McColm v Endeavour Coal Pty Limited [2022] NSWDC 307

District Court New South Wales

Medium Neutral Citation: McColm v Endeavour Coal Pty Limited [2022] NSWDC 307 Hearing dates: 27 July 2022 Date of orders: 3 August 2022 Decision date: 03 August 2022 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Endeavour Coal Pty Limited 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 Endeavour Coal Pty Limited 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 Endeavour Coal Pty Limited to pay the prosecutor's costs. 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 – defendant involved in coal mining operations – workers installing conveyor – power to the conveyor had not been isolated – worker's foot entered the activated conveyor and became entangled in the flights of the conveyor – failure to have adequate procedure for installing and commissioning the new conveyor – failure to comply with procedures for introducing new plant to the mine – failure to isolate the conveyor from its power source – failure to provide adequate instruction to workers – failure to have adequate lighting – failure to have adequate safety signage in place – failure to ensure guardrails were re-installed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, , 30E 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) Act 2013 (NSW) s 7A Work Health and Safety Regulation 2017 (NSW), cll 204, 207 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 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 Regan v Endeavour Coal Pty Ltd [2011] NSWIRComm 141 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/NZS 4024.1-2014 Series: Safety of Machinery Australian Standard AS/NZS 4024.3610: Conveyors – General Requirements Safe Work Australia Code of Practice, Managing the Risks of Plant in the Workplace, May 2018 NSW Department of Primary Industries, Guideline for Hazardous Energy Control (Isolation or Treatment) MDG40, January 2007 Category: Sentence Parties: Andrew McColm (Prosecutor) Endeavour Coal Pty Limited (Defendant) Representation: Counsel: N Read (Prosecutor) J McDonald (Defendant)