Industrial Court of New South Wales CITATION: Rodney Dale Morrison v Daniel Clifford and Anglo Coal (Dartbrook Management) Pty Ltd [2007] NSWIRComm 292 Prosecutor: Rodney Dale Morrison PARTIES: Defendants: Daniel Clifford Anglo Coal (Dartbrook Management) Pty Ltd FILE NUMBER(S): IRC2366; IRC2367 of 2006 CORAM: Kavanagh J Matter No 2366 of 2006 Charge under s8(2) (by virtue of s26(1)) of the Occupational Health and Safety Act 2000 - against individual defendant - Mine Manager - existing systems of safe working - failure to identify safe work procedure - untrained member of mining crew - basic task - defendant limited time in role of manager- safety conscious - application of s10 of the Crimes (Sentencing Procedure) Act 1999 - charge dismissed CATCHWORDS: Matter No 2367 of 2006 Charge under s8(2) of the Occupational Health and Safety Act 2000 - against corporate defendant - company in control of mine - no compliance with systems in place - failure to ensure safe system of work - unsafe work practice - failure to supervise - knowledge of unsafe roof condition - contribution of third party to risk - general and specific deterrence - foreseeability roof fall - fatality - penalty imposed LEGISLATION CITED: Occupational Health and Safety Act 2000 Crimes (Sentencing Procedure) Act 1999 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] 49 NSWLR 610 Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v R (2005) 215 ALR 213 CASES CITED: R v Thomson; R v Houlton (2000) 49 NSWLR 383 Rodney Dale Morrison v Roche Mining Pty Limited [2007] NSWIRComm 276 Signanto v The Queen (1998) 194 CLR 656 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of NSW v McDonald's Australia Ltd and Anor (2000) 95 IR 383 Workcover Authority of New South Wales (Inspector Farrell) v David Carl Schrader (2002) 112 IR 284 HEARING DATES: 29/10/07, 30/10/07 DATE OF JUDGMENT: 12 December 2007 Prosecutor: Mr M.P. Cahill of counsel Solicitors: Ms M. Rizzo Crown Solicitor's Office LEGAL REPRESENTATIVES: Defendant: Mr M.F. Holmes QC with Mr S. Meehan of counsel Solicitors: Mr S. Nettleton Blake Dawson Waldron JUDGMENT: - 23 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Kavanagh J Wed 12 December 2007 Matter No. IRC2366 of 2006 RODNEY DALE MORRISON v DANIEL CLIFFORD Prosecution under s8(2) of the Occupational Health and Safety Act 2000 by virtue of s26(1) of the Occupational Health and Safety Act 2000 Matter No. IRC2367 of 2006 RODNEY DALE MORRISON v ANGLO COAL (DARTBROOK MANAGEMENT) PTY LTD Prosecution under s8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 292 1 These prosecutions are brought by Rodney Morrison, the Director, Mine and Forest Safety Performance, Department of Primary Industries (previously Assistant Director of Performance Improvement of the Department of Mineral Resources) against Daniel Clifford (Mine Manager) and Anglo Coal (Dartbrook Management) Pty Ltd (the corporate defendant) by way of Applications for Order and issued pursuant to s8(2) of the Occupational Health and Safety Act 2000 (the Act). 2 It is alleged in Matter No. IRC2366 of 2006, the individual defendant contravened s8(2) by virtue of s26(1) of the Act in that he failed to: ensure that people (not being its employees) in particular James Arpine Tautari Adams, Jim Adams and Hamish Lister were not exposed to risk to their health and safety arising from the AC(DM)'s undertaking while they were at the AC(DM)'s place of work contrary to section 8(2) of the OH&S Act . 3 In particular, the individual defendant: f) failed to ensure that a safe system of work was provided and/or maintained with respect to the conduct of the pillar split at the 1-2 cut through in the Kayuga Seam at the Dartbrook Mine, generally, and more particularly, with respect to manual erection of roof support during the conduct of the pillar split; g) failed to ensure that Wayne Wallace, James Arpine Tautari Adams, Jim Adams, Hamish Lister were provided with such information, instruction and/or training with respect to the conduct of the pillar split at the 1-2 cut through referred to above, and in particular, with respect to a safe procedure for the manual erection of roof support that was to be carried as part of the pillar split, as was necessary; h) failed to provide James Arpine Tautari Adams, Jim Adams, Hamish Lister with proper supervision; and i) failed to ensure that a proper risk assessment was conducted with respect to the design and performance of the pillar split at the 1-2 cut through in the Kayuga Seam at the Dartbrook Mine either prior to and/or at the commencement of the works. 4 It is alleged in Matter No. IRC2367 of 2006, the corporate defendant contravened s8(2) of the Act in that it failed to: ensure that people (not being its employees) in particular James Arpine Tautari Adams, Jim Adams and Hamish Lister were not exposed to risks to their health and safety arising from the defendant's undertaking while they were at the defendant's place of work contrary to section 8(2) of the OH&S Act . 5 In particular, the corporate defendant: e) failed to ensure that a safe system of work was provided and/or maintained with respect to the conduct of the pillar split at the 1-2 cut through in the Kayuga Seam at the Dartbrook Mine, generally, and more particularly with respect to manual erection of roof support during the conduct of the pillar split; f) failed to ensure Wayne Wallace, James Arpine Tautari Adams, Jim Adams, Hamish Lister were provided with such information, instruction and/or training with respect to the conduct of the pillar split at the 1-2 cut through referred to above, and in particular, with respect to a safe procedure for the manual erection of roof support that was to be carried as part of the pillar split, as was necessary; g) failed to provide James Arpine Tautari Adams, Jim Adams, Hamish Lister with proper supervision; and h) failed to ensure that a proper risk assessment was conducted with respect to the design and performance of the pillar split at the 1-2 cut through in the Kayuga Seam at the Dartbrook Mine either prior to and/or at the commencement of the works. 6 Each defendant enters a plea of guilty to the charge. 7 Mr M.P. Cahill, of counsel, for the prosecutor tendered a bundle of documents including an additional Audit procedure document dated May 2004 (referring to a previous audit procedure Document No. 9 dated November 2003), the Department of Primary Industries (Inspector Piggott) Records of Interview, records of training of crew members; documents on Deputy's Notice Board. 