Industrial Relations Commission of New South Wales in Court Session CITATION: Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96 APPELLANT: Rodney Dale Morrison PARTIES: RESPONDENT: Coal Operations Australia Limited FILE NUMBER(S): IRC 4952 and 4953 of 2003 CORAM: Wright J President; Boland J; Staunton J Penalty: Specific offences against respondent found established beyond reasonable doubt - minimum support rules relied upon by respondent found to be inadequate - general principles and considerations - objective seriousness of the offence - reasonable foreseeability - offences do not fall within the worst type of offence category - principles of general and specific deterrence relevant - additional subjective features taken into consideration in determination of penalty - principle of totality applicable - no prior convictions - remorse and contrition - principle of restraint in Crown appeals - penalties imposed on respondent. CATCHWORDS: Costs: Court has power to award costs under s 197A of the Industrial Relations Act - order made that respondent pay the prosecutor's costs of the summary trial proceedings - costs order not discounted where some particularised failures not made out - parties to pay their own costs regarding appeal proceedings having regard to approach of restraint embodied in Crown appeals - parties to prepare draft orders to reflect decisions made in order to record convictions and specific costs. Coal Mines Regulation Act 1982 Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 1983 Abigroup Contractors Pty Limited v WorkCover Authority of NSW (2004) NSWIRComm 270 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 Dinsdale v The Queen (2000) 202 CLR 321 DPP v Esso Australia Pty Limited [2001] VSC 263 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Morrison v Powercoal Pty Limited and Anor (No. 3) [2005] NSWIRComm 61 CASES CITED: Pearce v The Queen (1998) 194 CLR 610 R v Allpass (1994) 72 A Crim R 561 R v Way (2004) 60 NSWLR 168, [2004] NSWCCA 131 WorkCover Authority of New South Wales v Chen (2004) 137 IR 33 WorkCover Authority of New South Wales v Profab Industries Pty Ltd (2000) 100 IR 64 WorkCover Authority of New South Wales v Weathertex Pty Limited (2003) 127 IR 60 HEARING DATES: 02/18/2005 DATE OF JUDGMENT: 04/27/2005 APPELLANT: Mr S Crawshaw SC and Mr P Ginters of counsel SOLICITORS: Crown Solicitor's Office LEGAL REPRESENTATIVES: RESPONDENT: Mr B Hodgkinson SC and Mr M Shume of counsel SOLICITORS: Sparke Helmore JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Wright J, President Boland J Staunton J Friday 29 April 2005 Matter Nos IRC 4952 of 2003 and 4953 of 2003 RODNEY DALE MORRISON v COAL OPERATIONS AUSTRALIA LIMITED Application for leave to appeal and appeal from the decision of Peterson J given on 15 August 2003 in Matter Nos IRC 6726 and 6727 of 2001 JUDGMENT OF THE COURT [2005] NSWIRComm 96 1 The application for leave to appeal and appeal the decision of Peterson J in these matters was heard and determined in 2004: Morrison v Coal Operations Australia Limited [2004] NSWIRComm 239. In the judgment delivered on 10 November 2004 we made the following orders: · Leave to appeal is granted; · The appeal is upheld; · The decision of Peterson J given on 15 August 2003 in Matter Nos IRC 6726 and 6727 of 2001 acquitting the respondent is set aside; · The offences charged against the respondent are found proven; · The proceedings will be listed before the Full Bench, at a date to be fixed, to make directions for the finalisation of the proceedings. 2 This judgment deals with the issues of penalty and costs arising from our findings and orders in the substantive appeal proceedings and the further submissions of the parties. 3 The proceedings at first instance alleged two offences against the respondent arising from an accident that occurred on 6 July 1998 at the Wallarah Colliery at Crangan Bay in the south eastern corner of Lake Macquarie. The Colliery was being operated by the respondent. On that day, a section of the roof fell in causing fatal injuries to a coal miner, Mr Anthony Carroll, and seriously injuring another, Mr Tony Dickson. At the time of the roof fall, the miners were engaged in drilling the roof to secure it with roof bolts. 4 Arising out of that accident, the respondent was charged with two offences arising under s 15(1) of the Occupational Health and Safety Act 1983. Those offences were characterised as the Roof Support Charge (Matter No IRC 6726/2001) and the Assessing Roof Stability Charge (Matter No IRC 6727/2001). 5 The charges and the particularised failures alleged and found established beyond reasonable doubt were as follows: Matter No IRC 6726 of 2001 (Roof Support Charge) On 6 July 1998, at the Wallarah Colliery, Crangan Bay, Nords Wharf, in the State of New South Wales, the Defendant, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular, Anthony James Carroll and Tony Ian Dickson, in that it failed to provide or maintain systems of work that were safe and without risks to health contrary to section 15(1) of the Occupational Health and Safety Act 1983. Particulars (a) There was a potential risk to the health, safety and welfare of the employees working in the vicinity of the area described as Face area sequence 131, Production Panel 3 in Production District 3 on 6 July 1998 in that there was risk of a roof fall while the employees were working there; (b) The Defendant's failure and/or omission was the failure and/or omission to provide or maintain adequate systems of work that were safe and without risks to health in relation to the erection of roof support in the vicinity of the area described as Face area sequence 131, Production Panel 3 in Production District 3 in circumstances where roof bolting was to take place; (c) There was a causal connection between the risk to the health, safety and welfare of the employees referred to in (a) above and the Defendant's failure and/or omission as dealt with in (b) above. 6 The failings alleged and found proven were: ... (b) The system of work in relation to the erection of roof support did not require the provision of temporary support immediately adjacent to the part of the roof being drilled or bolted. (c) The system of work in relation to the erection of roof support was not sufficiently prescriptive in relation to unstable roof conditions. Matter No IRC 6727 of 2001 (Assessing Roof Stability Charge) On 6 July 1998, at the Wallarah Colliery, Crangan Bay, Nords Wharf, in the State of New South Wales, the Defendant, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular, Anthony James Carroll and Tony Ian Dickson, in that it failed to provide or maintain systems of work that were safe and without risks to health contrary to section 15(1) of the Occupational Health and Safety Act 1983. Particulars (a) There was a potential risk to the health, safety and welfare of the employees working in the vicinity of the area described as Face area sequence 131, Production Panel 3 in Production District 3 on 6 July 1998 in that there was risk of a roof fall while the employees were working there; (b) The Defendant's failure or omission was the failure and/or omission to provide or maintain adequate systems of work that were safe and without risks to health in relation to assessing the stability of the roof structure in the vicinity of the area described as Face area sequence 131, Production Panel 3 in Production District 3; (c) There was a causal connection between the risk to the health, safety and welfare of the employees referred to in (a) above and the Defendant's failure and/or omission as dealt with in (b) above. 