NSW Resources Regulator v Rockwoods Investment Group Pty Ltd

[2024] NSWDC 39

District Court

New South Wales

Medium Neutral Citation:

NSW Resources Regulator v Rockwoods Investment Group Pty Ltd [2024] NSWDC 39

Hearing dates:

20 February 2024

Date of orders:

28 February 2024

Decision date:

28 February 2024

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Rockwoods Investment Group Pty Ltd

is convicted.

(2)   The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Rockwoods Investment Group Pty Ltd to pay a fine of $150,000.

(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 Rockwoods Investment Group Pty Ltd to pay the prosecutor’s costs agreed in the amount of $84,500.

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 – hard rock quarry – blast – flyrock landing in vicinity of others – exclusion zone – inadequate notice of blast delay

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22

Explosives Act 2003 (NSW)

Fines Act 1996 (NSW), ss 6, 122

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

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146

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

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

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

Category:

Sentence

Parties:

NSW Resources Regulator (Prosecutor)
Rockwoods Investment Group Pty Ltd (Defendant)

Representation:

Counsel:
G Lewer (Prosecutor)
M Seck (Defendant)

Solicitors:
McCullough Robertson (Prosecutor)
McPhee Kelshaw (Defendant)

File Number(s):

2023/108382

Judgment

1. On 8 April 2021 a blast was fired at the Cootamundra Quarry (the Quarry) causing flyrock to eject. The flyrock landed in the vicinity of two individuals in the Exclusion Zone whose properties adjoined the Quarry.

2. Rockwoods Investment Group Pty Ltd (Rockwoods) has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19(2) of the Work Health and Safety Act 2011 (NSW) (the WHS Act) it failed to comply with that duty and thereby exposed Steven Armstrong and Adam Bell to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. The maximum penalty for the offence is a fine of $1,766,130.

4. In proceedings 2023/108404 Rockwoods was charged with a breach of its health and safety duty under s 19(2) of the Act, and it was alleged that the failure to comply with that duty exposed persons other than workers to a risk of death or serious injury contrary to s 32 of the WHS Act.

5. In proceedings 2023/108415 Rockwoods was charged with a breach of its health and safety duty under s 19(1) of the WHS Act, and it was alleged that the failure to comply with that duty exposed workers to a risk of death or serious injury contrary to s 32 of the WHS Act.

6. In both those proceedings leave was granted to the prosecutor on 9 October 2023 to file in court an Amended Summons and a Statement of Facts. The court was informed that both matters would be dealt with on a Form 1.

7. At the sentence hearing on 20 February 2024 leave was granted to the prosecutor to file in court a Form 1 dealing with the charges in proceedings numbered 2023/108404 and 2023/108415. On 20 February 2024 those two proceedings were dismissed, on the basis that the charges would be dealt with on a Form 1 in proceedings 2023/108382.

8. While the court is sentencing for the offence particularised in the Amended Summons, it must take into account the matters on the Form 1 for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process, being specific deterrence and retribution – Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146.

9. In that guideline judgment the Chief Justice said that the focus throughout must be on sentencing for the primary offence. It will rarely be appropriate for the sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences – at [43]-[44].

The Risk

10. The risk described in par 17 of Annexure A to the Amended Summons is as follows:

“17. The risk was the risk of persons other than workers, in particular Steven Armstrong and/or Adam Bell, suffering death or serious injury as a result of being struck by flyrock ejected from the Blast (Risk).”

Reasonably Practicable Measures

11. Paragraph 18 of Annexure A to the Amended Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(2) of the WHS Act as follows:

“18. The Defendant failed to ensure, so far as was reasonably practicable, that the health and safety of other persons, and in particular Steven Armstrong and Adam Bell, was not put at risk in that it failed to take one or more of the reasonably practicable measures set out in paragraphs 18(a) to (h) below to eliminate the Risk, or if it was not reasonably practicable to eliminate the Risk, to minimise or otherwise reduce the Risk:

(a)   Clearing and enforcing the Exclusion Zone by:

(i)   attending the Tegra Property as part of the Exclusion Zone clearance;

(ii)   adequately monitoring and managing access to the Tegra Property once the Exclusion Zone had been cleared;

(iii) adequately inspecting the pit for individuals shortly prior to the Blast;

(b) Complying with the Notification Requirement by calling Mr Armstrong and Mr Bell to inform them of the Blast approximately 1 hour prior to the Blast

(c) Complying with the Blast Sign Requirement in the DBMP and displaying the time of the Blast on the blast notification boards at the entrance to the Quarry;

(d) Updating the time of the Blast displayed on the blast notification boards at the entrance to the Quarry once the Blast was delayed;