8 The defendants were represented by Mr M.F Holmes QC with Mr S.R. Meehan of counsel. The defendants relied upon affidavit evidence of Timothy Charles Hobson, Site Senior Executive, Moranbah North Coal Mine; Wayne Kenneth Sly, Director Minesly Pty Limited; Daniel Clifford, Mine Manager; Helen Jane Clifford (wife of Daniel Clifford); Peter Minahan, Chief Inspector Mines; and James Ian Middleton, Vice President, Mining Operations employed by Illawarra Coal Holdings Pty Limited (ICH), a subsidiary company of BHP Billiton Limited. Also tendered was a bundle of documents including correspondence, a Report by a Mine Deputy dated 28 May 2005, three Reports by Mine Deputies dated 27 May 2004; and two previous Reports by a Mine Deputy dated 26 May 2004. 9 A Statement of Facts was agreed between the parties and relevantly reads: 4. At all material times Dartbrook operated the Dartbrook Mine near Muswellbrook in the State of New South Wales. 5. At all material times the Dartbrook Mine was both a place of work and a coal mine within the meaning of the Coal Mines Regulation Act 1982 (NSW) ( CMRA ). Management, Control and Operation of the Dartbrook Mine 6 At all material times there was a Joint Venture comprising Marubeni Thermal Coal Pty Ltd, Anglo Coal (Dartbrook) Pty Ltd and Ssang Yong Resources Pty Ltd (the Joint Venture ). 7. At all material times the Joint Venture held Coal Mining Leases and Mining Leases, including the Coal Mining Lease CL 386 and Mining Leases ML 1456, ML 1457 and ML 1381 comprising the colliery known as the Dartbrook Mine near Muswellbrook in the State of New South Wales (the Joint Venture Area ). 8. At all material times Dartbrook was a wholly owned subsidiary of Anglo Coal Holdings Limited Australia Limited (ABN 52 079 017 940). 9. At all material times, Dartbrook was contracted by the Joint Venture to manage, control and operate coal exploration, coal mining and related activities within the Joint Venture area, including management, control and operation of the Dartbrook Mine. 10. In or about 2002, the development of the Kayuga Seam was commenced. This work was performed by Anglo Coal (Kayuga Management) Pty Ltd ( Kayuga ) and the development work was conducted with Kayuga Mine as a separate coal mine under the CMRA. This work was known as the Kayuga Project. Roche Mining Pty Ltd (ABN 49 004 142 223) ( Roche Mining ) was contracted to perform underground mining work to develop workings in the Kayuga Seam known as the Kayuga Mine (and Kayuga Project), within the Joint Venture area. Roche and Kayuga established a project management structure for the Kayuga Project which structure was in place as at the time of the incident. 11. In about December 2003 the workings in the Kayuga Seam formerly known as the "Kayuga Mine", were integrated with the workings in the Wynn Seam formerly known as the "Dartbrook Mine". The integrated workings became known as the "Dartbrook Mine", and at the same time Clifford was appointed as the Mine Manager of the Dartbrook Mine pursuant to section 36(2) of the CMRA. 12. As and from 7 May 2004, Roche Mining employees ceased to occupy the statutory positions of Undermanager in Charge and Undermanager, and thereafter those statutory positions were occupied by employees of Dartbrook. 13. At all material times, Anglo Coal Australia Pty Ltd (ABN 939 760 59679), a wholly owned subsidiary of Anglo Coal Holdings Australia Limited (ABN 520 79 0170 940) employed the defendant, Daniel Clifford ( Clifford ). 14. In addition, at all material times, Dartbrook was an employer and employed persons to work in or about the Dartbrook Mine. The role of Roche Mining Pty Ltd at the Dartbrook Mine 15. Between about April 2002 and May 2004, Roche Mining was contracted by Anglo Coal (Kayuga Management) Pty Ltd to perform underground mining work at the Kayuga Mine associated with the development of workings in the Kayuga Seam. 16. Roche Mining carried out work in relation to the development of the Kayuga Seam in accordance with a contract entitled "Contract for the Inseam Development of the Kayuga Underground Mine - KC340 - April 2002" (the Inseam Contract ), and another contract entitled "Contract for the Decline Drift Development of the Kayuga Underground Mine Contract KC380 September 2002" (the Decline Drift Contract ). 17. After December 2003, Roche Mining continued to perform underground mining work under the Inseam Contract at the integrated Dartbrook Mine associated with the development of the Kayuga Seam. 18. At all material times Roche Mining employed Frank Fulham as its Project Manager with respect to works being performed underground in the Kayuga Seam under the Inseam Contract. 19. At all material times Roche Mining employed Douglas Ashcroft ( Ashcroft ) as its Production Superintendent with respect to works being performed underground in the Kayuga Seam. Prior to December 2003, Ashcroft was the Undermanager in Charge for the Kayuga Mine appointed pursuant to the CMRA. Prior to December 2003, Ashcroft in his capacity as the Undermanager in Charge, reported to Clifford who was the Mine Manager, appointed pursuant to the CMRA, for the Kayuga Mine from 3 November 2003 to 12 December 2003. 20. At all material times Roche Mining employed Wayne Wallace ( Wallace ). 21. At all material times Wallace was appointed by Clifford, in Clifford's capacity as mine manager of Dartbrook Mine, as a Deputy pursuant to section 42 of the CMRA. 22. At all material times, Roche Mining employed James Adams ( Adams Jr ) as an underground mine worker to work at the Dartbrook Mine. 23. At all material times, Adams Jr was a member of an underground development crew assigned by Ashcroft to a pillar split at the 1-2 cut-through in the Kayuga Seam. 24. At all material times, Roche Mining employed Jim Adams ( Adams Sr ) as an underground mine worker at the Dartbrook Mine. 25. At all material times, Adams Sr was a member of the abovementioned underground development crew assigned by Ashcroft to a pillar split at the 1-2 cut-through in the Kayuga Seam. 26. At all material times, Roche Mining employed Hamish Lister ( Lister ) as an underground mine worker at the Dartbrook Mine. 27. At all material times, Lister was a member of the abovementioned underground development crew assigned by Ashcroft to a pillar split at the 1-2 cut-through in the Kayuga Seam. 28. At all material times, Roche Mining employed John Daowlis ( Daowlis ) as an underground mechanical tradesperson (fitter) at the Dartbrook Mine. 29. At all material times, Daowlis was a member of the abovementioned underground development crew assigned by Ashcroft to a pillar split at the 1-2 cut-through in the Kayuga Seam. 30. At all material times, Wallace, as Deputy, was the supervisor of Adams Jr, Adams Sr, Lister and Daowlis while they were working at the 1-2 cut- through in the Kayuga Seam. Background to the Subject Incident 31. Prior to 26 May 2004, as part of the development work relating to the underground workings of the Kayuga and the Wynn Seams, a project was developed to split a pillar at the 1-2 cut-through in the Kayuga Seam. This was done to create a roadway providing more efficient access to the Dartbrook Mine. 32. The pillar split at the 1-2 cut-through in the Kayuga Seam commenced on 26 May 2004. Preparatory work, however, on the 1-2 cut-through began prior to the afternoon shift on 26 May 2004. 