McColm v Endeavour Coal Pty Limited

[2022] NSWDC 307

District Court

New South Wales

Medium Neutral Citation:

McColm v Endeavour Coal Pty Limited [2022] NSWDC 307

Hearing dates:

27 July 2022

Date of orders:

3 August 2022

Decision date:

03 August 2022

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Endeavour Coal Pty Limited is convicted.

(2)   The appropriate fine is $400,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Endeavour Coal Pty Limited to pay a fine of $300,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   Order Endeavour Coal Pty Limited to pay the prosecutor’s costs.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – defendant involved in coal mining operations – workers installing conveyor – power to the conveyor had not been isolated – worker’s foot entered the activated conveyor and became entangled in the flights of the conveyor – failure to have adequate procedure for installing and commissioning the new conveyor – failure to comply with procedures for introducing new plant to the mine – failure to isolate the conveyor from its power source – failure to provide adequate instruction to workers – failure to have adequate lighting – failure to have adequate safety signage in place – failure to ensure guardrails were re-installed

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, , 30E

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32

Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW) s 7A

Work Health and Safety Regulation 2017 (NSW), cll 204, 207

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51

Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

BW v R [2011] NSWCCA 176

Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566

R v Wilkinson (No. 5) [2009] NSWSC 432

Regan v Endeavour Coal Pty Ltd [2011] NSWIRComm 141

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:

Australian Standard AS/NZS 4024.1-2014 Series: Safety of Machinery

Australian Standard AS/NZS 4024.3610: Conveyors – General Requirements

Safe Work Australia Code of Practice, Managing the Risks of Plant in the Workplace, May 2018

NSW Department of Primary Industries, Guideline for Hazardous Energy Control (Isolation or Treatment) MDG40, January 2007

Category:

Sentence

Parties:

Andrew McColm (Prosecutor)
Endeavour Coal Pty Limited (Defendant)

Representation:

Counsel:
N Read (Prosecutor)
J McDonald (Defendant)

Solicitors:
McCullough Robertson (Prosecutor)
Herbert Smith Freehills (Defendant)

File Number(s):

2021/00112051

Judgment

1. On 8 June 2019 Mr David Dinsdale and Mr Jeffrey Rapley were working on a conveyer that was being installed at Appin Colliery. As Mr Rapley was walking along the top guards of the conveyor, Mr Dinsdale activated the conveyor. Mr Rapley’s right foot entered the conveyor inlet hole and made contact with, and became entangled in, the moving flights of the conveyor.

2. Endeavour Coal Pty Limited (Endeavour Coal) has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed Mr Rapley to a risk of death or serious injury contrary to s 32 of the Act.

3. The maximum penalty for the offence is a fine of $1,500,000.

The Risk

4. The risk described in pars 16-17 of the Summons is as follows:

“16. The risk was the risk of workers, including Mr Rapley, suffering death or serious injury as a result of a body part coming in contact with, or becoming entangled in, moving parts of a conveyor.”

Reasonably Practicable Measures

5. Paragraphs 18-19 of the Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the Act as follows:

“18. The defendant failed to ensure, so far as was reasonably practicable, the health and safety of workers and in particular Mr Rapley, in that it failed to take one or more of the following reasonably practicable measures to eliminate the risk, or if it was not reasonably practicable to eliminate the risk, to minimise the risk:

(a) Prior to transporting the new scraper conveyor into the underground areas of the mine, inspecting and assessing the new scraper conveyor and the environment in which it was to be installed to determine:

(i) whether any changes were required to the environment in which the new scraper conveyor was to be installed, such as clearing material from the concrete sump and widening the sump;

(b) Developing and implementing a procedure for installing and commissioning the new scraper conveyor in the drift that specified:

(i) Prior to transporting the new scraper conveyor into the conveyor drift:

(i) The built-up materials in the concrete sump were to be cleared by workers;

(ii) The concrete sump was to be widened at certain points to ensure the conveyor would fit within it;

(ii) Once the scraper conveyor was assembled in its operational position, the sump guardrails around the tail end were to be reinstalled, and the safety lanyard and warning signs reinstated;

(c) Complying with its procedures for introducing new plant to the mine and for installing and commissioning plant, which included a requirement for all plant and equipment to be inspected by an authorised tradesperson or engineer as fit for purpose prior to electrical or mechanical power being applied.

19. Further, and in the alternative, to the measures particularised at paragraph 18 above, the defendant failed to comply with its duty by failing to take one or more of the following reasonably practicable measures to eliminate the risk, or if it was not reasonably practicable to eliminate the risk, to minimise the risk:

(a) Isolating the scraper conveyor from its power source, locking it out and tagging it until:

(i) the built-up material had been cleared from the sump;

(ii) the scraper conveyor was in its operational position and the safety devices reinstated; and

(iii) the scraper conveyor had been inspected by an authorised tradesperson or engineer as being fit for purpose.

(b) Providing information and instruction to workers in the procedure to be used for the task, which was for:

(i) the workers to lift the scraper conveyor with the chain block and secure it to allow access to the sump;

(ii) a jack pick to be used to remove material from the sump, where necessary; and

(iii) workers to manually clear the material from the sump using shovels and buckets;

(c) Providing or re-instating the roof lighting in the conveyor drift to enable the task to be performed in an environment where hazards were visible;

(d) Having in place the safety sign that was clearly visible to workers and warned them that the scraper conveyor can be remotely started and warned them of entering the area surrounding the tail end of the scraper conveyor without isolating the scraper conveyor.”

Background

6. The parties presented an Agreed Statement of Facts and this material is summarised below.

Endeavour Coal Pty Limited

7. Endeavour Coal was a wholly owned subsidiary of Illawarra Coal Holdings Pty Ltd (Illawarra Coal). South32 Limited was the ultimate holding company of both Endeavour Coal and Illawarra Coal.

