Ausdrill Ltd v Hanekom
[2009] WASC 307
•16 OCTOBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: AUSDRILL LTD -v- HANEKOM [2009] WASC 307
CORAM: LE MIERE J
HEARD: 9 JUNE 2009
DELIVERED : 16 OCTOBER 2009
FILE NO/S: SJA 1014 of 2009
BETWEEN: AUSDRILL LTD (ACN 009 211 474)
Appellant
AND
MARIUS HANEKOM
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT COOLGARDIE
Coram :MAGISTRATE E K LANGDON
File No :KA 2633 of 2008
Catchwords:
Criminal law - Appeal against sentence - Whether sentence imposed as a result of error of fact - Whether sentence was manifestly excessive - Mines Safety and Inspection Act 1994 (WA) s 5, s 9, s 9A - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Mines Safety and Inspection Act 1994 (WA)
Mines Safety and Inspection Amendment Act 2004 (WA)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Ms S E Harrison
Respondent: Ms L A Eddy
Solicitors:
Appellant: Mallesons Stephen Jaques
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Gherardi v Pedder [2007] WASC 242
H v State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
LE MIERE J: In February 2006 Matthew Harris, an employee of the appellant, died as a result of an accident at the appellant's Fimiston open pit mine. On 30 January 2009 the appellant pleaded guilty to having contravened s 9(1) and s 9A(2) of the Mines Safety and Inspection Act 1994 (WA) (the Act) by failing, so far as is practicable, to provide and maintain at a mine a working environment in which its employees are not exposed to hazards and by that contravention having caused the death of an employee. The appellant was fined $240,000 and ordered to pay costs of $2,125.70. The appellant appeals against the sentence under pt 2 div 2 of the Criminal Appeals Act 2004 (WA).
The Act
Section 9 is in pt 2 of the Act which is entitled 'General duties relating to occupational safety and health'. Section 9(1) imposes on an employer who employs an employee at a mine, a duty, so far as is practicable, to provide and maintain at a mine a working environment in which the employer's employees are not exposed to hazards. Section 9A(1) provides that '[if] an employer contravenes s 9(1) in circumstances of gross negligence, the employer commits an offence and is liable to a level 4 penalty'. Section 9A(2) provides that if an employer contravenes s 9(1) and by the contravention causes the death of, or serious harm to, an employee and s 9A(1) does not apply, the employer commits an offence and is liable to a level 3 penalty. Penalty levels are defined by s 4A. Section 4A(3) provides that where a person is liable to a level 3 penalty for an offence against the Act the person is liable, in the case of a corporation, for a first offence, to a fine of $400,000.
The maximum penalty for the offence of which the appellant was convicted was a fine of $400,000. The maximum penalty was increased from $200,000 by the Mines Safety and Inspection Amendment Act 2004 (WA) which took effect from 4 April 2005. The explanatory memorandum states that the maximum penalties were increased in response to community and government concern that the penalties imposed for breaches of the Act, particularly in cases of death or serious injury, had on a number of occasions failed to reflect the seriousness with which such offences are regarded.
The hearing before the magistrate
The transcript of the hearing before the magistrate is incomplete because of equipment malfunction in recording the proceedings. However, the following matters are clear. An agreed statement of facts was presented to the magistrate. Mr Harris' widow made a statement of the impact of her husband's death upon her and their children. Mrs Harris' statement reveals the profound impact and consequences of this tragic accident.
The appellant was represented by counsel. Counsel made a detailed submission in mitigation of penalty and presented a large volume of material to the magistrate in support of those submissions.
The offence
The following statement of facts was presented to the magistrate. Kalgoorlie Consolidated Gold Mines Pty Ltd (KCGM) operates a gold mine located approximately 2 km east of the town of Kalgoorlie and known as the Fimiston open pit. KCGM engaged the appellant to carry out drilling work at the Fimiston open pit. The appellant employed a number of people, including Matthew Harris, to carry out drilling and associated work at the pit.
Within the Fimiston open pit there is an area known as the 'Ausdrill workshop area'. This area includes a workshop, sea containers, storage facilities and some open space for manoeuvring around the area and for parking. This area is located approximately 500 m to the south of the main administration buildings at Fimiston open pit.
