Linnane (NSW Department of Planning and Environment) v Cummings

[2020] NSWDC 755

District Court

New South Wales

Medium Neutral Citation:

Linnane (NSW Department of Planning and Environment) v Cummings [2020] NSWDC 755

Hearing dates:

10 December 2020

Date of orders:

14 December 2020

Decision date:

14 December 2020

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

(1) Tony Glenn Cummings is convicted.

(2) I impose a fine of $70,000.

(3) The defendant is to pay the prosecutor’s costs of the proceedings as agreed or assessed.

(4) I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is paid to the prosecutor.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW - work health and safety – statutory duty of person conducting a business or undertaking with management or control of plant to ensure health and safety of persons so far as reasonably practicable – exposure of worker to risk of death or serious personal injury

SENTENCING – deterrence - aggravating factors – mitigating factors – deterrence – good character - good prospects of rehabilitation – assistance to law enforcement authorities – capacity to pay a fine – adverse publicity order

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Work Health and Safety Act 2011

Work Health and Safety (Mines and Petroleum) Sites Act 2013

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

Jahandideh v R [2014] NSWCCA 178

Linnane (NSW Department of Planning and Environment) v Cummings [2020] NSWDC 587

R v Thangavelautham [2016] NSWCCA 141

R v Youkhana [2004] NSWCCA 412

SafeWork NSW v Investa Asset Management Pty Ltd [2019] NSWDC 472

SafeWork NSW v KD & JT Westbrook Pty Ltd (No.2) [2019] NSWDC 15

Category:

Sentence

Parties:

Anthony Linnane (Department of Planning and Environment) (Prosecutor)
Tony Glenn Cummings (Defendant)

Representation:

Counsel: I Taylor SC/G Lewer (Prosecution)
R Clifford (Defendant)

Solicitors: McCulloch Robertson (Prosecution)
Browne Jeppesen and Sligar (Defendant)

File Number(s):

2018/336909 and 2018/336887

Publication restriction:

None

Judgment

Introduction

1. Tony Glenn Cummings (the defendant) appears for sentence after he was found guilty after trial of an offence contrary to s 32 Work Health and Safety Act 2011 (the Act).

2. The Court’s reasons for the finding of guilt are set out in its decision Linnane (NSW Department of Planning and Environment) v Cummings [2020] NSWDC 587 (the verdict judgment).

3. The maximum penalty for the offence is a fine of $300,000.

Facts

4. The following relevant matters are extracted from the verdict judgment.

5. The defendant was the owner of a hoist installed at a mine, where he was conducting a business or undertaking. Mark Siegel, the owner of the mine, was killed when the bucket of the hoist free fell down the main shaft of the mine and struck him when he was in a hole, known as the sump, at the bottom of the shaft.

Background

6. The mine was located on the mineral claim 44507 in an area known as Mulga Rush on the Grawin Opal Fields, about 80km south-west of Lightning Ridge.

7. The Grawin Opal Fields consist of about 3,000 mineral claims worked by about 8,000 miners. Most miners work their claims on a part-time basis, with only about 15% of miners working on a full-time basis. As one person can only hold 2 mineral claims at a time it is common for claims to be registered in the name of a person other than the true owner.

8. Gisela Hanna Gruenefeld, Mr Siegel’s mother, was registered as the holder of the mineral claim. Harald Gruenefeld, Mr Siegel’s step-father, was the nominated Mine Operator/General Manager of the mine, within the meaning of s 7A Work Health and Safety (Mines and Petroleum) Sites Act 2013.

9. The defendant knew Mr Siegel for about 15 years. In about 2012, the defendant purchased the Glengarry Hilton Hotel at the Grawin Opal Fields from Mr and Mrs Gruenefeld. At that time Mr Siegel was working as a cleaner at the hotel and he stayed in that role after the defendant took ownership of the hotel. Mr and Mrs Gruenefeld moved away from the area at that time and the defendant began to look after Mr Siegel and to assist him with paperwork and other matters.