33. On 26 May 2004 Ashcroft assigned an underground mining crew to commence work on the Pillar Split at the 1-2 cut-through using a Mitsui S200 Road Header. 34. The "Kayuga Toolbox Discussion" report for the afternoon shift on 26 May 2004 notes that Ashcroft talked to the crew about matters including the following: "Main West R. Header cut split. Comply Roof Support Rules: Monitor roof closely & support close to face." 35. Thereafter, work continued on the Pillar Split at the 1-2 cut-through in the Kayuga Seam on each consecutive shift until the completion of the night shift on the morning of 28 May 2004. 36. The "Kayuga Toolbox Discussion" report for the day shift on 27 May 2004 notes that Ashcroft talked to the crew about matters including the following: " Road Header – Soft ground. Go Slow. Cut down clays." 37. On 28 May 2004 Ashcroft assigned a day shift crew to continue working on the Pillar Split with the Mitsui S200 Road Header. That day shift crew consisted of: · Adams Jr – Mitsui S200 Road Header Operator and Steel Handler on the "gopher"; · Adams Sr – "Cable hand" for the Mitsui S200 Road Header and roof bolter; · Lister – EIMCO Operator and "roustabout"; and · Daowlis – fitter. 38. Wallace was the deputy assigned to the Pillar Split panel, responsible for the above day shift crew. 39. At the commencement of the day shift on 28 May 2004 the roof at the Pillar Split had been bolted to within about 0.5 metres of the face. 40. Further, at the commencement of the day shift on 28 May 2004, the heading at the Pillar Split was filled with spoil so that the crew spent the morning up to lunch time cleaning up the spoil left by the night shift crew. 41. After lunch on 28 May 2004, the day shift crew returned to the heading at the Pillar Split. Daowlis, the fitter, went to work on the boot end. The balance of the day shift crew then commenced cutting coal: - Adams Jr operated the Mitsui S200 Road Header; Adams Sr handled the cable; and Lister, the Eimco driver and roustabout, provided general labouring support. 42. When Adams Jr had cut enough coal for between about "one to two mesh", he stopped cutting coal so that the next round of roof support could be erected. 43. The Mitsui S200 Road Header being used to cut the Pillar Split was not fitted with drill rigs. 44. As there were no drill rigs attached to the road header, roof support had to be erected in front of the road header manually. 45. As roof support was to be erected manually, the road header had to be reversed back in the heading from the face a sufficient distance to enable the crew to obtain access to the roof in front of the road header, for the purpose of manually erecting roof support, whilst remaining behind the last line of previously erected roof support (ie. working from under supported roof). 46. After Adams Jr stopped cutting coal, he reversed the road header back in the heading, he lowered the cutting head of the Mitsui S200 Road Header (which had a pineapple shape) to the floor in the centre of the heading and turned the Mitsui S200 Road Header off. After the incident, the Dartbrook Mine Surveyor established that the Mitsui S200 Road Header had been reversed back in the heading so that it's pineapple cutting head was located about 0.2 metres outbye of the last line of previously installed roof bolts. 47. After Adams Jr had turned off the Mitsui S200 Road Header, the isolation switch was engaged and both Adams Jr and Adams Sr tagged out the machine. 48. Adams Jr, Adams Sr and Lister then proceeded to carry the roof bolting equipment and materials inbye of the Mitsui S200 Road Header so that the next line of roof support, consisting of mesh and roof bolts, could be erected. 49. Once the roof bolting equipment and materials were in place, inbye of the Mitsui S200 Road Header, Adams Sr started the manual roof bolter and commenced boring holes in the roof of the heading for the roof bolts. 50. The Mine Manager's Support Rules for the Kayuga Seam, applicable to the Pillar Split being performed at the time of the subject incident, provided for a 4/2 bolting pattern in the roof of the heading. The last line of roof support erected in the heading consisted of mesh held in place by two roof bolts so that the next line of support required by the Rules was to consist of mesh and four roof bolts drilled in across the heading. 51. Prior to the subject incident, Adams Sr bored three roof bolt holes into the roof of the heading starting from the left side of the heading looking inbye. But, no roof bolts were inserted into any of the three roof bolt holes bored by Adams Sr into the roof of the heading prior to the subject incident. Immediately prior to the subject roof fall, Adams Sr commenced drilling a fourth hole in the roof of the heading immediately adjacent to the right hand side of the heading looking inbye. 52. Adams Sr was still in the process of drilling the fourth hole, immediately adjacent to the right hand side of the cut-through looking inbye, when the subject roof collapse occurred. 53. When interviewed, Adams Sr stated that he last saw Adams Jr on the left hand side of the heading (looking inbye). But, Adams Sr did not know and could not say what Adams Jr was doing at the time of the subject roof fall. It is unclear when and where Adams Jr was last seen prior to the time of the subject roof fall, although it appears Adams Jr was positioned under unsupported roof at the time of the roof fall. 54. Immediately after the roof fall, Adams Sr and Lister realised that Adams Jr had been struck by part of the roof fall and was trapped beneath fallen stone in the vicinity of the pineapple cutting head of the Mitsui S200 Road Header, which had been lowered to the floor near the centre of the heading. 