Industrial Relations Commission of New South Wales in Court Session CITATION: Rodney Morrison v Cobar Management Pty Ltd [2005] NSWIRComm 124 PROSECUTOR: Rodney Morrison PARTIES: DEFENDANT: Cobar Management Pty Ltd. FILE NUMBER(S): IRC 3190 and 3192 of 2003 CORAM: Haylen J Occupational Health and Safety Act 1983 - s 15(1) and s 16(1) offences in mining industry - pleas of guilty entered - system of back filling fails - comprehensive review of back filling operation by defendant - serious breach established - first offence - totality - penalties imposed CATCHWORDS: HEARING DATES: 04/12/2005 EXTEMPORE JUDGMENT DATE: 04/12/2005 PROSECUTOR: Mr M Cahill of counsel SOLICITORS: Crown Solicitor's Office LEGAL REPRESENTATIVES: DEFENDANT: Mr R Crow of counsel SOLICITORS: Mallesons Stephen Jaques JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Haylen J 12 April 2005 Matter No IRC 3190 of 2003 Rodney Morrison v Cobar Management Pty Ltd. Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 Matter No 3192 of 2003 Rodney Morrison v Cobar Management Pty Ltd. Prosecution under s 16(1) of the Occupational Health and Safety Act 1983 EX TEMPORE JUDGMENT [2005] NSWIRComm 124 The defendant, Cobar Management Pty Limited, has been charged with two offences, one arising under section 15(1) of the Occupational Health and Safety Act 1983, and the other arising under section 16(1) of the same Act. The nature of those alleged offences relate to an incident which took place over a number of days in June 2001 and, in particular, the risks which were alleged to be exposed by the system adopted by the defendant on 13 and 14 June 2001. In relation to s 15 it was charged that the defendant: Failed to ensure the health, safety and welfare at work of its employees, and in particular Alan Oakes, in that the defendant failed to ensure that its employees were provided with a safe place of work whilst inspecting the retaining wall adjacent to K 402 stope at the 9070 level at the CSA Mine Cobar . It was also alleged there was: A failure to ensure the health, safety and welfare at work of its employees, and in particular Alan Oakes, in that the defendant failed to provide and maintain an adequate system of checking for the presence of ponded water on top of the cemented hydraulic fill in the K 402 stope. A third aspect of the offence was: A failure to ensure the health, safety and welfare at work of its employees, and in particular Alan Oakes, in that the defendant failed to adequately assess the risk to safety to employees that arose from the process of filling the empty K 402 stope at the CSA Mine with cemented hydraulic fill, referred to as the back fill operation, at the K 402 stope. The charge under s 16(1) was in very similar terms but related to, in particular, a person not in the employment of the defendant and was in these terms: There was a failure to ensure that persons not in its employment, and in particular Tasman Dukeson, were not exposed to risks to their health or safety arising from its undertaking while they were at its place of work in that the defendant failed to ensure the persons not in its employ were provided with a safe place of work whilst inspecting the retaining wall adjacent to K 402 stope at the 9070 level at the CSA Mine at Cobar. Part of the charge was: A failure to ensure that persons not in the employment of the defendant, and in particular Tasman Dukeson, were not exposed to risks to their health or safety arising from its undertaking while they were at its place of work in that the defendant failed to provide and maintain an adequate system of checking for the presence of ponded water at the top of the cemented hydraulic fill in the K 402 stope. Further there was: A failure to ensure that persons not in its employment, and in particular Tasman Dukeson, were not exposed to risks to their health or safety arising from its undertaking while they were at its place of work, in that the defendant failed to adequately assess the risks to safety to non-employees that arose from the process of filling the empty K 402 stope at the CSA Mine with cemented hydraulic fill, a reference to the back fill operation, at the K 402 stope. The defendant at an early stage entered a plea of guilty to both of those charges and, for reasons that do not call into question the actions of the defendant, it has taken some little time for the matter to reach this particular stage. I have heard the parties on the appropriate considerations in deciding a penalty in relation to these two contraventions of the Act. I should say immediately that there is a wealth of detail and technical information that has been provided to the Court, and I am indebted to counsel for both the prosecutor and the defendant for their assistance in explaining the mining operation to the Court, the manner in which the plugging of a stope was achieved by the defendant and the modifications adopted to that system. The evidence for the prosecutor consisted of an agreed statement of facts and a document with schematics and representations to assist in the understanding of the operation. Although there was no certificate of prior convictions, I was assured by the prosecutor that both in relation to the Department and to WorkCover the defendant had no previous record. In