In the early hours of 14 February 2006 Matthew Harris, who was at the Ausdrill workshop at the time, was instructed to bring some equipment down to a location in the pit. Mr Harris took one of the appellant's trucks and loaded three drill rods and some other equipment onto the back of the truck. Having loaded the required equipment Mr Harris then got into the truck and commenced driving towards the exit of the Ausdrill workshop area. As he did so, the truck collided with drill rods protruding from the back of another truck (the Bit Truck) that was at the time of the collision parked in front of sea containers in the Ausdrill workshop area.
The area was well lit at the time of the collision, although it may be that the overhanging drill rods were difficult to see in the prevailing lighting conditions.
In February 2006 it was standard practice (and had been for up to five years previously) for the Bit Truck to be parked at the end of the day shift in the area in front of the sea containers in the workshop area. It was also standard practice that if there were drill rods on the Bit Truck including protruding drill rods at the end of the day shift, they would be left on the Bit Truck. This was apparently because of a safety procedure in place at the mine that prevented the loading or unloading of heavy items at the end of a shift so as to avoid injuries occurring due to hurried unloading or loading. At the end of the day shift on 13 February 2006, the Bit Truck was parked, as usual, in front of the sea containers, with overhanging drill rods loaded.
The drill rods on the Bit Truck were 35 ft and 30 ft long and weighed approximately 668 kg and 577 kg respectively. Both had a diameter of 139.7 mm. The 30 ft drill rod protruded over the back of the Bit Truck by 1.35 m at a height of 1.89 m from the ground. The 35 ft drill rod protruded over the back of the Bit Truck by 2.85 m at the same height above the ground.
KGCM had a standard operating procedure in place that required loads overhanging from vehicles by more than 1 m to have an orange flashing light attached to the end of the load when being transported. The appellant's workers had been instructed to tie a red flag to the end of overhanging loads but not to put a flashing orange light on the end of the load. On 13 and 14 February 2006 the ends of the overhanging drill rods on the Bit Truck did not have a flashing light or a red flag attached.
When the truck Mr Harris was driving collided with the drill rods protruding over the back of the Bit Truck the drill rods pierced the front windscreen of Mr Harris' truck and struck Mr Harris at head height. Mr Harris died from head injuries in Perth on 16 February 2006.
Later examination of the vehicle driven by Mr Harris identified a number of faults with that vehicle, however there was no indication that any of those faults caused or contributed to the collision.
It was practicable for the appellant to take one or more of the following practical measures to avoid the hazard posed by the drill rods protruding over the back of the Bit Truck:
a.Putting in place and enforcing a system of work requiring any protruding items stored on a vehicle to have a lit beacon attached at all times, including when the vehicle is not in use, in order to enhance visibility of the end point of the protruding item(s); and/or
b.Putting in place and enforcing a system of work whereby any vehicle that has one or more protruding items stored on it must, when not in use, be parked in such a way that employees cannot inadvertently come into close proximity with the protruding items; and/or
c.Putting in place and enforcing a system of work whereby any vehicle that has one or more protruding items stored on it must, when not in use, be parked in a designated location of which all employees are aware, so as to minimise the risk of employees inadvertently coming into close proximity with the protruding items stored on the vehicle; and/or
d.Putting in place and enforcing a system of work requiring that when any vehicle that has one or more protruding items stored on it is to be parked, a physical barrier or traffic cones ('witches hats') are placed to prevent employees from coming into contact with the protruding item(s) or at least clearly indicate that employees should not enter into the area of protrusion.
Magistrate's sentencing remarks
The magistrate made statements to the following effect. The appellant had in place at the relevant time a routine procedure of an employee parking the Bit Truck in the same location in the Ausdrill workshop and placing a red flag at the end of the rods to warn other employees of the hazard of protruding drill rods. The appellant had trained Mr Harris in relation to this procedure, including to expect the Bit Truck to be parked in that same location in which it was parked. However, notwithstanding this routine workplace procedure, at the end of the day shift before Mr Harris' shift, an employee parked the Bit Truck in the usual parking location, but for whatever unknown reason, omitted to place the red flag at the end of the overhanging drill rods, as required by the procedure. Mr Harris had worked for the appellant for 4 1/2 years. He had a reputation as a good worker. He had an excellent safety record and he was described by the appellant's project manager as being above average in his work. The appellant failed to have in place a physical barrier to prevent Mr Harris from coming into contact with the overhanging drill rods. This omission was contrary to s 9(1) and s 9A(2) of the Act.
