Industrial Court of New South Wales CITATION: Rodney Dale Morrison v Oakbridge Pty Limited & Ors [2008] NSWIRComm 85 Prosecutor: Rodney Dale Morrison PARTIES: First Defendant: Oakbridge Pty Limited Second Defendant: The Wallerawang Collieries Limited FILE NUMBER(S): IRC5056; IRC5057; IRC5058; IRC5060 of 2003 CORAM: Kavanagh J CATCHWORDS: Two defendants - each charged with breaches of s8(1) and s8(2) of the Occupational Health and Safety Act 2000 - by the authority of s106(1)(d) of the Act - mining accident - failure to ensure longwall face secured during shotfiring - rock content in cliff face - recognised procedure for safety not implemented - fatality - deterrence - subjective factors - totality - parity - penalty imposed LEGISLATION CITED: Occupational Health and Safety Act 2000 s8(1)&(2),s106(1)(d) Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, CT1214 of 1990 dated 30 June 1992) Inspector Nguyen v Western Sydney Area Health Service [2003] NSWIRComm 268 CASES CITED: 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 Newcastle Wallsend Coal Company Pty Limited & Ors v Stephen Finlay McMartin [2006] NSWIRComm 339 R v Thomson; R v Houlton (2000) 49 NSWLR 383 WorkCover Authority of New South Wales (Inspector Barbosa) v McDonalds Australia Ltd (2003) 125 IR 270 HEARING DATES: 10/03/08 DATE OF JUDGMENT: 24 April 2008 Prosecutor: Mr D.B. O'Neil with Mr D.L. Carroll of counsel Solicitors: Ms M. Rizzo Crown Solicitor's Office LEGAL REPRESENTATIVES: Defendant: Mr B.D. Hodgkinson SC with Mr M.L. Shume of counsel Solicitors: Mr G. McCann/Ms J. Flitcroft Sparke Helmore JUDGMENT: - 25 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Kavanagh J Thursday 24 April 2008 Matter No IRC5056 of 2003 RODNEY DALE MORRISON v OAKBRIDGE PTY LIMITED Prosecutions under s8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 5057 of 2003 RODNEY DALE MORRISON v OAKBRIDGE PTY LIMITED Prosecutions under s8(2) of the Occupational Health and Safety Act 2000 Matter No IRC5058 of 2003 RODNEY DALE MORRISON v THE WALLERAWANG COLLIERIES LTD Prosecutions under s8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 5060 of 2003 RODNEY DALE MORRISON v THE WALLERAWANG COLLIERIES LTD Prosecutions under s8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2008] NSWIRComm 85 1 Rodney Dale Morrison of the Department of Primary Industry (the prosecutor) brought four Further Amended Applications for Order against the two defendants. Each defendant was charged under s8(1) and s8(2) of the Occupational Health and Safety Act 2000 (the Act) through authority conferred on the prosecutor by s106(1)(b) of the Act. The charges related to a rock fall from a longwall coal face in the Baal Bone Colliery (near Lithgow) on 12 September 2001. It was alleged the defendants failed to have a safe system of work for the support of a longwall being mined for coal. That risk became a reality and one miner was fatally injured and another miner suffered injury. The defendants were co-jointly operating the mine and both had employees working on the relevant shift on the day of the incident. 2 It is alleged in Matters Nos IRC5056 and IRC5058 of 2003, the defendants, Oakbridge Pty Ltd (Oakbridge) and The Wallerawang Collieries Limited (Wallerawang) contravened s8(1) of the Act in that each failed to: ensure the health, safety and welfare at work of all its employees, in particular . . . contrary to Section 8(1) of the Occupational Health and Safety Act, 2000 in that each defendant failed to ensure that systems of work and the working environment of the employees were safe and without risks to health. In particular, it is asserted each defendant: ( a) at all material times operated the Baal Bone Colliery and was in control of the places of work contained therein. (b) at all material times employed a number of personnel, including . . . to work at the Baal Bone Colliery. (c) failed to ensure that support was provided to the face of Longwall 21 in the vicinity of Longwall 21 tailgate and 51 cut-through whilst work was being performed in that vicinity. (d) failed to devise, have in place and implement a Safe Work Procedure for the support of the face and roof of that part of Longwall 21 in the area where employees were undertaking drilling for a shotfiring opera tion. 3 The charges against the first defendant, Oakbridge, names Graham Francis Jordan as the relevant employee. The charge against the second defendant, Wallerawang, names Alan Frederick Eckford, Jan Kapusta, Thomas Walter Bennett and James Allan Boyes as the relevant employees. Mr Jordan was the Deputy on duty on 12 September 2001, the day of the incident, and the other employees were miners. 