(e) Providing and implementing a Quarry-specific procedure, in the ECP or elsewhere, for the clearing of individuals from the Exclusion Zone including the pit;

(f ) Providing and implementing a procedure, in the ECP or elsewhere, to manage the risks associated with a change in planned blast times which included a requirement to:

(i) notify neighbours of any delays in planned blast times;

(ii) update the blast notification boards at the entrance to the Quarry with revised blast times;

(g) Providing workers involved in blasting operations at the Quarry with adequate training and instruction regarding the ECP and DBMP including the use of blast notification boards as contemplated by the Blast Sign Requirement;

(h) Verifying compliance with the DBMP including, but not limited to, the requirements particularised at paragraph 18(a) to 18(c) above through regular observations, audits and inspections.”

Background

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

The Quarry

13. Rockwoods was the owner and the mine operator of the Cootamundra Quarry, located approximately five kilometres south of Cootamundra in New South Wales. The Quarry was adjacent to other properties. To the east was a concrete batching plant owned by Tegra Australia Pty Ltd (the Tegra property). The batching plant included a large excavated hole known as the “pit” which provided a source of water to both the Quarry and the Tegra property. The batching plant was managed by Mr Steven Armstrong.

14. To the west of the Quarry was a residential and agricultural property occupied by Mr Adam Bell (the Bell property).

15. The Quarry also shared boundaries with:

1. A recreation area known as Pioneer Park to the east of the Quarry.

2. Three other rural properties known as Gilgal, Rippling Waters and Lara.

The Incident

16. At 2.23pm on 8 April 2021, a blast was fired at the Quarry while Mr Armstrong and Mr Bell were within the blast exclusion zone. Flyrock was ejected from the blast and landed in the vicinity of Mr Armstrong who was then on the Tegra property.

17. The NSW Resources Regulator (the Regulator) conducted an investigation into the incident and identified the following causal factors:

1. Failure to have the time of the blast displayed on the blast sign at the front gate of the Quarry.

2. Failure to have a documented system to notify Tegra workers about the blast.

3. Failure to have a system to ensure that the Tegra site was cleared of personnel prior to the blast.

4. Failure to implement a system to manage access to the Tegra property, once it was confirmed to be cleared.

5. Failure to have a system to notify neighbouring residents impacted by the blast Exclusion Zone of the delayed blast.

6. Subsequent failure to notify the Tegra manager that the blast was delayed.

7. Failing to ensure that neighbouring residents were outside the blast Exclusion Zone prior to the blast.

8. Failing to implement a system to ensure that the entire blast Exclusion Zone was clear of people on neighbouring properties.

Safety Management System

18. Rockwoods had a documented safety management system addressing the risks to health and safety associated with blasting operations and the use of explosives at the Quarry. The investigation by the Regulator found that Rockwoods had identified the relevant hazards and risks within its operational risk assessments.

19. Rockwoods was aware that persons located within the Exclusion Zone during a blast were at risk of death or serious injury.

Preparing for the Blast

20. Mr Holmes, the acting drill and blast supervisor, designed a blast intended for 8 April 2021. In the two weeks leading up to 8 April 2021 blast holes were drilled.

21. On 7 April 2021 Mr Holmes spoke to Mr Bell about the blast, proposed to take place at 1.00pm on 8 April 2021. Rockwoods did not notify anyone from Tegra, Rippling Waters or Gilgal about the blast plan for 8 April 2021.

22. At 6.30am on 8 April 2021 Mr Johnson, the Quarry supervisor, conducted a toolbox talk in relation to the blast to take place at 1.00pm. Notifying neighbours was part of the toolbox talk. However, the toolbox talk was not attended by Mr Holmes, Mr Wilson (the shotfirer) or Mr Woods (the operations manager, acting Quarry manager and blast guard).

23. On the morning of 8 April 2021 Mr Johnson attended the Tegra property and spoke to Mr Armstrong about the blast proposed for 1.00pm later that day. He did not inform Mr Bell or any other Quarry neighbours of the proposed blast at 1.00pm.

24. At about 11.30am Mr Johnson became aware that the blast which had been planned for 1.00pm would be delayed until about 2.00pm, due to work loading the shot taking longer than anticipated. However, Mr Armstrong was not informed of the updated blast time. He left the Tegra property at about 12 noon to travel to town.

Clearing the Quarry for the Blast

25. At about 1.30pm Mr Holmes called Mr Johnson and asked him to clear the site from the blast. Mr Johnson drove a ute around the Quarry to make sure no-one was present and to clear personnel from the Quarry. He drove along the western edge of the pit but did not look into or enter the pit, despite it being within the Exclusion Zone.

