by Mr Junk was fatal, which was an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

93. I would accept that the sentence was lenient. However, on the strength of the findings of the sentencing judge, which have not been successfully challenged, I am not persuaded that a fine of $100,000 (before application of the discount for the plea) was outside the range of available sentences in all the circumstances of the case.

94. For those reasons, the order I propose is that the appeal be dismissed.

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Amendments

27 February 2019 - Counsel's name added to coversheat

Decision last updated: 27 February 2019