4 It is alleged in Matter Nos IRC5057 and IRC5060 of 2003, the defendants, Oakbridge Pty Ltd and Wallerawang Collieries Limited, contravened s8(2) of the Act in that each failed to: to ensure that persons not in . . . [their] employment, in particular . . . were not exposed to risks to their health or safety arising from the conduct of . . . [their] undertaking while they were at . . . [their] place of work contrary to Section 8(2) of the Occupational Health and Safety Act 2000. In particular, it is asserted the defendants: (a) at all material times operated the Baal Bone Colliery and was in control of the places of work contained therein. (b) at all material times employed a number of personnel, including . . . to work at the Baal Bone Colliery. (c) at all material times had non-employees on site, including . . . who worked at Baal Bone Colliery but were employed . . . (d) failed to ensure that support was provided to the face of Longwall 21 in the vicinity of Longwall 21 tailgate and 51 cut-through whilst work was being performed in that vicinity. (e) failed to devise, have in place and implement a Safe Work Procedure for the support of the face and roof of that part of Longwall 21 in the area where personnel were undertaking drilling for a shotfiring operation. 5 The charge against Oakbridge names Alan Frederick Eckford, Jan Kapusta, Thomas Walter Bennett and James Allan Boyes as the persons not in its employment who were exposed to a risk at its place of work. The charge against Wallerawang names Graham Francis Jordan as the person not in its employment who was exposed to risk at its worksite. 6 The defendants each pleaded guilty to the charges under s8(1) and s8(2) of the Act. 7 The first defendant, Oakbridge, oversaw the operation of the colliery. On the day of the incident, 12 September 2001, the Mine Managers and Deputies underground reported to the Oakbridge General Manager. The day-to-day management of the colliery was performed by employees of the second defendant, Wallerawang. The colliery operated 24 hours a day, five days per week. The colliery had been in operation since 1983 under various ownerships. The colliery employed 189 persons at the time of the incident and currently employs 173 persons. It had the usual management structure in accordance with the Coal Mining Regulation Act 1982. The joint responsibilities shared between the two defendants meant the crew at the time of the incident had five miners employed by Wallerawang and one employed by Oakbridge. 8 Mr D.B. O'Neil with Mr D.L. Carroll of counsel appeared for the prosecution. The prosecution relied upon Agreed Facts, Extracts of Interviews conducted by Inspectorate and a Tender Bundle including documents being: flow chart indicating company structure of the mine; DVD depicting Baal Bone shearer; photographs; flow chart of relevant persons; side view of accident on 12 September 2001, Baal Bone Colliery geological features – false roof profile; plan views of accident as at 12 and 13 September 2001; Locality Plan of Accident on 12 September 2001; Breakdown of Incident Reports of Rib Falls at Baal Bone Colliery (24 May 1993 to 12 September 2001) and Deputy/Supervisor Accident/Incident Report Forms – 24 May 1993 to 12 September 2001; Erection of Temporary Support for Cut and Weld on Pans (2 July 2001); submission (4 August 2000) of Shotfiring and Explosives Plan) Regulation 1999 (Clause 154), Baal Bone Colliery and letter (18 August 2000); Longwall 19 Face Management Plan (19 May 2000); Longwall 19 to 24 Risk Assessment (extract) (7 March 2000); Hazard Plan – LW 21 (27 August 2001); Deputy's Reports (10-12 September 2001) and Deputy Manager and Undermanager-in-Charge – Daily Reports (10-12 September 2001); Longwall Prosper Reports (Process Performance) (10-12 September 2001); Safety Management Plan Overview; Baal Bone Colliery Mine Inspection System; Management Plan (March 2001); Strata Management Plan, Longwall 21; Manager's Support Rules – Extraction of Longwall Panel 21; Safety Alert (21 September 2001). The prosecution called no witnesses. 9 Mr B.D. Hodgkinson SC with Mr M.L. Shume of counsel appeared for the corporate defendants. The defendants tendered an affidavit of David Mellows, Group Safety Manager at Xstrata Coal (NSW) Pty Ltd, sworn 5 March 2008. He attached to his affidavit significant documentation as to the investigations of the incident and prior and subsequent systems of work in place at the colliery. Mr Mellows was required for cross examination. 10 The Agreed Statement of Facts relevantly reads: Background 1. The Baal Bone Colliery ("the colliery", "the mine") is located on the northern periphery of the Western Coalfields of NSW about 20km north of Lithgow and 14km north of Wallerawang. 2. The Wallerawang Collieries Ltd ("Wallerawang") was at all material times a wholly owned subsidiary of Oakbridge Pty Ltd ("Oakbridge"). Wallerawang and Oakbridge were at all material times related companies and members of the same corporate group ("the group"). 