8. Endeavour Coal was the “mine operator” of Appin Colliery, as defined in s 7A of the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW) (WHS (MPS) Act). Appin Colliery is a mine located approximately 30km north-west of Wollongong.

9. Endeavour Coal engaged a number of workers to undertake work at the mine, including:

1. Mr Robert Corbett, Maintenance Superintendent for Coal Clearance and Mine Services.

2. Mr Steven Lawler, Coal Clearance Coordinator. Mr Lawler was employed by Mentser Pty Ltd and engaged by Endeavour Coal pursuant to a service contract. Mr Lawler reported to Mr Corbett.

3. Mr Brenton Ryman, Specialist Mechanical Tradesperson.

4. Mr James Esler, Work Management Planner.

5. Mr Darren Lee, Night Shift Deputy. Mr Lee was employed by Mastermine Pty Ltd and engaged by Endeavour Coal pursuant to a service contract.

6. Mr Steven Kedwell, Shift Maintenance Supervisor.

7. Mr Martin King, Coal Clearance Operator.

8. Mr David Dinsdale, Operator/Drift Belt Attendant.

9. Mr Rapley, Underground Mining Operator. Mr Rapley was employed by Mastermine Pty Ltd and engaged by Endeavour Coal pursuant to a service contract.

10. Mr Joshua Ford, Labourer. Mr Ford was employed by Mentser Pty Ltd and engaged by Endeavour Coal pursuant to a service contract.

The Work Being Undertaken

10. The mining operations at Appin Colliery included underground longwall mining to extract metallurgical coal which was transported to the surface by a coal clearance system. The coal clearance system was managed by the Appin Coal Clearance Team.

11. The coal clearance system worked as follows:

1. Coal was transported by conveyor belt from an underground bin to the Bulk Coal Winder (BCW) flasks.

2. Coal was loaded from the BCW flasks into the BCW skips.

3. The BCW skips were hauled to the surface.

12. Beneath the BCW skips was the BCW spillage bin (also known as the cone). The cone caught and accumulated coal that spilled from the BCW skips in the process of it being hauled to the surface.

13. Accumulated coal was emptied from the cone via a door into a drift known as the “Allied Drift”. The coal slurry was then pumped from the Allied Drift using the brain pump. The brain pump transferred the coal slurry into another drift known as the “conveyor drift”.

14. The conveyor drift was approximately 150 metres long and accessed via a roadway and a set of stairs from the Drift Belt Control Room (also known as the Million Dollar Room). The conveyor drift contained a concrete sump at the inbye end. The concrete sump was approximately 1.8 metres deep.

15. Coal fines and slurry collected in the conveyor drift were removed by another conveyor (scraper conveyor) and an air pump. The air pump was used for vacuum recovery and pressure discharge of slurries and flowable sludge. The scraper conveyor was the lowest conveyor in the coal clearance system.

16. The scraper conveyor was positioned in the recessed concrete sump. It was a material transportation device that used a continuously driven chain circuit with evenly spaced cross metal flights (scrapers). The scrapers collected solid material from the sump at the inbye end. The material was then transferred from the scraper conveyor onto the drift belt conveyor which led back to the BCW.

17. The scraper conveyor was approximately 20 metres in length and comprised of a boot end, and four four-metre modules which joined together (including the tail-end). Approximately one third of the tail-end of the scraper conveyor was exposed to enable it to collect materials accumulated in the sump. The top of the scraper conveyor was unguarded in this area.

18. The scraper conveyor was controlled by a control panel on the boot-end and another control panel in the Million Dollar Room. The controls in the Million Dollar Room were able to be isolated and locked out.

19. The scraper conveyer was fitted with an emergency-stop lanyard system. There was a guardrail running parallel to the scraper conveyor to separate it from a walkway which extended approximately eight metres from the tail-end. The guardrail also ran perpendicular to the scraper conveyor to form a physical barrier to restrict access to the exposed moving parts of the tail-end. A sign was positioned on the ground within the enclosed tail-end area stating “Warning – scraper can be remotely started – do not enter without isolating scraper conveyer”.

20. In 2018 a decision was made to replace the existing scraper conveyor due to mechanical wear and structural failure. It had been in operation at the mine for 30 years. The project of removing the old scraper conveyor and installing the new scraper conveyor was overseen by the Appin Coal Clearance Team. Mr Corbett and Mr Ryman oversaw the project.

21. In June 2018 members of the Appin Coal Clearance Team, and contractors from Southern Colliery Maintenance Pty Ltd (SCM) commenced removing the existing scraper conveyor from the conveyor drift. This took place over a number of weeks.

22. In the course of removing the existing scraper conveyor, the guardrail, which ran perpendicular to it and provided a physical barrier to its tail-end, was removed. The emergency-stop lanyard system was also removed.

23. Accumulated coal fines were shovelled into mounds either side of the recessed concrete channel and onto the adjacent walkway. The absence of an operational scraper conveyor meant there was no mechanical means to remove accumulated solid materials from the conveyor drift other than a brain pump which could be used to clear some, but not all, of the material from the sump.

Design, Manufacture and Delivery of the New Scraper Conveyor

24. Endeavour Coal engaged JBK Engineering Pty Ltd (JBK) to design, manufacture and supply a replacement scraper conveyor.

25. The design of the new scraper conveyer was modified by changing the number of modules from four to eight to make it easier to transport into the drift and install. The change in design resulted in other minor changes including inserting additional flanges and gussets where the modules joined.

26. JBK conducted a design risk assessment on the new scraper conveyor.

27. The new scraper conveyor was designed with yellow steel mesh guarding, which fitted along the top to prevent access to moving drive chain and scrapers (the top guards). The top guards were hinged on one side and able to be secured in position by bolts on the opposite side. The top guards extended from the boot-end of the scraper conveyor approximately two-thirds along its length, stopping before a module which contained a point to enable the scraper conveyor to be lifted by a chain block (the module). As with the old scraper conveyor, the final third at the tail-end was exposed to enable the collection of materials.

