Young Mining Company Pty Ltd v NSW Resources Regulator

Case •

[2023] NSWDC 430

•

17 October 2023

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: Young Mining Company Pty Ltd v NSW Resources Regulator [2023] NSWDC 430
Hearing dates: 4 and 8 September 2023
Date of orders: 17 October 2023
Decision date: 17 October 2023
Jurisdiction:Criminal
Before: Scotting DCJ
Decision:

(1) The appeal against severity is allowed.

(2) I set aside the fines imposed by the magistrate.

(3) In lieu thereof, I make the following orders:

(a) for the s 378 offence, YMC is convicted and I impose no further penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999;

(b) for the s 193 offence (IN ending 1385), I impose a fine of $7,000;

(c) for the s 193 offence (IN ending 1416), I impose fine of $5,500;

(d) for the s 193 offence (IN ending 1385), I impose fine of $5,500;

(e) for the s 197 offence (PN ending 2323), I impose a fine of $35,000.

Catchwords:

SENTENCING — Appeal against sentence — Severity

Legislation Cited:

Crimes (Appeal and Review) Act 2001

Crimes (Sentencing Procedure) Act 1999

Mining Act 1992

Work Health and Safety Act 2011

Cases Cited:

R v Borkowski (2009) 195 A Crim R 1

R v Doan (2000) 50 NSWLR 115

R v Thomson & Houlton (2000) 49 NSWLR 383

Category:Principal judgment
Parties: Young Mining Company Pty Ltd (Appellant)
NSW Resources Regulator (Respondent)
Representation:

Counsel:
D Nagle (Appellant)
G Lewer (Respondent)

Solicitors:
Mahony Law (Appellant)
Hunt & Hunt (Respondent)
File Number(s): 2020/44310
2020/127516
2020/127692
2020/128850
Publication restriction: None
 Decision under appeal 
Court or tribunal:
Cootamundra
Jurisdiction:
Local Court
Date of Decision:
15 August 2022
Before:
Magistrate Kiely

Judgment

Introduction

  1. Young Mining Company Pty Ltd (YMC) appeals against the severity of sentences imposed on it by her Honour Magistrate Kiely (the magistrate) sitting at the Cootamundra Local Court on 15 August 2022.

  2. YMC had pleaded guilty to the following offences:

  1. three counts of failing to comply with an Improvement Notice contrary to s 193 Work Health and Safety Act 2011 (the Act), for which it was fined;

  1. $25,000 for the offence related to the Improvement Notice ending 1385;

  2. $30,000 for the offence related to the Improvement Notice ending 1416;

  3. $38,000 for the offence related to the Improvement Notice ending 2376.

  1. one count of failing to comply with a Prohibition Notice contrary to s 197 of the Act for which it was fined $69,885 (a sum which the magistrate was erroneously informed was the jurisdictional limit of the Local Court); and

  2. one count of breaching a condition of a mining authorisation contrary to s 378(1)(a) Mining Act 1992 for which it was fined $35,000.

  1. The total amount of the fines imposed was $197,855 and YMC was ordered to pay the prosecutor’s costs of the proceedings in the sum of $155,000.

  2. There is no appeal from the costs order.

  3. The magistrate was provided with incorrect figures for the maximum penalties and the jurisdictional limit of the Local Court for the s 193 and s 197 offences. The maximum penalty for the s 193 offence was a fine of $250,000. The maximum penalty for the s 197 offence was a fine of $500,000. The jurisdictional limit when the matters were dealt with in the Local Court was a fine of $50,000, subject to the application of the principles set out in R v Doan (2000) 50 NSWLR 115. It follows that the appeal against the penalty imposed for the s 197 offence must be allowed, because the penalty imposed for that offence exceeded the jurisdictional limit.