3. The colliery was acquired by the group in April 2000. 4. At all material times the mine was operated jointly by Wallerawang and Oakbridge. Mining method 5. As at September 2001 underground coalmining operations at the mine were being conducted using the longwall method. The specific method implemented at the time is referred to as "retreat longwall mining". A scraper conveyor runs the length of the coalface supporting an electrically driven drum shearer. As the shearer shears coal up to one metre thick from the face the cut coal falls onto a conveyor belt known as the armoured face conveyor ("AFC"). The coal is transported away from the longwall by the AFC. 6. At longwall 21 in September 2001 the work was at a depth from the surface of approximately 135-220 metres. The cutting of the coal at longwall 21 was undertaken using the unidirectional method - that is the shearer cut in one direction only. 7. In the course of mining the longwall face the workmen are protected from roof fall by hydraulically operated steel roof supports known as `chock shields' or `chocks'. These are advanced systematically in sequence by the longwall operators as coal is removed from the longwall face during each pass of the longwall shearer. The workers 8. As at 12 September 2001 the late Graham Jordan was employed by Oakbridge. Alan Eckford, Jan Kapusta, Thomas Bennett and James Boyes were employed by Wallerawang. 9. Other relevant workers included David Hetherington, the Mine Manager, Joe Donachie, the Longwall Superintendent and Simon Burnett, the Production Manager and Undermanager in Charge. Circumstances at the mine leading up to 12 September 2001 10. Between 7 and 12 September 2001 the floor of longwall 21 in the vicinity of the tailgate had risen approximately 0.5 metres above the original floor level, interfering with the conduct of mining operations. 11. Over the afternoon and night shifts of 11 September 2001 and the day shift of 12 September 2001 attempts to compensate for the loss of floor horizon had been made by cutting into the roof, approximately 700mm in total. 12. The cuts made by the shearer out of the roof resembled a series of upward steps cut above the coal seam and into the "false roof'. 13. These measures proved insufficient to enable the coal shearer to continue operating. The tailgate chocks became "iron bound" - that is, they were stuck or wedged and could not be moved. 14. As a result of the process of cutting into the roof the "false roof' came to constitute part of the. longwall 21 face in the vicinity of the tailgate. The bottom 1.95 metres (approximately) of the face was made up of coal and the top 350mm (approximately) was made up of rock. 12 September 2001 incident 15. At approximately 12.25pm on 12 September 2001, Longwall Superintendent, Joe Donachie, Production Manager, Simon Burnett and Mine Deputy Lyndsay Mobbs attended Mr Donachie's office and discussed the shot firing of the floor in the tailgate of longwall 21 to regain floor horizon. Mr Jordan was involved in discussions concerning the shot firing task prior to commencing his shift and prior to the shot firing task proceeding. 16. The risks associated with the fall of rock from the roof were identified. Additional roof support was installed in the form of bolts and mesh. 17. Messrs Jordan, Eckford, Boyes and Bennett were directed to undertake shotfiring, under the direction of Mine Undermanager Jan Kapusta. 18. Subsequently, Messrs Jordan, Eckford, Boyes, Bennett and Kapusta commenced work on the floor near the longwall face where the shotfiring operation was to be undertaken. The location of the incident site at the mine is depicted at tab 8. Alan Eckford, with the assistance of Bennett, drilled six charge holes in the floor of longwall 21 in the near vicinity of the longwall 21 face. Thereafter, Boyes and Bennet retreated a distance of approximately ten metres to beneath hydraulic roof support 155 leaving Eckford, Jordan and Kapusta near the longwall face. 19. All this work was done whilst the workers were in the area between the AFC and the coal face. The shotfiring preparation work involved working in a crouching position when placing the charge in the holes. 20. Approximately 30-45 minutes expired between the time the longwall face was first accessed and the time the rock fell onto Mr Jordan. Approximately 20-30 minutes were required to drill six charge holes and to charge them. The relevant section of the longwall 21 face was not provided with any means of support whilst the work was being performed by Messrs Jordan, Eckford, Boyes, Bennett and Kapusta. 21. The charge holes had been drilled into the floor of longwall 21 within 300 and 900mm of the face and five had been charged with explosives in preparation for shotfiring. 