26. Between 1.30pm and 1.45pm Mr Armstrong, who believed that the blast had been completed as originally planned, returned to the Tegra property. He drove past the Quarry entrance to access the Tegra property, but there was no blast notification sign displaying any time for the blast.

27. After Mr Johnson completed his sweep, he reported that the Quarry was clear. Three blast guards then took up positions in anticipation of the blast. None of the blast guards checked Pioneer Park to ensure that the Exclusion Zone was clear of individuals.

28. At around 2.00pm Mr Wilson (acting shotfirer) walked to the blast initiation point and told Mr Holmes that the blast was ready to fire. Mr Wilson took some further time to position equipment.

29. Between 2.00pm and 2.10pm Mr Armstrong left the Tegra office and drove a concrete truck into the pit and commenced filling it with water.

30. Mr Wilson made a radio broadcast to request confirmation that all was clear. Two of the blast guards had poor radio reception and did not communicate. Mr Wilson nevertheless commenced the blast initiation process.

31. At 2.23pm Mr Wilson fired the blast in the southern part of the Quarry. At the time of the blast both Mr Armstrong and Mr Bell were located within the Exclusion Zone and were exposed to a risk of death or serious injury as a result of being struck by flyrock ejected from the blast.

32. Mr Armstrong was located in the pit approximately 340 metres from the blast area. He felt a blast wave and realised the risk involved. He dove behind his concrete truck to shield him from flyrock which flew past his location. Some of the flyrock was the size of a fist.

33. Mr Bell was located on the Bell property which was within the Exclusion Zone but no flyrock flew past him.

34. After taking shelter as described, Mr Armstrong attended the Quarry office and informed Rockwoods of the incident. The blast was not video-recorded, as it should have been.

Post-Incident Events

35. Mr Johnson reported the incident to the Regulator. Rockwoods conducted an investigation into the incident and provided its Incident Investigation Report dated 16 April 2021 to the Regulator. This report explained that the cause of the incident was “system failures/failure to comply with [Rockwood’s] current policies and procedures”. The report identified the following “system failures”:

1. Radio communications failure.

2. Failure to record blast activities.

3. Exclusion Zone clearance.

4. Inadequate evacuation of site.

5. Communication of time of intended blast.

6. All risks not identified prior to blasting.

7. Generic risk assessment used for blast operations.

Post-Incident Changes to Systems and Procedures

36. After the incident Rockwoods introduced a Pre-Blast Checklist to set out various controls which had to be in place for a blast. The shotfirer, the blast supervisor, the Quarry supervisor/manager and all blast guards had to sign off on the document prior to blasting.

37. Rockwoods implemented site-specific blast management plans. Rockwoods updated contact details for Quarry neighbours. Rockwoods determined to use a drone to inspect Pioneer Park as part of a clearance of the Exclusion Zone prior to the blast.

Post-Incident Sale of Quarry Business

38. On 1 July 2021 Rockwoods entered into an agreement to sell the entirety of its Quarry and concrete business, comprising 13 quarries and 7 fixed concrete plants. The sale was completed on 30 September 2021. Rockwoods no longer operates any quarries or mines.

Evidence for the Defendant

Affidavit of C Woods (DX 1)

39. Mr Woods, together with his brother Mr Brett Woods, is a director of the defendant. Rockwoods has conducted hard rock quarries and extractive industry operations in New South Wales and Queensland for approximately 40 years. P. A. Woods & Co Pty Ltd (Woods Group) is “the effective holding company” of the defendant.

40. After approaching the Woods Group in 2019, EB Mawson & Sons Pty Limited (Mawsons) bought the defendant’s “quarries, plants and equipment”. The sale was completed on 1 October 2021, ending the Woods Group’s involvement in the quarrying industry. The defendant has not operated since, and a 10-year restraint prevents Rockwoods, Mr Woods and Mr Brett Woods from “returning to the ownership or operation of quarries” until 30 September 2031. Mr Woods is now retired and breeds horses as a hobby on his rural property. Neither Mr Woods nor his brother are involved in the quarry industry and Mr Woods states that he will not undertake such work again.

41. After the 8 April 2021 incident, the defendant’s team did not conduct blasting at the Cootamundra site. Instead, Rockwoods engaged “experienced external contractors” to conduct blasts.

42. Mr Brett Woods had a shotfirer’s licence, granted under the Explosives Act 2003 (NSW) but that lapsed and was not renewed.

