New South Wales Resources Regulator v Endeavour Coal Pty Limited

[2025] NSWIC 16

Industrial Court

New South Wales

Medium Neutral Citation:

New South Wales Resources Regulator v Endeavour Coal Pty Limited [2025] NSWIC 16

Hearing dates:

18 August 2025

Date of orders:

24 October 2025

Decision date:

24 October 2025

Before:

Paingakulam J

Decision:

(1) I convict Endeavour Coal Pty Limited of the offence as charged.

(2) I impose a fine of $640,000.

(3) Endeavour Coal Pty Limited is to pay the prosecutor’s costs of the proceedings as agreed or assessed.

(4) Pursuant to s 122(2) Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.

Catchwords:

CRIMINAL LAW — work health and safety — offences — category 2 — mining train operated in man and material drift while workers were working in drift portal — train narrowly missed workers but collided with roof bolter held by worker, injuring his leg — high risk work — disputed facts concerning safety systems — safety systems were in place but were inadequate — offender did not implement most effective control despite the fact that it was available — reliance on actions of one individual undermined effectiveness of control measures — objective seriousness in the mid-range

SENTENCING — relevant factors on sentence — objective seriousness — deterrence — specific deterrence not of significant weight — aggravating factors — prior convictions not treated as aggravating factor — mitigating factors — cannot find that offender is unlikely to reoffend due to prior convictions — 20% discount for guilty plea — assistance to authorities not treated as mitigating factor — appropriate penalty

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Fines Act 1996 (NSW)

Occupational Health and Safety Act 2000 (NSW)

Work Health and Safety Act 2011 (NSW)

Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW)

Cases Cited:

Attorney General for NSW v McMahon Mining Services Pty Ltd [2019] NSWCCA 8

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

BW v The Queen [2011] NSWCCA 176

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

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

McColm v Endeavour Coal Pty Limited [2022] NSWDC 307

Meis v The Queen [2022] NSWCCA 118

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

Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

R v Borkowski [2009] NSWCCA 102

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

R v Shankley [2003] NSWCCA 253

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

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

R v Youkhana [2004] NSWCCA 412

Regan v Endeavour Coal Pty Ltd [2011] NSWIRComm 141

Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266

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

Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326

Category:

Principal judgment

Parties:

New South Wales Resources Regulator (Prosecutor)
Endeavour Coal Pty Limited (Offender)

Representation:

Counsel:
N Read (Prosecutor)
C Magee (Offender)

Solicitors:
McCullough Robertson Lawyers (Prosecutor)
Herbert Smith Freehills Kramer (Offender)

File Number(s):

2024/244208

Publication restriction:

Nil

JUDGMENT

1. Endeavour Coal Pty Ltd (Endeavour Coal) was the mine operator of the Appin Colliery, an underground mine located in Appin, New South Wales. On 18 July 2022, a group of workers, including Mr Alan Rice, were performing roof bolting related work in the man and material drift connected to Appin East when a train entered it. The workers jumped from the tracks as they saw the train approaching. Mr Rice had the roof bolting machine with him. As the train passed by the workgroup, the roof bolting machine’s water and air hoses became entangled with it, causing Mr Rice serious injuries.

2. Endeavour Coal appeared for sentence after pleading guilty to an offence that as a person who had a work health and safety duty pursuant to s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) it failed to comply with that duty and thereby exposed workers to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. The risk particularised at paragraph 16 of Annexure A to the Amended Summons is as follows:

“There was a risk of workers, including Mr Rice, Mr Howarth and Mr Maddinson, suffering death or serious injury as a result [of] being struck by, or otherwise involved in a physical interaction with, the Train while working in the Drift.”

4. By its plea of guilty, Endeavour Coal accepts that it could have taken the following reasonably practicable steps to eliminate or at least minimise the reasonably foreseeable risk:

“(a) Implementing and enforcing the requirements in the ROVOA which included:

(i) The placement of reflective warning signs advising that men were working in the Drift at the drift portal and the pit bottom; and

(ii) The placement of portable flashing lights 100m each side of the work site.

(b) Developing and implementing a standard operating procedure for working in the Drift, which specified:

(i) a requirement that the Train be isolated and locked out while workers were working in the Drift;

(ii) where practical, a requirement that the Train be parked adjacent to the work site of the workers working in the Drift; and

(iii) where it is not practical for the Train to be parked adjacent to the work site, requiring compliance with the ROVOA set out in paragraph 18(a)(i) and (ii) above.

(c) Providing training and instruction to workers on a standard operating procedure for working in the Drift, such as the one identified in paragraph 18(b) above; and

(d) Requiring the Train to be isolated and locked out while workers were working in the Drift.”

5. The maximum penalty for this offence is a fine of 17,315 penalty units ($1,860,843).

Facts

6. The prosecutor tendered an agreed Statement of Facts. I have taken this document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offence to permit an understanding of the sentence imposed.

Background

7. Endeavour Coal is a wholly owned subsidiary of Illawarra Coal Holdings Pty Ltd (Illawarra Coal) and the operator of the Appin Colliery (the Mine). Endeavour Coal engaged Nexus Mining Pty Ltd (Nexus) to provide supplementary labour to the Mine.

8. The Appin East area of the Mine features a men and material drift (the Drift), including a fixed railway line by which a train is used to transport workers and materials in and out of the underground workings. The train’s maximum operating speed is 14.4km/hour. The Train Operator sits in a Dolly Car perpendicular to the direction of travel, facing a screen displaying CCTV images. The Train Operator’s visibility relies on this CCTV display screen which rotates through footage from three cameras, with one camera displaying at least 100m in the direction of travel.

9. At the time of the incident, the train was fitted with white lights which could be set to be on, off or “auto” (i.e., on when motion is detected). There were also green and red flashing strobe lights that remained on while the train was in motion. In addition, the Drift was fitted with orange flashing warning lights that activated when the train was in motion.

10. Entry to the Drift was via a portal gate. The winder controlling the train was fitted with visual and audible prestart warning alarms, and the train’s operation could be isolated from power both from the driver’s panel in the Dolly Car and via three other remote isolation points.