55. Adams Jr suffered serious injury as a consequence of the fall and died a short time later as a consequence of those injuries. Investigation of the subject incident 56. After the event, investigations established that: · the roof fall extended from the coal face back towards the last series of roof bolts; · the fall occurred, essentially, across the full width of the heading; · on the right hand side of the heading, looking inbye, the roof fall terminated at the last series of roof bolts. · on the left hand side of the heading, looking inbye, the roof fall terminated approximately 200mm in front of the last line of roof bolts; and · the height of the fall was not uniform. It was thick at the edges, particularly inbye, and rose up to an estimated height of about 1 metre in a dome shape which had its highest point located, approximately, in the centre of the heading (ie. in the vicinity of the pineapple cutting head of the Mitsui S200 Road Header). 57. No roof bolts had been inserted into any of the three roof bolt holes that Adams Sr had pre-drilled across the heading as part of the manual erection of the next line of roof support that was taking place immediately prior to and at the time of the subject roof fall. 58. It was established that Wallace, in his capacity as a Deputy appointed for the Dartbrook Mine, was assigned statutory responsibility for the area in which the pillar split was being performed for the day shift on 28 May 2004. Also, as the Deputy assigned to that area, Wallace was to supervise the development crew working on the pillar split during his shift. 59. In respect of the location of the Mitsui S200 Road Header in the heading whilst roof support was being erected, when questioned after the incident, Wallace stated that "[he] would have liked to have seen it normally further back than that". Wallace gave no direction to any member of the day shift crew regarding the location of the Mitsui S200 Road Header immediately prior to the time the crew commenced work on the erection of the next line of roof support. Wallace was in and around the face area all morning. 60. Adams Sr had pre-drilled a series of holes in the roof rather than inserting a roof bolt as he completed drilling each hole. Wallace did not provide Adams Sr, or any other member of his crew, with directions regarding pre-drilling of holes for roof bolts prior to or on the day of the subject incident. 61. On 28 May 2004, following the subject roof fall, an inspection of the "Deputies' Notice Board" at the entrance to the area of Dartbrook Mine in which the roof collapse occurred established that the following documents were on display prior to and at the time of the subject incident: · Roof support plans entitled "Kayuga Seam Support Rules" Plan No. 62105 signed by D. Sykes - Manager on 30 May 2002 confirmed by Senior Inspector Anderson on 31 May 2002; · Roof support plans - entitled "Gate Road Support Rules — Option I — Kayuga Seam" signed by D. Sykes — Manager on 22 May 2003 confirmed by Senior Inspector Anderson on 11 June 2003; · Safe Work Procedure for Roadheader "No Go" Zones General; and · A Risk Assessment Document dated 12 December 2002 relating to the Mitsui S200 Road Header 62. Investigations after the event also established that Adams Sr had been employed as an underground mine worker by Roche Mining for about 18 months prior to the subject incident. During that period both Adams Jr and Adams Sr had worked for Roche Mining underground in the Kayuga Seam, working principally on crews assigned to the cutting of a decline drift using the Mitsui S200 Road Header and a hand held roof bolter. 63. During the abovementioned period, Adams Jr had undergone roof bolting and basic strata control training, including in respect of the assessment of strata conditions and installation of support. 64. Adams Sr was not appointed as a roof bolter prior to the subject incident. 65. Adams Jr, Adams Sr, Lister and Wallace were all inducted to work in the workings within Dartbrook Mine pursuant to the Dartbrook Safety Health and Environment ( SHE ) management system. The induction involved Adams Sr, Adams Jr, Lister and Wallace attending both a generic induction training program for NSW coal mining, and a specific induction training program for Dartbrook and Kayuga Mines (and successfully completing an assessment of competency with respect to these training programs). Dartbrook's training program provided instruction on safety policies, procedures and mine rules for Kayuga and Dartbrook Mines. 66. During the course of the investigations conducted by Inspector Alwyn Piggott, Inspector Piggott sought, from both Dartbrook and Roche Mining, all documents purporting to set out the safe work methods with respect to hand roof bolting that applied to and were to be implemented during the course of the subject Pillar Split. The following documents were subsequently produced by Roche Mining: (i) Standard Work Procedure — Erection of roof support in front of continuous miner or road header - underground coal; (ii) Kayuga — Standard Work Practice: Hand bolting procedure underground coal; and (iii) Standard Work Practice — Hand bolting procedure underground coal, SWP KAY 37. 67. During the course of the investigation the second document, "Kayuga — Standard Work Practice - Hand bolting procedure underground coal" was identified by Roche as the applicable procedure. However, this document was not included in a Job Safety Instruction developed with respect to this Pillar Split; this document was not used in pre-shift tool box meetings to instruct the crew in the safe work method to be followed during the Pillar Split; a copy of this document was not available at the work site; nor was the procedure set out therein being followed prior to or at the time of the subject incident; and the procedure set out therein had not been followed, in particular, with respect to the erection of temporary roof support, on other working shifts in which manual roof bolting had taken place in the course of the development of the cut-through. 