28. The new scraper conveyor had an inlet hole situated immediately before the module. The purpose of the inlet hole was to allow operators to shovel materials directly onto the scraper conveyor. The inlet hole measured 300mm in length and 280mm in width. The inlet hole was not covered by the top guards.

Installation of the New Scraper Conveyor

29. The new scraper conveyor was delivered to the mine in February 2019. Prior to the installation of the new scraper conveyor there was a significant build-up of materials in the conveyor drift, concrete channel and sump due to the continuation of mining activities.

30. In late February 2019, the Coal Clearance Team, with the assistance of contractors from SCM, commenced transporting the new scraper conveyor and assembling it underground.

31. On 7 March 2019 Mr Ryman, Mr Rob Geoghan and Mr Esler developed the “Drift Belt Scraper Conveyor Installation Procedure APNP0799” (the Installation Procedure).

32. The Installation Procedure:

1. Provided instruction that full current isolation of the drift conveyor was required before commencing the task.

2. Explained how the new scraper conveyor modules were to be transported and assembled in the drift.

3. Included a number of job steps including: “13. Once all modules have been installed, install the guarding back onto the scraper conveyor” and “14. Upon job completion, Re-install sump hand rails”.

33. Due to the significant build-up of fines in the sump, the new scraper conveyor was assembled on top of the fines. As a result, the guardrails and safety lanyard could not be reinstated, as required by the Installation Procedure. The workers installing the scraper conveyor hoped that it would bed itself into position, ie that operation of the scraper conveyor would cause it to bed itself into the sump.

34. During the installation of the scraper conveyor, Endeavour Coal identified that the aperture of the top guards was wide enough that fingers could possibly fit through the guards and risk contact with its moving parts. As an interim measure, flexible wire mesh (tech mesh) was fitted over the top guards.

35. The tech mesh was installed with cable ties and extended from the boot-end to a point nearby the lift point. The tech mesh covered approximately half of the inlet hole adjacent to the lift point. Endeavour Coal did not undertake a risk assessment for the installation of the tech mesh. Prior to and at the time of the incident the bolts that held the top guards in place were either not present or not secured.

36. On 3 April 2019, following an electrical commissioning process and implementation of the Appin Risk Management Procedure (APNP627), the new scraper conveyer was connected to the electricity supply. After the scraper conveyor was energised, an out of service tag was installed on the control panel in the Million Dollar Room. An out of service tag was not installed on the control panel at the boot-end of the scraper conveyer and no electrical isolation lock-out device was installed.

37. From April 2019 the Coal Clearance Team was tasked with trying to get the scraper conveyor into an operational position. Drift attendants, including Mr Drinsdale, Mr Ford and Mr King, were allocated the task, which involved removing coal fines from the concrete sump. Workers initially used the air pump to assist in removing the material, however the air pump broke down.

38. During April and May 2019 coal fines continued to build up in the conveyor drift due to the BCW operating, workers dumping materials from the cone and the inability to clear the conveyor drift sump area using the scraper conveyor or the air pump.

39. During this time workers raised the scraper conveyor using the lift point and manually shovelled material out from the sump. The material was deposited onto the concrete walkway beside the scraper conveyor.

40. From 15 May 2019, drift belt attendants occasionally operated the new scraper conveyor to clear fines from the drift and to attempt to bed it into the sump.

41. From late May 2019 the lighting installed in the roof of the conveyor drift above the scraper conveyor was not operational. The workers relied on cap lamps for illumination.

42. By 3 June 2019 the fines on the walkway were around 300mm high in places which meant that the guardrail parallel to the sump was lower than its usual height. The sign warning against entering the previously enclosed area surrounding the tail-end of the scraper conveyor was obscured.

43. On 7 June 2019, Mr Lawler emailed Mr Kedwell and others to inform them that installing the new scraper conveyer was “high priority” over the next seven days. In his email Mr Lawler noted that the suggested method of work was lifting up the scraper conveyor with chain blocks and shovelling out the sump to the required depth, then lowering the scraper conveyor down into the sump. The instructions given by Mr Lawler were not communicated to Mr Dinsdale or Mr Rapley. The scraper conveyor was not isolated and locked out in the Million Dollar Room.

44. On 7 June 2019 Mr Kedwell directed Mr Rapley to assist Mr Dinsdale to clean around the scraper conveyor. Mr Kedwell told Mr Rapley the job involved working with a scraper conveyor which had been raised by a chain block to allow access beneath it for the purpose of shovelling out the fines and the coal. Mr Rapley was told that the coal and fines were to be shovelled next to the scraper conveyer. He had no prior experience working with scraper conveyors.

33. After a period of clearing, Mr Dinsdale and Mr Rapley attempted to lower the scraper conveyor however it was too wide for the sump at the points where the modules joined.

The Day of the Incident

46. On 8 June 2019 Mr Lee undertook an inspection of the conveyor drift with Mr Dinsdale present. Mr Dinsdale informed Mr Lee that he would carry on the task of trying to get the scraper conveyor set up.

47. Mr Dinsdale understood that the scraper conveyor had been commissioned and was safe to use because it was able to be started and there were no tags on the control panel indicating that it was not to be operated.

48. Mr Kedwell understood the scraper conveyor had been commissioned and had gone through the site introduction process, including an operational risk assessment, otherwise it would not have been underground.

49. Mr Lee understood, from communications with the mine’s engineers, that the conveyor was able to be worked around safely because it was protected by the top guards and the top guards were secure and could be stood upon.

50. At the time of the inspection, Mr Lee considered the cap lamp lighting provided in the area was adequate and that the workers would be able to maintain a safe distance from the conveyor when it was operating.