relation to the evidence for the defendant there was a substantial affidavit of Mr Richard Morland, the chief executive officer of the defendant and the general manager of its CSA Mine at Cobar. There were a significant number of annexures to that affidavit. I do not intend to attempt to summarise that material and it is sufficient to include within the judgment the terms of the agreed statement of facts, especially having regard to the descriptions contained within it as to the system in operation at the time of the in-rush. It is sufficient to say that the focus of the offences to which the defendant has pleaded was the system of filling a void after mining, referred to as a stope, and the use of a plug and the materials used in that plug and the effectiveness of the system adopted. The Agreed Statement of Facts is in the following terms: 1. The Prosecutor is and was at all material times Assistant Director of Performance Improvement at the then Department of Mineral Resources (now the Department of Primary Industries). 2. The Prosecutor has written consent from a prescribed officer within the meaning of s 48 of the Occupational Health and Safety Act 1983 (NSW) an cl 3 of the Occupational Health and Safety (Administration) Regulation 1992 and also within the meaning of s 106(1)(b) of the Occupational Health and Safety Act 2000 (NSW) to institute the subject proceedings. 3. At all material times the Defendant, Cobar Management Pty Ltd (ACN 083 171 546), was an incorporated company with its registered office located at Glencore Australia Pty Ltd "Gateway", Level 44, 1 Macquarie Place, Sydney, NSW 2000 4. At all material times the Defendant managed the CSA Mine Cobar in the State of New South Wales. At all material times, the CSA Mine was owned by a joint venture between Isokind Pty Ltd (60%) and Acelight Pty Ltd (40%). Both of these companies, and the Defendant, are wholly owned by Glencore International AG. The CSA Mines is an underground copper mine located approximately 11 kms north-northwest of Cobar. 5. At all material times the defendant was an employer. It employed Alan Oakes at the CSA Mine as the Mine Co-ordinator. 6. At all material times, the Defendant contracted with Clough Engineering Ltd ("Clough Engineering") to provide labour and management services. 7. Clough Engineering employed Tasman Dukeson. 8. The Defendant and Clough Engineering had entered into an agreement known as the underground mining agreement CSA Mine Contract No. 9918. Pursuant to the agreement, the Defendant and Clough Engineering agreed to work cooperatively to carry out the specified works covered by the agreement. 9. Pursuant to the agreement Clough Engineering agreed to provide skilled labour to the Defendant to perform work at the CSA Mine. The skilled labour provided included Tasman Dukeson working as a Mine Shift Co-ordinator. 10. At all material times the CSA Mine operated on two 12 hour shifts: a night shift which operated between the hours of 7 pm and 7 am and a day shift which operated between the hours of 7 am and 7 pm 11. At all material times, underground mining at the CSA Mine was carried out in a cycle. Initially the access development, draw points, drill drives and other works were put in on two levels. The upper level provided access to the ore body for drilling and blasting while the lower level was used for "mucking" (removing) the broken ore. Once a development was complete, the stope (block of ore) was drilled out with holes extending down from the top sub-level. These blast holes were fired progressively as the ore was removed from the bottom level. Once the ore had been removed from a stope, the void was filled. 12. As at June 2001 there were three methods of backfilling of stopes at the CSA Mine: (a) by piping cemented hydraulic fill from the surface treatment plant into the target void; (b) on rare occasions, by tipping mullock into the void with loaders; and (c) a combination of the two methods, in which mullock was emptied into the void as cemented hydraulic fill was being placed. 13. On or about 9 June 2001, the Defendant commenced the backfill operation for the K402 stope. The cemented hydraulic fill was manufactured on the surface at the fill plant adjacent to the surface treatment plant at the mine and transported through a series of pipes to the stope. 14. The system for the backfill operation using cemented hydraulic fill, as used in backfilling the K402 stope, was based on the following design concepts: (i) A "high strength" cemented fill plug with the content of 10 per cent cement would be installed between the bottom of the stope and a height greater than the height of the fill wall, nominally 6 to 10 metres. Once cured, this cemented fill plug would act as the main structural element retaining the fill subsequently placed on top of it in the stope. The Defendant had been previously advised that the fill plug should be allowed to set to achieve a design strength of 200 kPa. (ii) A low strength wall ("the retaining wall") to act as "formwork" to contain the high strength fill plug until it has set. (iii) Cemented fill would be made from the deslimed tailings and was to have an average target slurry density within the range of 1.7-1.75 tonnes per cubic metre. (iv) Water was not to be allowed to accumulate on the surface of the fill ("ponding") and all surface water should have drained away within a few hours of cessation of each fill run. This would be achieved by controlling the amount of water the fill slurry contained (its density), the proportion of fine particles the fill contained (which controls its permeability) and by stopping the fill to allow time for water to drain. (v) There would be a program of visual inspections by employees of the top of the stope to ensure that water did not pond excessively on the fill's surface. 