68. Dartbrook and Clifford cooperated in relation to the investigation conducted by the police and the DPI. In order to assist DPI in its investigation, Dartbrook also made available Mr Mike Caffery as Dartbrook's nominated representative on the DPI investigation team. Relevant Principles 10 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213. In that case, their Honours were of the view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case, s8(1) & (2) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor. The court could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 11 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 12 Proper regard is had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to compel attention to occupational health and safety issues so that persons are not exposed to risks to their health, safety and welfare at the workplace. Of particular significance is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing. 13 In assessing the objective seriousness of the offence of each defendant, the Court must consider the "the nature and quality of the offence" (Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474) ad idem with the view expressed in Markarian). 14 The corporate defendant (known as Dartbrook) was part of a joint-venture which held mining leases. It managed, controlled and operated coal mining at various sites. It had sub-contracted with Roche Mining Pty Limited (also prosecuted - see Rodney Dale Morrison v Roche Mining Pty Limited [2007] NSWIRComm 276) to join together the Kayuga seam with an adjacent seam it also controlled. In December 2003, the corporate defendant assumed partial control of the mine through its mine manager until May 2004 when it assumed complete control as Roche employees no longer held any undermanager roles. Some facts are of particular significance in the circumstances where the corporate defendant had sub-contracted out the mining work to Roche who employed the mining crew working to join the two coal seams. At the time of the incident the corporate defendant, while it had assumed statutory control of the mine through its Mine Manager, was obliged to ensure the safety at its place of work of a mining crew who were employees of the sub-contractor. 15 On 28 May 2004, the employees of Roche Pty Limited were performing a manual roof bolting task as part of a pillar split at the 1-2 cut through. The task is usually performed mechanically with equipment on the front of a Continuous Miner Machine. However, by agreement between Roche and the corporate defendant, the task of the roof bolting was being performed "manually" in front of the Road Header being used for the pillar split. The crew were roof bolting after a cut. Evidence after the incident revealed the Road Header used for the cut had not been reversed sufficiently back from the face and in the heading to allow all roof bolting work to be conducted under roof support. Further, the procedure adopted for roof bolting by the relevant miner was not the correct procedure (safe working procedure required each bolt be placed into each hole immediately after drilling). Three bolt holes had been drilled and no bolts inserted. As the fourth bolt hole was being bored, a roof collapse occurred. The roof fall caused the death of one of the mining crew who was not standing under roof support. 16 In December 2003, the individual defendant, Mr Clifford, had taken control of the mine as Mine Manager. Therefore, the employees were working under their employer, Roche, but the Mine Manager and Undermanagers were employed by companies associated with the corporate defendant and were acting on its behalf. The corporate defendant had overall control of the mine at the time of the incident. The Mine Manager had been in control of the mine for five months. The Deputy in Charge of the shift at the worksite was, however, an employee of Roche. After the incident, when the relevant Safe Work Procedure for manual roof bolting was called for, three separate documents were produced. Further, it was a requirement that the safe work method was to be published on the shift notice board and referred to at toolbox meetings. Neither occurred. 17 As it assumed responsibility for the site, the corporate defendant had given special attention to its obligations under the Occupational Health and Safety Act 2000. It had taken extensive steps to co-ordinate the safety systems to be followed in the transfer of control of the Mine between itself and Roche. The incident reveals there were some difficulties with the integration of the Kayuga seam into the Dartbrook mine and a thorough check of the safety measures in place for each specific task would have revealed the inadequacy. 18 In the six months after the corporate defendant's Mine Manager had assumed control of the work site, a new shift management system had been introduced whereby: · each Undermanager was required to develop a plan for the oncoming shift and ensure toolbox talks were held; · the Undermanager was required to review the plan against actual shift experience; · each Deputy was required to discuss the status of operations in his production district with the control room operator and consult with the outgoing Deputy; · protocols for information sharing and communication between Roche and Dartbrook were introduced. 19 There was however no check made of the way work was to be done on the pillar split. There was no safe work procedure for work on the pillar split and the employee carrying out the roof bolting had not been properly qualified in "manual" roof bolting - the skill required from him on the day. Further, an examination of this new shift management system in the conduct of the investigation reveals (through the copies given to it of shift meetings) the corporate defendant knew of the susceptible condition of the roof; was not aware the Deputy allowed the task to be performed against known safe work practice (drilling of roof holes without the insertion of bolts); was not aware the relevant miner was not qualified to perform his task. While the protocols may well have been in place, the effectiveness of their performance in ensuring safe working is brought into question. 20 In Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] 49 NSWLR 610, the Full Bench held at [82]: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. . . . In the circumstance, I accept there was therefore a foreseeable risk of injury from roof fall arising from the established facts such as to result in the offence being more serious. 