Her Honour then stated that she accepted that the appellant had entered a plea of guilty to the offence at the earliest opportunity and had no prior convictions. The magistrate said that the appellant had put in place a number of new measures to avoid the likelihood of an incident of this nature occurring again and that such measures only go to mitigate the need for personal deterrence.
The magistrate disagreed with a submission for the appellant that there was a minor degree of negligence. Her Honour said that the offence arose within the normal manner of business, that the resulting incident was plainly foreseeable and avoidable and that the routine workplace practice of relying on a fellow employee in a previous shift to raise a red flag to warn of heavy dangerous protruding drill rods was inadequate protection and very high risk. The requirement of the red flag showed that the appellant had turned its mind to the inherent danger of the overhanging drill rods but should have done more to adequately reduce real potential for human error or omission in a workshop area where it was usual practice for employees to be working close to the Bit Truck and protruding rods.
The magistrate stated:
I therefore agree with the prosecution that [the appellant's] culpability is not minor, nor is it at the highest end of the gravity scale. Whilst the omission by [the appellant] was not deliberate, the present incident would not have happened if [the appellant] had not failed to ensure that the Bit Truck was properly isolated, as it has now been isolated since the incident.
I accept, … that [the appellant] has a relatively good safety record pre and post this incident; that is, relative to the scale of the super pit and the risks associated with operating a mine. I further accept that [the appellant] has demonstrated that it is a good corporate citizen, in light of the company's financial contributions made to services and clubs in both Kalgoorlie and the broader Western Australian community.
However, there is a need for general deterrence and denunciation, given the very serious risk posed to employees and the need for serious consequences for employers in breaching the Act, as well as the simple practical measures it could easily have instituted.
…
It is clear from the range of penalties that can be gleaned from the case law that each case of this type turns on the peculiar factual circumstances as to the conduct of the employer. Moreover, I note that Parliament increased the maximum penalty for breaches of this nature in 2004 by doubling the maximum penalty.
Balancing these factors [the appellant] is convicted and fined $240,000 and I do make an order for costs in the sum of $2,125.70 (ts 14 ‑ 15).
Grounds of appeal
There are two grounds of appeal:
1.The sentence imposed was imposed as a result of an error of fact in finding that the risk that gave rise to the fatal accident in question was a risk that employees were exposed to on a regular basis leading to an error of law in finding that the appellant's degree of criminal negligence was somewhere in the middle of the range of the possible degree of criminal negligence.
2.The sentence imposed was excessive in that it failed to take into account the range of past sentences for similar offences.
Further evidence
At the hearing of the appeal the appellant sought to have admitted as evidence in support of ground 1 the affidavit of Michael Baxter sworn on 15 May 2009. That affidavit was not before the magistrate.
Evidence that was not before the magistrate may be admitted in the exercise of the court's discretion to bring before the court facts which were in existence at the time of the imposition of a sentence but were not known to the sentencing judge: Criminal Appeals Act 2004 (WA) s 39 and s 40(1)(e); Gherardi v Pedder [2007] WASC 242, [31] (Hasluck J). The power to admit further evidence on appeal will not be lightly exercised.
The evidence of Mr Baxter in his affidavit of 15 May 2008 is summarised by the appellant in its submissions as follows:
(a)a practice existed of loading the Bit Truck with consumables and drill rods;
(b)the Bit Truck would take these items into the pit and would return to the surface at the end of the shift and it would be parked in the same place in the workshop area each day;
(c)a direction existed that drill rods should not be handled at night, this direction having been issued as a result of an incident which occurred whilst another company was operating drilling services at the site prior to the appellant following an accident while unloading rods in 1996;
(d)there were three sizes of rods, these being 25 ft, 30 ft and 35 ft respectively;
(e)because of the maintenance schedule the 35 ft rods were transported infrequently, namely eight times per year; and
(f)in the two years Mr Baxter has worked at the pit prior to the incident, the Bit Truck was only left with overhanging drill rods overnight once or twice per year.
The appellant submitted that the magistrate imposed the sentence on the basis that overhanging drill rods were left regularly on the Bit Truck overnight and the evidence of Mr Baxter shows that the magistrate was mistaken because the overhanging drill rods were only left on the Bit Truck overnight once or twice a year.