10. Mr Siegel told the defendant that the mine was his and suggested that they work it together. The defendant initially refused to assist Mr Siegel because he considered him to be unreliable. To the defendant’s observation, Mr Siegel regularly turned up drunk to clean the hotel in the mornings and was a heavy user of cannabis. Mr Siegel was known on the opal fields by the nickname “Mad Mark” which was a reference to how he approached many things such as driving, drinking, working and playing. The defendant told Mr Siegel that he would reconsider his proposal if he cleaned up his act and cut back his drinking and drug use.

11. Over the next few years, the defendant and Mr Siegel became close friends. Mr Siegel cut back his drinking and smoking and his behaviour improved. Mr Siegel continued to propose to the defendant that they should enter into a partnership to work the mine.

The Work at the Mine

12. In or about the end of 2015 the defendant was taking some equipment that he owned out of a mine that he had been working at Weewarra. The equipment consisted of a digger, a bogger, a hoist and a diesel generator that was mounted inside a shipping container. The defendant had purchased the equipment second hand in about 2011.

13. Mr Siegel and the defendant entered into an agreement to split the profit equally from working the mine on the basis that the defendant supplied the equipment to be used to conduct the mining activities and that Mr Siegel allowed access to the mine. Following that agreement, the defendant, Mr Siegel and Mr Ellis brought equipment owned by the defendant to the mine, including the “Ag Fab Super Hoist” (the hoist). The hoist was installed over the main shaft by the defendant, Mr Siegel and Mr Ellis, with the assistance of Christopher Burden. From about September 2016, Mr Siegel, Mr Ellis and the defendant attended from time to time and carried out work to extract opals from the mine.

14. The mining work was undertaken using the digger to extract mullock from the walls of the mine. The mullock was then scooped up using the bogger and stored in its bin. The bogger was then taken to the main shaft and the contents of the bogger’s bin were then transferred by a chute on the bogger into the bucket attached to the hoist. The sump was dug at the bottom of the main shaft to house the bucket, so that when it was loaded it sat below the floor of the mine. The electrical power required to operate the equipment and the lighting in the mine was supplied by the generator.

The Operation of the Hoist

15. The hoist raised and lowered the bucket by the winding of a steel cable on and off a cable drum. The bucket ran along rails that were curved over the top of the frame of the hoist at the top and continued down the shaft to the bottom of the sump. When the bucket was raised to the top of the hoist it was pulled over the arc and would empty via gravity. The bucket would then lower back into the shaft to the bottom of the sump.

16. The hoist was operated by electrical and hydraulic power. An electric motor drove a hydraulic pump that pumped oil around the hydraulic system. The oil drove two hydraulic motors, one on each side of the cable drum that raised and lowered the bucket via a steel cable wound onto the cable drum. The hydraulic motors could operate in forward or reverse. The spool valve acted as a “gear stick” to operate the hydraulic motors in forward or reverse. An electrical signal sent to the “up” or “down” solenoids, slid the spool valve to the left or right allowing oil to drive the hydraulic motors in either forward or reverse. When the system was unpowered the spool valve was in neutral and it did not impede the flow of oil in any direction. The counterbalance valve acted as a “hand brake” on the hydraulic motors when the bucket was being lowered. The bucket weighed 130kg when it was empty. The weight of the bucket on the steel cable provided a load on the cable drum that sought to rotate the hydraulic motors in reverse. The counterbalance valve allowed the flow of oil in the hydraulic system to drive the hydraulic motors in the forward direction but prevented the flow of oil that would allow the hydraulic motors to operate in reverse, thus acting as a “counterbalance” to the weight of the bucket. The counterbalance valve was single-acting, in that it prevented the hydraulic motors and hence the cable drum from rotating in the reverse direction but did not impede the hydraulic motors and the cable drum from rotating in the forward direction.