7 The failings alleged and found proven beyond reasonable doubt were: (a) The system of work in relation to assessing the stability of the roof structure was not sufficiently prescriptive in relation to the indicia of unstable roof conditions. ... (c) The system of work in relation to assessing the stability of the roof structure did not require that work cease below unsupported roof in the event of the indicia of unstable roof conditions being present. Relevant principles 8 The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing. 9 In R v Way (2004) 60 NSWLR 168, [2004] NSWCCA 131 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]: [I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide 'further guidance and structure to judicial discretion.' 10 The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474 as follows: [I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence' ... 11 The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646 as follows: The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence. 12 On the issue of foreseeability, the Full Bench in Capral also stated at 646: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209 - 210) in these terms: ... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation. 13 It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" (Capral at 650). On that point the Full Bench in Capral stated: We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales (Inspector Hannah) v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenseon Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and Page v Walco Hoist Rentals Pty Ltd (No 2) (at 22). 14 The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows: [B]oth aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 15 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: [I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c). 16 In addition to the above general principles, the principle of totality in sentencing is applicable to the offences before us. That principle and its application will be considered later in this judgment. Relevant considerations 17 The respondent has no prior convictions. The maximum penalty for each offence is $550,000. Those facts are not in issue. 18 On behalf of the respondent, evidence was received in affidavit form from: (i) Mr Anthony Quin: Mr Quin is currently employed by the BHP Billiton Group as Senior Commercial Manager of the Energy Coal Division. Mr Quin's affidavit deposes to the change in the respondent's corporate history since the accident at Wallarah Colliery in July 1998. There was no issue as to his evidence on those matters and he was not required for cross examination. (ii) Mr Peter Hayes: Mr Hayes currently operates as a consultant via his company PJH Consulting. In July 1998, Mr Hayes was the General Manager of the Wallarah Joint Venture which owned and operated the Wallarah Colliery. At the time of the accident in July 1998, Mr Hayes had 24 years of experience in operations and management of coal mining operations, both underground and open cut. Mr Hayes' affidavit was extensive with considerable annexed material. He was required for cross examination. 19 The proper consideration of the objective seriousness of the offences requires an understanding of the factual circumstances that ground the offences. 20 A crew of five miners commenced a night shift at the Wallarah Colliery at about 11:00pm on 5 July 1998. At that time, the Colliery was mining the Great Northern Seam. Those five comprised Mr Tytherleigh as Deputy and the four mine workers Anthony Carroll, Tony Dickson, Noel Pezely and Russell Anslow. 21 The mining activity being undertaken at that time was operating under support rules for first workings in the Great Northern Seam. Those support rules had been made and approved pursuant to the provisions of ss 102(1) and 105 of the Coal Mines Regulation Act 1982 respectively. Those support rules provided: [1] During face advancement, a test hole is to be drilled at 3m centres at any place across the roadway, with a minimum depth of 0.9m. As appropriate, temporary support may be placed (at maximum 3m intervals) until such times a test hole is drilled. [2] The maximum distance of exposed roof beyond the last test hole or temporary roof support, to the face shall be 10m. [3] Workmen are not to proceed beyond the last test hole or temporary support unless the roof has been tested by sounding with a metal bar or suitable metal object & found secure. [5] Four way intersections are to have a minimum of 5 bolts, a minimum of 1.0m in length, located in similar positions as shown in the diagram. ie; One bolt in each quadrant & one in the approximate centre. This shall be completed immediately after the formation of the intersection. [6] A mining official may direct that additional support above the described minimum rules be installed when roof conditions deteriorate. [7] Roof Supports are to be installed to resin installation standards as displayed by the manufacturer. 22 The crew of miners earlier referred to were working in an area in close proximity to and running at a shallow angle more or less parallel with a fault zone. At a point in the work, the crew encountered a large amount of water at or adjacent to the 2 CT intersection. The water was coming from the fault which had been hit and the crew spent some ninety minutes pumping the water out. 23 As mining activity continued, the mine crew hit the fault at the heading. It was reported to the Under Manager, Mr Wallace, who came to inspect the worksite. Mr Wallace gave instructions to the Deputy, Mr Tytherleigh, that mining was to cease and that he wanted 'extra support put up, plus a row of props along the edge of the fault, and then I wanted the area taped off'. 24 As part of the discussion between Mr Wallace and Mr Tytherleigh, it was decided to square up the end of the heading before finishing. Accordingly, after Mr Wallace gave his instructions, mining activity continued with double bolting 1.5 metres apart. 