22. Whilst Mr Jordan was in the process of charging the sixth and last charge hole with explosives a piece of shale approximately 2.2 metres in length, 600mm in width and 400mm at its highest point, detached from the face of longwall 21 approximately five metres from the intersection of the longwall 21 tailgate roadway. The falling rock struck Mr Jordan between 4:30pm and 5:00pm on 12 September 2001 causing injuries. 23. At 3.41 am on 13 September 2001 Mr Jordan died at Nepean Hospital as a result of hypovolaemic shock with antecedent causes including crush injury, pelvic haemorrhage, coagulapathy and hypothermia. 24. Alan Frederick Eckford was also struck by the falling rock, causing a fracture to his right humerus, a laceration requiring three stitches to the right side of his head and soft tissue injuries to his right ribs, right knee, ankles and nose. 25. At approximately 5.30pm on 12 September 2001 District Inspector David Carey received an initial report of the incident and attended Baal Bone Colliery. He made an inspection of the incident site with District CFMEU Check Inspector Trevor Schram. Longwall Superintendent Joseph Donachie, Production Manager, Simon Burnett, Mine Manager, David Hetherington and Shift Undermanager, Jan Kapusta. District Inspector Carey made the following observations of the accident site: • A piece of stone 400mm thick at the top and 600mm thick at the bottom of the floor close to the tailgate in three pieces. The largest piece was 2.2 metres long, tapering about mid-length towards the maingate end of the longwall to approximately 300mm wide by 100mm thick. This piece of rock was approximately five metres from the ribbed side of the tailgate heading along the longwall face. • A miner's belt (later identified as belonging to Mr Jordan) was underneath the rock 5.0 metres from the tailgate block side rib line. • The coal face of longwall 21 was six metres from the front leg of chock 158. • The tailgate area exhibited heavy roof support consisting of cuttable steel cans, cable bolts, spin bolts, roof mesh and bolts, steel beams and prop setter timbers. • The floor in front of the cut face was about 0.5 metres thick, extending from the tailgate area about ten metres and sloping away towards the maingate. • Six shot holes were drilled into the coal floor parallel to the coal face in the configuration of two rows of three holes. Five of these holes had been charged with explosives. Fallen stone covered two of the loaded holes whilst three were visible. • Support had been put in place around the cavity created by the fall of rock, consisting of two (2) sheets of half meshed modules of two (2) bolts with butterfly plates, at the direction of Mine Undermanager Jan Kapusta. The risk of rock falling from the face 26. The risk of being exposed to falling rocks or coal whilst working near an unsupported face was well known to the Defendants prior to 12 September 2001. Thirty-nine previously reported incidents of falls of rock or coal at the mine were recorded in the mine's records between 1993 and 2001. Eight involved the fall of rock or coal between five kilograms and 30 tonnes in weight, 20 involved falls of less than five kilograms and 11 involved falls of rock or coal of an unidentified weight. 27. The Baal Bone Colliery Safety Management Plan overview had identified strata failure as one of six principle hazards at the colliery. 28. The need to protect against the risk of falling rock and coal when working near the face was reflected in some of the Defendants' documentation relating to other work tasks. These included: A document developed in July 2001 entitled "Erection of Temporary Support for Cut and Weld on Plans 158, 157, 155 and 154, LW 20" which identified the risks associated with falls from longwall faces in making provision for "mesh modules overlapping lengthwise, covering the LW face opposite the plan on which the welding is to take place". The Baal Bone Colliery Shotfiring and Explosives System referred to the need to "develop a scope of work covering such matters as support of the excavations and workings". • The longwall 19 Standard Operating Procedures relating to "repacking and replacing sprays on shearer drum" referred to the need to "ensure roof and sides are secure". • The longwall 19-24 Risk Assessment identified the risk of "rib/face/roof deterioration in tailgate/maingate" but then referred only to the hazard of "roof fall". Issues relevant to the specific work area 29. The mines hazard plan of 27 August 2001 for longwall 21 identified the existence of weak ribs and poor roof at the intersection of longwall 21 tailgate and 51 cut through. The relevant area was in line with the previous longwall 20 face and goaf which situation gave rise to stress changes and degradation of the area. The need for additional support at the intersection of the longwall 21 tailgate and 51 cut through had been identified as early as 15 June 2001. 