17. The hoist was intended to operate in a semi-automatic fashion. This was achieved by the following steps. First, pressing the “up” button activated the electric motor to drive the hydraulic pump to commence the flow of oil in the hydraulic system and sent an electrical signal to the “up” solenoid to slide the spool valve to the left, allowing the flow of oil to drive the hydraulic motors and the cable drum in the forward direction to raise the bucket. Second, when the bucket got to the top of the arc it pulled a lever that activated the top limit switch. Third, after a delay of three seconds to allow the bucket to empty, an electrical signal was sent to the down solenoid of the spool valve to move it to the right and engage the hydraulic motors to turn the cable drum in the reverse direction and lower the bucket. Fourth, when the bucket reached the bottom of the sump a metal tab on the side of the bucket activated the lower limit switch that turned off the electrical power to the hoist.

18. It was a known risk that if the bucket did not activate the lower limit switch, the electric motor to the hoist would keep running and the cable would completely unspool before winding back on to the cable drum in the opposite direction. This was referred to in the evidence as an “overspool” and could occur if there was spillage of mullock in the sump that prevented the bucket from getting to the bottom of the sump so that the metal tab mounted on the side of the bucket could make contact with the lower limit switch. This would cause the bucket to get stuck at the top of the hoist because when the cable was spooled in the wrong direction it could not be pulled with sufficient force to pull the lever and commence the lowering sequence. The electric motor continued to operate in that state to hold the bucket in the stuck position. However, if power to the motor was cut, for example by pressing the emergency stop button, the bucket would not be held by the motor and it could free fall down the shaft.

19. It was common ground that Mr Ellis was aware of the risk and had seen buckets free fall at other mines. Whether the bucket had free fallen into the shaft at the mine in the two or three months before the incident was in dispute and I will return to that issue later.

20. If it was necessary to clean out spillage from the sump at the mine the workers had adopted a procedure of using the hoist to lift the bucket above the sump, just high enough to allow a person to get into the sump. A crowbar was then placed across the sump to prevent the bucket going down into the sump and it was secured in place with a chain. It was common ground that it was dangerous to enter a shaft underneath a suspended load such as a bucket, without taking those types of precautions.

21. In or about early October 2016 the defendant arranged for Greg Coulthard to attend the mine and undertake work on the hoist. A few days later, Mr Coulthard attended and replaced the top limit switch on the top of the hoist. Mr Coulthard tested the hoist after he replaced the top limit switch and it operated normally.

The Incident

22. On the morning of 4 November 2016 the defendant, Mr Siegel and Mr Ellis met up at the Sheepyard Inn Hotel, which was also owned by the defendant. At about 9.30am they headed to the mine. To the defendant’s observation, both Mr Siegel and Mr Ellis appeared to be sober. They commenced work at the mine with the defendant spending some time operating the digger. The defendant left the claim at about lunchtime to attend to some business at one of the hotels. At the time when the defendant left, Mr Siegel was operating the bogger and loading the bucket and Mr Ellis was operating the digger.

23. At about 3.00pm on 4 November 2016 the bucket became stuck at the top of the hoist. Mr Siegel approached Mr Ellis and told him that the bucket was stuck at the top of the hoist. Mr Ellis told Mr Siegel to wait while he went to the surface to investigate. As Mr Ellis went to leave, he heard the sound of the bucket free falling down the shaft. He turned and saw Mr Siegel trying to get out of the sump when he was struck by the bucket. Mr Ellis surmised that Mr Siegel had hit the lower limit switch in the sump and that had cut power to the hoist causing it to free fall down the shaft.

24. It was apparent to Mr Ellis that Mr Siegel was dead and he went to the surface to call for help. He called the Sheepyard Inn Hotel and spoke to the defendant. He then called “000”.

25. The defendant attended immediately with Mr Burden. On their arrival Mr Burden went down the access shaft and confirmed that Mr Siegel was dead.

26. The defendant observed that there was no cable on the cable drum of the hoist and this was unusual and he expected that it would still have some cable wrapped around it.

27. An ambulance arrived followed by the Police.

The Investigation

28. At about 4.25pm on 4 November 2016 Mine Safety Officers Radomir Babic and Janet Town arrived at the mine. They took steps to secure the site and made general observations.

29. On 5 and 6 November 2016 a number of Inspectors from the Mines Investigations Unit arrived at the mine, including, Andrew Tull, Timothy Flowers, Jeremy U’Brien, Matthew U’Brien, Phillip Morton and Stephen Orr.