25 During Mr Wallace's inspection of the worksite, he sounded the roof and assessed it as competent. That procedure was described by Peterson J at first instance as follows: [28] ... The standard means of testing the roof is to strike it with a length of drill steel in a process called "sounding the roof". A solid ring will be accepted as indicating a sound roof whereas a hollow or flat sound induced by the steel will indicate a "drumminess" of roof, perhaps inducing an increase in the number of bolts applied to the roof. 26 The sounding of the roof of the mine was undertaken as a part of the roof bolting process in order to support the mine roof. Supporting a mine roof is a critical part of mining activity. That support will consist of either temporary support in the form of timber props or permanent support by way of roof bolting. At the time of the incident, the latter was in use. 27 The process of roof bolting at the time of the incident was explained in our earlier judgment on liability as follows: [68] In relation to the drilling machine being used, the evidence before his Honour was that, at the time of the accident, the drilling machine was a rotary percussive drill known as a Falcon Roof Bolter. As his Honour described at [30] of his judgment: While the drill is sometimes referred to as a 'hand held' drill, the drill sits on top of a telescopic leg which extends by hydraulic action to push the drill machine up to the roof. The drill, the drill steel having been loaded into the top of the machine, is then operated by a control lock or lever. [69] Reference to the hand held nature of the Falcon Roof Bolter would appear to be related to the need for the miners to manually manoeuvre the drill into position immediately under the roof to be bolted. That meant, generally speaking, when being used, the miners were working under unsupported roof. Again from his Honour's judgment there is evidence that, when the roof was 'bad', temporary support in the form of timber props were installed prior to the installation of the permanent support (bolts, primarily) using a roof bolting machine. Mr Mark Levey, the Mine Manager for Wallarah at the time of the accident gave evidence to that effect. [70] The use of a hand held drill such as the Falcon Roof Bolter is to be distinguished from rig mounted bolting machinery that allows the operator to be under supported roof at any time. ... [71] There was evidence that rig mounted bolting machines had been used at the Wallarah Colliery prior to the accident and were available to be used on 6 July 1998. Nevertheless, for reasons that we understand had to do with the clearance height of the mine in that area on 6 July 1998, a decision had been taken to proceed with the roof bolting using the Falcon Roof Bolter. The result of that decision was that at the time of the accident the miners operating the Falcon Roof Bolter were working under unsupported roof. 28 The practice of sounding the roof in the manner described by Peterson J at first instance was and is, by all accounts, an acknowledged method of assessing roof competency and it has been a practice in the coal mining industry for many years. On behalf of the respondent, both at first instance and before us, much was made of the fact that, at all times up to the time of the fatal roof fall, the roof continued to sound competent. 29 While that may be the case, such a procedure as a definitive method of assessing roof competency allied to a safe place of work has to be considered in light of the workplace circumstances then prevailing. In the present matter, the workplace situation presented as one that relatively quickly deteriorated to one of real and foreseeable risks to safety against which the respondent's system of work, in important respects, clearly failed. That failure centred around the need to ensure roof stability in underground mining activity. 30 The importance of roof stability in underground mining cannot be overstated. As we said in our judgment: [87] We take the view that, in the context of the underground coal mining industry, the need to ensure the stability of the roof of the mine would be an essential factor in safely undertaking underground mining activity. As his Honour said at [84] of his judgment: In the context of underground mining, it is difficult to perceive any necessary function more important to the safety of workers in the mine than the support of the roof. [88] It is obvious that if the mine roof is not stable, there is a very real possibility of a roof fall with all of the attendant dangers and problems that such an occurrence would cause. The steps taken as part of mining activity to secure the roof by way of bolting and/or temporary supports evidence the importance of such an issue. As well, the legislative provisions already referred to reinforce the importance of having approved minimum support rules and the acknowledgment of the need to go beyond them when roof conditions deteriorate at any time. Overarching those specific legislative provisions in relation to that particular activity is the obligation on the mine operator to take whatever action may be necessary in the interest of safety (clause 9, Managers and Officials Regulation) as part of ensuring the health, safety and welfare of employees (or non-employees) at work, as required by s15 of the Occupational Health and Safety Act 1983 (or s8 of the Occupational Health and Safety Act 2000). 31 That the roof conditions at the relevant worksite on 5 and 6 July 1998 where the miners were working were unstable is without doubt. Once the mine workers encountered the fault with the attendant water problems and Mr Wallace attended and gave the instructions he did, the workplace situation further deteriorated. As we explained in our judgment: [23] Mr Wallace was at the work area for about one hour. Just before he left, there was a roof fall consisting of some ply that had fallen out of the face plus coal tops had fallen. [24] During the roof bolting process that continued after Mr Wallace left, water was coming out of the roof from the bolt holes. As well, the drill steel of the roof bolter was jamming, indicative, as his Honour found, 'of a poor roof.' [25] Later in the shift, Mr Carroll and Mr Dickson returned from their crib break and took over the roof bolting process from Mr Anslow and Mr Pezely. In handing over to them, Mr Anslow reported, in the process of drilling a hole, he had noticed a parting in the hole that was evidence of a soft layer in the conglomerate. [26] While Mr Carroll and Mr Dickson were bolting, they experienced problems with the air pressure in the Falcon roof bolter. While the air hoses were being checked, another fall occurred. This consisted of approximately six metres of stone. The roof had fallen back from the face to a point about 1.5 metres from where the last roof bolts had been installed. 