  4. The magistrate assessed the objective seriousness of the other offences, without stating what facts she took into account in coming to those conclusions. In particular, the magistrate made little reference to the YMC’s case on sentence. Taking into account the relevant aggravating and mitigating facts, I have come to a different conclusion as to the objective seriousness of the offences. YMC also points to the penalties imposed for similar offences that have been published on the Regulator’s website. YMC contends that the collective effect of those decisions is that the appropriate penalty for the offences is well below the penalties imposed by the magistrate. Taking into account all of the evidence, there is considerable force in this submission. Finally, the magistrate reduced the discount for the pleas of guilty on the basis of YMC’s challenge to some of the facts. For the reasons I will come to, in my view the amount of the reduction was excessive.

  5. Section 17 Crimes (Appeal and Review) Act 2001 provides that an appeal against sentence is a rehearing of the evidence given in the Local Court and that fresh evidence may be given.

  6. I have concluded that the appeal against severity should be allowed and new penalties imposed for these reasons set out in this judgment.

Facts

  1. YMC was incorporated in 1952.

  2. YMC operates a mine at Thuddungra, New South Wales. It is authorised through a consolidated mining lease (the lease) to extract chromite, dolomite and magnesite. On 4 August 2017 the lease was extended until 29 August 2033.

The Mining Act offence

  1. Under the lease, YMC is required to rehabilitate the land to the satisfaction of the Minister in accordance with the rehabilitation strategy and to provide and maintain a security deposit to secure the fulfilment of its obligations to rehabilitate the land.

  2. On 28 September 2018 the security deposit was increased from $1,103,000 to $1,897,000. YMC was notified of the increase and its rights to seek a review of the increase. On 4 October 2018 the time for lodging a review was extended to 15 November 2018.

  3. On 15 November 2018 YMC applied for a review.

  4. On 10 January 2019 a delegate of the Minister for Resources issued a review of its decision, amending the amount of the security deposit required to $1,787,641. On 11 January 2019 YMC was notified as to the outcome of the review.

  5. On 15 January 2019 the Department endorsed the review and wrote to YMC advising that the sum of $684,641 was required to be lodged. No due date was provided for the payment.

  6. On 30 January 2019 YMC was advised that the due date for the new security amount was 26 February 2019.

  7. On 28 February 2019 an extension for the payment was given to 12 March 2019, but YMC was not notified of this extension.

  8. On 13 March 2019 an email was sent to YMC asking when payment would be effected.

  9. On 9 April 2019 YMC was sent a Notice of Proposed Direction to Suspend Operations under the lease, requiring YMC to make submissions by 30 April 2019.

  10. YMC made submissions in response to the Notice on 18 April 2019, 24 April 2019 and 30 April 2019.

  11. On 9 May 2019 the Department confirmed receipt of YMC’s submissions and advised that the Regulator would consider them.

  12. On 3 July 2019 the Department advised YMC that it was required to pay the outstanding security deposit amount or make any further submissions about it by 10 July 2019.

  13. On 10 July 2019 YMC sought an extension of time to make submissions to 24 July 2019. The Resources Regulator agreed to extend the time to 24 July 2019 and advised YMC that each day the security deposit remained outstanding constituted an offence under the Mining Act.

  14. On 23 July 2019 YMC advised that it had no further submissions to make on the issue and maintained its position that the security deposit had not been properly or fairly determined. YMC did not pay the security deposit on or before 24 July 2019.

  15. On 31 July 2019 YMC was served with a Suspension Notice based on its failure to pay the increased security deposit.

  16. On 6 August 2019 YMC commenced proceedings in the Supreme Court of New South Wales for appropriate relief.

  17. On 5 September 2019 Consent Orders were entered in the Supreme Court proceedings. It was agreed that YMC would pay the remainder of the security deposit by 18 May 2021 on the basis that the Department revoked the Suspension Notice with effect from 31 July 2019.

  18. On 5 September 2019 the Department accepted 50% of the security deposit in the amount of $342,330.50.

  19. On 3 April 2020 an application was made by YMC to extend the time to pay the remaining 50% of the security deposit to 18 November 2020, which was accepted by the Department.