30. On 6 November 2016 Inspectors Tull and Flowers conducted an interview with Mr Ellis that was recorded and later transcribed (the first interview). In the first interview, Mr Ellis told the Inspectors that the bucket had free fallen down the shaft of the mine, prior to the incident and after it had been installed. Mr Ellis said that a free fall could occur when the cable overspooled and the lower limit switch was tripped. Mr Ellis said that on one occasion he had tripped the lower limit switch with a pole to get the bucket down. Mr Ellis said that Mr Siegel was present on that occasion.

31. On 6 November 2016 Inspector Tull had a conversation with the defendant at the mine. Inspector Orr’s evidence was that the defendant told him that the bucket often got stuck at the top of the hoist when the cable was wound on the drum in the opposite way and that the bucket fell when Mr Siegel hit the lower limit switch, while he was in the sump. The defendant explained that the hoist kept running when the bucket failed to hit the lower limit switch, that the cable drum unspools and winds back on in the opposite direction and that the bucket gets stuck on the lever at the top. Inspector Orr’s evidence was that the defendant told him that when power was lost that the bucket free falls.

32. On 7 November 2016 the Inspectors arranged to observe the hoist in operation and conducted a number of tests that were photographed and video recorded, from both above and below ground. The Inspectors observed the hoist to operate in the malfunction state in which the bucket did not activate the lower limit switch in the sump, the cable wound entirely off the cable drum and then rewound onto it in the opposite direction hauling the bucket back up to the top of the hoist where it stuck against the lever at the top of the hoist with the motor running. MSO Babic then activated the lower limit switch using a pole which shut down power to the motor and the bucket to fell to the bottom of the shaft. This test was repeated and with the same result achieved.

33. On 16 November 2016 Inspector Tull conducted a further interview with Mr Ellis that was recorded and later transcribed (the second interview). In the second interview, Mr Ellis said that the cable would overspool about once per week and if the lower limit switch was hit that the bucket would free fall.

34. On 19 March 2017 the defendant signed a statement prepared by Detective Senior Constable Stephen Hicks, that included the following:

1. I later realised that what had happened was Mark had spilled some rock in the bottom of the sump. This has caused the bucket to stop short of the ‘limit switch’ which normally signals to the hoist that the bucket has reached the sump. As the switch did not trigger the hoist continued to wind down to the point that the cable completely unspooled and began to wind the wrong way. This caused the bucket to begin going back up to the top of the hoist however the electronics of the hoist were in a state that it was still winding the bucket down.

2. I was later told by Choppers [Mr Ellis] that Mark had accidentally hit the limit switch in the sump when it was in a state of ‘winding down’. In doing so, a signal was sent to the hoist which caused it to shut down. This caused a free fall of the bucket back down the hoist and into the sump, which is what killed Mark.

3. It is common knowledge and part of Mining Safety course that you do not enter the sump without first securing the bucket.

4. The normal procedure for entering the sump to clean it out is that you lift the bucket hydraulically, just enough so that you can get in and you also secure the bucket with a metal bar and chain in case the hydraulics fail.

5. I later heard from Chris Scully that when he had previously worked with Mark that he had seen him clearing rock from the sump while the bucket was ascending without securing it properly. Choppers also told me that he had seen Mark doing this earlier in the day that he died. Choppers told me that he had a go at Mark about it and told him not to be an idiot.

6. Over the last few months I have been thinking about how this can be prevented from happening again. I have had a look at a few other hoists and have seen they include a ‘slack wire switch’. This signals to the hoist when the bucket has goes slack and shuts down the system. If my hoist had this system in place the bucket would have shut down after hitting the rock which blocked the bottom limit switch. This is something which I am adding to my hoist now that it has been released by the Mine Safety investigators.

