Nash v Silver City Drilling (NSW) Pty Ltd;; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Hearing dates:
24 March 2017
Decision date:
16 May 2017
Before:
Basten JA at [1]; Hoeben CJ at CL at [80]; Walton J at [81]
Decision:
(1) In respect of the appeal against sentence:
(a) allow the appeal and set aside the orders made by Curtis DCJ on 12 August 2016; (b) in lieu thereof make the following orders– (i) convict the respondent, Silver City Drilling (NSW) Pty Ltd of an offence under s 32 of the Work Health and Safety Act 2011 (NSW) for contravening s 19(1) of the Act with respect to its workers at Ashton Coal Mine on 12 August 2012; (ii) order that the respondent pay a fine in the amount of $212,500 of which a moiety should be payable to the prosecutor.
(2) In respect of the appeal against the refusal of the costs application:
(a) allow the appeal and set aside the order made by Curtis DCJ on 12 August 2016 refusing the application; (b) in lieu thereof order that the respondent pay the prosecutor’s costs of the proceedings in the District Court, not including any costs incurred in preparation for a trial in which the particulars withdrawn in the further amended summons were to be relied upon, such costs to be agreed or assessed.
Catchwords:
CRIME – appeal by Attorney General against inadequacy of sentence under Criminal Appeal Act 1912 (NSW) s 5D – respondent company convicted of failure to comply with health and safety duty under Work Health and Safety Act 2011 (NSW), s 32 – whether fine imposed inadequate – whether sentencing judge erred in determining objective seriousness of offence, weight to be placed on deterrence, and appropriate discount for guilty plea – whether Court should exercise power to resentence
COSTS – criminal proceedings – appeal by prosecutor from refusal to award costs under Criminal Procedure Act 1986 (NSW), s 257B – whether award of moiety of fine to prosecutor under Fines Act 1996 (NSW) s 122(2) displaces order for costs – discretion to make order for prosecutor’s costs
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
Case
[2017] NSWCCA 96
Decision Date
CaseChat Overview and Summary
In the matter of Bulga Underground Operations Pty Ltd, a coal mining company, versus Nash, the Attorney General of New South Wales, the court was tasked with determining the adequacy of a fine imposed on the company for breaches of health and safety duties under the Work Health and Safety Act 2011. The company had been convicted of failing to comply with its duty to ensure the health and safety of employees and others under s 32 of the Act. The Attorney General appealed the sentence on the grounds that it was inadequate, asserting errors in the sentencing judge's assessment of the objective seriousness of the offence, the weight given to deterrence, and the discount for the company's early guilty plea. The court was required to consider whether the sentencing judge had erred and if it should exercise its power under s 5D of the Criminal Appeal Act 1912 to resentence the company.
The court examined the sentencing principles applicable to corporate offenders, emphasising the importance of deterrence and specific deterrence in cases involving health and safety breaches. It assessed the sentencing judge's approach to the objective seriousness of the offence, noting that the judge had taken into account the nature of the breach, the risk to human life, and the company's prior history of similar offences. The court found that while the judge had considered these factors, there was an error in the weight given to the deterrence aspect and the discount for the guilty plea. The court concluded that the original sentence was inadequate and exercised its power to resentence the company to a higher fine, reflecting the need for stronger deterrence and general deterrence in cases of this nature.
In relation to the costs, the Attorney General appealed the refusal to award costs under the Criminal Procedure Act 1986. The court considered whether the award of a moiety of the fine to the prosecutor under the Fines Act 1996 precluded an order for costs. It found that the statutory award did not displace the court's discretion to order costs in appropriate circumstances. The court exercised its discretion to order that the company pay the prosecutor's costs, considering the nature and complexity of the appeal and the public interest in ensuring effective enforcement of health and safety laws.
The final orders of the court included a resentence of Bulga Underground Operations Pty Ltd to a higher fine and an order for the company to pay the prosecutor's costs, reflecting the court's view on the inadequacy of the original sentence and the need to uphold the effectiveness of health and safety legislation.