  20. On 17 November 2020 the balance of the security deposit was paid.

The Work Health and Safety Act Offences

Improvement Notice ending 1385

  1. On 18 February 2019 Inspector Jones from the Regulator issued an Improvement Notice ending 1385 to Aditya Jhunjhunwala, a director of YMC, containing directions to attend to 14 matters identified by the Inspector at the Mine, including the following:

  1. an audit of all mobile plant on site and the installation of pressure relief radiator caps or recovery systems that did not expose workers to the risk of burns when releasing a radiator cap under pressure (Direction 7);

  2. carry out repairs to damaged structure and install suitable impact protection (Direction 9); and

  3. remove spillage from walkways and pulleys and plant, install guarding to the underside of conveyors as required to protect workers from dropped objects (Direction 12).

  1. The Improvement Notice specified that the work was to be completed on or before 15 March 2019.

  2. On 7 March 2019 Kevin Davidson, Quarry Manager of YMC, emailed Inspector Jones requesting an extension of six weeks until the 26 April 2019 to complete the work in the Improvement Notice and providing a progress report. The progress report indicated that Directions 7, 9 and 12 were not complete but were in progress.

  3. On 13 March 2019 Inspector Jones granted an extension of the compliance date to 16 April 2019.

  4. On 18 April 2019 YMC provided to the Department a detailed compliance report relating to the Directions contained in the Improvement Notice.

  5. On 2 May 2019, Inspector Jones attended the Mine and determined that Directions 7, 9 and 12 had not been complied with.

Improvement Notice ending 1416

  1. On 18 February 2019 Inspector Jones issued an Improvement Notice ending 1416 to Mr Jhunjhunwala by email. The Improvement Notice contained a total of 11 Directions to be remedied on or before 12 April 2019 that included the following:

  1. update defect management check sheet for mobile plant to distinguish between safety critical system and non-safety critical systems. Emergency stops, air conditioning, cabin seals should be included. Workers to be trained in its use (Direction 2);

  2. inspection of all pressure vessels on site by a competent person and design an item register as required (Direction 4);

  3. review site’s mechanical engineering control plan risk assessment with a competent person and consultation. Update mechanical engineering control plan and implement controls that are currently listed but not implemented and any new controls as required (Direction 5); and

  4. complete a risk assessment on mobile plant for mechanical failure of the fluid systems. Include both direct risks for fluid injection to workers and indirect risk of fires caused by the failure of hydraulic system and implement controls (Direction 10).

  1. On 12 April 2019 Mr Davidson emailed Inspector Jones advising that most of the Directions in the Improvement Notice had been complied with and that a detailed completion report would be sent by 15 April 2019.

  2. On 15 April 2019 Mr Davidson emailed Inspector Jones with a detailed compliance report for the Improvement Notice.

  3. On 2 May 2019 Inspector Jones attended the Mine and observed that Directions 2, 4, 5 and 10 had not been complied with.

Prohibition Notice ending 2323

  1. On 28 March 2019 Inspector Jones attended the Mine and made observations of the delivery bins (plus 65 bins) that the Mine used to load material into dump trucks. Inspector Jones noticed that the structure was leaning to one side and had damaged support columns and cross beams. Inspector Jones had a conversation with Mr Davidson in words to the following effect:

Jones:         Have the bins been inspected since they have been impacted?

Davidson:    No, they have not.

Jones:         Do you realise the impact in the bin columns and bending the support like that we can weaken the                            structure and can lead to failure?

Davidson:    Well yes, but they keep running into it.

Jones:         How do you know the support columns being below the built up material are not damaged. The whole                        thing is leaning towards one side.

Davidson:   How could I know. You cannot see them.

  1. Inspector Jones issued a verbal s 195 Prohibition Notice to Davidson not to use the plus 65 bins until they had been inspected by a competent person, that the built up material around the bins’ support columns would need to be cleaned up and that any repair work would have to be conducted by a competent person in accordance with an improved procedure.

  2. On 29 March 2019 John Coulter from MA Steel Pty Ltd sent an email to YMC providing structural certification to operate one bin in a limited capacity.