   35. On 2 August 2017 Inspector Tull conducted a further interview with Mr Ellis that was recorded and later transcribed (the third interview). In the third interview, Mr Ellis said that the cable would overspool and that “if you hit the wrong button” that the bucket would free fall. Prior to the incident, Mr Siegel had hit a button when the bucket was stuck at the top of the arc and caused the bucket to fall. Mr Ellis said that he warned Mr Siegel that the bucket could fall and to make sure he practised “safety first”. Mr Ellis said that when he told the defendant that the bucket had fallen at the mine after Mr Siegel hit the wrong button that the defendant went red in the face and had a “shot at us”, to the effect that they should be more careful. Mr Ellis said that he participated in a discussion with the defendant and Mr Siegel about making sure the sump was clean to make sure that the lower limit switch was activated by the bucket in the sump.

The Cause of the Incident

36. The prosecutor qualified Dr Tim White, a forensic Mechanical Engineer, as an expert to provide an opinion on the cause of the bucket free falling into the shaft. Dr White’s opinion evidence can be summarised as follows.

37. The incident could only have occurred if the cable drum was in overspool.

38. The free fall of the bucket occurred because the counterbalance valve failed to act as a brake on the system because it was a single acting counterbalance valve and only prevented the cable drum from rotating in reverse. However, when the cable drum was in overspool, the weight of the bucket applied a load on the cable drum that caused it to rotate in the forwards direction. When power was cut to the hoist, by Mr Siegel inadvertently activating the lower limit switch, the counterbalance valve failed to counterbalance the weight of the bucket and oil was allowed to flow in the hydraulic system so that the hydraulic motors could freewheel in the forwards direction causing cable to come off the cable drum and permitting the bucket to fall.

36. The incident could have been prevented by the adoption of an engineering control being the installation of either:

1. a dual-acting counterbalance valve,

2. a blocking spool valve, or

3. a slack wire switch.

40. A dual-acting counterbalance valve would have prevented the flow of oil in the hydraulic system in the event that the power was cut, thus preventing (or acting as a brake on) the hydraulic motors from moving in either direction. A dual-acting counterbalance valve is a commonly available component for hydraulic systems and a suitable one was available at a cost of $342 and could be fitted with some refitting of hydraulic hoses for a total cost of about $1500.

41. A blocking spool valve would have prevented the flow of oil in the hydraulic system in either direction when the system is unpowered or in “neutral”. A blocking spool valve is a commonly available component for hydraulic systems and a suitable one was available at a cost of $459 and could be fitted for a straight replacement of the spool valve on the hoist, by detaching and re-fitting the hydraulic hoses.

42. A slack wire switch operates by cutting power to the system when the cable goes slack which is a necessary precondition to the cable going into overspool. Dr White was shown video of a slack wire switch installed on a hoist on the opal fields. The particular switch was rigged up to a bar that was held up by the cable when it was taut. If the cable became slack the bar dropped and the switch was activated to cut power to the hoist. The slack wire switch seen by Dr White was fabricated with commonly available components at a likely cost of less than $1,000.

The defendant’s knowledge

43. The defendant accepted that the hoist could overspool. In that instance, the cable drum kept winding and the bucket went back up to the top of the hoist where it hit the lever and sat there. If the power was cut, the bucket would creep back down into the shaft. The defendant accepted that the bucket could free fall if the emergency stop button was pressed. The defendant told Mr Siegel that the bucket could fall if the emergency stop button was pressed. He accepted that by what he knew now that the same thing could happen if the lower limit switch was activated. To the defendant’s observation, if the generator was turned off because for example the thermal overload was tripped, then the bucket would slowly creep back down.

44. At the time when the hoist was being used at the mine, the defendant believed that it was one of the better hoists on the opal fields because it had been professionally manufactured as opposed to being “home-made”.

45. The defendant knew that the cable could overspool if the lower limit switch was not activated and that in those circumstances the bucket would go back up and jam against the lever. The defendant knew that the bucket could free fall if the emergency stop button was pressed at that point in time and that had happened to him once before when he first got the hoist.

46. The procedure of locking off the sump with a crow bar and chaining the bucket was consistent with what all of the miners knew that it was not safe to enter a shaft underneath a suspended load. The defendant accepted that there was a risk with any hoist that the bucket could fall down the shaft and injure a person in the shaft or in the sump.