The power to admit further evidence on appeal must be exercised cautiously. In this case I exercise my discretion to admit the evidence. The evidence is relevant. It is an elaboration of the material that was before the magistrate in that it discloses the frequency with which overhanging drill rods were left on the Bit Truck overnight. The admission of the evidence was not opposed by the respondent. The respondent submits that the evidence is consistent with the material that was before the magistrate and consistent with the basis upon which the magistrate imposed the sentence.
Ground 1
The submissions of counsel for the appellant to the magistrate included the following:
You have also heard from the prosecution that it was normal for the vehicle to be parked in the area that it was and it had been for a period of five years. That is correct. You have heard from the prosecution that it was normal that overhanging drill rods were left on the machine at night. To an extent that is correct, your Honour, but it is only correct when there were the larger rods on the drill truck and when those larger rods were on the drill truck, when it came up towards the end of the shift, there was a procedure that didn't permit you to unload. …
I am instructed that it was in fact a relatively rare occurrence that the long rods were actually left in the truck at the end of the night, largely because those long rods were usually taken down to the pit towards the beginning of shifts for the (indistinct) of the mine and that in fact it was actually reasonably rare that these long (indistinct) rods were in fact on a truck, but because of various procedures in place, it was left (ts 7).
In her sentencing remarks the magistrate said:
The [appellant] had in place at the relevant time a routine procedure of an employee parking the BIC (sic) truck in the same location in the Ausdrill workshop and placing a red flag at the end of the rods to warn other employees of the hazard of protruding drill rods. [The appellant] had trained Mr Harris in relation to this procedure, including to expect the BIC (sic) truck to be parked in that same location in which it was parked.
However, notwithstanding this routine workplace procedure, at the end of the day shift before Mr Harris' shift, an employee parked the BIC (sic) truck in the usual parking location, but for whatever unknown reason, omitted to place the red flag on the end of the overhanging drill rods, as required by the procedure …
…
… this offence arose within the normal manner of business. The resulting incident was plainly foreseeable and avoidable. In other words, the routine workplace practice of relying on a fellow employee in a previous shift to raise a red flag to warn of heavy dangerous protruding drill rods was inadequate protection and very high risk … (ts 13 - 14).
I am not satisfied that the magistrate made the alleged error of fact or law. The magistrate said that the appellant had in place at the relevant time a routine procedure of an employee parking the Bit Truck in the same location in the Ausdrill workshop and placing a red flag at the end of the rods to warn other employees of the hazard of protruding drill rods. I am not satisfied that the magistrate's reference to 'a routine procedure' shows that the magistrate thought that the long drill rods were frequently left on the Bit Truck overnight or with a greater frequency than is disclosed by the evidence of Mr Baxter or the submissions of counsel at the hearing before the magistrate.
On the hearing of this appeal the respondent submitted that the magistrate found that the circumstances of the offence arose in the normal course of business and referred to the routine practice of requiring any protruding drill rods to be marked with a red flag. Counsel for the respondent submitted that these statements do not indicate any error of fact. Nor do those statements indicate anything about the frequency with which protruding drill rods were left overnight on the truck. The statement of the magistrate that 'it was usual practice for employees to be working close to the truck and protruding rods' when read in context does not necessarily indicate any particular frequency with which protruding rods were left on the truck, but rather is a reference to the undisputed fact that the usual placement of the truck was in an area where other employees could come into close proximity in the ordinary course of work, and a conclusion that therefore if protruding drill rods were in place, employees could come into close proximity with the protruding drill rods in the ordinary course of work. I accept those submissions.
The magistrate found that the appellant's level of criminality, or culpability, was not minor nor was it at the highest end of the gravity scale. The magistrate made no error in finding that the appellant's culpability was not minor. The magistrate's finding was correct. It is supported by the following facts.
a.There was a routine procedure in place requiring a red flag to be placed on any protruding rods on the truck whenever this occurred.
b.The measures taken after the incident to physically prevent employees from coming into contact with any protruding rods on the truck were simple and could have been put in place prior to the date of the offence.
c.The appellant had turned its mind to the inherent danger of overhanging drill rods and should have done more to adequately reduce the real potential for human error or omission.
d.The incident that occurred was foreseeable and avoidable.
e.The risk arose from the normal course of work as opposed to a one off or unanticipated event.
f.The risk was a very serious risk in terms of the potential consequences if the risk eventuated.
g.The appellant's breach or omission was not deliberate.