30. Reports of inspections by deputies made on 10 September and 11 September include the following: "Rib spall along BSL, some rib spall beside BSL, areas through face breaking, roof flaking mid-face to tailgate, weak roof in places throughout the face, also new tailgate, some blockage of tailgate, care required with rock falling!, ; between the chocks". Relevant safety documentation 31. As at September 2001 there were a number of documents at the mine which were relevant to longwall 21 and the tasks being undertaken on that date. They included: i) The Baal Bone Colliery Safety Management Plan ii) The Mine Inspection System iii) The Baal Bone Colliery Strata Management Plan iv) The Manager's Support Rules for Longwall 21 v) The Ball Bone Colliery Shotfiring and Explosives System 32. The documents did not specifically address the hazard which arose on 12 September 2001. The Baal Bone Colliery Safety Management Plan - Overview 33. The overview document was developed to outline: • the structure of the Colliery's safety management systems; • provide an overview of the mine and seam characteristics; • ventilation design, the outline of mining methods used at the Colliery; and explain the principal hazards of mining at the Colliery; • management strategies to mitigate the potential loss caused by the principal hazards of underground mining at the Colliery; One of the identified principal hazards was strata failure. 34. As at 12 September 2001 a Strata Management Plan had been put in place. However, the Strata Management Plan did not deal with the circumstances where work was required to be performed in the near vicinity of a longwall face. Baal Bone Colliery Strata Management Plan - Longwall 21 35. The purpose of the Strata Management Plan was to provide a means of early detection, and to establish procedures for the management of adverse conditions that may arise during the extraction of Longwall 21. 36. The Strata Management Plan expressly identified "face horizon and gradient control" as a hazard associated with the mining of Longwall 21. The "action/response" prescribed by the Strata Plan to control that hazard was limited to cutting the roof stone and recutting the floor by adjustment of the shearer. 37. The Strata Plan did not prescribe any further action/ response beyond cutting the roof stone or cutting the floor. The strata plan did, however, authorise the Longwall Engineer, the Longwall Superintendent and the Production Manager to determine appropriate actions to recover the Longwall face. This authorisation, however, occurred in circumstances where the strata management plan did not incorporate or make reference to any system of work or standard operating procedure for the recovery of the floor horizon nor did it make any reference to the Baal Bone Colliery Shotfiring and Explosives System. Manager's Support Rules - extraction of longwall panel 21 38. Pursuant to Section 102 of the Coalmines Regulation Act 1982 as then applied, the manager of an underground mine had to make rules not inconsistent with the Act with respect to the support of roof and sides of working places and roadways in the mine. 39. The manager, David Hetherington, prepared rules for the extraction of longwall 21 as endorsed by Inspector Carey. The rules did not extend to support of the longwall face or sides in circumstances where mining of the longwall face was suspended and persons were required to work in the near vicinity of the face. The support rules failed to provide any general guidance as to when such additional supports were required or specific guidance as to when the longwall face was required to be set with additional supports. Baal Bone Colliery Shotfiring and Explosives System 40. As at 12 September 2001 there existed at the Colliery a document entitled "Baal Bone Colliery Shotfiring and Explosives System" ("the Shot Firing Plan"). 41. The Shot Firing Plan was at no time prior to 12 September 2001 implemented or put into effect at Baal Bone Colliery. 42. At no time prior to 12 September 2001 was the Shot Firing Plan promulgated to mine workers, the mine workers instructed or trained in its contents or the provision of the Shot Firing Plan otherwise implemented. 