Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31

Industrial Relations Commission of New South Wales in Court Session

CITATION: Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31

PROSECUTOR: Stephen Finlay McMartin PARTIES: DEFENDANTS: Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls; Terence Shacklady.

FILE NUMBER(S): IRC 3198 - 3249 of 2000

CORAM: Staunton J

Penalty:

Specific offences found proved with respect to corporate defendants and three natural person defendants - general principles and considerations - additional penalty provisions of s 51A of the Act not applicable - objective seriousness of the offences - reasonable foreseeability - risk of inrush clearly foreseeable as risk to safety - role of DMR a relevant and mitigating factor as to defendants' culpability - overall defendants have adopted significant practices and procedures designed to ensure safety in the workplace - period of time factor not particularly significant in assessing defendants' criminality - offences do not fall within the worst type of offence category - planning, research and assessment offences represent the defendants' greatest culpability - general and specific deterrence applicable to corporate defendants - principle of totality to be applied where common elements established - inextricable integration of corporate defendants in the operation of the mine - respective culpability equal in relation to three categories of offences - no prior convictions for any of the defendants - additional subjective features taken into consideration in determination of penalty - remorse and contrition - penalties imposed on corporate defendants - assessment of culpability of each natural person defendant relative to corporate defendants and generally - subjective features relevant to natural person defendants - finanical circumstances of natural person defendants - penalty imposed on natural person defendants - orders to be made dismissing charges against remaining personal defendants.