11. The train underwent routine maintenance every Monday and Wednesday. Some maintenance tasks allowed the train to be isolated. However, others, such as the weekly static brake test which occurred on Mondays, had to be conducted with the train powered. In the three months prior to the incident, workers were regularly tasked with undertaking work in the Drift on a Monday or Wednesday while the train was either undergoing routine maintenance on the surface or isolated at the job site.

12. On 5 July 2022, it was identified that roof support in the Drift around the 70 manhole was falling and needed to be re-meshed. That involved using a roof bolting machine, a tool similar to a large drill weighing approximately 50kg. Preparation works occurred on 12 July 2022 during which the train stayed with the workers, and again on 13 July 2022 between 8:00am and 12:00pm, the regular allocated four hour maintenance window for the train. The job itself was scheduled to take place over 10 hours on 18 July 2022, which again included the regular maintenance window for the train.

Workers

13. There were four workers involved in the incident. Mr Gary Osgood, Train Operator employed by Endeavour Coal, had approximately 17 years’ experience at the Mine, including at least 10 years as a Train Operator. He had extensive training relevant to that role, including in relation to Dolly Car operations and isolation rules. Mr Rice was a supervisor employed by Nexus with more than 18 years’ experience at the Mine, including 18 months as a supervisor. He too had participated in extensive training over that time, including in relation to isolation rules and Safe Work Method Statements (SWMS).

14. Mr Brock Howarth and Mr Duncan Maddinson were operators employed by Nexus who had only six and four weeks’ experience respectively at the Mine at the time of the incident. However, in addition to participating in site inductions, they too had been trained in isolation rules and SWMS. In addition, all four men had undertaken training in relation to “Mobile Equipment (Transport Rules)”, which made reference to the “Principal Hazard Management Plan for Roads or Other Vehicle Operating Areas” (ROVOA) but did not include any information about undertaking work in the Drift.

The morning of the incident

15. During the 6:00am shift briefing, attendees were informed that the train would be undertaking maintenance and out of use for certain periods, and that a team would be working in the Drift. Mr Osgood did not attend the shift briefing. However, after the shift briefing, he had a brief discussion with Mr Rice regarding the work to be done in the Drift and confirmed the radio channel so that the workers could make radio contact. Mr Rice understood from that conversation that Mr Osgood would radio the work group when he was entering the Drift after the train had completed its maintenance.

16. At about 7:15am, Mr Osgood delivered the work group underground near the 70 manhole and returned to the surface. He then communicated via radio to Mr Rice that the work group could commence the roof bolting work. At about 11:20am, the train entered the Drift for its weekly static brake test, during which it was driven about 100m into the Drift, 1.2 kilometres from the work group. The work group continued to work in the Drift while this occurred without any communication from Mr Osgood. However, the orange flashing warning lights activated to indicate that the train was in motion. All of the workers noticed this, but they assumed that the train was being moved around near the surface and continued working without contacting Mr Osgood. After completing the static brake test, the train returned to the surface.

The incident

17. Shortly after midday, Mr Osgood was requested to transport a tyre to pit bottom. Mr Osgood did not communicate to the work group that the train was entering the Drift. He incorrectly assumed that the work would be completed within the usual train maintenance period and was unaware that the work group had been scheduled to perform their work until 4:00pm.

18. There were no reflective warning signs at the Drift Portal and Pit Bottom advising that men were working in the Drift, nor were there any portable flashing lights 100m on each side of the work site. There had not been any no go zones or control zones established. The work group continued to work in the Drift unaware that the train was approaching them. The flashing lights in the Drift operated as designed, but the work group either did not notice them, or assumed that the train was being used for maintenance purposes near the surface.

19. As the train approached the work group they were in the process of installing a roof bolt. Mr Howarth saw the approaching train and yelled “get off the tracks”. Mr Maddinson and Mr Howarth jumped to one side of the track and Mr Rice jumped to the other while still holding the roof bolter. The train narrowly missed the work group, but the roof bolter’s water and air hoses became entangled with a derail sensor, activating it and bringing the train to a stop. In the process, the roof bolter hit Mr Rice’s left leg.

20. Mr Osgood, Mr Maddinson and Mr Howarth rendered first aid to Mr Rice, who was subsequently transported to the surface and then to hospital. He suffered a fractured left fibula, three blood clots and deep vein thrombosis in his leg.

Legal obligations and guidance material

21. Clauses 23 and 24 of the Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW) (WHS (MPS) Regulation) required Endeavour Coal, as the operator of the Mine, to identify and risk assess all principal hazards associated with mining operations at the Mine and prepare a principal hazard management plan (PHMP) for the principal hazard. This requirement included operations in relation to “roads or other vehicle operating areas”.

Systems of work prior to the incident

22. At the time of the incident, Endeavour Coal operated under its parent company South 32’s Safety Management System and had the following systems of work in place:

1. The ROVOA, dated 26 February 2021, as required by cll 23 and 24 of the WHS (MPS) Regulation. This document addressed risks associated with the operation of the train. Clause 4.3.2 included a requirement that the work in the Drift be coordinated between the work crew, the control room operator and Train Operator. This included a requirement for the work crew to advise both the control room and the Train Operator once their work was completed. It also required the posting of reflective warning signs advising that men are working in the Drift at the drift portal and the pit bottom, and portable flashing lights 100m on each side of the work site.

2. A “Risk Management Procedure” which applied to both employees and contractors. It required a “Take 2” to be prepared when commencing or resuming a routine task, a “Task Analysis” to be completed for less routine tasks and a “Qualitative Risk Assessment” to be completed for irregular tasks.

3. A “Dolly Car Daily Operations Procedure” which identified controls such as the use of no go and control zones, demarcation of work spaces using caution tape and information tags, good communication, adherence to the ROVOA and conducting a Take 2 to address the risk of collision with pedestrians.