43. The production manager, Simon Burnett, who was one of the persons charged with responsibility pursuant to the Strata Management Plan "to determine the appropriate actions to recover the longwall face" and who was in charge of the mine on 12 September 2001, considered that the Shot Firing Plan was in draft form only as at 12 September 2001 and that shotfiring operations were then carried out in accordance with the old regulations. He asserted that he had seen the draft in early 2000 but not since that time and had not, prior to being shown the Shot Firing Plan in August 2002, seen the Shot Firing Plan as authorised and signed by Mine Manager, David Hetherington. 44. Burnett asserted further that the Shot Firing Plan was reviewed by a group of mine workers including several under managers in February 2002 and as at August 2002 remained in "draft form". 45. Joe Donachie, the Longwall Superintendent and another person charged with responsibility pursuant to the Strata Management Plan to "determine appropriate actions to recover the longwall face" and who was directly below Burnett in the chain of command, was also not aware of the plan. Donachie stated that the Shot Firing Plan is not generally known throughout the mine and as at 28 August 2002 he was not aware as to the extent of availability of the Shot Firing Plan. 46. Mine Under Managers Jan Kapusta and John Field, who were charged under the Shot Firing Plan with responsibility to "ensure that all requirements of this system are met" and, when not met "ensure compliance is rectified" were not, as at 12 September 2001, aware of the Shot Firing Plan's existence. Kapusta advised that the Shot Firing Plan was made available to deputies undertaking shotfiring operations after the 12 September 2001 incident. 47. The Shot Firing Plan required at Clause 11 that prior to any shotfiring project being undertaken a full risk assessment had to be undertaken and a full scope of work developed including the following: · "Any additional precautionary examinations · Support of the excavation and workings" 48. Jordan, Eckford, Boyes, Bennett and Kapusta undertook an hazard identification and risk assessment of the shotfiring operation. Steps taken immediately subsequent to the incident 49. Subsequent to the incident the Defendants implemented the following measures: - On 12 September 2001 support of the face of longwall 21 by means of 2.5 mesh modules and butterflies - During the nightshift on 12 September 2001 added further support by means of plastic fibreglass dowel to the face of longwall 21 - Issued a safety alert to Baal Bone Colliery staff in the following terms: "Ground consolidation men setting to bolt longwall face Under no circumstances is any person to work on face side of AFC spill trays or walk on the face side of AFC spill trays Weekend Maintenance Crew Refer to Section 63 issued by Dave Carey - District Inspector Any person working on the face side of AFC spill trays must comply with Section 63 If working on face side, ensure temporary support is erected as a physical means of preventing risks associated with rib or roof failure." Relevant Principles 11 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case, ss8(1) and 8(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). 12 Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand and the need to avoid a mathematical approach on the other. Such an approach involves the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 13 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. 14 Proper regard is to be 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 to sentencing 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 and states, inter alia: . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions, … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, … (k) a plea of guilty by the offender (as provided by section 22) (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23) . . . 15 In consideration of penalty, the Court must examine the objective seriousness of the offence or, as has been said "the nature and quality of the offence". The Full Bench commented in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474): . . . in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" . . . The Colliery 16 Xstrata Coal Australia Pty Ltd acquired the Baal Bone Colliery through a subsidiary, Xstrata Coal (NSW) Pty Ltd, in April 2000. It oversaw the operation of the mine but used the employees of the two named defendants as miners. When Xstrata purchased the colliery it was of the opinion there had been "cost minimisation" within the colliery and therefore capital and operating expenditure over a number of years had declined. Xstrata immediately employed a new Mine Manager in May 2000. He was required to conduct a full review of the mining operation at the colliery. In accordance with his recommendations, money was then spent upgrading the mine. The upgrade was continuing at the time of the incident. 