15. On or about 9 June 2001 the placement of the cemented hydraulic fill in stope K402 at the 9070 level at the CSA Mine commenced. The filled height of the stope was to be 30 metres. 16. The placement of the cemented hydraulic fill initially continued until about 22:00 hours on 10 June 2001 when it ceased to allow the completion of the construction of the retaining wall. It then re-commenced at about 21:25 hours on 11 June 2001 and continued until 9:05 hours on 12 June 2001 when it was stopped because of leakage of fill from the wall. Filling resumed at 14:30 but was stopped again at 15:10 due to further leaks. Filling re-commenced at 22:45 hours on 12 June 2001 and continued until the backfill operation was shut down at approximately 9:10 hours on 14 June 2001. 17. During the backfill operation, there was no program of visual inspections of the top of the fill for the ponding of water undertaken by employees of the Defendant or other mine workers, because a ledge protruding into the top of the stope prevented safe access for visual inspection of the top of the fill. No adequate alternative method of determining whether there was water ponding on the top of the fill was implemented. 18. In any system utilising cemented hydraulic fill, it is essential that the amount of water present in the fill be properly managed. The presence of excess water in the fill creates the potential for liquefaction and mobilization of the proportion of the fill that is saturated or partially solidified. The greater the excess of water present in the stope the greater the potential for liquefaction and mobilization of the proportion of the fill that is saturated or partially solidified if a barricade failure occurs. The accumulation of significant amounts of water on the surface of the fill in the stope for extended periods of time ("ponding") is the clearest indication of the presence of excess water in the stope. Some accumulation of water on the surface of the fill in the stope will always occur during filling operations, but the water should drain away from the surface of the fill within a few hours of the cessation of a fill run. 19. On 10 June 2001, the construction of the retaining wall adjacent to the K402 stope according to the specifications of the Defendant, was completed. The wall was made of permeable concrete blocks and it was of approximate dimensions of 5 metres high and 6 metres wide. The wall was approximately 190mm thick and it appeared to be built straight. 20. Until 12 June 2001 the initial cemented hydraulic fill that was placed in the K402 stope and which was intended to form the high strength plug only had an average content of four per cent cement. This was contrary to the backfill system as designed. 21. On or about 12 June 2001 the Defendant had realised that the previous cemented hydraulic fill contained only four per cent cement and not the required 10 per cent cement. Nonetheless, the Defendant took no steps to assess the strength of the fill which had been already placed in K402 stope. 22. During the manufacture of the cemented hydraulic fill in the treatment plant, water containing fine particles ("fines") which had previously been removed from the fill was inadvertently added back to the fill, in place of fresh water, before the fill was piped underground. This was contrary to the backfill system as designed. 23. The average slurry density of the cemented hydraulic fill placed in the K402 stope was approximately 1.65 tonnes per cubic metre. This was contrary to the backfill system as designed. 24. During the night shift on 13 June 2001 Tasman Dukeson, as part of his duties as Shift Co-ordinator, inspected the retaining wall at the 9070 level of K402 stope. 25. At this time there was a risk to the health, safety and welfare of persons not in its employment, in particular to Tasman Dukeson, in that there was a risk of injury from an inrush of fill into the area where Tasman Dukeson was inspecting the wall. 26. During the day shift on 14 June 2001 Alan Oakes, as part of his ties, inspected the retaining wall at the 9070 level of K402 stope. 27. At this time there was a risk to the health, safety and welfare of the defendant's employees, and, in particular to Alan Oakes, in that there was a risk of injury from an inrush of fill into the area where Alan Oakes was inspecting the wall. 28. At or about 7.00pm on 14 June 2001 the protruding ledge on the upper level of the K402 stope was fired. Later that evening, at or about 9.00pm, an underground worker found that he could not obtain access to the 9070 level because of an inrush of water and fill. 29. On further investigation it was established that the fill wall at the base of the K402 stope had failed with almost all of the fill running out of the stope into adjacent parts of the mine. 30. No-one was present at the time of the wall failure and no-one was injured 31. Prior to the incident the Defendant had expert advice regarding the design and implementation of its backfilling system. The advice highlighted the need to ensure that: Fill walls were of adequate design and strength; The high strength cement fill plug was of correct density and cured to the appropriate design strength to support additional fill; Fill density, generally, was maintained at proper levels; and Fines in the fill were maintained within the design parameters. 