  3. On 29 March 2019 YMC produced a structural report by Norman Chapman from MA Steel Pty Ltd in compliance with the verbal notice. The report recommended the following for immediate action:

  1. fit 100 PFC bracing as per attached sketch; and

  2. ensure screens/conveyor belts in place to prevent overspill.

  1. On 1 April 2019 Inspector Jones issued a Prohibition Notice ending 2323 to Mr Jhunjhunwala for the plus 65 bins by email. The Prohibition Notice prohibited YMC from filling the plus 65 bins at the screening plant and accessing underneath them to load a product and required the following:

  1. to have the bin structure including support columns and foundations inspected by a competent structural engineer (Direction 1);

  2. to carry out repairs as required by a structural inspection (Direction 2);

  3. that all welding activities to be carried out by a competent person with an improved welding procedure (Direction 3);

  4. to install impact protection in front of the columns to prevent future impact damage (Direction 4); and

  5. to provide evidence of completion of the above work to the Resources Regulator at Inspector Jones’ email address (Direction 5).

  1. On 4 April 2019 Inspector Jones sent to Mr Davidson an email outlining the requirements of the Prohibition Notice that were still outstanding including the following:

  1. the inspection of the foundations of the plus 65 bins;

  2. evidence of the competence of the structural engineer who issued the first MA Steel report;

  3. the fitting of bracing to the plus 65 bins as recommended by the first MA Steel report and the installation of the impact protection in front of the plus 65 bins structure.

  1. On 18 April 2019 Inspector Jones received an email from Mr Davidson attaching a further report from MA Steel. The second report stated the following:

  1. that during the inspection on 28 March 2019 there had been no immediate concern with the footings of the plus 65 bins;

  2. evidence of the qualifications of Mr Coulter and the engineer who inspected the plus 65 bins;

  3. confirmation that bracing was required to be installed in order to bring a single bin back to operation; and

  4. that the plus 65 bins structure had excess capacity.

  1. On 2 May 2019, Inspector Jones attended the Mine. He observed that the single bin closest to the access road was full of material, the bins’ clam shell was in the closed position and there were tyre tracks underneath the plus 65 bins. Mr Davidson told Inspector Jones that he was instructed by Mr Jhunjhunwala to continue using the bins.

  2. Mr Davidson showed Inspector Jones a text message from Mr Jhunjhunwala on the 30 March 2019 instructing him to operate the bins in contravention of the Prohibition Notice.

  3. Inspector Jones observed that the columns and foundations were still covered by built up material.

  4. On 9 May 2019 YMC produced a follow up structural report by Norman Chapman from MA Steel Pty Ltd. The third report noted that:

  1. the welds were undersize, had not been ground smooth, slag was still present and the welds appeared to lack penetration; and

  2. a written weld procedure is required and only ticketed and competent welders are to be used. The person previously welding the platers is not to undertake welding on this structure.

  1. On 30 May 2019 Inspector Jones attended the mine and completed an outstanding action audit in relation to the Directions. At that time:

  1. bin columns and foundations had been dug out from previous inspection;

  2. repairs had not been completed to visibly damaged sections of the bin;

  3. no impact protection had been installed at the time of inspection.

  1. On 29 August 2019 Mr Chapman from MA Steel Pty Ltd produced a further report stating the following:

  1. an inspection of the bracing installation required some minor repairs and the web stiffener repairs were incomplete but generally satisfactory; and

  2. recommending that once certain items identified in the report had been addressed that the bins could return to a 20-tonne maximum bin load operating a single bin.

  1. On 30 October 2019 Inspector Jones inspected the Mine and spoke to Mr Davidson who produced a further MA Steel Pty Ltd report following an inspection of the plus 65 bins on the 23 September 2019. The fifth report provided:

  1. bracing repairs had been completed in an arrangement different to the arrangements set out in the sketch attached to the MA Steel report but were nevertheless satisfactory;

  2. repairs had been completed to the web stiffeners and appeared satisfactory;

  3. one of the plus 65 bins could return to 20 tonne maximum bin operation; and

  4. a report would be provided separately to allow for the return of all three bins to full operation.