21 Mining work is inherently dangerous, underground mining work the more so and the industry once again must be called upon to ensure the implementation of safe work practices established for even a routine task. While the gravity of the risk is the focus of a consideration as to the determination of the objectives seriousness of the offence, the words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5) are apposite: The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of culpability. The potential risk flowing from this breach of the Act were serious. The serious consequences of a roof fall became a reality and the gravity of a fatal injury suffered by one of the miners is but a reflection of the seriousness of the risk. 22 As to the culpability of the corporate defendant, its contractor, Roche, employed the miners but did not have an adequate training or a safe work procedure in place. The corporate defendant failed to ensure the contractor had appropriate training of the crew working on roof bolting. Further, the Deputy employed by Roche on site, supervising the work on the day of the incident, revealed after the incident, the Road Header was not far enough back from the face to allow a safe working space. He also agreed he had noticed an unsafe practice in roof bolting was being employed and failed to correct each practice. In such a circumstance, where there was an on-site supervisory failure by its contractor, I do not accept (in circumstances later referred to in the consideration of Mr Clifford, the individual defendant) there was a site specific supervisory failure by the corporate defendant. What the corporate defendant failed to do was to ensure, in the five months it had taken control of the site, there was a safe work method in place for the performance of the task of the pillar split and a failure to ensure the proper training in manual roof bolting of the crew member required to perform that task. 23 The plea of guilty is an acknowledgment of the obligation to "ensure" safe working practices. However, I accept this is not a case where there was a failure to provide any information, training and instruction. An examination of the qualifications and certifications held by the crew on duty that night reveals they were highly experienced and generally well trained miners. The incident once more places a focus on the importance of training for safe working especially when a familiar task is being performed. Respect must be given to established work practices and they must be rigorously maintained and reiterated. Even experienced miners must be properly trained in the skill required to perform their particular work duty and those basic skills required for the performance of even a routine task must be rigorously reiterated to ensure safe working. There was a supervisory role required of the corporate defendant and while it had many systems in place, it failed to implement in order to ensure safe working at its own worksite. 24 The prosecution places much emphasis on the fact that mine management have statutory capacities and obligations under the relevant mining legislation and regulatory controls covering work in Mines. I reiterate however this criminal prosecution is directed to breaches of the Occupational Health and Safety Act 2000 and the associated absolute obligation on the corporate defendant to ensure safe working. 25 In WorkCover Authority of New South Wales (Inspector Farrell) v David Schrader (2002) 112 IR 284, Walton J, Vice-President, addressed the duties cast by the Occupational Health and Safety Act 2000 on employers. In considering a submission that a defendant should be afforded some leniency due to the fact that more than one person contributed to the relevant risk, his Honour held [61]: . . . when determining an appropriate penalty in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is important to view the nature and seriousness of the defendant's offence by reference to the contribution of the defendant to the relevant risk. 26 As part of an evaluation as any contribution to the risk of injury from roof fall by a third party, the effect of some of the statutes and regulations over the mining industry are relevant to the consideration. Section 32 of the Coal Mines Regulation Act 1982 (repealed 23 December 2006) read with Part 2-6 of the Coal Mines (Underground) Regulation 1999 places mine management responsibility on the corporate defendant. Once the corporate defendant had assumed control of the mine through its Mine Manager, under mining legislation, he had to prepare rules and schemes for the safe management of the mine and ensure compliance by all employed at the mine. 27 The evidence revealed Roche, in employing the miners, was obliged under its successful tender with the corporate defendant to submit to the corporate defendant a Site Safety Management Plan. The implementation of which was to be overseen and monitored by the corporate defendant and the equipment to be used was to be examined by the corporate defendant. A Transitional Management Plan for the handover and joining of the two coal seams was also in place and weekly meetings were being conducted between the corporate defendant and its contractors. 28 Standard work practices had been developed by Roche and placed on a register to be used as necessary during the course of carrying out the project. As the pillar split was an extra job after completion of the main contract, a specific work method for the pillar split was not devised. While the members of the Roche crew acknowledged it was safe working practice to stay under supported roof and to drill and bolt one roof hole at a time and to withdraw the Roadheader a sufficient distance from the working face, that knowledge was not reiterated through training and rigorous supervision. These failures occurred at a time when the corporate defendant had control over the site. 29 A system was implemented which involved conducting daily pre-shift instruction meetings and tool box talks on a regular basis. Minutes of meetings were kept. Tool box talks occurred on the shift on which the incident occurred. Two days before the incident, Jim Adams Snr, Hamish Lister and Wayne Wallace, members of the relevant crew attended a tool box meeting. Notes from the meeting contain the following entry: "miner driver fatality crushed against rib not complied with no-go zones USA". I accept this is but an example though indicative of the fact there were discussions at tool box meetings directed at ensuring compliance (with no-go zones two days prior to the fatality) for the purpose of site safety. 