32. The Defendant failed to provide for a safe and adequate cycle for the pouring and resting from the pouring of the fill into K402 stope and failed to allow for adequate periods of drainage. 33. The Defendant failed to ensure that the initial cemented hydraulic fill placed in K402 stope contained a 10 per cent component of cement. 34. The Defendant, after realising that the initial cemented hydraulic fill did not have a 10 per cent cement component, failed to assess the strength of the fill which had been placed in the K402 stope. 35. The Defendant failed to ensure that the cemented hydraulic fill placed in the K402 stope did not contain an excessive proportion of fine particles. 36. The Defendant failed to ensure that the average slurry density of the cemented hydraulic fill placed in the K402 stope complied with the target density of between 1.7-1.75 tonnes per cubic metre. 37. The Defendant failed to ensure that the retaining wall was of sufficient strength to withstand moderate pressures. 38. The Defendant failed to ensure that employees and other mine workers who had responsibility for ensuring the safety of the backfill operation, were adequately trained, or had received adequate information and instruction. 39. The Defendant failed to take into account the risk to safety to both employees and other mine workers that arose from the modifications to the fill plant which allowed fine particles to be added back to the fill before it was pumped underground specifically, a modification for the pipework which used water from the M1004 pump to control the density of the fill slurry. 40. After the incident the Defendant made changes to the way in which it managed the backfill system so as to control or eliminate each of the abovementioned risk factors, including: (i) A redesign of the fill walls for greater strength; (ii) The abandonment of cemented fill plugs in order to promote permeability and faster draining of the fill mass; (iii) Review and reinforcement of control measures for the maintenance of correct levels of cement and other additives, including: a. continuous monitoring of instruments recording key components of backfill production at the backfill treatment plant; b. regular verification of the accuracy of these instruments; and c. systematic physical sampling of backfill production; (iv) Review and reinforcement of control measures for the monitoring and maintenance of fill density (including the procedures referred to in paragraph 40(iii) above); (v) Review and reinforcement of control measures for the monitoring and control of fines (including the procedures referred to in paragraph 40(iii) above); (vi) A system for the inspection of the fill for ponding together with the implementation of rest periods to enable proper fill drainage; and (vii) Real time measuring of fill and water levels in the stope via piezometers. 41. The Defendant, Cobar Management Pty Ltd (ACN 083 171 546), an incorporated company with its registered office located at Glencore Australia Pty Ltd., "Gateway", Level 44, 1 Macquarie Place, Sydney, NSW, 2001 breached s.15(1) of the Occupational Health & Safety Act on 14 June 2001 at the CSA Mine located at Cobar in the State of New South Wales in that it failed to ensure the health, safety and welfare of its employees at work and in particular Alan Oakes whilst inspecting the retaining wall adjacent to K402 stope at the 9070 level at the CSA Mine Cobar. 42. Further, the Defendant, Cobar Management Pty Ltd (ACN 083 171 546), an incorporated company with its registered office located at Glencore Australia Pty Ltd., "Gateway", Level 44, 1 Macquarie Place, Sydney, NSW, 2001 breached s.16(1) of the Occupational Health & Safety Act 1983 on 14 June 2001 at the CSA Mine located at Cobar in the State of New South Wales in that it failed to ensure that persons not in its employment, in particular Tasman Dukeson, were provided with a safe place of work whilst inspecting the retaining wall adjacent to K402 stope at 9070 level at the CSA Mine Cobar. There are, however, some specific matters which should be mentioned. That document notes that at the time of this incident there were three methods of back filling at the mine and they are described. There was a combination of methods used at the time of this incident. It is also relevant that the work of back filling was one that normally occurred over a period of time and had, in fact, at this mine commenced on 9 June 2001, before there was an in-rush and the risks to both an employee and a non-employee crystalised on 13 and 14 June 2001. The Agreed Statement of Facts states that prior to the incident the defendant had