32 As the facts disclosed, Mr Carroll and Mr Dickson continued to encounter problems with the bolting process. The drill steel became jammed in the roof. It was while attempting to free it by striking it with another steel that the third roof fall occurred, burying Mr Carroll, causing him fatal injuries and seriously injuring Mr Dickson. 33 The acknowledged indicia of roof instability that were present by the time the third roof fall occurred were: (i) Ground water emanating from the roof and other parts of the area being worked; (ii) Jamming of drill steels during bolt hole drilling and roof parting; (iii) Prior roof falls; (iv) Mining parallel to a known fault; and (v) Guttering of ribs and roof condition deteriorating. 34 On that point we said at [98]: Given the known indicia of an unstable roof and the importance of ensuring a safe and secure roof in underground mining activity, it is imperative that employers should identify with as much precision as possible, the known indicia of an unstable roof and the steps that are to be taken when such indicia exist. One of those steps would be to cease mining immediately until the situation had been properly risk assessed. 35 Against the background we have detailed, the risk to safety that presented itself was abundantly obvious. The risk to safety was the risk of a roof fall. The likely outcome of a roof fall in underground mining where miners are working is death and/or serious injury to employees. That is precisely what happened. In our view, in assessing the culpability of the respondent against the factual circumstances of the offences, the foreseeability of injury or accident was high and renders the offences more serious in nature. 36 In his affidavit evidence, Mr Hayes emphasised the steps taken by the respondent to put proper support rules in place. Those support rules, identified as minimum support rules, had been developed by the respondent and approved by the Department of Mineral Resources (DMR) pursuant to the relevant provisions of the Coal Mines Regulation Act. As Mr Hayes stated, 'approval ... by the DMR of the support rules was essential'. 37 The support rules were and are a vital step in ensuring the stability of the roof so that mining activity can proceed safely. In finding the offences proved, we determined in essence that the support rules were inadequate in not being sufficiently prescriptive. As we said in our judgment at [66]: In short, there is a two-step decision-making process within the system of work - the assessment of the roof and the erection of roof support consequent upon that assessment. 38 The support rules in place at the time of the incident had two provisions that became specifically relevant to the factual circumstances of the offences. They were: Rule (3): Workmen are not to proceed beyond the last test hole or temporary support unless the roof has been tested by sounding with a metal bar or suitable metal object and found secure. Rule (6): A mining official may direct that additional support above the described minimum rules be installed when roof conditions deteriorate. 39 Dealing first with Rule (3). It was apparent at the time of the accident that the respondent placed great faith in the sounding of the roof, almost to the exclusion of all other indicia, as an indication the roof was stable and thereby safe. Certainly, the work circumstances evidenced a continuation in mining activity notwithstanding the indicia of roof instability. As we said in our judgment on liability at [98]: For reasons not fully known but predominantly, it would seem, because the roof continued to sound competent, mining activity continued in order to square up the end of the heading before finishing. It was, on any view, an unwise and unsafe decision given the roof conditions then existing. Not only did mining activity continue but it persisted beyond a second and more extensive roof fall some time shortly after. Again, the continuing activity was justified by relying on sounding the roof as the determinant that it was safe to do so notwithstanding all indicia to the contrary. It is difficult to visualise a more unsafe system of work. Further, this unsafe system can be traced directly to the absence of any oral or written prescription designed to protect employees by identifying matters that, taken together, constituted a risk to safety at work and how they were to be addressed to safely and proactively deal with that risk. 40 Given the acknowledged indicia of roof instability present at the time, steps beyond a mere sounding of the roof were called for. Rule (6) clearly contemplated that by providing for 'additional support ... when roof conditions deteriorate'. In part, that is what Mr Wallace did do. Clearly, however, the minimum support rules were of little, if any, assistance as to what was expected to be done "when roof conditions deteriorate". On that point, we said as follows: [95] There is no doubt that the minimum support rules were not sufficiently prescriptive as to what constituted unstable roof conditions and equally so, as to what was to be done, in any precise way, when such conditions did exist. But the failure pleaded goes beyond the minimum support rules to the actual system of work designed to deal with unstable roof conditions. The evidence before his Honour to which our attention has been drawn would indicate that beyond the minimum support rules and the discretion inherent in them to provide additional support 'when roof conditions deteriorate', there was nothing in any prescribed form that could be relied upon. There is the 'practice' that Mr Levey described and to which we have earlier referred. Relying on a somewhat loosely articulated practice within the industry as constituting a system of work above and beyond the minimum support rules is, on any view, inadequate when considered against the obligation to ensure a system of work that was absent a risk to the health and safety of the employees concerned subject, in this case, to s33(2). ... [117] As is evident, there is no mention in the minimum support rules that directs work to cease in the circumstances prevailing at the respondent's worksite on 6 July 1998. That is, indicia of deteriorating roof conditions. Outside of the minimum support rules, there does not appear to be any evidence of a system of work that directed mining activity to cease below unsupported roof in circumstances of an unstable roof. On any view, given the clear risk to safety that such a situation presented to the workmen concerned, there should have been. There was, on the evidence, a decision taken by Mr Wallace when he first visited the worksite for work to cease. For reasons that have already been detailed, mining activity did continue. What we find difficult to comprehend is the decision presumably taken to press on with mining activity following the second, and seemingly more significant, roof fall that followed after Mr Wallace left. By that stage, circumstances demanded that work cease immediately in the face of an increasingly risk-laden situation at the workplace. 