30 On the night prior to the incident the Shift Undermanager, Mr Plunkett, conducted an audit of the Roche operations at the Pillar Split. The supervisory role on site required of the corporate defendant was respected but it failed to ensure safe work practices were designed and followed for the work on the pillar split. In that respect the corporate defendant failed in its supervisory role. 31 In a consideration of penalty, elements of both specific and general deterrence should be considered. The Full Bench dealt with issues of general and specific deterrence in Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610 at [76] and [77]. In particular, the court noted: [76] . . . The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence. . . [77] In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender. … or because the offender will not have the opportunity to commit a similar offence in the future .... However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. . . . 32 The operations of the Dartbrook mine have ceased so there is a small element of specific deterrence in penalty. 33 In the present case, an element of general deterrence in the sentencing process is of particular relevance. The court must signal to operators of underground mines the importance of ensuring basic tasks in underground mining (such as erecting roof support) are carried out in the safest possible manner and that even experienced miners must be rigorously trained and then reminded of safe work practice. 34 I found Mr Clifford's comment that Dartbrook deals with 35,000 safe work practice procedures persuasive in acknowledging this company had directed its attention to ensuring safe work practices, even in circumstances where it failed to ensure safe work practice for one task along with the appropriate training of a miner. The maximum penalty applicable is $850,000. 35 Much detail was provided of the system put in place by the corporate defendant to ensure the safety of its own employees. While that system is no reply to, nor mitigation of, the admission the company's failure to make its place of work safe for others, I accept that the steps taken by the company to ensure future safe working in the future are relevant to the consideration. I am satisfied from the affidavit evidence put before me from the company that there is a framework of cross checking the existence and implementation of safe work procedures and the appropriate training in the necessary skills required for each and every miner now has been achieved and is hopefully assured in the future. 36 In a circumstance where there was a failure to ensure the design of a general safe work practice for the pillar split and to implement a recognized safe work practice and training for manual roof bolting, the corporate defendant failed in its control of the site to ensure safe working at its place of work. 37 The company has a conviction under s16(1) of the Occupational Health and Safety Act 1983 arising from an incident on 20 January 1997. Having pleaded guilty to the charge, the corporate defendant was convicted of a breach of s16(1) of the prior Act. The conviction raises the maximum applicable penalty for this offence to $825,000. The court determines the prior offence was in the middle range. 38 The corporate defendant's response to the incident was immediate and systematic. Its contractor left the mine site very soon after the incident. I accept the corporate defendant's present occupation health and safety policies demonstrate steadfast and comprehensive commitment to safety in mining. 39 The defendants assured the court of their regret that the incident occurred, specifically in the context of its commitment to address all underlying causes of the incident at its mine. 40 A penalty must be fixed which reflects the matter was a serious breach of the Act but not a worst case. In accordance with the principles stated in R v Thomson; R v Houlton (2000) 49 NSWLR 383, the corporate defendant is entitled to a full discount of 25 percent in recognition of the utilitarian value of its early plea. The plea has significant value in the circumstance and the acceptance, on behalf of the defendants, of the responsibility, accompanied as it was by its genuine expression of regret is taken into account. Nonetheless, objectively this was a serious offence. 41 The principal of parity is relevant to this consideration. The contribution to the risk has been given consideration in the determination of the objective seriousness of the offence and I have found there was a considerable contribution to the risk by the sub-contractor employer of the miners. The sub-contractor has pleaded guilty under s8(1) for an offence of a similar nature to that pleaded against this corporate defendant. Penalty for that offence has been set by the court at $180,000.00. In assessing culpability I find, on an examination of safe working procedures in place at the time of the incident the employer company was in this circumstance more culpable than the head contractor. Both had an absolute obligation to ensure safety at the site. However, in consideration of the appropriate penalty to be applied to this corporate defendant, there is a balancing of the above features of its offence with the fact that it faces an increased maximum penalty of $825,000.00. 42 I find the corporate defendant guilty. The corporate defendant is fined in the sum of $160,000.00. 43 In Matter No. IRC2366 of 2006, Mr Clifford is charged with a similar breach of the Act to that of the corporate defendant and the particulars relied upon were similar. I accept the individual defendant failed to ensure there was a safe system of work in place for the manual erection of roof support at the pillar split and therefore for the specific task there was no safe working procedure. Further, the employee performing the task of manual roof bolting was not provided with the appropriate instruction and training for that task. 44 The only additional particular relied upon against the individual defendant is that he was the Mine Manager in accordance with s36(21) of the Coal Mines Regulation Act 1982(since 23 December 2006 replaced by the Coal Mine Health and Safety Act 2002). The prosecutor presses the statutory responsibilities carried by Mr Clifford as Mine Manager. Such a statutory appointment carries corresponding statutory obligations but they are not a determinative factor in assessing the seriousness of any offence pleaded against the individual defendant under the Occupational Health and Safety Act 2000. 