expert advice regarding the design and implementation of its back filling system. There are a number of matters that are set out which represent what were expected of the defendant in ensuring the effectiveness of this system and the safety of its employees. The walls had to be of adequate design and strength, the high strength cement fill plug had to be of correct density and cured to the appropriate design strength to support additional fill, the fill density generally had to be maintained at a proper level, and what are referred to as the fines in the fill were to be maintained within the desired parameters. Importantly the defendant then agrees to a number of failures that occurred at this time. It accepts that there was a failure to provide for a safe and adequate cycle for the pouring and resting from the pouring of the fill into the stope, and a failure to allow for adequate periods of drainage. There was a failure to ensure that the initial cemented hydraulic fill placed in K 402 stope contained a ten per cent component of cement. The defendant, after realising that the initial cemented hydraulic fill did not have ten per cent cement component, failed to assess the strength of the fill which had been placed in the stope. In addition the defendant failed to ensure that the cemented hydraulic fill placed in the stope did not contain an excessive proportion of fine particles. There was a failure to ensure that the average slurry density of the cemented hydraulic fill placed in the stope complied with the target density which was specified. There was a failure to ensure that the retaining wall was of sufficient strength to withstand moderate pressures. There was a failure to ensure that employees and other mine workers who had responsibility for ensuring the safety of the back fill operation were adequately trained or had received adequate information and instruction. There was a failure to take into account the risk to safety to both employees and other mine workers that arose from the modifications to the fill plan which allowed fine particles to be added back to the fill before it was pumped underground. There is a reference specifically to a modification of the pipe work which used water to control the density of the fill slurry. I refer to those matters as agreed matters because they demonstrate what might be said to be the comprehensive nature of this failure. The prosecutor has referred to it in terms of a systemic failure. There is undoubtedly force in that submission. In submissions there was an additional reference to the removal of a ledge at a stage of the back filling process which was not really or adequately explained. Those failures, according to the submissions of the prosecutor, were extensive and amounted to a major event with a real risk of serious injury, even death. The evidence of Mr Morland was frank and he conceded those aspects to which I have just referred but put them in a context with which I shall shortly deal. He did not try to approach this breach by pretending that there were systems that simply and for some unknown reason failed: although it is clear from the evidence that there are different views expressed about the cause of this incident, I would not be able on the material to make a determination as to what precisely caused the retaining wall to collapse and the fill to enter the working areas of the mine. As it turns out that is not required because of the nature of the investigation carried out and the response by the defendant to the incident and the steps it took, the use of a expert as a consultant and what was exposed as deficiencies in the present system by that consultant. I return for a moment to Mr Morland's affidavit. He set out in some helpful detail the nature of the mine and its recent corporate history, together with the production process and a description of the way in which stopes came about in the process, the process of back filling and the use of what was termed "barricades" in that process. In relation to the collapse of the barricade on 14 June 2001 he refers to the detailed report of Mr Newey, the Regional Inspector of Mines at Cobar, supplied to the Director General of the New South Wales Department of Mineral Resources. While generally agreeing with those findings, descriptions and recommendations, Mr Morland pointed out that, while Mr Newey nominated the most likely cause of the failure as being the formation of what was described to me as an erosion pipe in the fill mass, Mr Morland expressed the view that, as a cause, it was a matter of conjecture. He did agree with Mr Newey's statement that the destruction of physical evidence at the incident site made it impossible to reach a definitive conclusion about the cause of the incident. Mr Morland then deals in some detail with the business reorganisation under his management that occurred some few months after this incident and towards the end of 2001. He says in his affidavit that soon after he commenced his employment with the defendant he formed the view that most of the senior management employed by the defendant at the mine did not have the capabilities and experience necessary to manage the mine. He formed certain views about their capacity to deal with modern techniques for the safe back