41 Within the context of assessing the respondent's culpability, Mr Hayes pointed to the careful and considered process undertaken to develop the support rules in place at the time of the accident. One of the sources that guided the development of the support rules was the Roof Support Guidelines for Massive Strata Conditions. Those guidelines were produced by the DMR, (now Department of Primary Industries) in 1994. Mr Hayes helpfully annexed a copy to his affidavit. Given they were in place at the time of the incident, it is surprising they were not before his Honour at first instance. If anything, they emphasise the need for the respondent to have had in place a comprehensive system of work in order to assess and ensure roof stability that went beyond the minimum support rules then in place. 42 The DMR guidelines make it clear the reason why they were developed. As the foreword signed by the then Chief Inspector of Coal Mines said: Roof support has been a basic issue in Coal Mines for many centuries. Often roof material and/or depth of mining have required man made support to be installed regularly to maintain stability. Support under these conditions is mandatory not optional. However there are a sizeable minority of Coal Mines in New South Wales where the roof is massive and strong. Routine, regular support has not been required to maintain roadway stability. A study of accident statistics, for these mines, has shown that the number of mineworkers killed and seriously injured under massive roof is unacceptably high. 43 The guidelines were developed to deal with a roof which was considered 'massive'. As the guidelines said: For the purpose of this document massive roof is any strata type which is able to consistently span headings and cut-throughs without the need for artificial support to maintain stability. Examples of a massive roof are areas of conglomerate overlying the Great Northern seam and sandstones overlying the Wallarah, Lithgow and Katoomba seams. 44 Clearly, the Wallarah Colliery was a mining area where 'massive roof' existed. 45 As a perusal of the guidelines makes clear, they advocate a risk assessment approach in order to develop a Roof Control System in order to develop and implement controls to 'counter risks that have the potential to kill, maim or seriously injure mine workers'. 46 The guidelines observe that 'falls of massive roof are relatively rare'. That observation is not quite in accord with Mr Hayes' oft expressed view in cross examination that: [T]here hadn't been experience of roof falls. They weren't ignored. They just didn't exist. 47 That such roof falls were "relatively rare" is a different proposition from Mr Hayes' belief that "they just didn't exist". That there was a possibility of a roof fall with all of its attendant and foreseeable consequences meant that a detailed and proactive approach to the issue of roof stability and roof support needed to be undertaken. In that respect, the minimum support rules relied upon by the respondent were inadequate. The DMR guidelines relied upon by Mr Hayes highlight that inadequacy. As the guidelines relevantly provide: Support Control Standards Three approaches to establishing roof support control standards are shown on Figure 9. The 'step standard' is recognised as the most practical and appropriate for massive roof conditions. This standard involves the establishment of a Support System capable of meeting typical or expected conditions and then being sufficiently flexible to respond to physical changes which require increased support. Targeted Monitoring Programs This involves monitoring roof support activities to: (a) confirm that actual behaviour of the roof strata and the performance of the support system complies to the design standard; and (b) detect in a timely manner any change in physical conditions where the support system must be extended and upgraded to ensure stability. * Implicit in section (b) is the need to:- (i) accurately predict geological anomalies, and (ii) constantly and consistently check for roof variation within the work place. Once a change has been detected, a defined response must be made. * Options for action may be to change to a higher standard or adopt another remedial measure. * The targeted monitoring program should define: - the extent of responsibility for any remedial action; - guidance for officials as to when recovery activity, following an unexpected loss of roof control, should commence; - reporting procedures to be followed when adverse changes in physical conditions are detected; and - criteria for a return to pre-change standards after a poor roof zone has been negotiated. * Targeted monitoring programs include activities such as: Workforce observation via:- * Visible changes in conditions * Audible strata indicators * Sounding roof * Use of bolt holes as test holes - colour of cuttings, noise, detection of partings * Roof fall experience For a targeted monitoring program to be effective, criteria must be developed to characterise both worsening and improving conditions . (emphasis added) Also change detection techniques, together with their purpose, must be documented and effectively communicated to all involved in the operation of the targeted monitoring program. 48 The best that the minimum support rules provided for was 'additional support ... when roof conditions deteriorate'. That is a far cry from the provisions in the guidelines that, in relation to roof support programmes, states: For a targeted monitoring programme to be effective, criteria must be developed to characterise both worsening and improving conditions. 49 Insufficient prescription as to assessment and support of a clearly unstable roof undoubtedly allowed the workplace circumstances where the miners were working to deteriorate rapidly to one of imminent risk to safety in the form of a roof fall. 50 Notwithstanding our findings as to the respondent's failures, we do not accept the appellant's submission that the offences should be characterised as falling within the worst type of case within s 15(1) of the Occupational Health and Safety Act. The respondent's approach to occupational health and safety, as exemplified in Mr Hayes' affidavit, is one of an employer who accepts its responsibilities to workplace safety and acts upon them in a comprehensive and planned manner. If anything, these offences occurred because the respondent believed the system of work then in place, underpinned by the support rules, was adequate. That belief was bolstered, wrongly in our view, by the additional belief, as Mr Hayes expressed it, that roof falls "didn't exist" in the area being mined. That combination of beliefs permitted the system of work to continue as it did despite the clear evidence to the contrary that it was unsafe to do so, evidenced by the indicia of unstable roof existing and despite the workplace circumstances prevailing. As well, too much reliance was placed on sounding the roof as an indicator of the competency of the roof. 51 We consider the offences to be objectively serious towards the upper middle of the penalty range available to be imposed. 