17 At the time Xstrata took over the mine, the extraction of coal from longwall 19 was being finalised. In accordance with the legislative requirements, the mining of longwalls 20 to 24 were given provisional approval by the Department of Primary Industry. Xstrata designated and recorded new procedures to be adopted for the mining of longwall 20 and put in place an assessment of those procedures for further planning for the extraction of coal for its next mining operation - longwall 21. 18 It was recognised by the defendants that as a result of the existence of the goaf from the prior extraction of longwalls 19 and 20, additional stress would exist to the tailgate section bordering longwall 21. Evidence revealed longwall 21 was under a cliff formation. The cliff formation was recorded as a hazard on the mining plan. There was a significant rock formation in the cliff that, along with the prevailing conditions, caused the area to be recognised as hazardous. Information concerning the effect of mining with rock in the cliff face was discussed by the management team and communicated to the workforce. Extra care was to be taken given the existence of the considerable rock element in the face. It was also noted that, in passing the goaf, there were heavy roof conditions in the tailgate heading which would also affect the area to be mined over the last four chocks. 19 Although conditions in the tailgate were difficult, it was determined to continue operations until the more difficult path through the goaf was completed. By the day of the incident, mining in longwall 21 had passed the goaf so the more perilous area of mining of the coal had been completed. 20 A loss of the floor horizon to the roof in the tailgate section of longwall 21 was recognised by the afternoon shift of 7 September 2001. Access by the continuous miner for the cutting of the coal from the longwall was becoming difficult. Concern was recorded about the state of the horizon and the need for gradient control. This is also recognised by mine management as a hazard in mining. Under the system of mining in place at the time of the incident, the colliery's Action Response Plan was triggered. Additional roof support between the longwall chocks and the longwall face were installed by the day shift crew on 12 September 2001. The roof was also supported to the face with mesh to contain any falls or spalls. However, the longwall face itself was given no further support. 21 It was determined the afternoon shift of 12 September 2001 would conduct a shotfiring activity of the floor in the tailgate of longwall 21 to regain the necessary floor horizon. 22 At the start of the shift, six charge holes were drilled into the floor near the face. The miners, Alan Eckford and Thomas Bennett, drilled the holes. Graham Jordan and Jan Kapusta placed the charges. Mr Jordan was in the process of charging the final drill hole when a shower of rock (including one approximately 2.2m in length and 600mm in width) fell from the longwall and struck him. Mr Jordan was the Deputy on the shift. He was an employee of Oakbridge. He later died of shock, crush injury, pelvic haemorrhage, coagulopathy and hypothermia (the later condition related to difficulty due to other circumstances which delayed him from receiving medical attention). Mr Eckford, one of the miners employed by Wallerawang, was also struck by the falling rock causing a fracture to his right humerus, a laceration to his head and soft tissue damage to his ribs, knee, ankle and nose. 23 The charges to which each defendant is brought before the Court are specified through two relevant particulars, namely: the failure of each defendant to ensure that support was provided to the face of longwall 21 in the vicinity of the longwall 21 tailgate and 51 cut-through, and the failure to devise, have in place and implement a Safe Work Procedure for the support of the face and roof on that part of longwall 21 in the area where personnel were undertaking drilling for a shotfiring operation. The failure to provide support to the face of the Longwall 21 24 After the incident, in response to a Notice issued by the Department of Mineral Resources, the defendants through its Strata Management issued a Safety Alert to Xstrata's other collieries. The Safety Alert prohibited persons from accessing the face side of a longwall mining area without installing temporary support to the longwall face. As a result of this industry communication, plastic mesh modules now are laid across the face and fibreglass dowels are inserted in the face wall in order to contain loose rock or coal. This procedure has now been adopted by all the mines within the Xstrata Coal (NSW) Pty Ltd and by other mines operating in the western district. A restriction is also placed upon a miner's access around the spill tray areas on the longwall side during a shotfiring operation. Temporary support must now be erected as a physical means of preventing the reoccurrence of falling rock/coal from a longwall being mined. 