filling of stopes and in the first two months of his engagement he terminated the employment of most of the senior management and recruited new employees. He also reviewed during this time the role of Clough Engineering Limited, a company contracted for the performance of underground mining operations at this mine. He deals with the course of his consideration of their role, the need for closer supervision of Clough's work and how lines of communication were altered to bring about that close supervision. Ultimately he formed the view that the role of Clough Engineering was not in the best interests of the defendant and in October 2002 he instigated the termination of the agreement between the defendant and Clough Engineering. With some detail he also deals with the report of Mr Tony Grice of AMC Consultants Pty Limited on the back fill collapse. The step to engage Mr Grice had been taken before he took up his position, but he speaks of the reputation and eminence professionally of Mr Grice. He records that on 14 December 2001 he was able to write to Mr Newey and advise him that recommendations, given earlier by Mr Grice in a report, had been implemented in full by the defendant. A short time later on 21 December Mr Morland was also able to write to Mr Newey and advise him of measures taken and proposed to be taken at the mine to prevent a recurrence of the incident which occurred on 14 June. In early 2003, Mr Grice was commissioned to conduct a follow up audit to ascertain whether the remedial measures taken by the defendant in relation to the back fill operation had achieved their intended outcome. I was taken to that report. Further, in July 2003 the defendant published in two volumes a document entitled "Back Fill Management System". That was a compilation of the technical and operational information developed and used at the mine since the incident on 14 June 2001 and it is said that this publication was a result of the defendant's desire to document acceptable standards and procedures for the management of the back fill operation. That back fill management system was made available to all employees and it is used in training. It should be stated that Mr Grice had very supportive things to say about that approach and generally the approach of the defendant after this incident in addressing a proper system of back filling. I then had described by Mr Morland a number of measures taken; how now, during the course of back fill, there are certain checks, how those checks occur in a time frame so that there is not a long period that elapses before there is an assessment of the back filling and its status. Not insignificantly, and it was accepted without being cross-examined upon, he expresses his view that risk to the safety of underground supervisors required to check barricades had been avoided by reason of changes in the defendant's back fill operations. I point to that statement because of its absolute nature and that seems to be supported by the variety of things said by Mr Grice about the steps taken before December and as modified after December 2001 by the defendant. I also was given information about the general safety measures employed by the defendant, the employment of a occupational health and safety superintendent, the 2005 business plan and the parts of it which relate to safety at the workplace, the development of what was called the CSAfe system by the defendant, and the training undertaken by the defendant. There was also reference in the evidence of Mr Morland to the role of the defendant in the local community. This defendant employs over 600 people directly. He says that there are another 1,800 Cobar residents directly dependent on the mine for their livelihood. This was a mine that had been reopened in 1999. There were references to the royalties and the amounts paid in salary, which are significant sums. Mr Morland also spoke about directing part of the profits to local community needs and how the defendant had been a significant supporter of local charities and community ventures. Having regard to that material already mentioned in the submissions made and the thrust of the submissions made by the prosecutor, it was accepted by the defendant and by Mr Morland while giving his evidence that this was indeed a serious incident, that the nature of the in-rush was such that serious injury could occur and if certain inspectors had been present it could have led to their death. He did not shirk that possibility. I have already said, in recounting the terms of the Agreed Statement of Facts how comprehensive those failures were but, again, I should mention that in submissions for the defendant there was no suggestion other than this was a serious breach. One matter was put as a consideration. Here the persons exposed to risk of injury from this incident were the two shift co-ordinators who each inspected the barricade once during a 12 hour shift immediately preceding the incident. It was submitted that the exposure to risk was very brief. There is often a difficulty with submissions of that nature. Another fortuitous event was the fact that the desire to remove the ledge meant that explosives would be used and that the mine corridors were therefore evacuated. As the precise cause of the collapse