  1. Mr Chapman produced the sixth, seventh and eighth reports in response to further queries and concerns of Inspector Jones.

Improvement Notice ending 2376

  1. On 9 April 2019 Inspector Wood issued an Improvement Notice to Mr Jhunjhunwala by email requiring that YMC conduct an analysis of the Mine’s earthing system and implement identified controls to minimise so far as reasonably practicable, the risks of persons from touch, transfer and step potential including the effects of lightning, by 30 June 2019.

  2. On 26 September 2019 Inspector Wood attended the Mine for a second assessment. During an inspection of the Mine’s earthing system Inspector Wood was told that an analysis of the Mine’s earthing system had not taken place and it was uncertain as to when it would happen.

Offender’s Case on Sentence

  1. In the Local Court, a large volume of material was tendered on behalf of YMC. On appeal I was only taken to relevant parts of the affidavits and I will set out only those matters that were to be taken into account in mitigation. I will set out the relevant matters by reference to each offence.

Improvement Notice ending in 1385

  1. An extension of six weeks for compliance with the Improvement Notice was sought because it was estimated that a further 32 days were required to complete the work and this necessitated the hire of a mechanic and a welder/fitter. Steps had been taken with an employment agency to find workers without success and work was ongoing in relation to other Improvement Notices.

  2. As to Direction 7, the radiator caps required by the Notice were not available from the original manufacturers of the plant used at the Mine and enquiries had to me made with aftermarket suppliers. Suitable radiator caps were located on 16 May 2019 from a supplier in Beresfield.

  3. As to Direction 9, the identification and repair of impact damage to structures at the Mine was ongoing. Conveyors 17 and 27 had been identified for repairs which were yet to be undertaken as at 15 April 2019. New procedures involving the use of spotters were introduced to minimise the risk of impact damage on structures in the future.

  4. As to Direction 12, the removal of spillage from around conveyors was an ongoing issue. Conveyor 17 was identified as requiring further roll back protection. A suitable design was being sought from a contractor before parts could be ordered and installed.

Improvement Notice ending in 1416

  1. As to Direction 2, work was undertaken to improve the defect management check sheet and there was liaison between the regulator and YMC relating to it. After it was approved by the regulator it was used and workers were trained on it. The work was completed by 15 April 2019 but required by 12 April 2019.

  2. As to Direction 4, YMC could not engage a competent person to inspect and test the pressure vessels at the Mine. On 15 April 2019, Mr Davidson informed Inspector Jones that it was planned to have the inspection undertaken by the middle of May 2019. The contractor was ultimately unavailable to complete the inspection until August 2019. A total of 14 vessels were inspected and no defects were identified.

  3. As to Direction 5, the Mechanical Engineering Control Plan was reviewed after 15 April 2019 and it was decided not to change it.

  4. As to Direction 10, Mr Davidson reported to Inspector Jones on 15 April 2019 that the risk had been addressed in the YMC Mechanical Engineering Risk Assessment. YMC accepts that no new risk assessment was completed by 12 April 2019.

Prohibition Notice ending in 2323

  1. YMC took immediate steps to have the plus 65 bins inspected by a structural engineer and arranged for reports of those inspections to be prepared. One of those reports indicated that one bin could be used in a limited capacity.

  2. YMC continued to be in dialogue with the Regulator about this issue by providing further reports from MA Steel Pty Ltd. YMC also provided photographic evidence of other areas of compliance with the Prohibition Notice, such as the cleaning of walkways.

  3. The structural reports later identified that compliance with some parts of the Prohibition Notice were not required to assess the structural integrity of the plus 65 bins, such as digging out the skids at the base of each column.

  4. YMC contended that Inspector Jones’ email of 4 April 2019 demonstrated that he did not understand the reports of the structural engineer.