Ground 1 is not made out
Ground 2
The essence of ground 2 is that the sentence imposed was manifestly excessive.
On the hearing of this appeal counsel for both the appellant and the respondent referred to a number of sentences imposed for offences of a similar nature. The respondent submitted that as the conduct which can be said to be in breach of the Act is so diverse it is not possible to distil from the authorities a tariff. I accept that submission. However, the comparative sentences referred to by the parties confirms my conclusion that the sentence imposed by the magistrate is a sentence appropriate where the offender's culpability or criminality is at the higher end of the scale.
It is necessary to impose a penalty having regard to the degree of criminality involved. A sentence for a breach of the duties imposed by the Act is imposed for failing to carry out the duties imposed by the Act for the safety and welfare of employees in a potentially dangerous work environment. The severity of the lack of care is a factor to be taken into account when sentencing. The appellant submitted that the magistrate should have sentenced the appellant on the basis that its degree of criminal negligence was at the lower end of the scale of criminal negligence. The respondent submitted, in effect, that the appellant's degree of criminal negligence or culpability was in the middle of the range of criminal negligence.
It is 'well established that offenders in this State are "rewarded" for fast track pleas of guilty by a reduction in sentence which usually falls somewhere between 20% and 35% depending on the circumstances': H v State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151, [9].
The magistrate should have taken into account other matters in mitigation of penalty. The appellant had no prior convictions. Since the offence the appellant had put in place a number of new measures to avoid the likelihood of an accident of this nature occurring again. It was also a mitigating factor that the appellant had what the magistrate described as a relatively good safety record pre and post the accident and that the appellant had demonstrated that it is a good corporate citizen by reason of the appellant's financial contributions made to services and clubs in both Kalgoorlie and the broader Western Australian community.
The fine imposed by the magistrate was $240,000. The magistrate should have discounted the sentence her Honour would otherwise have imposed by something in the order of 30% on account of the appellant's fast track plea of guilty, the appellant's lack of prior convictions, the appellant's otherwise good safety record, the steps the appellant has subsequently taken to avoid a repetition of the accident and the plaintiff's contributions as a good corporate citizen. If the magistrate had made a deduction in the order of 30% then the starting sentence before that discount must have been in the order of $340,000. That is over 80% of the maximum penalty. A starting sentence of 80% of the maximum, before applying a discount for a plea of guilty and other mitigating factors, is manifestly excessive for this offence.
The sentence imposed by the magistrate was manifestly excessive. The sentence must be set aside.
The appropriate penalty
A sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of the offence must be determined by taking into account, amongst other things, the circumstances of the commission of the offence and the vulnerability of the victim of the offence.
The risk of injury or harm to the health of employees from the overhanging drill rods was known to the appellant. There were available and feasible steps to avoid or mitigate the risk which were not taken before the accident. The potential risk of harm from the breach was one of serious injury or death. Those are aggravating factors. Causing the death of, or serious harm to, an employee is an element of the offence. Nevertheless, a contravention causing a death should generally be treated as a more serious offence than a contravention causing serious harm, all other things being equal.
The appellant's breach of the Act was not deliberate. The appellant did not disregard the risk of injury or harm. The appellant took steps to avoid the hazard, although these steps were inadequate. That is a mitigating factor. There are other relevant factors. The accident did not arise from a one‑off or unanticipated event. However, the event that gave rise to the accident, that is the long drill rods being left on the Bit Truck overnight, was an event that occurred relatively infrequently. Having regard to all of these matters I find that the offence is at the middle of the range of seriousness for offences of that nature.
I take into account a number of mitigating factors to reduce the sentence that I would otherwise have imposed. The appellant pleaded guilty at the first opportunity. The appellant has no prior convictions. The appellant has a relatively good safety record before and after this accident. Since the accident the appellant has taken measures to ensure that a similar accident will not occur again. The appellant has demonstrated that it is a good corporate citizen.
The sentence must have regard to general deterrence to dissuade others who have been made aware of the punishment inflicted upon the appellant from committing offences of a similar nature. Denunciation is also important. That is to be achieved by the imposition of a sentence, the severity of which makes a statement that offences of this nature are not to be tolerated.
Having regard to all of the relevant factors the appropriate sentence is a fine of $130,000.
Conclusion
The appeal will be allowed. The sentence imposed by the magistrate will be set aside and a fine of $130,000 imposed in its place.
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