Orr v Burgess Earthmoving Pty Ltd [2021] NSWDC 583

District Court New South Wales

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 BW v R [2011] NSWCCA 176 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 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 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 Pearce v The Queen (1998) 194 CLR 610 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 SafeWork NSW v Elgas Ltd [2021] NSWDC 101 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Australian Standard AS 2187.2 2006 "Explosives—Storage, transport and use" Category: Sentence Parties: Stephen James Orr (Prosecutor) Burgess Earthmoving Pty Ltd (Defendant) Representation: Counsel: W Thompson (Prosecutor) T Epstein (Defendant)