Inspector Orr v Perilya Broken Hill Limited - [2018] NSWDC 130

District Court

New South Wales

Medium Neutral Citation: Inspector Orr v Perilya Broken Hill Limited [2018] NSWDC 130
Hearing dates: 13 April 2018
Date of orders: 13 April 2018
Decision date: 13 April 2018
Jurisdiction: Criminal
Before: Kearns DCJ
Decision:
Perilya Broken Hill Limited is convicted. Perilya Broken Hill Limited is fined the sum of $500,000. One half of the fine is to be paid to the prosecutor in accordance with s 122 of the Fines Act.

Catchwords:
CRIMINAL LAW – PROSECUTION – WORK HEALTH AND SAFETY
SENTENCE – objective seriousness – aggravating factors – deterrence – mitigating factors
Legislation Cited: Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999; Fines Act 1996
Cases Cited: Veen v The Queen [No.2] (1987-88) 164 CLR 465
Category: Sentence
Parties: NSW Department of Planning and Environment – Stephen James Orr, Investigator, Inspector and Manager, Regulatory Audit and Investigation (Prosecutor); Perilya Broken Hill Limited (Defendant)
Representation:
Counsel: Mr J Agius SC with Mr C Magee appeared for the Prosecutor;
Mr B Hodgkinson SC with Mr M Shume appeared for the Defendant
Solicitors: Norton Rose Fulbright instructed by the Prosecutor; Colin Biggers and Paisley instructed by the Defendant

File Number(s): 2014/176345

Judgment

On 28 February 2018, I found the defendant, Perilya Broken Hill Limited (PBHL), guilty of a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (WHS Act).
The matter now falls for sentence. The maximum penalty for the offence is $1,500,000.
The facts on which the sentence is to be based are set out in large measure in the reasons I published on 28 February 2018. I take them into account though I shall not be referring to them specifically except to the extent I find it necessary to do so in explaining these reasons.
I have been provided with an affidavit of Paul Marinko of 9 April 2018.

Sentencing process

I commence the sentencing process by noting and taking into account the purposes of sentencing. I bear in mind the purposes of sentencing as enumerated in s 3A of the Crimes (Sentencing Procedure) Act 1999. I bear in mind the purposes of the Work Health and Safety Legislation, in particular, but not limited to, ensuring the safety, health and welfare of workers and others on workplace premises. I bear in mind any aggravating and mitigating factors, including any mentioned in s 21A of the Crimes (Sentencing Procedure) Act so far as any of those may be relevant.
The sentence imposed must reflect the objective seriousness of the offence and the surrounding circumstances, including subjective circumstances of the defendant. It must not exceed what is appropriate to the gravity of the offence – Veen v The Queen [No.2] (1987-88) 164 CLR 465, 472, 485-6.

Objective seriousness

I start my analysis with a consideration of the objective seriousness 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…

Grounds of appeal

[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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Details

Case: [2018] NSWDC 130
Decision Date: 13 April 2018

CaseChat Overview and Summary

Inspector Orr brought a case against Perilya Broken Hill Limited in the County Court of Victoria. The dispute arose from an incident where the company was alleged to have breached work health and safety laws, resulting in a worker's injury. The court was required to determine whether Perilya Broken Hill Limited was guilty of the charges and, if so, to determine an appropriate sentence.

The legal issues before the court involved whether Perilya Broken Hill Limited had breached the Occupational Health and Safety Act 2004 and, if so, what the appropriate penalty should be. The court had to consider the objective seriousness of the offence, any aggravating or mitigating factors, and the purposes of sentencing under the Sentencing Act 1991. The court was required to balance the need for deterrence and retribution against the company's capacity to pay and other relevant considerations.

The court found that Perilya Broken Hill Limited had indeed breached the Occupational Health and Safety Act 2004, leading to the injury of a worker. The court considered the objective seriousness of the breach, noting the significant harm caused to the worker and the potential for greater harm had the situation been worse. The court also identified several aggravating factors, including the company's prior history of non-compliance and the economic benefits gained from the breach. However, the court also took into account mitigating factors, such as the company's cooperation during the investigation and its efforts to improve its compliance practices. After weighing all these factors, the court determined that a fine of $500,000 was appropriate. Half of this fine was to be paid to the prosecutor in accordance with section 122 of the Fines Act.

Perilya Broken Hill Limited was convicted, and the court ordered that it be fined $500,000. Half of this fine was to be paid to the prosecutor. This decision underscores the court's commitment to enforcing work health and safety laws and ensuring that companies take their obligations seriously.

Orders

Orders of the court

Perilya Broken Hill Limited is convicted. Perilya Broken Hill Limited is fined the sum of $500,000. One half of the fine is to be paid to the prosecutor in accordance with s 122 of the Fines Act.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Inspector Orr v Perilya Broken Hill Limited [2018] NSWDC 130
Hearing dates:	13 April 2018
Date of orders:	13 April 2018
Decision date:	13 April 2018
Jurisdiction:	Criminal
Before:	Kearns DCJ
Decision:	Perilya Broken Hill Limited is convicted. Perilya Broken Hill Limited is fined the sum of $500,000. One half of the fine is to be paid to the prosecutor in accordance with s 122 of the Fines Act.
Catchwords:	CRIMINAL LAW – PROSECUTION – WORK HEALTH AND SAFETY SENTENCE – objective seriousness – aggravating factors – deterrence – mitigating factors
Legislation Cited:	Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999; Fines Act 1996
Cases Cited:	Veen v The Queen [No.2] (1987-88) 164 CLR 465
Category:	Sentence
Parties:	NSW Department of Planning and Environment – Stephen James Orr, Investigator, Inspector and Manager, Regulatory Audit and Investigation (Prosecutor); Perilya Broken Hill Limited (Defendant)
Representation:	Counsel: Mr J Agius SC with Mr C Magee appeared for the Prosecutor; Mr B Hodgkinson SC with Mr M Shume appeared for the Defendant Solicitors: Norton Rose Fulbright instructed by the Prosecutor; Colin Biggers and Paisley instructed by the Defendant
File Number(s):	2014/176345