of the barricade cannot be established, it is a little difficult to say over what duration people may have been put at risk over the days in which this back fill operation was continuing, but there is some force in the consideration that has been put forward by the defendant. Having considered those matters I am satisfied that nevertheless this is a serious breach. I then need to consider both general and specific deterrence. General deterrence is likely always to be a factor to take into account, I see no reason why that should not apply here. The element of specific deterrence raises perhaps different issues. I think it was properly accepted by the prosecutor that the nature of the steps taken by the defendant following this incident and the independent support for not only the appropriateness but the effectiveness of those steps by Mr Grice leaves the element of specific deterrence to play a much smaller role than might otherwise be the case. That is the way in which I intend to approach the matter in this particular case. As to subjective factors, the prosecutor accepted and I agree that here there was an early plea. There is no reason why the defendant should not receive the benefit of the full discount of 25 per cent in light of that early plea. I think this is a case where there are other aspects that deserve consideration as subjective factors in increasing that discount. The defendant, it is trite to state, operates in an inherently dangerous industry. It employs a large number of people. Although its operations under this corporate guise at Cobar mine commenced in 1999, and that is not a very long time, nevertheless it has no prior convictions. That is an indication of its commitment to occupational health and safety. The prosecutor accepts that there was co-operation with the WorkCover Authority by the defendant and that is a matter that is taken favourably into account. There is a linking of the steps taken and continuing in addressing this particular failure and contrition. Those steps, I accept, indicate a desire by the defendant to ensure high standards of safety are maintained at its mine and its concern and contrition about the occurrence of this incident and the risks that it posed, although there might only have been two people who appear to have been immediately at risk. The written submissions for the defendant list ten matters which I do not repeat but they demonstrate the commitment of the defendant to a safe working method in relation to these back filling operations and I agree with the submission made in relation to those matters. There is also the aspect of the important role played by this defendant in the community and the community support it has given. They operate as evidence of the good industrial reputation of the defendant. Its contribution to what I might refer to as the Handbook on Back Filling is an example of its commitment to occupational health and safety, but in a more general sense operates to advise the mining community of the steps that can be taken to ensure this part of the operation can be safely undertaken. That constitutes a considerable number of additional subjective factors and in this case I am satisfied that the defendant is entitled to a further discount of ten per cent, bringing the total discount to 35 per cent. Having considered all those matters I would impose a fine of $78,000 in each case, bringing a total fine for both matters to $156,000. The nature of these two offences, however, requires the Court to give consideration to questions of cumulance, concurrence and totality. Where there are common elements in offences the Court is required to take steps to make sure that a defendant is not punished more than once for those common elements. Here I have set out on the record the particulars of each charge and the degree of overlap is significant. This approach to totality, however, must be balanced by the legislature's clear intention that, in creating separate offences, the court should attend to circumstances where the same incident leads to a risk, not only to employees but to those who are not in the employment of the employer concerned. Bearing all of those matters in mind it would seem to me that the total criminality of these breaches would be adequately addressed by a total fine of $110,000 which I would propose to divide evenly in relation to the two offences. In those circumstances I make the following orders: In relation to IRC Matter No 3190 of 2003: 1. The defendant is found guilty of the offence charged under s 15(1) of the Occupational Health and Safety Act 1983 to which it has pleaded guilty. 2. The defendant is to pay a fine of $55,000 with moiety to the prosecutor. 3. The defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. In relation to IRC Matter No 3192 of 2003 the orders are as follows: 1. The defendant is found guilty of the offence charged under section 16(1) of the Occupational Health and Safety Act 1983 to which it has pleaded guilty. 2. The defendant is to pay a fine of $55,000 with a moiety to the prosecutor. 3. The defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. Those are the orders of the Court. --- DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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