51. Mr Rapley, Mr Kedwell and Mr Dinsdale met in the Million Dollar Room and performed a maintenance check before descending to the conveyor drift. Mr Kedwell undertook a general inspection of the area around the scraper conveyor. The scraper conveyor was operating when Mr Kedwell was present undertaking his inspection.

52. Mr Dinsdale completed a “Take 2” personal risk assessment for the task in accordance with the Take Two – Task Analysis Procedure (ICHP0099). The Take 2 identified the following safety precautions “plan & work crew talk”, “isolate drift process”, “good communication with workmate”, “beware slips & trips”, “uneven surfaces & eyes on path”, “pinch points hand injuries”, “eyes on hands”, “keep out of line of fire”, “keep away from rotating parts” and “good house keep around work area”.

53. Mr Dinsdale and Mr Rapley raised and lowered the scraper conveyor and Mr Dinsdale hosed fines from the conveyor drift towards the sump. During this task Mr Rapley walked along the top guards. Mr Rapley said there was no alternative to walking on the top guards because the top guards were flat, level and stable compared to the surrounding area which was uneven and unstable, being covered in accumulated coal.

54. At 11.00pm Mr Dinsdale gave Mr Rapley the hose and told Mr Rapley he would turn the scraper conveyor on so it would settle itself into the fines. Mr Dinsdale activated the scraper conveyor from the control panel at the boot-end. Mr Rapley was standing on the scraper conveyor when it was turned on.

55. Mr Rapley walked inbye along the top guards. He took a step forward towards the chain block module and his right foot fell through the inlet hole, which was partially covered by tech mesh. Mr Rapley’s right foot made contact with and became entangled in the flights of the scraper conveyor. He managed to forcibly pull his right foot out of the scraper conveyor.

Injuries

56. Mr Rapley suffered serious injuries to his right foot which included complete laceration of the right sole, multiple fractures to the right forefoot, degloving of the right great toe, degloving of the right fourth toe and degloving of the plantar fat pad.

57. On 9 June 2019 Mr Rapley underwent initial surgery to amputate the right great toe and partially amputate the fourth toe, debridement of the wound on the sole of the foot and the insertion of over 30 sutures to re-attach the plantar fat pad on the right foot.

58. On 11 June 2019 Mr Rapley underwent more surgery including a second debridement procedure on his right foot.

59. On 15 June 2019 Mr Rapley was discharged from hospital. Since the incident Mr Rapley has continued to suffer physical and psychological injuries including pain and blood clots.

Systems of Work Prior to the Incident

60. Endeavour Coal had a job instruction titled Cleaning Area Inbye of Drift Belt Syntron (APNJI0944). The job instruction provided information relevant to the task of cleaning the area in which the old scraper conveyor was situated (the conveyor drift). The job instruction stated that, while operating the scraper conveyor, workers were to look for “Person coming in contact with conveyor”, “Guard rail in place”, and “Guards over top of scraper conveyor”.

61. Endeavour Coal had a Safety Management System (SMS) for managing hazards at the mine. The SMS incorporated a Safety Standard and Risk Management Procedure which outlined the minimum requirements for the management of health and safety risks.

62. The SMS included the Mechanical Engineering Control Plan (APNMP0096) (the MECP), the Electrical Engineering Control Plan (the EECP) and the Appin Risk Management Procedure (APNO0627).

Mechanical Engineering Control Plan

63. The purpose of the MECP was to define the systems and processes associated with mechanical engineering at the mine. It was intended to provide a safe, controlled and monitored environment in line with mitigating controls identified by the Illawarra Coal Mechanical Broadbrush Risk Assessment (ICHRA0019).

64. The MECP was applicable to all surface and underground mechanical plant and installations. The MECP contained the following procedures:

1. Appin Change Management Procedure (APNP0607).

2. Standard of Engineering Practice (SEP) Introduction of Mechanical and Electrical Plant (APNSTD0207).

3. SEP Equipment Safeguarding (APNSTD0261).

4. SEP Isolation Standard (APNSTD0203).

5. SEP Conveyor Isolation and Safety (APNSTD0259).

6. Supervision Arrangements Procedure (APNMP0047).

65. The Appin Change Management Procedure was developed to ensure risks associated with changes across Appin Colliery to plant and equipment, including decommissioning plant and mechanical system modifications, were controlled. The procedure focused on identification, management and authorisation of change.

66. For moderate and major change, the procedure required the person initiating the change to assess the risk, assess the impact of the change and obtain approval from the relevant Superintendent, Statutory Engineering Manager or Material Risk Owner.

67. The SEP Introduction of Mechanical and Electrical Plant set out a process to ensure mechanical or electrical plant brought to the mine was fit for its intended use and outlined the requirements for its installation. Prior to plant being put into service, this SEP required a number of “hold points” including site inspections, electrical and mechanical approval, and an engineering declaration that the plant was safe to use.

68. The SEP Introduction of Mechanical and Electrical Plant included an inspection form for Site Introduction of Plant - General Equipment Standard (APNP0092) (the inspection form). The purpose of the inspection form was to capture and record all relevant information for new or hired plant and equipment used at the mine and plant and equipment returning from repair/overhaul. All sections of the form were to be completed prior to plant going underground. Among other things, the inspection form required:

1. The equipment owner to confirm that a Site-Specific Risk Assessment (including both Operational and Maintenance) had been completed and, if not, for the relevant Statutory Engineering Manager or Delegate to determine the requirement.

2. The mechanical department to confirm that an audit had been completed against AS4024.1 - 2006 Safety of Machinery and that all actions had been completed.

3. The mechanical department to inspect the equipment safeguarding and isolation points.

4. Sign-off by the Contract Owner, Maintenance Planner, Mechanical Engineering Manager, Electrical Engineering Manager and Mining Engineering Manager (or their delegates).