47. The defendant did not agree that in his experience the tripping of the thermal overload switch, which would shut down power to the electric motor, would cause the bucket to free fall. In his experience the bucket crept slowly back down in that scenario. The defendant did not agree that he knew that the bucket would free fall if the lower limit switch was activated, immediately after the incident, but accepted that he knew that now.

48. The defendant told Mr Siegel not to allow spillage to accumulate in the sump because that would prevent the bucket from activating the lower limit switch.

49. The defendant accepted that he heard about a slack wire switch after the incident and that he had discussed that device with the inspectors. He first heard about a slack wire switch on the day after the incident in discussions with the owner of another hoist. The defendant had not made any modifications to the hoist after the incident. He put it in a paddock until the case was over and the cause of the incident was authoritatively determined.

50. The defendant accepted that a dual acting counterbalance valve and a blocking spool valve could have each been obtained for about the cost of $1,000. He accepted that a slack wire switch could be installed on the hoist for about that cost or possibly lower. The defendant thought the most difficult aspect of making modifications to the hoist was getting a qualified person to diagnose the problem taking into account the remoteness of the opal fields.

The defendant’s case on sentence

51. The defendant relied on an affidavit of Warwick Schofield sworn 8 December 2020. Mr Schofield is a retired Mines Safety Officer and was based at Lightning Ridge for 10 years. Mr Schofield met the defendant in 2019 in the context of making representations to the authorities about the state of the local roads.

52. Mr Schofield described the defendant as conscientious, quietly spoken and genuine. Mr Schofield described the defendant’s contribution to the local community as outstanding. The defendant’s businesses provide essential supplies to the local community and a place of social interaction for the community. Mr Schofield opined that the defendant’s contribution keeps a struggling and disparate community together. Mr Schofield has observed the defendant to be hardworking and acting as a community leader.

53. Mr Schofield has discussed the incident with the defendant. The defendant does not understand what he did wrong and believes that he took a number of reasonably practicable steps in installing the hoist at the mine.

54. I have not had regard to Mr Schofield’s opinions on the Department or the outcome of the case.

55. The defendant also relied on a reference from Janet Town. Ms Town is a retired Senior Mines Safety Officer from Lightning Ridge and gave evidence at trial.

56. Ms Town’s first contact with the defendant occurred about 2 months before the incident when he contacted her about a proposal to set up a tourist mine at Grawin. Ms Town suggested that the persons involved in the proposal should undertake the Department’s safety courses and the defendant agreed and completed the next available course in October 2016.

57. Ms Town understands that the defendant was impacted by the death of Mr Siegel in the incident because they were close friends.

58. I have not taken into account Ms Town’s opinions on the other parties who may have had responsibility for the incident, because they are not relevant to assessing the defendant’s culpability where parity is not an issue.

59. Consideration

60. I have had regard to the objects of the Act set out in s 3 and the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999.

Objective Seriousness

61. The offence is one of some objective gravity.

62. The defendant knew of the risk posed by a bucket free falling down a shaft at a mine. It was well known that it was dangerous to enter a shaft under a suspended load and the workers at the mine controlled that risk by securing the bucket with a crowbar and a chain before getting into the sump. The defendant knew that when the cable overspooled the bucket could free fall down the shaft if the emergency stop button was pressed. The defendant should have known that when the cable overspooled the bucket could free fall down the shaft if the lower limit switch was activated.

63. The risk was likely to occur if the workers did not exercise care in loading the bucket to avoid spillage accumulating in the sump and this was a common occurrence.

64. The risk was a risk of death or serious personal injury, but the risk of death was more prominent.

65. Whilst I found that the steps available to eliminate the risk were reasonably practicable, they were not simple. The steps involved the unusual process of modifying a commercially manufactured piece of plant. The requirement to do so arose from the fact that the hoist contained a design fault, for which the defendant bore no responsibility.