43. In his affidavit, Mr Woods addresses the defendant’s prior conviction relating to an explosives storage magazine. Mr Woods states that an administrative error caused the defendant’s magazine licence to lapse without renewal.

44. Mr Woods said that he is “profoundly sorry” for the event and the “defendant’s failures which cause the event”. Mr Woods also apologised to Mr Armstrong and Mr Bell for failing to advise of the delaying in blasting and for any hurt suffered.

Affidavit of T Nolan (DX 2)

45. Ms Nolan was the defendant’s Executive Business Manager (EBM) from 2 April 2013, during which she also performed secretarial duties. Ms Nolan presently works under contract for the defendant.

46. Ms Nolan’s affidavit confirms that the defendant has not engaged in conducting quarries since 1 October 2021 when Mawsons took over the defendant’s quarries.

47. Since 2013, Ms Nolan has revised and updated the defendant’s Work Health Safety (WHS) system and developed new Standard Operating Procedures (SOPs).

48. The 8 April 2021 event was immediately recognised as a “serious matter”. Work on the site immediately stopped and the Resources Regulator was notified. Following the 8 April 2021 event, the Cootamundra site was immediately secured. No quarry work occurred until the Regulator approved its resumption.

49. In accordance with the defendant’s WHS system and SOPs, the defendant commenced an internal investigation. The defendant’s employees who were engaged in the conduct of the 8 April 2021 blast, being Edward Holmes and Richard Wilson, were stood down pending the outcome of the investigation.

50. On 8 April 2021 the defendant’s Senior Safety Officer (SSO), Mr Simon Taylor, was on leave after resigning. The defendant was recruiting a new SSO.

51. Ms Nolan describes the defendant’s hard work to “establish itself as a good corporate citizen”, detailing the defendant’s large donations to various community groups and organisations in the Riverina area.

Consideration

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

Objective Seriousness of the Offence

53. 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].

54. 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].

53. 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.”

56. 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].

57. 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.

58. 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.

59. The Court of Criminal Appeal has examined the sentencing process with regard to the WHS 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.”

60. 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.”

61. 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 materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

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

1. The risk of flyrock being ejected from a blast is ever present in quarrying operations. It is for this reason that there must be an Exclusion Zone around a blast. The risk was foreseeable and foreseen by Rockwoods.

2. If proper procedures were not followed, including absolute enforcement of the Exclusion Zone, then there was a significant likelihood of a risk to health and safety.

3. The potential consequences of being struck by flyrock were obviously death or serious injury.

4. There were available steps to eliminate or minimise the risk. All of them were known to Rockwoods but it failed to follow its own procedures in many respects.

5. The burden or inconvenience of steps to be implemented was minimal. The use of explosives and blasting at quarries is an inherently dangerous activity, which is necessary for the commercial operation of the quarry. The cost of taking appropriate steps to eliminate risks to health and safety is simply part of the commercial cost of operating a quarry.

6. As counsel for the Regulator put it, the fact that no-one was harmed was a matter of good luck rather than good management. Fortunately Mr Armstrong was able to take evasive action, and thus no-one was struck by flyrock.

7. The maximum penalty for the offence is a fine of $1,766,130, which reflects the legislature’s view of the seriousness of the offence.

63. I find that the level of culpability of Rockwoods is in the mid range.

Deterrence

64. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS 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].

65. The penalty must reflect the need for specific deterrence, although this is a very minor factor, as Rockwoods has ceased operating the quarry and its principals have retired from business activities.

Aggravating Factors

66. There are no aggravating factors.

Mitigating Factors

67. Rockwoods does not have a significant record of previous convictions: s 21A(3)(e) CSP Act.

68. Rockwoods is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident demonstrate this. At the time of the incident Rockwoods had been in business for 22 years. Further, it was a good corporate citizen which had made many generous donations to local community organisations.

69. Rockwoods is unlikely to re-offend: s 21A(3)(g) CSP Act.

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

71. Rockwoods has shown remorse for the offence: s 21A(3)(i) CSP. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the risk of injury was caused by its actions.

72. Rockwoods entered a plea of guilty: s 21A(3)(k) CSP Act. 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) CSP Act. It is appropriate to give Rockwoods a 25% discount for an early plea.

73. Rockwoods gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

74. 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.

75. 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.”

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

Costs

77. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs in the sum of $84,500.

Penalty

78. My orders are:

1. Rockwoods Investment Group Pty Ltd is convicted.

2. The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Rockwoods Investment Group Pty Ltd to pay a fine of $150,000.

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 Rockwoods Investment Group Pty Ltd to pay the prosecutor’s costs agreed in the amount of $84,500.

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Decision last updated: 28 February 2024