69. The SEP Equipment Safeguarding provided the minimum requirements for developing suitable equipment safeguarding systems for all site plant and equipment. This SEP relevantly provided:

1. Any equipment, if not in accordance with the guarding conditions as stated in AS4024.1 - 2006 Safety of Machinery, must be subject to a risk assessment and comply with the outcomes/recommendations.

2. All equipment new to the site is to be managed by the SEP Introduction of Mechanical and Electrical Plant.

3. New machines and installations should be provided with a Declaration of Conformity, which among other requirements provided a statement certifying that the equipment meets Appin Safeguarding Guidelines. New equipment had to conform to current standards.

4. All new equipment will comply with a handover procedure which includes a statement on the status of the plant being in a safe condition with all safeguards in place and working.

5. Safeguards should only be removed for maintenance and repair after the plant and equipment has been isolated as per the SEP Isolation Standard.

6. Where the temporary removal of safeguards is necessary on operating plant and equipment, a risk-based procedure is to be in place prior to removal of guards/devices and a site procedure for power-on maintenance and SEP Temporary Bypass of Protective Circuit (APNSTD0152).

7. Guards are to be replaced prior to plant and equipment being put back into normal operation. When physical guarding is temporarily removed for any purpose, the guard is to be placed aside so as to prevent damage or misplacement.

8. Following the completion of the task, the guard is to be checked for any damage, and refitted securely with appropriate fasteners. Equipment is to not be placed back into service without adequate safeguarding fitted.

9. All guards that are created and/or modified must conform to the Appin Change Management Procedure.

10. The SEP set out a risk control process for equipment safeguarding that required a risk assessment and sign-off approvals.

70. The SEP Isolation Standard provided the requirements for isolation of equipment where there is a risk of personal injury from the uncontrolled release of energy. This SEP relevantly provided:

1. Isolation is achieved by installing a locked physical barrier or separation that prevents the systems from discharging energy.

2. The method to ensure the system is unable to be re-energised while a person is working on the equipment is by locking the main isolation points for the system.

3. Several methods of isolating which all relied on individuals who were competent to isolate installing their personal isolation lock.

4. Several types of isolation equipment available and the rules associated with the use of each piece of isolation equipment.

5. A description of a number of tags to attach to isolation points, including information tags, isolation permit tags and out of service tags.

6. The preferred method of isolation was direct multi-locking, which required individuals to attach their personal isolation locks to an isolation point using multi-locks.

7. Where multi-locking was not available direct locking was required, where an individual attaches their personal isolation locks directly to an isolation point.

8. A procedure of manual remote isolation whereby an isolation supervisor isolates on behalf of another person or a team. The drift conveyor is provided as an example of where the procedure may apply.

71. The SEP Conveyor Isolation and Safety was developed to prevent the uncontrolled release of energy from conveyors at the mine. This SEP relevantly provided:

1. Each conveyor system is required to have a dedicated isolation board which is to be located in a prominent position and has the provision for storage of isolation procedures.

2. If access to a guarded area is required, full energy isolation and confirmation must be completed in accordance with the Appin Standards of Engineering Practice and the overarching SEP Isolation Standard.

3. Safe and unsafe zoned areas are determined by task-specific locations on the conveyor. The safe zone requirements are that all electrical and mechanical energy is isolated, a permit to work is issued when multiple tasks are happening on a single conveyor and if in doubt, seek further advice from a supervisor.

4. Diagrams of safe and unsafe work zones and an example of an isolation board.

72. The Supervision Arrangements Procedure was developed to provide the supervision necessary to protect, as far as is reasonably practicable, persons from risk to their health and safety from work carried out at the mine. The procedure relevantly provided that Deputies were to regularly attend the places where people under their supervision are working. How often they attend is determined by the inspection frequencies outlined in the Inspection Plan (APNMP0019) and the level of risk in the work being conducted.

Appin Risk Management Procedure

73. The risk management procedure provided information on how risk was managed at the mine and referred to different types of risk assessments in order of increasing formality and complexity:

1. A Take 2, being a personal risk assessment undertaken by workers performing the task. A Take 2 was an appropriate risk assessment for routine tasks in a normal work environment.

2. A Task Analysis. A Task Analysis was an appropriate risk assessment for non-routine tasks in a normal environment; routine tasks in an abnormal environment; where there was no work procedure or existing Task Analysis or work instruction; or to support creation of work instruction. A Task Analysis required participation by all team members and approval by a supervisor.

3. A Formal Risk Assessment. A formal risk assessment was an appropriate risk assessment for non-routine tasks in an abnormal environment or where work was found to be more complex to be covered by a Task Analysis. It required involvement of a qualified risk assessor and approval by senior management.

Failure to Comply with its Systems of Work

74. Endeavour Coal failed to comply with the SEP Introduction of Mechanical and Electrical Plant procedure as follows:

1. The Site Introduction of Plant – General Equipment Form had not been completed or signed-off.

2. Endeavour Coal did not undertake an assessment of the new scraper conveyor and the work environment in which it was to be installed to determine what, if any, work was required to be undertaken to enable the scraper conveyor to be installed in an operational position, including widening the sump where required and clearing material from the concrete sump. This could have identified the need to manually clear the fines from the concrete sump prior to transporting the conveyor underground.

3. Endeavour Coal modified the top guards of the scraper conveyor without applying the Appin Change Management Procedure. The installation of the tech mesh was not the subject of a risk assessment or sign-off approval.