  5. By 18 April 2019 the structural engineer opined in the Second Report that:

  1. on inspection, there was no immediate concern with the footings of the plus 65 bins;

  2. bracing was required to be installed to bring a single bin back into operation; and

  3. the structure had excess capacity and could safely withstand a side impact of 20 tonnes and with the additional bracing, this would be increased to 50 tonnes with a load of 22 tonnes in a single bin.

  1. Mr Jhunjhunwala sought advice from YMC’s solicitor that the expert report from MA Steel Pty Ltd was sufficient to resume the use of one bin when Inspector Jones could not be reached. YMC’s solicitor advised that it was.

  2. YMC accepts that it did not receive confirmation from Inspector Jones that the Prohibition Notice had been satisfied before resuming the use of one bin.

  3. Correspondence between YMC, the structural engineers and Inspector Jones continued for a considerable period of time.

Improvement Notice ending in 2376

  1. The Improvement Notice was issued on 9 April 2019 with a compliance date of 30 June 2019.

  2. YMC experienced difficulty in locating a competent person to carry out testing of the Mine’s electrical system in accordance with the Notice. The work was delegated to a licensed electrician employed by YMC, Jack McGlynn.

  3. On 28 June 2019 YMC sent an email to the Regulator indicating that it had repaired all earth bonds at the Mine including the provision of corrosion protection and mechanical protection of the earthing cables.

  4. The balance of the work required by the Notice was not completed by the compliance date, as it had not been effectively followed up by management.

Objective seriousness

Improvement Notice ending in 1385

  1. The failure to comply with the Improvement Notice was limited to three out of the 14 matters to be attended to. Substantial work was undertaken by YMC to comply with the Improvement Notice within the compliance period. There was no evidence that three matters outstanding posed more than a potential risk to the health and safety of the workers at the Mine. No harm was caused by non-compliance with the Improvement Notice. As to Direction 7, YMC could do no more than source the radiator caps from an aftermarket supplier. It had taken steps to do so within the time for compliance with the Improvement Notice. The caps were sourced about one month after the compliance period expired. Planning for compliance with Directions 9 and 12 was well advanced, but the work was not completed.

Improvement Notice ending in 1416

  1. The failure to comply with the Improvement Notice was limited to four out of the 11 matters to be attended to. Substantial work was undertaken by YMC to comply with the Improvement Notice within the compliance period. There was no evidence that four matters outstanding posed more than a potential risk to the health and safety of the workers at the Mine. No harm was caused by non-compliance with the Improvement Notice.

  2. Directions 2 and 5 required an updating of systems that were already in force at the Mine. The work was not completed within the compliance period.

  3. Direction 4 required the engagement of a competent person to inspect the pressure vessels at the Mine and YMC could not undertake that work. Steps were taken to comply within the compliance period. When the inspections were completed, no defects were identified.

  4. The Regulator was not advised that the risk assessments required by Direction 10 were already in existence before the date for compliance.

Prohibition Notice ending in 2323

  1. YMC engaged a structural engineer to report on the integrity of the plus 65 bin structure shortly after receiving the verbal Prohibition Notice.

  2. YMC operated one of the bins without seeking clearance from Inspector Jones that the Prohibition Notice had been complied with. The purpose of doing so was to continue production, because the Mine could not operate without the plus 65 bins being used. The decision to do so was made against a background of much disruption to the operation of the Mine through the intervention of the Regulator on many fronts. The decision was also taken after seeking incorrect legal advice on the issue.

  3. The structural engineer’s reports demonstrated that the plus 65 bins had significant structural stability. YMC asked the structural engineer to liaise directly with Inspector Jones to avoid the potential for miscommunication. I am satisfied that Inspector Jones misunderstood the content of some of the structural engineering reports relating to the plus 65 bins and in particular that they had significant structural integrity, notwithstanding that they appeared to be damaged.

Improvement Notice ending in 2376

  1. Compliance with the Improvement Notice was delegated to a competent person at the Mine, but it was not followed up. The work was completed after the time for compliance with the Improvement Notice expired. At the relevant time, a lot of work was being undertaken to comply with other notices. The Improvement Notice concerned a potential risk, and no harm was caused by non-compliance with the Improvement Notice.