52 Consistent with the principles expressed in Capral, the nature of the offences and the respondent's continuing business in the mining industry requires general and specific deterrence to be considered as part of our sentencing considerations. In relation to specific deterrence, this is so notwithstanding that the respondent, now known as Hunter Valley Energy Coal Limited (HVEC), is not currently involved in any underground coal mining activities. It is nevertheless continuing to operate in the coal mining industry. As Mr Quin deposed, HVEC currently operates Mt Arthur Coal in the Hunter Valley region of New South Wales. It is an open cut mine operation. That is, on any view, an industry replete with risks to safety, albeit somewhat of a different nature and degree to underground coal mining. As Mr Quin advised: (10) HVEC operates safety management systems which are in compliance with the Occupational Health and Safety Act 2000, Occupational Health and Safety Regulation 2001, and the Coal Mining Regulations Act 1982. (11) HVEC's safety systems are also compliant with Australian Standards. (12) The safety management system at Mt Arthur Coal is centred on the Mine Safety Management Plan (MSMP), which is a requirement of the Coal Mines Regulation Act 1982. 53 The principle of totality is relevant in relation to these offences. The proper approach is as enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610. It has been adopted and followed in appellate decisions of this Court, most recently in Abigroup Contractors Pty Limited v WorkCover Authority of NSW [2004] NSWIRComm 270. 54 In the offences before us, there is some overlap between the particularised failures pleaded and found established. This is so particularly in relation to the absence of sufficiently prescriptive system of work provisions in both the Roof Stability Charge (Matter No IRC 6727 of 2001) and the Roof Support Charge (Matter No IRC 6726 of 2001). In both, the nub of the failure is the absence of sufficient prescription as to what to look for in assessing roof instability and then erecting roof support to take account of that instability. As we said in our judgment on liability at [61]: The employer's alleged failures were the failure and/or omission to provide or maintain adequate systems of work that were safe and without risks to health in relation to the erection of roof support and in assessing the stability of the roof structure respectively. 55 Considered within the context of the respondent's overall system of work, it would have been possible for the appellant to have framed the particularised failures as one offence as s 49A of the Act provides. The prosecutor has chosen to charge them as two separate offences within the respondent's overall system of work and arising out of the same factual circumstances, the same risk to safety and the same employees exposed to the risk to safety. It is against that background that we see some overlap between the offences as far as assessing the respondent's overall culpability. As was said by the Full Bench in Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 at [37]: We should emphasise that the principle that a defendant is not to be punished more than once for the common elements of the offences does not require that a single penalty only should be imposed for the multiple offences. The Court is required to determine a separate penalty for each offence before applying the principle of totality. It will then usually be appropriate to fix separate penalties for each offence. It is in applying the principle of totality - which requires the consideration of the overall criminality involved in the offences - that regard should be had to the principle that a defendant is not to be punished more than once for elements which are common to the offences as well as ensuring the aggregate sentence or penalty is just and appropriate. 56 The respondent has no prior convictions. That factor in itself operates in favour of the respondent, particularly when considered against the background of the mining industry in which it operates. Mr Hayes deposes that the Colliery first commenced operations around 1890. As to the current respondent's involvement, he stated: [8] In 1994, Coal Operations Australia Ltd was registered, having bought the operations from Coal Allied. The 80% portion of the Wallarah Coal Joint Venture that was owned by Coal Operations was later sold in January 2002. [9] The mine is no longer operating, it ceased operation in June 2000. [10] At the time of the incident the mine employed approximately 100 persons and produced approximately 600,000 tonnes per year. 57 Mr Hayes' affidavit also goes into considerable detail as to the respondent's general approach to occupational health and safety. It is thorough and comprehensive. Following the incident, the respondent acted to review its roof support procedures. On this issue, Mr Hayes stated: (160) After the incident the support rules were reviewed and new support rules were developed. The team responsible for reviewing the support rules consisted of external independent experts in civil engineering, geotechnical engineering, and geology. They worked with the mine's own surveyor and geologist. A mine manager external to the mine was also involved together with the mine's own mine manager and undermanager in charge and members of the workforce. These revised support rules included indicia of roof conditions and appropriate levels of support for those conditions. (161) Training was provided to the workforce in the revised support rules. (162) Training in roof conditions was also provided to the workforce. The training was performed by an external geotechnical engineer who also had geological training. The training provided included visual inspections underground of geological features and conditions with an explanation of appropriate support for those conditions. These amended support rules were approved by the DI of the DOPI. (163) The mine began the review of its existing safety management plans in 1997. A review of these plans was also undertaken in 1998/1999 as part of the review of the core risks of the operations. Annexed and marked 'II' is a status sheet for the review and development of the safety management plans as at March 1999. (164) In September 1999 the new coal mining regulations came into force, the Department allowed a 12 month moratorium to allow the industry to formulate its safety management plans. (165) As part of their routine inspections deputies would report on roof conditions as identified by the drilling of holes for roof support. Roof conditions were recorded in the deputy's Statutory Report. Annexed and marked 'JJ' are sample copies of these deputy reports. 