4. An “Isolation Standard” dated 16 June 2022 which provided work in the Drift as an example of a circumstance in which manual remote isolation procedures might apply to the drift winder conveyances and drift conveyors.

5. An “AE M&M Winder Remote Isolation Procedure” (Winder Procedure) dated 10 November 2021 that provided information about when and how to use the remote isolation system on the winder which operated the train.

6. A “Communications Arrangements Management Plan” which set out communication requirements, including the content of and process for information to be communicated to workers. It required interacting and conflicting work to be addressed at either the weekly planning meeting or the daily review, and to be confirmed at the start of shift meeting. The shift undermanager was responsible for addressing issues arising from the interaction of planned work.

23. On 21 November 2012, Endeavour Coal (or one of its associated entities) conducted a risk assessment for operating the Appin East Dolly Car that was in operation at the time (and was replaced in 2021). Mr Osgood participated in the assessment, which identified a collision between a pedestrian and the Dolly Car as a risk, and identified a series of preventative controls. These controls included the development of a standard operating procedure (SOP) both for working in the Drift and operating the Dolly Car; the use of cameras, strobes and other lights on the Dolly Car, together with a pre-start alarm at both the surface and underground stations as well as on the Dolly Car itself; the installation of warning lights in the drift; the use of speed zones at the top and bottom of the Drift and radio communication. At the date of the incident, Endeavour Coal had not developed or implemented a SOP for working in the Drift which required that the train be isolated and locked out while workers were working in the Drift, and either parked adjacent to the work site in the Drift, or, if that was not practical, requiring compliance with the ROVOA.

24. On 20 August 2021, Endeavour Coal conducted a ROVOA Risk Assessment. It identified a risk event of “vehicle interaction with people”, a cause as “Pedestrians on roads” and a preventative control as “Demarcation of working areas on roads is included within the Roads or Other Vehicle Operating Areas PHMP”.

25. Endeavour Coal conducted extensive training for staff. Mr Osgood had successfully completed numerous assessments required for Train Operators. For example, the “Dolly Car Operations (Appin) Training” document expressly addressed requirements for when personnel were working in the Drift. Those requirements included the Train Operator contacting both the control room and the workgroup to confirm that all work had ceased and that personnel were in a safe position before recommencing operations. Mr Rice had also benefitted from training in numerous competencies, including the Isolation Standard. Even Mr Maddinson and Mr Howarth had undergone training in several competencies in the brief period that they had been working at the Mine, including the Isolation Rules.

Systems of work after the incident

26. A Safety Alert after the incident identified several post-incident actions to be undertaken, including the publication of a procedure for working in drifts. The Incident Cause Analysis Method (ICAM) investigation undertaken by Endeavour Coal identified 10 “absent or failed defences” as contributing factors, including the failure of the Train Operator to communicate with the work group and the control room as required, and the failure of the work group to implement the controls identified in their Take 2.

27. Endeavour Coal undertook several measures to improve systems of work at the Mine in response to the incident. These included the installation of barricades between the manholes and the Drift at both the 34 manhole and 70 manhole, and cut throughs and a sign at each manhole prohibiting access from the manhole to the Drift without approval from the Train Operator. They also included updating relevant sections of the ROVOA to better define existing controls and implement new ones, such as prohibiting access to the Drift while the train is in motion, and requiring a restriction zone to be implemented, confirmation to be given that the Drift winder has stopped and the brake applied and positive permission to be communicated before workers embark or disembark the train. Working in the Drift also now requires the train to be on site and isolated by the relevant workgroup and a formal risk assessment to be conducted for any work undertaken outside of arrangements set out in updated job instructions.

28. Furthermore, Endeavour Coal has reviewed and amended the Isolation Standard to clarify when isolation is required for works being undertaken in the Drift. It has also reinforced the work methodology that integrates the Management Operating System with the mine work planning process. The camera and lighting systems for the Dolly Car have been updated so that they operate automatically when the Dolly Car is in operation and the Dolly Car CCTV screen has also been upgraded. Additional lights have been installed at both the 34 and 70 manhole cut throughs. In addition, a new procedure requires the train to be isolated and available to workers at the Drift work site, and all work in the Drift must be subject to a Job Instruction or Task Analysis. Finally, Endeavour Coal has updated a number of risk assessments and policies including the ROVOA Risk Assessment and the competency training and assessment module for Dolly Car operations.

Disputed Facts

29. The prosecutor tendered a bundle of documents which it obtained from Endeavour Coal, said to establish disputed facts. That bundle contained the following documents:

1. Section 155 Notice No. 220919JG01;

2. Appin East M&M Winder Drift Hot Work Job Instruction;

3. Appin East Drift Rail Installation Procedure – APNP0430;

4. Illawarra Coal Drift Rail Repair – Using Pandrol Plates; and

5. Appin East M&M Drift Roller Replacement.

30. The disputed facts tender bundle also included extracts of transcripts of records of interview with each of Mr Maddinson, Mr Rice, Mr Howarth and Mr Osgood.

31. In addition, the prosecutor tendered a work procedure titled “Management System Job Instruction for Bolting in the Aspen East Drift Off Floor” (Bolting Procedure), dated 26 October 2012.

Endeavour Coal’s knowledge of procedures

32. The prosecutor relied upon the Bolting Procedure to prove that Endeavour Coal had access to, and therefore knowledge of, a SOP that could have been but was not applied to the task undertaken by the workgroup at the time of the incident. It relied on the other procedures in the disputed facts tender bundle to demonstrate that Endeavour Coal had access to procedures for other maintenance tasks in the Drift which required the isolation and lockout of the train. This was said to add to Endeavour Coal’s culpability for failing to have such measures in place at the time of the incident.

33. Endeavour Coal objected to the tender of the procedure documents on the basis that they very significantly predated the incident and were in place when the Mine was being operated by BHP Billiton and Illawarra Coal. The Bolting Procedure is dated 26 October 2012. The other procedures, which related to work on the Drift rails and rollers, date from 2013 to 2015. Endeavour Coal stated that the documents were irrelevant because it was an agreed fact that it had not developed and implemented a SOP for working in the Drift which required the train to be isolated and locked out or that, where practical, the train should be parked adjacent to the worksite in the Drift.

