District Court
New South Wales
- Amendment notes
Medium Neutral Citation: Orr v Burgess Earthmoving Pty Ltd [2021] NSWDC 583 Hearing dates: 22 October 2021 Date of orders: 29 October 2021 Decision date: 29 October 2021 Jurisdiction: Criminal Before: Russell SC DCJ Decision: In the s 19(2) District Court proceedings 2020/254132:
(1) Burgess Earthmoving Pty Ltd is convicted.
(2) The appropriate fine is $180,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3) Order Burgess Earthmoving Pty Ltd to pay a fine of $135,000.
(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 Burgess Earthmoving Pty Ltd to pay the prosecutor’s costs agreed in the amount of $27,500.
In the s 19(1) District Court proceedings 2020/254076:
(1) Burgess Earthmoving Pty Ltd is convicted.
(2) The appropriate fine is $140,000 but that will be reduced by 25% to $105,000 to reflect the early plea of guilty, and further reduced to $45,000 having regard to the totality of the offending behaviour.
(3) Order Burgess Earthmoving Pty Ltd to pay a fine of $45,000.
(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 Burgess Earthmoving Pty Ltd to pay the prosecutor’s costs agreed in the amount of $27,500.
(6) Note that the total fines are $180,000 and the total costs are $55,000.
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 – principle of totality
COSTS – prosecution costs
OTHER – defendant was operator of a hard rock quarry –flyrock ejected from blast landing in vicinity of both workers and members of the public – lack of any qualified Quarry Manager –inadequate instructions and training provided in relation to working with explosives – failure to maintain safe system of work for blasting operations
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
Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW) cll 31, 137, 185, Sch 10
Cases Cited: Baumer v R [1988] HCA 67; (1988) 166 CLR 51
Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
Camilleri’s Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
EPA v Barnes [2006] NSWCCA 246
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
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- AGLC
- Orr v Burgess Earthmoving Pty Ltd [2021] NSWDC 583
- Case
- [2021] NSWDC 583
- Decision Date
CaseChat Overview and Summary
The court had to determine the objective seriousness of the offending behaviour, taking into account various factors such as the potential for death or serious injury, the adequacy of safety measures, and the company's response to the incident. The court also had to consider mitigating factors such as the early plea of guilty, as well as any aggravating factors that might have exacerbated the risk to workers and the public. The objective was to ensure that the penalty reflected the gravity of the breach and served the purposes of general and specific deterrence, while also considering the company's capacity to pay.
In delivering its judgment, the court found that the company's failings were significant and had created a substantial risk of death or serious injury. Despite the mitigating factor of the early plea of guilty, the court found the overall conduct of the company to be egregious enough to warrant a substantial penalty. The fine was initially set at $180,000, but was reduced by 25% to $135,000 for the early plea. Considering the totality of the offending behaviour, the court further reduced the fine to $45,000. The court also ordered that 50% of the fine be paid to the prosecutor and that the company pay the agreed prosecutor’s costs of $27,500.
The court's orders included a conviction against Burgess Earthmoving Pty Ltd, a fine of $45,000, a requirement that 50% of the fine be paid to the prosecutor, and payment of agreed prosecutor’s costs amounting to $27,500. The total fines and costs amounted to $180,000 and $55,000 respectively.
Orders
Orders of the court
In the s 19(2) District Court proceedings 2020/254132:
(1) Burgess Earthmoving Pty Ltd is convicted.
(2) The appropriate fine is $180,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3) Order Burgess Earthmoving Pty Ltd to pay a fine of $135,000.
(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 Burgess Earthmoving Pty Ltd to pay the prosecutor’s costs agreed in the amount of $27,500.
In the s 19(1) District Court proceedings 2020/254076:
(1) Burgess Earthmoving Pty Ltd is convicted.
(2) The appropriate fine is $140,000 but that will be reduced by 25% to $105,000 to reflect the early plea of guilty, and further reduced to $45,000 having regard to the totality of the offending behaviour.
(3) Order Burgess Earthmoving Pty Ltd to pay a fine of $45,000.
(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 Burgess Earthmoving Pty Ltd to pay the prosecutor’s costs agreed in the amount of $27,500.
(6) Note that the total fines are $180,000 and the total costs are $55,000.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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