75. As the scraper conveyor was installed on top of the fines in a non-operational position, the guardrails and safety lanyard could not be reinstated in accordance with the Installation Procedure. Further, the Installation Procedure did not address:

1. How the scraper conveyer was to be installed given the build-up of fines in the concrete sump.

2. The operation of the new scraper conveyer following assembly.

3. The requirement for any modifications to be subject to a risk assessment.

76. Endeavour Coal failed to comply with the SEP Equipment Safeguarding:

1. The new scraper conveyor was electrically commissioned and able to be activated in circumstances where it was not in its operational position with the required safeguards fitted.

2. Endeavour Coal did not conduct a risk assessment for equipment not in compliance with AS4021.1-2006 Safety of Machinery.

77. Endeavour Coal failed to comply with the SEP Isolation Standard:

1. There was no Isolation Supervisor to isolate and lock out the scraper conveyor on behalf of the team of workers cleaning the conveyor drift.

2. Workers were able to activate the scraper conveyor as no-one had undertaken the task of isolating and locking out the scraper conveyor.

Guidance Material

78. Safe Work Australia Code of Practice, Managing the Risks of Plant in the Workplace, dated May 2018 provided:

1. Plant should usually be isolated before maintenance or cleaning starts.

2. A person conducting a business or undertaking must ensure that guarding is able to be removed when plant is not in normal operation to allow for maintenance and cleaning and, when the guarding is removed, that, so far as is reasonably practicable, plant cannot be restarted unless the guard is replaced.

3. If guarding is removed for the purposes of maintenance or cleaning, it must be replaced before it is put back into normal operation. Where reasonably practicable, the plant should not be able to restart unless the guarding is in place. When removing guarding, eliminate the energy source by disconnecting the power supply or by locking out motive power sources.

79. Prior to the incident Australian Standard AS/NZS 4024.1-2014 Series: Safety of Machinery had been published and was referred to in Endeavour Coal’s SMS. The series of Standards included Australian Standard AS/NZS 4024.3610: Conveyors – General Requirements. The General Requirements Standard provided the following relevant information:

1. A risk assessment should be carried out to identify potential hazards that could arise and methods to control those risks arising from the installation, commissioning and dismantling process.

2. Historically, most serious incidents and fatal accidents occur on belt conveyer systems during cleaning and maintenance or unsafe access.

3. Users of conveyors shall carry out an operational risk assessment to identify all hazards from the use of conveyors and they shall implement appropriate risk controls.

4. Operational risk assessments shall be reviewed whenever alterations or modifications occur.

5. Access to or work in a danger zone shall not be permitted while conveyor is running.

80. Prior to the incident the NSW Department of Primary Industries, Guideline for Hazardous Energy Control (Isolation or Treatment) MDG40, dated January 2007 was published and available to Endeavour Coal. The Guideline was intended to assist in the development of safe systems of work for the installation, commissioning, maintenance, testing, repair and decommissioning of mining equipment. The Guideline relevantly provided:

1. To isolate or control energy, disconnect or shut down engines or motors that power mechanical systems and de-energise electrical circuits by disconnecting the power source from the circuit (p 10).

2. The level of isolation will depend on the work to be performed. There are a number of locking devices available for ensuring isolation is not inadvertently defeated and a risk assessment should consider the use of locking devices or hardware appropriate for the type of isolation or hazardous energy treatment. Locking devices that require the use of a key or special tool to achieve its removal can be used in conjunction with identification tags.

3. Lockout and tag out devices must be substantial enough to minimise early or accidental removal. Locks and tags must clearly identify the employee who applies them and warn against hazardous conditions if the machine or equipment is energised (p 11).

81. Clause 204 of the Work Health and Safety Regulation 2017 NSW (the Regulation) provides that a person with management and control of plant must not commission the plant unless the person has established the plant is, so far as is reasonably practicable, without risks to the health and safety of any person.

82. Clause 207 of the Regulation provides that the person with management and control of plant must ensure, so far as is reasonably practicable, that plant that is not in use is left in a state that does not create a risk to the health or safety of any person.

Steps Taken After the Incident

83. After the incident Endeavour Coal conducted an Incident Cause Analysis Method (ICAM) analysis of the incident. The ICAM report identified a number of factors that contributed to the incident including:

1. Multiple levels of risk and change management were not completed in accordance with the SMS.

2. The system in place to verify that the handrail (hard barrier) was installed, was ineffective.

3. There was no mechanical commissioning document developed to verify that engineering controls were in place and effective.

4. The sign at the inbye end of the sump area was poorly positioned and partially obscured.

84. Following the incident Endeavour Coal took the following steps:

1. The Design Risk Assessment for the scraper conveyor was prepared, reviewed and published.

2. The SEP Introduction of Mechanical and Electrical Plant was revised to include the following requirement: “Prior to electrical or mechanical power being applied to the plant, the plant must be inspected by an authorised tradesperson or engineer as fit for purpose. There must be signed reports for internal and external maintenance inspections stating that it is fit for power to be applied…During this stage items such as guarding and isolation provisions must be addressed”.

3. On 9 August 2019 Endeavour Coal published a revised job instruction for the task of Cleaning Area Inbye of Drift Belt Syntron (APNJI0944). The revised procedure provides:

1. Before operating the scraper conveyor the operator must ensure rigid safeguards are installed over the top of the scraper conveyor and around the sump, the emergency stop button and lanyard are functional and no person may interact with any moving components of the scraper conveyor;

2. Non-routine cleaning activities, including cleaning when the scraper conveyor is out of service, will require a Task Analysis to be completed before commencing work;

3. Any requirement to reposition the scraper conveyor, including lifting the tail-end from the sump, shall be performed as part of the maintenance task and will require a separate Task Analysis to be performed in addition to the cleaning task analysis; and

4. When cleaning wet and dry slippages, the scraper conveyor is to be isolated and the guards are to be removed to access the spillage.

85. Between 12 August 2019 and 30 August 2019, the scraper conveyor was lowered into its operational position. The system of work applied was:

1. The scraper conveyor was raised and secured using the chain blocks to allow access to the sump.

2. Material around the scraper conveyor was manually removed from the sump using shovels and buckets. The material was carried to the drift belt conveyor and loaded onto. It was then extracted from the mine.