34. The absence of a SOP for working in the Drift which required isolation of the train is not in dispute. It is also not in dispute that Endeavour Coal had access to the procedure documents, because they produced them in response to a notice issued by the Resources Regulator. Accordingly, any dispute is limited to the extent to which the procedure documents inform Endeavour Coal’s culpability because they were aware of but did not implement the use of isolation as the ultimate control to prevent the risk which ultimately materialised.

35. While the various historical procedure documents were admitted over objection, they add little to the gravity of the offending in circumstances where the need for a documented SOP for working in the Drift had been identified by Endeavour Coal years before the incident, and the accepted practice at the Mine at the time of the incident included isolation of the train at the job site in the Drift when it was not undergoing routine maintenance at the surface. The relevance of the historical procedures to Endeavour Coal’s culpability must also be viewed in the context of a risk that materialised due to a lack of compliance with basic safety measures that were in place.

Workers’ knowledge of procedures

36. Ultimately, there was no objection to the tender of the extracts from the record of interview of each of Mr Maddinson, Mr Rice, Mr Howarth and Mr Osgood. Endeavour Coal sought to cooperate with the prosecutor by not requiring any of them for cross-examination. However, Endeavour Coal submitted that I should not accept that material as establishing that workers were not aware of any documented procedures for working in the Drift, or a requirement to set up warning signs or barriers, as the prosecutor urged me to do. In particular, Endeavour Coal submitted that I should not accept the evidence of Mr Osgood at face value in circumstances where he was a duty holder whose evidence may have been influenced by a concern to avoid criminal liability for his role in the incident.

37. In determining the knowledge of the work group about safety systems surrounding work in the Drift, I have had regard both to the circumstances in which the evidence contained in the records of interview was obtained and other evidence before the Court, such as the Statement of Facts and the evidence of Mr Benjamin James Patten, Mining Engineering Manager at the Mine, addressed below.

Offender’s case on sentence

38. Endeavour Coal relied on the evidence of Mr Patten in an affidavit sworn on 1 August 2025. The following is a summary of his evidence in addition to matters contained in the Statement of Facts.

39. Mr Patten is employed by Illawarra Coal and is based at the Mine. He has a Bachelor of Engineering (Mining Engineering), a Master of Business Administration (Business Administration and Management) and a Practising Certificate to act as a mining engineering manager of underground coal mines. He has been employed in the mining industry since 2007 and has worked for Endeavour Coal under previous holding companies since 2010.

40. In his role as Mining Engineering Manager, Mr Patten’s responsibilities include fulfilling the statutory function of Mining Engineering Manager under Schedule 10 of the WHS (MPS) Regulation. Mr Patten also oversees the safety management system of both the underground and surface operations at Appin Mine.

Expression of remorse and contrition

41. Mr Patten, on behalf of Endeavour Coal and its holding company Gear M Illawarra Met Coal Pty Ltd (GM3), expressed deep regret concerning the incident. He apologised to Mr Rice and his family for the injury that Mr Rice suffered and the impact that it has had on his life. Mr Patten also stated that the incident has deeply affected himself, Endeavour Coal, GM3, the workforce and their operations. Mr Patten’s view was that the directors of Endeavour Coal and GM3 “work to instil a genuine commitment to safety and health across the business”. Mr Patten testified to the fact that the incident had caused Endeavour Coal and GM3 to evaluate and improve their health and safety procedures across their operations.

About Endeavour Coal

42. Endeavour Coal owns and operates the Mine. Approximately 1250 workers work at the Mine, including 1030 employees and 220 contractors. Illawarra Coal and all its subsidiaries, including Endeavour Coal, were acquired by GM3 on 29 August 2024. At the time of the incident, Illawarra Coal and, therefore, Endeavour Coal, were subsidiaries of South32 Limited.

43. Through its holding company GM3 and through GM3’s community trusts, Endeavour Coal supports many community activities and initiatives. The total cost of these contributions over the past three and a half years in the Illawarra region was approximately $5.2 million. Just a few examples of the initiatives GM3 has supported include local school classroom upgrades, driver education programs and community health initiatives such as Lifeline in Macarthur and the South Coast and the Illawarra Turf Club mental health event. GM3 has also contributed to numerous sporting organisations and events including the Illawarra rugby league women’s and junior’s competition and the Wollondilly Razorbacks junior basketball club. It’s support of arts initiatives include the art and light festival “Illuminate Wollondilly” and the Southern Stars First Nations Dance Troupe. In addition, GM3 has supported local community initiatives and charities including the Illawarra Women’s Trauma Recovery Centre, Dress for Success, the Wollongong Homeless Hub, Foodbank Australia and local council and Rotary events and programs, alongside local business programs such as the Business Illawarra Awards and the Wollondilly Women in Business Empowerment Course.

44. Endeavour Coal also provides support to the Resources Regulator in the examination process for statutory personnel and has sponsored and facilitated the development of training programs. It is a member of the Minerals Council of Australia and supports the annual Resource Conference, the New South Wales Health, Safety, Environment and Community Conference and the Australasian Institute of Mining and Metallurgy Student Chapter. Finally, Endeavour Coal has a strong focus on driving long term and mutually beneficial relationships with Aboriginal and Torres Strait Islander communities.

Systems of work at the time of the incident

45. Endeavour Coal had a Safety Management System (SMS) which provided a framework for the management of health and safety risks at the Mine. This included the ROVOA, the Dolly Car Operations Procedure, the Isolation Standard, the Winder Procedure and the Risk Management Procedure to which I have already referred. Also in place were the “Life Saving Rules”, a set of mandatory and expected behaviours designed to reduce workers’ exposure to potentially fatal risks at work. The SMS was constantly reviewed to facilitate a safe workplace for all Endeavour Coal workers.