66. The fitting of a dual acting counterbalance valve or a blocking spool valve required some expert assessment of the hoist. Expert assistance of this kind was not available in the Grawin area and some not insignificant cost would have been incurred in bringing an expert in to assess the hoist. The fitting of a slack wire switch was a less onerous step that could have been taken. It could have been fitted with local know how and assistance at a relatively modest cost.

67. The defendant had some regard for safety at the mine prior to the incident. This was demonstrated by his training and instruction of Mr Siegel about the hoist and his initial concerns about going into the undertaking with Mr Siegel.

68. The defendant involved himself in the business or undertaking at the mine as a hobby as opposed to a commercial enterprise. Section 21 of the Act imposed a duty on him as a person with management or control of the hoist. The standard required to comply with that duty is a high one. The defendant has departed from that standard but not by a substantial margin.

69. By getting into the sump when the bucket was stuck at the top of the hoist, Mr Siegel acted with foolish disregard for his own safety and that was the dominant cause of the incident. Mr Siegel was an experienced miner who knew the risk of getting into the shaft under a suspended load. I do not accept that Mr Siegel was vulnerable by reason of his lack of experience or his known propensity for impulsive behaviour.

70. The harm caused by the incident was significant. The death of Mr Siegel was premature and could have been prevented. Mr Siegel’s death has had a lasting impact on his family and friends and this represents damage done to the community.

71. I have taken into account the maximum penalty for the offence.

Deterrence

72. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

73. There is some need for specific deterrence in this case. The defendant has not operated the hoist since the incident and it has been stored in a way that it does not pose a risk to the health and safety of anyone. I accept the truth of what the defendant told Detective Senior Constable Hicks that if he keeps the hoist that he will fit a slack wire switch to it. I do not believe that the defendant will, after his experience in these proceedings, operate the hoist again without modifying it. The defendant remains a resident of Grawin and it is possible that he will get involved in other opal mining undertakings. I note that the defendant has not at this time accepted responsibility for the offence, but I think that with time he will probably do so.

74. Aggravating factors

75. The injury, harm and loss caused by the s 32 offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. The death of Mr Siegel is sufficient to satisfy the aggravating factor.

76. Mitigating Factors

77. The defendant does not have any significant record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The defendant is presently 47 years of age and operates a number of businesses in which he employs workers and has WHS obligations. He has no prior convictions for work, health and safety offences. Whilst he has some other criminal record I do not consider it significant in the context of this sentencing exercise.

78. The defendant was a person of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. Notwithstanding that the defendant has some prior convictions he is regarded as a fit and proper person to be involved in hotel businesses. He has significant standing and is a role model in the local community. His referee speaks very highly of him in his capacity as a community leader. I am satisfied on the balance of probabilities that he is a person of good character.

79. The defendant has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The defendant removed the hoist from use and has awaited the outcome of the proceedings before undertaking further mining. The defendant has expressed some lack of understanding of his wrongdoing, but I do not take that as a lack of respect for the law as it has been applied to him in this case. I am satisfied that his actions reflect that he was and continues to be concerned to comply with the law. I am satisfied on the balance of probabilities that he has good prospects of rehabilitation.

80. The defendant co-operated with the investigation: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. The defendant assisted the investigators with showing them how to operate the equipment and provided full and frank information to them about the circumstances of the incident and his opinion relating to its cause.

81. The defendant conducted the trial in a manner that reflected a willingness to facilitate the course of justice, particularly by admitting that he was a person conducting a business or undertaking and by allowing the evidence in chef of most of the witnesses to be given by the tender of their statements: R v Thangavelautham [2016] NSWCCA 141 at [58] per Bathurst CJ.

82. For some time in 2019, the defendant was unfit to stand trial as a result of a combination of a number of things including depression and stress over the proceedings. It is fair to say that the proceedings have had an adverse impact on his health and that should be taken into account.

Capacity to pay a fine

83. The Court is required to have regard to section 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

84. The defendant relied on an affidavit sworn by him on 9 December 2020. He provided scant evidence of his allegedly poor financial position, with no supporting documentation. The evidence was seriously inadequate to satisfy the onus on him. I am not satisfied that the defendant has established that he has a limited capacity to pay a fine.