3. A jack-pick was used to remove side wall material from the sump at the contact points.

4. The scraper conveyor was lowered into the sump.

86. Endeavour Coal also took the following steps:

1. Replaced the top guards with a steel guarding that had a smaller aperture. The guards were bolted down.

2. New fencing was installed around the boot-end, tail-end and perpendicular to the tail-end of the scraper conveyor.

3. The emergency stop lanyard was re-instated.

4. The concrete walkway adjacent to the scraper conveyor was cleared.

5. The roof lighting in the conveyor drift was re-established.

6. Additional signage was installed warning of entry to the guarded tail-end without isolation. The existing signage was re-positioned on the roof of the drift where it was clearly visible and could not be obscured by built-up fines.

7. The discharge point for the Allied Drift brain pump was moved inbye to reduce the build-up of material on the walkway adjacent to the scraper conveyor.

Evidence for the Defendant

87. Mr Benjamin James Patten affirmed an affidavit on 21 July 2022. Mr Patten is a Mining Engineer Manager for South32 Limited.

88. Mr Patten expressed regret on behalf of Endeavor Coal that the incident occurred. The events which led to the injury to Mr Rapley have been discussed with the Executive Leadership Team many times. The incident has caused Endeavour Coal to reflect upon, and improve, its health and safety procedures.

89. The affidavit of Mr Patten provided extensive detail in relation to the system of work that applied at the time of the incident. On this topic the affidavit dealt with:

1. The Safety Management System.

2. The Risk Management Procedure.

3. The Mechanical Engineering Control Plan and the Electrical Engineering Control Plan.

4. Worker training prior to the incident.

5. The Health and Safety Committee.

90. Mr Patten then dealt in his affidavit with the steps taken following the incident. He annexed an ICAM investigation report into the incident. The ICAM report identified, as the root cause of the incident, the absence of preventative engineering controls (being a handrail or hard barrier) which led to Mr Rapley becoming entangled in the scraper conveyor. The ICAM report then listed as contributing facts:

1. Absent or failed defences, being a failure to install a handrail, the conveyor not being isolated, and the worker not identifying the hazard of the hole.

2. Individual or team actions, being failure to install the handrail, supervisors not identifying that the handrail was not installed and there being no job instruction regarding the requirement for the handrail to be in place while operating the scraper conveyor.

3. Individual or team actions – being the decision to cover the scraper conveyor inlet hole with tech mesh.

4. Task and environmental conditions: The area had built up with wet coal fines which resulted in a sense of urgency to clean up; the perception that the workers could do the job safely without isolation; a warning sign being poorly positioned and partly obscured; and the scraper conveyor inlet hole being covered with tech mesh.

5. Organisational factors: There was organisation acceptance regarding lack of isolation arrangements when the scraper conveyor was operating with no appropriate guarding and without the handrail; there was no verification that the warning sign was in place; the handrail and the lanyard were not in place; elements of the Safety Management System were ineffective to verify that the handrail was installed; the conveyor was not isolated when workers were inbye of where the handrail should have been; and multiple levels of risk and change management were not completed in accordance with the Safety Management System.

91. To address these failures, Endeavour Coal took a number of steps which are set out in detail in the affidavit. In summary, the steps taken were:

1. Improvements and rectification work.

2. Training.

3. Workforce communication.

4. Preparation of a victim impact video, which involved Mr Rapley conveying the impact that the incident has had upon his life, and the life of his family.

5. A contract in management standard.

92. A briefing was held with the workforce on 13 August 2019, which included training that the scraper conveyor was still in the commissioning phase and that normal operation of the conveyor would only be permitted with the sign-off of three Statutory Managers.

93. The need to isolate the conveyor, before work was done upon it, was the subject of a toolbox talk.

94. Mr Patten gave detail in his affidavit regarding the ongoing commitment of Endeavour Coal to safety, and the steps which it has taken, not just as a result of this incident, but because of its desire to continually improve safety at the Appin Colliery.

95. Finally, Mr Patten set out the extensive sponsorships and community involvement of Endeavour Coal which included supporting education, health, sport and the arts; supporting local businesses; contributing to industry safety bodies; and working with First Nations individuals and local communities.

Consideration

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

Objective Seriousness of the Offence

97. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

98. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

99. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

100. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson(No. 5) [2009] NSWSC 432 at [61].

101. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

102. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

103. The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading “Assessment of Risk” said:

“The sentencing judge commenced his consideration with the proposition that ‘greater 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 on assessment of all those factors.”

104. Further at [42] his Honour continued:

“The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

105. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying:

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

106. My findings about the defendant’s level of culpability are based upon the following:

1. Endeavour Coal knew of the risk. In any event the risk was obvious and highly foreseeable as there was guidance material directed to this particular risk.

2. The likelihood of the risk occurring was high.

3. The potential consequences of the risk were death or serious injury.

4. Simple and well-known steps were readily available to eliminate or minimise the risk.

5. There was no great burden or inconvenience in these steps being implemented.

6. Mr Rapley sustained very serious injuries including lacerations and fractures of his right foot and injuries to his toes, requiring amputation of the great toe and partial amputation of the fourth toe,

7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature’s view of the seriousness of the offence.

8. Endeavour Coal had a complex and detailed safety system, as one would expect for a mine operator. It was not followed. To attempt to install potentially dangerous new machinery in an ad hoc and undocumented manner was inviting trouble.

9. To have the conveyor running during the installation, to create a virtual trap by partially covering the inlet hole with tech mesh, to have no safety barrier or safety lanyard and to have inoperative lighting, leads to the conclusion that this was a serious breach of the work health and safety duty owed by Endeavour Coal.