58 Issue has been taken by the appellant as to whether the respondent can rely on remorse and contrition as mitigating factors in our determinations on sentence. In making that submission, reliance was placed on the judgment of Cummins J in DPP v Esso Australia Pty Limited [2001] VSC 263 at [48] as follows: Normally in sentencing, a failure to accept responsibility sounds in the matter of specific deterrence. This is not so here, because Esso has demonstrated by its subsequent operational reforms that it has acted responsibly to remedy past deficiency. But its lack of acceptance of responsibility has a relevance in my not accepting that Esso's expression of remorse is practical and operational. Esso's failure still to accept responsibility for these tragic events is a serious deficiency. 59 We agree with the view expressed in Esso that contrition and remorse are best evidenced by an acceptance of responsibility. In that sense, Mr Hayes was not in a position to accept responsibility on behalf of the respondent for the offences. He left the company in 2002. As he said: A. I can only express a regret for the incident that occurred and my involvement up to the end of that with the company, but my understanding is that the company does have deep regret about that incident, but I think that's as much as I can say. ... Q. And I take from the answer that you have given me that you are not in a position to express contrition in relation to those particulars or failings on behalf of the defendant company? A. When you put it that way, no. 60 Given the evidence we have, there is no statement we can point to that evidences a full and practical acceptance of responsibility for the workplace circumstances relating to the incident. We accept, however, that the respondent has at all times expressed immense regret for the circumstances leading to the death of Mr Carroll and the injuries to Mr Dickson. 61 Our findings as to contrition and remorse are not reasons for increasing the penalty we may impose. They are factors that, if accepted, would go entirely to mitigation. 62 The respondents have raised the issue of double jeopardy as it applies to Crown appeals citing, amongst others, WorkCover Authority of New South Wales v Weathertex Pty Limited (2003) 127 IR 60 at 73 and WorkCover Authority of New South Wales v Chen (2004) 137 IR 33 at [16] and [17]. 63 Those authorities specifically address the attitude of restraint that appellate courts should exercise in redetermining sentence on appeal, consistent with the views expressed in Dinsdale v The Queen (2000) 202 CLR 321. 64 In the proceedings before us, we are not redetermining sentence on appeal. Nevertheless, the respondent submits that the principle of restraint as expressed in Dinsdale, Weathertex and Chen should apply with as much if not more force when sentencing following a successful Crown appeal from an acquittal at first instance. While we do not accept the principle of restraint should apply with more force, we do agree that it should apply with equal force, consistent with the approach enunciated in Dinsdale and adopted in appellate decisions of this Court. The respondent has, in effect, been tried twice. As was said in R v Allpass (1994) 72 A Crim R 561 at 562: When, in response to a Crown appeal, the court decides to resentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) ... 65 The respondent submits that it cooperated with the then DMR in their investigations in relation to this matter. No issue was taken with that submission and we consider it is a matter for positive consideration on the respondent's behalf. 66 Taking into account all of the principles and considerations referred to, we determine as follows: (i) Matter No IRC 6726 of 2001 (Roof Support Charge): offence arising pursuant to s 15(1) of the Act. (a) We find the respondent guilty. (b) We determine a penalty of $150,000. (ii) Matter No IRC 6727 of 2001 (Assessing Roof Stability Charge): offence arising pursuant to s 15(1) of the Act. (a) We find the respondent guilty (b) We determine a penalty of $150,000. (iii) In applying the principle of totality we determine a total penalty with respect to the two offences of $200,000. We apportion that penalty equally between the two offences. Accordingly, the penalty with respect to the offences is: (a) Matter No IRC 6726 of 2001: $100,000; (b) Matter No IRC 6727 of 2001: $100,000; with a moiety of each penalty to the appellant. Costs 67 As to the costs of the appeal and the proceedings at first instance, the appellant seeks the following orders: 1. The order of the trial judge that the appellant pays the costs of the respondent be set aside; 2. The respondent pay the costs of the appellant before the trial judge as agreed or, in the absence of agreement, in a specified sum as determined by the Court; and 3. The respondent pay the costs of the appellant on appeal as agreed or, in the absence of agreement, in a specified sum as determined by the Court. 68 The respondent submitted that it was not appropriate to make a costs order in favour of the appellant either as a consequence of the lack of jurisdiction to do so or, in the alternative, in the exercise of our discretion. 69 Shortly put, the respondent contended that s 197A of the Industrial Relations Act does not make any provision for costs. Further, it was submitted, s 197A does not import the provisions of s 181 of the Act such that the Court does not have the power to order costs in respect of an appeal under s 197A. Overall, it was said, s 197A deals with a precise issue in that it provides for an appeal against a decision to acquit and not to a costs order made at the same time. 70 This issue was raised and specifically considered by the Full Bench in Morrison v Powercoal Pty Limited and Anor (No. 3) [2005] NSWIRComm 61 at [151] and following. For the reasons expressed, we agree with the conclusion reached by the Full Bench at [151] that "the Court has power to award costs in respect of appeals under s 197A of the Industrial Relations Act". 71 We would, however, make the following additional observations on the issue of the power of the Court to award costs in s 197A appeals. If the respondent's submissions on this issue were to be accepted it would lead to the very surprising, and perhaps absurd, situation that a successful respondent to an appeal under s 197A of the Industrial Relations Act, thus being a defendant acquitted at the trial, would not be able to apply successfully for an order for the costs of its success on appeal. 