46. Significantly, the Isolation Standard provided that isolation should be planned before physical work starts. It also stated that all key personnel who may be affected by the isolation need to be advised to ensure no safety or operational problems will be created and that if there is any concern that safe isolation has not been verified, the work must stop and the situation must be made safe and reported.

47. Prior to entering the Mine, all workers were required to complete induction training and competency processes. Specific task-related competency assessments were also conducted on an “as needed” basis and workers were required to be deemed competent in all relevant units prior to receiving sign off. All trainings and competencies completed by workers were tracked by Endeavour Coal and any relevant information such as location and expiry date were noted.

Steps taken following the incident

48. Immediately following the incident, Endeavour Coal isolated the site, notified the Regulator, facilitated an initial site inspection and put in place temporary controls. In accordance with the SMS, it also prepared an “Event Report and Basic Investigation” to capture information about the incident, and “Preliminary Safety Alert HSE Event” to facilitate prompt and transparent information about the incident to the workforce. Two “Start of Shift Briefs” clarified some of the initial action items and corrective actions in place.

49. Endeavour Coal also commenced an ICAM investigation. The ICAM Team identified the root cause of the incident as failure to apply the controls set out in cl 4.3.2 of the ROVOA. Three key learnings arising from the investigation related to the importance of demarcation of the work site, planning of simultaneous or potentially interacting activities and the need to ensure that workers are aware that they must comply with the SMS.

50. In accordance with its risk management process, Endeavour Coal reviewed and updated the ROVOA Risk Assessment to include a risk event which addressed the interaction of the Drift train with pedestrians. As part of that process, 13 additional actions were identified, many of which involved changes to the existing SMS. Endeavour Coal also updated the “Operational and Maintenance of Appin East Drift Winder Risk Assessment” to include the risk of a person in the Drift being unaware that the train is operating in the Drift and identified actions to address this risk event. The reduction of recorded injuries in the Mine since the incident demonstrates the impact of Endeavour Coal’s corrective actions and training.

51. Finally, Endeavour Coal assisted with finding suitable surface duties and further employment for Mr Rice post-incident. As of July 2025, Mr Rice is no longer a worker at the Mine, as Nexus no longer provides labour hire services to Endeavour Coal.

Oral evidence

52. In oral evidence, Mr Patten accepted that notwithstanding the change in ownership of the Mine in August 2024, the management team at Endeavour Coal was fundamentally the same and that his role had not changed.

53. Mr Patten stated that at the time of the incident, there were a number of different job instructions that were documented work procedures. He stated that the ROVOA included a SOP for the operation of the Dolly Car in the Drift. He further stated that workers trained in the mobile operations transport rules had been trained in the ROVOA notwithstanding the fact that the documents were different and the procedure to which he drew attention in the ROVOA did not form part of the mobile transport rules. However, he accepted that Mr Maddinson, Mr Rice and Mr Howarth were not aware of the requirements set out in the ROVOA as they had not seen it, or any procedure which set out the relevant requirements contained within it.

54. Mr Patten was directed to documents which recorded the training given to Mr Osgood regarding operation of the train in the Drift and personnel transport. He stated that he was unaware of whether the control officer had also been trained in that procedure, or whether workers in the Drift had been using reflective warning signs or flashing lights in the months leading up to the incident. He accepted that the electrical flashing light beacon to which Mr Osgood referred had not been in use for a significant period. However, he maintained that mechanical flashing lights were available for use in the Drift.

55. Mr Patten stated that one of the responsibilities of the Train Operator was to contact the crew working in the Drift before the commencement of the static brake test. The work crew would either stand in a cut through or withdraw from the Drift at that point. Mr Patten described contact between the Train Operator and the work crew in the Drift as common practice.

56. Mr Patten accepted that although isolation of the train was a control that the work group had identified for the work that they were undertaking in the Drift, it was not possible to do that when the train was undergoing some of the maintenance checks which were required, such as the static brake test. He accepted that it was therefore not an appropriate control on the day of the incident. Mr Patten was directed to the isolation procedures relevant to drift rail installation in the Appin East Drift. He accepted that isolation of the train by locking the key in the lock box would eliminate the risk of the train moving, including because of the inadvertent actions of the Train Operator.

Consideration

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

58. I have taken into account the maximum penalty for this offence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ (Markarian).

59. The Court arrives at the appropriate sentence through a process of “instinctive synthesis” in which the sentencing judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to the appropriate sentence given those factors: Markarian at [51].

Objective seriousness

60. 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) 164 CLR 465; [1988] HCA 14 at 472, 485–6, 490–1 and 496 (Veen No 2). At common law, the term “objective circumstances” was used to describe the circumstances of a crime. The gravity of the offence was assessed by reference to its objective circumstances: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15].

61. This task requires the Court to consider where the conduct of Endeavour Coal falls in the range of conduct covered by the offence: Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 at 57. As Whealy JA said in BW v The Queen [2011] NSWCCA 176 at [70] (Hulme and Harrison JJ agreeing at [75]–[76]):

“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.”

62. The objective seriousness of an offence is to be determined by reference to the nature of the offending without reference to matters personal to a particular offender or class of offenders: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].

63. 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].

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

65. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96. Under the heading “Assessment of Risk”, Basten J said:

“[34] The sentencing judge commenced his consideration with the proposition that ‘[g]reater 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.”

66. 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 pressure event of the force 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.”

67. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the WHS 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 materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

Prosecutor’s submissions

68. The prosecutor submitted that this offence falls within the mid-range of objective seriousness. It pointed to the fact that the risk, well known to Endeavour Coal, was one of significant gravity due to its catastrophic potential consequences. Further, Endeavour Coal had identified the need to isolate the train when work was being carried out in the Drift, having done so at times in the months leading up to the incident. It was said that Endeavour Coal could therefore have implemented such a requirement as a permanent control measure with little burden, and that doing so would have prevented the scheduling of train maintenance simultaneously with work in the Drift.