Fail to comply with Mining Act authorisation

  1. The charge was particularised as a failure to comply over a relatively short period, during which there were ongoing negotiations relating to the amount of the security deposit and when it could be paid. The increase to the security deposit was for a substantial amount that was not readily available to YMC. It had already paid a substantial security deposit. No harm was caused by the failure to comply.

  2. I have taken into account the maximum penalty for the offences.

  3. Each offence was within the low range of objective seriousness, with the Mining Act offence being at the lowest end of that range.

Deterrence

  1. General deterrence is significant for safety related offences. PCBUs must take safety obligations seriously.

  2. There is some need for specific deterrence but it is substantially reduced. YMC took significant steps to comply with the various notices and incurred substantial costs in doing so. Overall, YMC demonstrated a willingness to comply and its non-compliance was a fraction of its compliance.

Aggravating factors

  1. There are no relevant aggravating factors.

Mitigating factors

  1. YMC did not have any prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. YMC was incorporated in 1952 and had been operated by its current officers for more than 20 years.

  2. YMC has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. Throughout the relevant period YMC demonstrated a capacity and a willingness to comply with the Regulator’s requirements and the legislation. The large number of requests and the character of some of them made strict compliance difficult.

  3. YMC entered pleas of guilty: ss 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. It was entitled to a discount on penalty that reflects the utilitarian value of that plea:  R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. YMC took issue with some of the facts and it was largely unsuccessful on those challenges. The magistrate reduced the discount to 10% on the basis that YMC’s conduct after entering pleas of guilty eroded the utilitarian benefit of the pleas. With respect that approach was too simplistic. The case was complex and factually dense. YMC was entitled to take issue with the prosecutor’s characterisation of its conduct in the offences. I do not accept that YMC’s approach was inconsistent with its pleas of guilty. In my view, the magistrate incorrectly viewed the complexity of the case as a matter that eroded the utilitarian value of the pleas of guilty. There was still considerable utilitarian value in the pleas of guilty. The pleas of guilty also indicated remorse: Borkowski at [32]. The appropriate discount is 17.5%.

  4. I have had regard to the penalties imposed for the s 193 offences that are published on the SafeWork NSW website. It is sufficient to note that the penalties imposed by a number of different courts are substantially lower than the penalties imposed by the magistrate. The s 193 offences before the Court are not so different as to warrant the substantially higher penalties imposed by the magistrate.

Penalty

  1. The appropriate penalties after taking into account the discount for the pleas of guilty are:

  • s 378 offence – YMC will be convicted and I impose no further penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999.

  • s 193 offence (IN ending 1385) – fine of $7,000;

  • s 193 offence (IN ending 1416) – fine of $5,500;

  • s 193 offence (IN ending 1385) – fine of $5,500;

  • s 197 offence (PN ending 2323) – fine of $35,000.

  1. The total amount of the fines to be imposed is $53,000. I have had regard to the principle of totality and I have decided, bearing in mind the size of YMC and the costs order imposed, not to reduce the fines further on this basis.

Orders

  1. The orders I make are as follows:

  1. The appeal against severity is allowed.

  2. I set aside the fines imposed by the magistrate.

  3. In lieu thereof, I make the following orders:

  1. for the s 378 offence, YMC is convicted and I impose no further penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999;

  2. for the s 193 offence (IN ending 1385), I impose a fine of $7,000;

  3. for the s 193 offence (IN ending 1416), I impose fine of $5,500;

  4. for s 193 offence (IN ending 1385), I impose fine of $5,500;

  5. for the s 197 offence (PN ending 2323), I impose a fine of $35,000.

**********

Decision last updated: 17 October 2023

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

4

Statutory Material Cited

4

R v Borkowski [2009] NSWCCA 302
Rees v R [2012] NSWCCA 47
R v Doan [2000] NSWCCA 317