72 Further, s 181 of the Industrial Relations Act grants virtually plenary powers to the Commission in Court Session as to costs both at first instance and on appeal (see, as to appeals, s 181(4)) although the power of the Commission, when not sitting in Court Session is significantly limited in dealing with and awarding costs: s 181(2). 73 There is nothing in s 197A or otherwise in the part of the Industrial Relations Act in which s 197A is to be found (Part 4 of Chapter 7) that would lead to the conclusion that the broad powers to award costs provided by s 181, did not apply to appeal proceedings under s 197A. 74 The respondent's submissions that the Full Bench does not, in these proceedings, have the power to award costs of the appeal or of the proceedings at first instance must be rejected. 75 The respondent also submitted that in the exercise of our discretion we should not award costs to the appellant as sought. The basis for that submission was expressed thus: (a) In seeking leave to appeal the appellant relied upon the fact that s 33(2) of the Occupational Health and Safety Act had not previously been considered, as to its proper construction and ambit, at an appellate level. As a consequence a determination would have widespread application well beyond the confines of the facts in this case; (b) The Court found that Peterson J had introduced the "notion of foreseeability" although it was not suggested that this was at the behest of the Respondent; (c) The Appellant failed in relation to particular (a) in the Roof Support Charge. Failure (b) in relation to the Assessing Roof Stability Charge was not made out. 76 The respondent further contended that the totality of the circumstances of the matter did not warrant the awarding of costs on appeal or the trial below, relying on the dicta in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 at [47] as follows: Although we accept that this was an appropriate case for a prosecution appeal, nevertheless, in all the circumstances of the matter, it is perhaps not surprising that the respondent, having received the benefit of s 556A at first instance, did not consider that it was in a position to do other than resist the prosecution appeal. In light of the special circumstances of the matter, including the way in which it was approached at first instance, we consider that the appropriate order as to costs is to leave the costs order made by his Honour at first instance in place and to make no order as to the costs of the appeal. 77 The Full Bench decision in Profab was an appeal against the sentencing decision given at first instance. The defendant, Profab, entered a plea of guilty to an offence arising under s 15(1) of the Act. For the reasons relied upon, Peterson J applied the then provisions of s 556A of the Crimes Act 1900 and dismissed the charge without conviction and penalty. As part of his orders at first instance, Peterson J ordered the defendant to pay the prosecutor's costs as agreed or assessed. 78 In overturning his Honour's decision as to the application of s 556A, the Full Bench further considered the costs order made by his Honour at first instance. Those considerations, as enunciated in [47] detailed above, left the costs order made at first instance undisturbed. 79 We are not inclined to such an approach in this matter. We accept that the respondent was not in a position to do other than resist the prosecution appeal. This was a matter that raised important considerations going to s 33(2) of the Occupational Health and Safety Act that was directly relevant to his Honour's erroneous considerations at first instance on that issue. As well, beyond the s 33(2) considerations, as we said, "his Honour's judgment was in error". 80 Unlike Profab, this is not a matter where a plea of guilty was entered at first instance. In such a case, the costs order made by his Honour was consistent with the well established principle that costs follow the cause. We see no reason to depart from this principle in relation to the costs of the first instance proceedings. Accordingly, we propose to order that the respondent pay the prosecutor's costs of the trial proceedings at first instance. 81 In coming to that conclusion, we see no basis for discounting the prosecutor's costs because one of the particularised failures in each of the offences was found by us not to be made out. Ultimately at issue in the proceedings was the respondent's guilt for the offences charged being established beyond reasonable doubt. That has been determined. There is no basis, in our view, for discounting costs on some pro rata basis relevant to how many of the particularised failures pleaded by the prosecutor as evidence of a defendant's breach are not established. 82 As to the costs of the appeal proceedings, we consider it appropriate in all the circumstances that each party pay their own costs. Such an approach is, we believe, a just and appropriate one having regard to the approach of restraint embodied in Crown appeals. 83 We note that on 4 September 2003, his Honour made orders as to costs in relation to the matter then before him in two parts. That is, he made orders in favour of the prosecutor to encompass the costs of a motion heard on 6 February 2002. That order will not be disturbed. 84 His Honour then made an order in favour of the defendant to encompass the costs of the summary trial proceedings. It is that order we propose to set aside and substitute the order we have indicated. 85 For the reasons expressed, we make the following orders and also enter convictions as follows: (1) The respondent is convicted of the offences charged in Matter Nos IRC 6726 and 6727 of 2001 and fined the sum of $100,000 in respect of each charge with a moiety of each penalty to the appellant. (2) The order of Peterson J given on 4 September 2003 awarding costs of the summary trial at first instance to the respondent is set aside. (3) The respondent is to pay the prosecutor's costs of the proceedings at first instance. (4) Each party is to pay his or its own costs of the appeal proceedings. (5) The costs of the summary trial proceedings are to be as agreed between the parties. (6) If agreement is reached, the parties are to prepare and file draft orders to reflect the costs orders to be made. (7) Failing agreement, the matter of costs may be referred to the Registrar of the Court for assessment. (8) After the Registrar's assessment the matter will be returned to the Full Bench for the making of orders as to costs. __________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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