68. The prosecutor contended that the controls that Endeavour Coal had developed to manage the risk were not the most effective measures available because they did not involve isolation of the train and therefore did not guard against the foreseeable risk of human carelessness and fallibility. In addition, it was said that Endeavour Coal’s pre-incident controls designed to manage the risk were not effectively implemented. There was no SOP for working in the Drift despite the fact that the need for one had been identified in a 2012 risk assessment. There was no demarcation of the work group through signage and flashing lights as required by the ROVOA plan. The Drift workers were unaware of these requirements and it had been many years since Mr Osgood had seen flashing beacon lights available for use.

69. The prosecutor noted that multiple workers were exposed to the risk by the incident. It submitted that the likelihood of the risk occurring was moderate because, in the months leading up to the incident, workers were tasked with working in the Drift when the train was undergoing maintenance and was therefore not isolated. The prosecutor accepted that Mr Osgood was inattentive to the control measures in place, but contended that little turned on this in circumstances where the duty under s 19(1) WHS Act requires persons conducting a business or undertaking to have regard to such matters and implement the most effective controls available.

70. In oral submissions the prosecutor accepted that the context for the incident was one in which there were safety systems in place, but contended that they were inadequate, both because they did not require the isolation of the train and because they relied heavily on the Train Operator to implement them. The prosecutor submitted that the Court should not have regard to the contribution of Mr Osgood to the creation of the risk as he was not charged in relation to the incident, the potential for human fallibility was foreseeable and the incident arose from the failure of Endeavour Coal to implement the higher and better control of isolating the train.

71. In support of its submission that it was available to the Court to find that the offence was a mid-range offence notwithstanding the failure of Mr Osgood to comply with Endeavour Coal’s existing safety systems, the prosecutor relied on Attorney General for NSW v McMahon Mining Services Pty Ltd [2019] NSWCCA 8 at [17]–[19]. In that decision, Beazley P (with whom Fullerton J agreed at [27]) overturned the sentencing judge’s finding that deferring the implementation of a simple safety measure designed to prevent what was considered to be the low probability of an accident due to a worker doing something that would almost inevitably result in serious harm was low range offending. The accident in that matter occurred in circumstances where the worker had been signed off multiple times on the applicable control measure which would have prevented the accident occurring.

Offender’s submissions

73. Endeavour Coal submitted that the objective seriousness of the offence is in the low range. First, it contended that although the relevant risk in this matter was identified by Endeavour Coal prior to the incident, in determining the extent of its foreseeability the Court is required to have regard to the existence of a settled system of work, adherence to which would have eliminated or reduced the risk. Therefore, in assessing the objective seriousness of the offence, Endeavour Coal urged the Court to have regard to the relative culpability of other duty holders. In particular, Endeavour Coal pointed to the role that Mr Osgood played in the creation of the risk as a person who was trained in the required procedure for when personnel are working in the Drift and had duties under subss 28(b) and (d) of the WHS Act. Endeavor Coal submitted that the Court should conclude that the likelihood of the risk occurring was low and required a series of failures to comply with the existing systems to eventuate.

74. Second, although Endeavour Coal, by its plea of guilty, accepted that it had failed to take the stated reasonably practicable measures, it submitted that the Court must also have regard to the effectiveness of the measures that were in place in preventing the risk from materialising over a lengthy period of time. In addition, Endeavour Coal acknowledged that the risk giving rise to the offence was a serious one but submitted that the seriousness of the offence is determined by the extent of its failure to prevent exposure to the risk rather than the consequence of the breach.

75. Endeavour Coal’s contention was that, prior to the incident, it had taken extensive measures to enforce a series of controls applicable to the risks of working in the Drift and operating the train in the Drift which, if complied with on the day of the incident, would have minimised the likelihood of the risk occurring “to a high degree”. A mid-range offence was said to be one where no steps had been taken, or where a single layer of control required a high level of compliance to prevent exposure of workers to the risk. The prosecutor’s submission that this offence falls within the mid-range of seriousness was said not to have proper regard to the extensive steps Endeavour Coal took to minimise the risk.

76. In oral submissions, Endeavour Coal pointed to the fact that Mr Osgood was aware that the workers were conducting work in the Drift and could only exit the Drift with his assistance so that he must have known that they were still there. While Endeavour Coal did not seek to blame Mr Osgood for the incident, his conduct was said to be consistent with the contention that had the existing systems been complied with, the risk would have been largely eliminated.

77. Endeavour Coal further submitted that although Mr Osgood stated in his record of interview that he couldn’t recall the existence of demarcation lights or barriers, the evidence of Mr Patten demonstrated that those measures were in place. Further, part of Mr Osgood’s role as the Train Operator was to adhere to the ROVOA, which specified at cl 4.3.2 that reflective warning signs and portable flashing lights were the control measures that he was meant to implement when people were working in the Drift. Further, Mr Osgood clearly knew demarcation lights and signs were part of the ROVOA, as he said as much in his record of interview.

78. Finally, Endeavour Coal also noted that the work group identified “isolate train” as the relevant control in their Take 2 risk assessment but did not contact Mr Osgood to ensure that control was carried out, as they were required to do.

Determination

79. I find the objective seriousness of the offence to be at the mid-range. In so doing, I accept Endeavour Coal’s submission that the foreseeability of the risk (and therefore the seriousness of the offence) has to be assessed in the context of the measures that were in place to control it: Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 342. Endeavour Coal had numerous safety measures in place to control the risks associated with operating the train in the Drift, including the risk of a collision with personnel working in the Drift. These included the requirement for the Train Operator to contact both the control room and the work group before entering the Drift in the train. Further, the Train Operator’s ability to monitor the screen in the Dolly Car of the train, which provided a rotating live feed from three cameras, provided visibility of a work group with more than sufficient time for the train to be stopped.

