McColm v Hamiltons Blasting Services Pty Ltd; McColm v Hamilton [2021] NSWDC 688

District Court New South Wales

Medium Neutral Citation: McColm v Hamiltons Blasting Services Pty Ltd; McColm v Hamilton [2021] NSWDC 688 Hearing dates: 10 December 2021 Date of orders: 17 December 2021 Decision date: 17 December 2021 Jurisdiction: Criminal Before: Russell SC DCJ Decision: In District Court proceedings 2020/254026: (1) Hamiltons Blasting Services Pty Ltd is convicted. (2) The appropriate fine is $400,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Hamiltons Blasting Services Pty Ltd to pay a fine of $300,000. (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 Hamiltons Blasting Services Pty Ltd to pay the prosecutor's costs. In District Court proceedings 2020/254003: (1) Note that this charge has been taken into account on a Form 1 in dealing with District Court proceedings 2020/254026. In District Court proceedings 2020/253975: (1) Hamiltons Blasting Services Pty Ltd is convicted. (2) The appropriate fine is $16,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Hamiltons Blasting Services Pty Ltd to pay a fine of $12,000. (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 Hamiltons Blasting Services Pty Ltd to pay the prosecutor's costs. In District Court proceedings 2020/253944: (1) Hamiltons Blasting Services Pty Ltd is convicted. (2) The appropriate fine is $16,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Hamiltons Blasting Services Pty Ltd to pay a fine of $12,000. (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 Hamiltons Blasting Services Pty Ltd to pay the prosecutor's costs. In District Court proceedings 2020/254184: (1) David Steven Hamilton is convicted. (2) The appropriate fine is $30,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order David Steven Hamilton to pay a fine of $22,500. (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 David Steven Hamilton to pay the prosecutor's costs. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of workers – duty to notify of notifiable incidents – duty to preserve incident sites - risk of death or serious injury - recklessness SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty – parity – totality COSTS – prosecution costs OTHER – defendants involved in technical surveying, drilling and blasting services at quarries – flyrock ejected from blast landed in vicinity of other persons – failure to enforce blast exclusion zone – failure to notify regulator – failure to preserve incident site Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 32, 33 Explosives Act 2003 (NSW) Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW), ss 14, 15, 17 Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW), Sch 10, cll 31, 179 Work Health and Safety Act 2011 (NSW), ss 3, 19, 28, 31, 32, 33, 34, 35 Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (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 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 DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 EPA v Barnes [2006] NSWCCA 246 Gordon v R [2018] NSWCCA 54 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 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 Orbit Drilling Pty Limited v The Queen (2012) 35 VR 399 Orr v Cudal Lime Products Pty Ltd; Orr v Shannon [2018] NSWDC 27 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 Salomon v A Salomon & Co Ltd [1896] UKHL 1; [1897] AC 22 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 Texts Cited: Australian Standard AS 2187.2 2006 "Explosives—Storage, transport and use" Australian Explosives Industry and Safety Group Code of Good Practice, Blast Guarding in an Open Cut Mining Environment, Edition 1, March 2011 Category: Sentence Parties: Andrew McColm (Prosecutor) Hamiltons Blasting Services Pty (Defendant) David Steven Hamilton (Defendant) Representation: Counsel: W Thompson (Prosecutor) M Moir (Defendants)