10. That Endeavour Coal allowed all of this to occur from 15 May to 8 June 2019 almost defies belief.

107. I find that the level of culpability of Endeavour Coal is in the upper half of the mid range.

Deterrence

108. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

109. The penalty must reflect the need for specific deterrence. Endeavour Coal is still conducting a business involving mine operations and the continuing engagement of workers.

Aggravating Factors

110. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

111. Endeavour Coal does not have a significant record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. It has one previous conviction being a contravention of section 8(2) of the Occupational Health and Safety Act 2000 (NSW): Regan v Endeavour Coal Pty Ltd [2011] NSWIRComm 141.

112. Endeavour Coal is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this.

113. Endeavour Coal is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

114. Endeavour Coal has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this accident occurred.

115. Endeavour Coal has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Rapley was caused by its actions.

116. Endeavour Coal entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give Endeavour Coal a 25 % discount for an early plea.

117. Endeavour Coal gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

118. I am required to have regard to s 6 of the Fines Act 1996 (NSW) 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: Mahdi Jahandideh v The Queen [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.

119. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

120. There was no submission about capacity to pay, so this issue does not arise.

Victim Impact Statements

121. The defendant was convicted at the sentence hearing on 27 July 2022.

122. Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with summarily by the District Court where the offence results in the death of, or actual physical bodily harm to, any person – s 27(2)(a).

123. By s 28(1) a primary victim may prepare a statement that contains particulars of the following suffered as a direct result of the offence:

1. Any personal harm

2. Any emotional suffering or distress

3. Any harm to relationships with other persons

4. Any economic loss or harm that arises from any matter referred to in (1)-(3) above.

124. A Victim Impact Statement may be tendered to the court only by the prosecutor – s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division – s 30B.

125. A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate – s 30E(1).

126. The court received a very detailed written Victim Impact Statement from Mr Jeffrey Rapley. Mr Rapley was present in court at the hearing but did not wish to read out his Victim Impact Statement.

127. As a result of the incident Mr Rapley sustained serious and permanent disfiguring personal injuries. He suffered crush injuries to each of his right toes. The second toe was almost severed. There were multiple fractures of the right forefoot, degloving injuries to the right great and fourth toes, exposing the bones, and a complex laceration of the plantar fat pad. Essentially, the sole of his right foot was all but torn off, exposing the bones of the underside of the foot. Mr Rapley has suffered from associated complications and side effects, including Post Traumatic Stress Disorder, a permanent partial collapse of the right lung and damage and scarring to the liver due to the numerous courses of antibiotics he has been prescribed. He has lost a career and any prospects of future employment. While he has received statutory workers compensation payments, he is $2,000 per week worse off. Mr Rapley stated that the most profound effect the incident has had is the effect on his personal relationships at home with his family.

124. Mr Rapley never once underestimated the potential dangers that lurked beneath the ground in the mining industry. Several weeks prior to the incident, he was awarded the “Safety Hero of the Month” award by his employer, Mastermyne, for his continued commitment to safety evident in the hazard identification reports and risk assessments that he prepared.

125. As a result of the incident Mr Rapley was hospitalised on seven separate occasions and underwent four separate medical procedures. Two toes have been surgically amputated. Mr Rapley has consulted orthopaedic surgeons, physiotherapists, a plastic surgeon, a cardiologist, a gastroenterologist, a respiratory specialist, a pain management physician, a foot and ankle specialist, an orthotics specialist, a psychiatrist, a psychologist, a chiropractor, and his general practitioner.

126. Less than two months after the incident Mr Rapley suffered a pulmonary embolism from a blood clot in his calf that had dislodged and travelled to his right lung. Mr Rapley was informed that he was extremely fortunate to have survived. Shortly afterwards he developed another blood clot twice the size, which caused him to feel like he was walking on eggshells, fearful of doing anything that may exacerbate the condition such as walking or exercising.

127. In April 2020 Mr Rapley started cycling on a daily basis. A physiotherapist recommended he start cycling to maintain his strength as he was no longer able to run. In August 2020, whilst cycling as part of his daily rehabilitation, his right foot slipped off the pedal, ejecting him from the bike. The full length of the rear brake lever impaled his inner left thigh. Mr Rapley forcibly removed the brake lever from his thigh and immediately covered the wound with his hand. He attended hospital where he was given stitches. He was informed that the brake lever had missed the femoral artery by only millimetres.

128. Mr Rapley was advised by his orthopaedic surgeon Dr Giblin that he has been left with a “club foot” as the result of the amputations required of the great and fourth toes and the fact that the second and third toes have been left for cosmetic purposes only, although they serve no real purpose.

129. Mr Rapley continues to experience constant and chronic pain to the underside of his right foot, as well as severe nerve pain to the amputation sites. This condition has contributed to him falling down on several occasions. One of these occasions was in April 2021 when, in the course of his daily walking regime, Mr Rapley slipped on his right foot and suffered two fractures to his left wrist.

130. After the incident, while Mr Rapley was recovering in hospital, he read an article on the internet covering the incident in which a South32 representative was quoted as saying, “Our thoughts go out to our injured colleague and together with his employer we have offered our support”. Mr Rapley was enraged by the report as he had not been contacted or visited by any representative from South32. Mr Rapley stated in his Victim Impact Statement: “Whilst the accident that occurred that evening could quite easily have claimed my life, so too could the way that I have been disregarded ever since by your silence which has been deafening”.

131. I take all of those matters into account on sentence.

Costs

136. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs.

Penalty

137. My orders are:

1. Endeavour Coal Pty Limited is convicted.

2. The appropriate fine is $400,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Endeavour Coal Pty Limited to pay a fine of $300,000.

4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. Order Endeavour Coal Pty Limited to pay the prosecutor’s costs.

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Decision last updated: 03 August 2022