80. I accept that the implementation of any of those control measures would have significantly reduced, if not eliminated, the risk. However, as noted by the prosecutor, the difficulty with those control measures was that they depended on the reliability of a single individual to be effective. Accepting Mr Patten’s evidence concerning the availability of mechanical lights for use does not alter that basic problem. Mr Patten accepted that the work group had not seen the ROVOA and therefore could not have been expected to comply with it. Accordingly, the implementation of the control measures contained in the ROVOA was also dependent on the Train Operator. I accept that Mr Osgood had been trained in and was well aware of his obligation to comply with the required control measures. However, this reliance on the actions of one individual significantly undermined the effectiveness of the control measures that Endeavour Coal had in place.

81. In any event, Endeavour Coal accepted that the ROVOA was a high-level management plan. As such, it was of limited utility unless there was a procedure to implement it. The need for such a procedure had been identified many years earlier but had not been progressed. The Mobile Equipment Operations Transport Rules did not set out the control measures at cl 4.3.2 of the ROVOA.

82. The flashing lights in the Drift which signalled the movement of the train were operational and did not rely on Mr Osgood for their effectiveness. However, Endeavour Coal had effectively neutralised them as a control measure because of their activation by the conduct of maintenance activities at or near the surface. This caused the workgroup, who were aware that train maintenance was being conducted simultaneously with the work in the Drift, to disregard them. For the same reason, Endeavour Coal cannot rely on the failure of the workgroup to ensure that the train had been isolated – a control measure which they had identified – in mitigation of the seriousness of the offence, particularly as Mr Patten’s evidence was that isolation was an inappropriate control measure in all of the circumstances.

83. The reasonably practicable measures which Endeavour Coal failed to take were capable of implementation without significant burden or inconvenience to Endeavour Coal. Compliance with its own ROVOA was a rudimentary requirement that should have been met. There was no evidence from which I could be satisfied that workers had reflective warning signs available to them (as distinct from the mechanical flashing lights to which Mr Patten referred). The ease with which isolation of the train could have been implemented as a control measure is demonstrated by the fact that the train had been isolated and stationed near the workgroup when work was being undertaken in the Drift on occasion, notwithstanding the absence of any procedure for working in the Drift which stipulated this as a requirement.

84. The potential consequences of the risk to multiple workers were significantly greater than those which manifested in the serious injuries occasioned to Mr Rice on 18 July 2022 and included death.

Aggravating factors

85. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act. In order for the aggravating factor to be established, the Court must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the subject offence: R v Youkhana [2004] NSWCCA 412 at [26].

86. The offence does not require an injury to be sustained, but merely the creation of a risk of death or serious injury. The injuries sustained by Mr Rice are sufficient to establish the aggravating factor.

87. Endeavour Coal has two prior convictions. In issue at the sentence proceedings was whether those convictions should be treated as an aggravating factor pursuant to s 21A(2)(d) CSP Act. The first offence concerned a scaffold collapse onto a conveyor belt in breach of s 8(2) of the Occupational Health and Safety Act 2000 (NSW), which concerned the exposure of non-employees to a risk to their health or safety. Endeavour Coal pleaded guilty to this offence and was fined $65,000: Regan v Endeavour Coal Pty Ltd [2011] NSWIRComm 141. The more recent offence on 8 June 2019 involved a contract worker suffering serious injuries when his right foot fell into a moving conveyor. Endeavour Coal pleaded guilty to this offence and was fined $300,000: McColm v Endeavour Coal Pty Limited [2022] NSWDC 307.

88. The prosecutor’s position was that the instant offence arose because of a failure by Endeavour Coal to comply with its own systems, and that this had also been the case in relation to the 2019 offence. Therefore, the instant offence manifested a continuing attitude of disobedience to the law and “retribution, deterrence and the protection of society may indicate that a more severe sentence is warranted”: R v Shankley [2003] NSWCCA 253 per Howie J at [31] (Greg James J agreeing at [1] and Smart AJ agreeing at [41]). By contrast, Endeavour Coal submitted that its record of two prior convictions since it was incorporated 23 years ago, when viewed in the context of the scale of its operations, its workforce of approximately 1250 workers and its exposure to risk in an inherently dangerous industry does not warrant such a finding. In particular, the proximity of the instant offence to the 2019 offence was not a proper basis of aggravation, especially in the absence of evidence that the offences arose from a similar failure to comply with its duty.

89. In Veen (No 2),Mason CJ and Brennan, Dawson and Toohey JJ set out the relevant principles in relation to an offender’s prior convictions at 477:

“… The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind...”

90. The application of Veen (No 2) to the sentencing process was addressed by the Court of Criminal Appeal in Meis v The Queen [2022] NSWCCA 118, where Simpson AJA, with whom Rothman and Button JJ agreed, held at [42] that before an offender’s previous conviction could properly be taken into account as an aggravating factor, the sentencing judge must consider:

“•   whether the present offending was an uncharacteristic aberration;

•   whether the applicant manifested in the commission of these offences a continuing attitude of disobedience of the law; and

•   whether the applicant’s previous offence illuminates his moral culpability in relation to the current offending or shows a dangerous propensity, or a need to impose ‘condign punishment’ by way of specific and general deterrence.”

91. Whether or not the instant offence could be described as an “uncharacteristic aberration”, I am not satisfied that when proper regard is had to the scale of the mining enterprise operated by Endeavour Coal and the size of its workforce, it’s occurrence more than three years after the 2019 offence could fairly be described as manifesting a “continuing attitude of disobedience to the law”. On the contrary, the extensive safety systems which Endeavour Coal had in place at the time of the incident to which I have referred demonstrate that it had a genuine and significant regard for its safety obligations towards employees. Those systems included the fitting of the train with multiple safety features, the use of visible and audible pre-start warning alarms and a documented system for isolating the train. They also included a communications management plan which provided a resolution process for conflicting work tasks. The practice of undertaking maintenance of the train at or near the surface simultaneously with work being undertaken in the Drift does not lead me to a different conclusion, particularly given the evidence of the train being isolated at the job site when no such maintenance was occurring. Accordingly, this aggravating factor is not made out on the evidence before me.