85. I have taken into account that the undertaking at the mine was relatively small and that the receipts from opal mining conducted by Mr Siegel and the defendant were relatively modest.

Adverse Publicity Order

86. A court may make any of the other orders provided for by Division 2 of Part 13 of the Act, in addition to any other penalty imposed, if the court finds a person guilty or convicts the person of an offence: ss 234 and 235 of the Act.

87. The Court may make an adverse publicity order to publicise the offence, its consequences, the penalty imposed and any related matter: s 236 of the Act.

88. The prosecutor relied on a statement of Inspector Tull dated 5 November 2020, in support of the desirability of making an adverse publicity order in this case. Inspector Tull identified that the regulator has issued 379 notices [1] pursuant to the Act to PCBU’s relating to opal mines in New South Wales, in the period between 4 November 206 and 30 October 2020. In addition there were 10 serious safety incidents notified to the regulator in the same period. Inspector Tull has travelled to Lightning Ridge in the same period to investigate other incidents, including a fatality that occurred on 14 October 2020.

    1. Being Improvement Notices (s 191 of the Act), Prohibition Notices (s 195 of the Act) and Non-disturbance Notices (s 198 of the Act).

89. There is a local newspaper published in Walgett, the Spectator, that is available and distributed in the Lightning Ridge area and has permanent subscribers in that area. The total readership is in the order of 800 people per week across the Walgett shire, an area that includes Lightning Ridge and Grawin. The cost of a quarter page advertisement in one edition was quoted to be $220.

90. The Coonamble Times is a local newspaper that has a print run of 850 across the Coonamble, Gulargambone, Baradine, Quambone, Dubbo and Carinda. The advertising costs of the Coonamble Times were attached to Inspector Tull’s statement but I could not easily ascertain the costs of an appropriate advertisement. I have assumed that the costs would be similar to those of the Spectator.

91. I am not convinced that the publication of a notice in one edition of the Spectator and/or the Coonamble Times is likely to come to the attention of many opal miners, but I accept it is likely to come to the attention of a few.

92. The prosecutor put forward a form of words for the published notice that adopted the wording of previous adverse publicity orders made: SafeWork NSW v KD & JT Westbrook Pty Ltd (No.2) [2019] NSWDC 15 and SafeWork NSW v Investa Asset Management Pty Ltd [2019] NSWDC 472.

93. I was initially concerned that this form of words, whilst accurate, failed to convey the important message from these proceedings, in particular that to satisfy the duty imposed on a person conducting a business or undertaking with management or control of plant that person may be required to modify commercially manufactured machinery because of a design fault in it. I was also concerned that the form of words was too formal and may not be readily understood by its target audience.

94. An alternate form or words was provided after the sentence hearing, which rectifies those concerns.

95. An alternate way of publishing the required notice is the posting of it in the licensed premises owned by the defendant on the opal fields. The defendant’s evidence is that the licensed premises are closed. I am not sure that I accept that evidence, but if it is true then an order made on this basis would be ineffective.

96. I accept that there is a need for the publication of the Court’s decision in order to facilitate general deterrence. This can be achieved by means other than the making of an adverse publicity order. The regulator has the ability to notify all mineral claim holders of the outcome of the proceedings. Whilst I accept that this option does not have the imprimatur of the Court’s order, it is the most effective option in the circumstances to ensure that the message is communicated to the target audience.

97. Taking into account all of the evidence, I am not satisfied that this is an appropriate case to make an adverse publicity order by publishing a notice in the local newspapers because it is unlikely to reach the target audience in a way sufficient to further the objectives of the Act or the purposes of sentencing.

Penalty

98. Tony Glenn Cummings is convicted.

99. I have taken into account the Victim Impact Statements prepared by Mr Siegel’s mother and younger brother in determining the appropriate punishment for the offence and I am satisfied that it is appropriate to do so.

100. I impose a fine of $70,000.

101. The defendant is to pay the prosecutor’s costs of the proceedings as agreed or assessed.

98. I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is paid to the prosecutor.

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Endnote

Decision last updated: 16 December 2020