45 The individual defendant pleads guilty to a failure to ensure "safe work practices" were being conducted on the relevant date. He performed the role of Mine Manager from 15 December 2003. The work practices being performed at the Kayuga seam were developed prior to Mr Clifford's appointment. After his appointment first as Mine Manager for Dartbrook and then for Kayuga he personally took immediate steps to improve the systems that were in place. He ensured there was a review of the qualifications and resumes of the Roche employees (it appears the review was of employees who were statutory appointments). He initiated a review of the training system of the corporate defendant. He initiated the importance of the induction system for all employees. He personally participated in site specific inductions. He reviewed the training program provided by Roche. He initiated the appointment of specialists with a safety focus. These systems however failed to recognise a member of a mining crew was not properly qualified to perform the task required by his employer. 46 After reviewing the Dartbrook Mine systems of work, Mr Clifford introduced a shift management system; protocols for information sharing and communication between Roche and the corporate defendant; attended at handover meetings and underground inspections; participated in weekly meetings which focused on safety; he instigated disciplinary outcomes for employees who did not meet safety standards. He had discussions with the Project Manager as to the use of the Road Header machine to perform driveage under the Kayuga seam. In such circumstances, I accept he was a "hands-on" manager. There is no indication of neglect on Mr Clifford's part. Rather, he was obviously safety conscious and active in attempting to ensure safe working. 47 However, he failed to recognise there was not a specific safe work procedure in place for the pillar split for the task of roof bolting. He had under his control some 300 employees. I accept the miner who was operating the roof bolting machine the day of the incident undertook the manual roof bolting task when he had not completed the relevant training module. He had undergone no formal assessment and had not been appointed as appropriate for that task under either the Roche procedures adopted for the Kayuga mine or under the procedures within the context of the integration of Kayuga with Dartbrook. Mr Clifford, as Mine Manager, on the day of the incident had control and therefore carries the burden of that breach. 48 Mr Clifford had been on site at the work of the pillar split with the Undermanager in charge two days before the work on the pillar split began. He ordered a Roche manager, a geotechnical engineer, (Mr Britton) to inspect the area of the pillar split. That inspection gave approval for the work to proceed. Mr Clifford instructed the area be established as a hazard zone and the zone be dusted. These were all initiatives he, as Mine Manager, took and were designed to ensure safety. Given his relationship to the corporate defendant and to Roche management and the fact Roche had a deputy supervisor on site, there was significant supervision carried out by Mr Clifford. 49 Mr Clifford presented to the court for cross examination. I accept he took a front line approach to management and was proactive in his approach to ensure mine safety. He pleaded guilty in a timely way in acknowledgment of his failure to ensure safety as to the work procedures being followed on the day of the incident. There was time for his system in the takeover to ensure each employee was properly trained. The plea of guilty acknowledged this. He co-operated fully with the investigation of the incident. 50 A submission is made in Mr Clifford's interest that this is an appropriate matter for the application of s10 of the Crime (Sentencing Procedure) Act 1999. The prosecutor opposes the application of s10 to the charge brought against Mr Clifford asserting he had control of the mine and all works performed therein and it was his obligation to ensure safety. In this regard the prosecutor submitted as Mine Manager, Mr Clifford failed to ensure safe working procedures were in place for the pillar split and for roof bolting and the relevant employee was properly trained. 51 In the circumstances, I find it inexpedient to inflict punishment upon Mr Clifford. Mr Clifford presented as a man who has devoted his life and his career to the coal mining industry, an inherently dangerous industry. He presented with an unblemished record. He has a record of achievement in the industry as a relatively young man which reflects the view I have already adopted that he is a dedicated hard working young man of good character and importantly always had a focus in his daily work practice on mine safety. Mr Clifford is working in a senior position with an unblemished industrial character in a dangerous industry (see s10 of the Crime (Sentencing Procedure) Act 1999). 52 I accept his plea of guilty as an expression of genuine contrition. Section 10 of the Crimes (Sentencing Procedure) Act 1999 is only available under rare and limited circumstances (see the discussion by the Full Bench in Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259 at [46]-[50]). This is one of those circumstances. Taking into account Mr Clifford's character, his demonstrated commitment to safe working and notwithstanding the serious nature of the offence, but recognising the consideration of on site responsibility he undertook in the context of the employment arrangement and in a circumstance where the corporate defendant has assumed its responsibility as controller of the site through its plea of guilty, I find the individual defendant should have the benefit of an order under s10 of the Crimes (Sentencing Procedure) Act 1999 and accordingly I determine the charge should be dismissed. 53 On the application of s10 of the Crimes (Sentencing Procedure) Act 1999, I dismiss the charge brought in Matter No IRC2366 of 2006. Orders 54 Accordingly, the Court makes the following orders: 1. In Matter No IRC2366 of 2006, under the provision of s10 of the Crimes (Sentencing Procedure) Act 1999 the charge against the individual defendant is dismissed. 2. In Matter No IRC2367 of 2006, I find the corporate defendant guilty of the offence as charged. 3. The corporate defendant is fined in the sum of $160,000 with a moiety to the Department of Primary Industries. 4. There shall be one order as to costs against the corporate defendant to be paid to the Department of Primary Industries. I so order. 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.