Mitigating factors

92. Endeavour Coal is otherwise of good character: s 21A(3)(f) CSP Act. This is demonstrated by its actions after the incident, including in the provision of alternative work for Mr Rice. Endeavour Coal’s good character is also demonstrated by its significant community involvement, as outlined by Mr Patten.

93. However, Endeavour Coal’s criminal antecedents are such that I cannot find, even on the balance of probabilities, that it is unlikely to reoffend: s 21A(3)(g) CSP Act. I nonetheless accept that Endeavour Coal has good prospects of rehabilitation pursuant to s 21A(3)(h) CSP Act, because of the significant investment that it has made to its safety systems in the wake of the offence and the practice that it has now adopted of ensuring that train maintenance does not occur simultaneously with work in the Drift.

94. Mr Patten’s evidence is to the effect that Endeavour Coal has accepted responsibility for its actions, acknowledged that its failures led to the injury of Mr Rice and is genuinely contrite. I accept that evidence as a demonstration of Endeavour Coal’s remorse for the offending: s 21A(3)(i) CSP Act.

95. Endeavour Coal entered a plea of guilty on 19 May 2025 to the charge particularised in an Amended Summons of that date. The plea of guilty was entered at the fifth mention of proceedings commenced more than 10 months earlier on 3 July 2024. The agreed Statement of Facts was finalised more than two months later. A small number of facts which were not agreed resulted in the prosecutor being required to adduce evidence to establish the complete factual basis upon which it wishes the Court to sentence Endeavour Coal. It therefore contends that a discount of 15–20% would be appropriate.

96. In arguing that it should receive the full 25% discount for its guilty plea, Endeavour Coal pointed to the very large brief of evidence and considerable factual and technical complexities of the matter, together with its relatively early indication of its intention to plead guilty to an Amended Summons so that negotiations with the prosecutor commenced in mid-November 2024. It contends that its entry of a guilty plea in May 2025 was the earliest opportunity to enter a plea of guilty to a charge that was appropriately pleaded.

97. Endeavour Coal is entitled to a discount on penalty that reflects the utilitarian value of that early plea. The quantum of the discount, which will not be greater than 25%, is largely determined by the timing of the plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [123] (Thomson); R v Borkowski [2009] NSWCCA 102 at [32] (Borkowski). Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154]; Borkowski at [32]. In addition, Borkowski at [32] sets out the following well established principles:

“…8. Generally, the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280.

9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448...”

98. Endeavour Coal submitted that the duration of negotiations as to the content of Agreed Facts is not a matter which erodes the utilitarian benefit of a guilty plea. While I accept that submission, it does not address when the guilty plea was first entered or indicated, which can of course occur in advance of any agreement as to facts. There is no evidence before the Court that would enable me to make a finding about when Endeavour Coal first indicated to the prosecutor that it would enter a plea of guilty to a charge in the form as ultimately particularised, beyond the timing of the plea itself. The reasonably practicable measures which Endeavour Coal accepts that it failed to take, set out in the Amended Summons, are significantly more confined than the terms of the Summons as filed in July 2024. The negotiation of those numerous changes was necessarily to the benefit of Endeavour Coal. In all of the circumstances, I cannot accept that the plea was entered at the earliest opportunity. I accept, however, that it was entered before the matter was set down for hearing and brought with it a significant utilitarian benefit. Accordingly, I accept that a discount of 20% is appropriate in the circumstances: ss 21A(3)(k) and 22 CSP Act.

98. Endeavour Coal submitted that its cooperation with the authorities is a matter which should operate in mitigation of the sentence to be imposed upon it, both because it cooperated with the Resources Regulator’s investigation and statutory disclosure requirements and because it consented to the Statement of Facts relied upon by the prosecutor. While the prosecutor did not oppose that submission, there is no evidence before the Court about the extent to which Endeavour Coal cooperated with the Resources Regulator’s investigation beyond the tender by consent of a Statement of Facts. Accordingly, I make no finding about the ease or timeliness with which Endeavour Coal was able to meet the requirements of the regulator’s investigation. I do accept that Endeavour Coal has taken significant steps in response to the incident to improve its safety systems. This has been recognised by way of findings both as to its good character and prospects of rehabilitation.

99. Further, as set out above, Endeavour Coal resisted the tender of procedures which it had provided to the Resource Regulator in response to a notice or notices served upon it. That circumstance, together with Endeavour Coal’s belated agreement to the admission of the involved workers’ records of interview (in response to the relevant statutory notice) undermines the submission that cooperation with the authorities was demonstrated by consent to the tender of the prosecutor’s Statement of Facts. Accordingly, I am not able to find that assistance to the authorities operates as a mitigating factor on sentence: s 21A(3)(m) CSP Act.

Deterrence

101. The penalty imposed in relation to this offence must provide for general deterrence. Endeavour Coal continues to operate a significant mining business. Mining work is inherently dangerous. There is nothing in the circumstances of either the offence or Endeavour Coal that would permit a finding that Endeavour Coal is not a suitable vehicle for general deterrence or that the role of general deterrence in the sentencing exercise should be minimal.

102. In relation to specific deterrence, I accept that Endeavour Coal has demonstrated a commitment to safety in what is an inherently dangerous industry in the proactive steps that it has taken and the significant investment that it has made in safety programs and initiatives since the incident occurred. Accordingly, while specific deterrence continues to be relevant, it is not a matter of significant weight in determining the appropriate sentence to be imposed.

Capacity to pay a fine

103. The Court is required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Endeavour Coal has not provided any evidence concerning its capacity to pay a fine and makes no submission in that regard.

104. In Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal recognised that a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation and that the maximum penalty for the offence was “undoubtedly” set having regard to that circumstance.

Penalty

105. The appropriate fine is $800,000, which will be reduced by 20% to reflect the plea of guilty.

106. I make the following orders:

1. I convict Endeavour Coal Pty Ltd of the offence as charged.

2. I impose a fine of $640,000.

3. Endeavour Coal Pty Limited is to pay the prosecutor’s costs of the proceedings as agreed or assessed.

4. Pursuant to s 122(2) Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.

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Decision last updated: 24 October 2025