25 All of these actions could have been taken prior to the incident to provide support to the face of longwall 21. The tailgate section was recognised as a hazard within each company's knowledge. A geotechnical engineer had recognised the specific risk of a rock fall from the face and had recorded the need for action to be taken to ensure safety in the mining of longwall 20 (which had been the model for mining longwall 21). The geotechnical engineer drafted a plan of procedures by July 2001 to be followed in mining longwall 20 that provided for temporary support for the face line where a cut or weld was required. These procedures involved moving the chocks close to the face and placing overlapping mesh modules lengthwise to cover the longface. However, two weeks before the incident, the geotechnical engineer left the service of the defendants. The procedure for temporary support devised for the prior longwall extraction was not implemented for the mining of longwall 21. 26 At the heart of this breach of the Act is that in the mining of longwall 21, no temporary face support was installed to protect miners from the risk of a rock fall from the longwall face. The miners therefore who were required to undertake the shotfiring were exposed to the risk spalls or falls from the known soft longwall 21 face. After the incident, a method of temporary face support was instituted. Plastic mesh covering was installed on the longwall face and fibreglass dowels imbedded into the longwall face to ensure no rock fall could occur. 27 I find there was a failure by the defendants on the relevant date to provide support to the face of longwall 21. The failure to have a Safe Work Procedure 28 Before the incident, a Shotfiring and Explosives Management Plan had been forwarded to the Department of Mineral Resources on 4 August 2000. Clause 11 of that Plan required a full risk assessment be undertaken before any shotfiring procedure was performed. Evidence revealed a full risk assessment was not conducted. However, the defendants did have at the coal face highly qualified mining experts who continued to conduct regular inspections to assess the state of the face. There was a particular inspection conducted on the afternoon/evening shift prior to the shotfiring operation. 29 At the same time, there was also in place a Strata Management Plan; a Longwall 19 Management Plan (dated May 2000), an Inrush Management Plan (dated August 2000); a General Fire Control Management System (dated December 2000); an Evacuation Plan (dated December 2000); a Withdrawal Conditions Plan Management System (dated December 2000); an Emergency Preparedness and Response Plan (dated March 2001); a Mine Inspection Systems Management Plan (dated March 2001); a First Aid Management System (dated December 2000) and a Management Plan for Competency Based Training. There was also a Shotfiring and Explosive Systems Management Plan which on the day of the incident had not been implemented in the colliery. 30 The geotechnical engineer's plan recognised the hazard of rock falls from the longwall face. However, the defendants undertook no full risk assessment of the shotfiring procedure and did not implement the cautionary procedures recommended in the geotechnical engineer's plan regarding longwall face support. I find the defendants failed to implement their own safe work procedures. 31 An element of foreseeability to an offence can make that offence more serious (see Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610). In WorkCover Authority of New South Wales (Inspector Barbosa) v McDonalds Australia Ltd (2003) 125 IR 270, the Court addressed the issue of risks that are not only foreseeable, but are foreseen (at [109]): It is well settled that the existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature (see Capral Aluminium (2000) 99 IR 29 at [81] - [82]). The fact that the risk to safety as particularised in a given prosecution has actually been foreseen by a defendant will, in my view, have the effect of further aggravating the nature and seriousness of an offence under the Act. This observation must, of course, be tempered by a recognition of all the circumstances of the particular case. 32 It was well known to each defendant that the tailgate of longwall 21 was weak and the longwall face in poor condition. It had been noted in the Deputies' reports that there was face breaking, balling and spalls. The cliff formation was acknowledged. Further, there had been a number of incidents recorded where miners had been struck by either coal or rock fall as the other nearby longwalls were mined. Falls up to 30 tonnes and down to five kilos had been recorded. I am persuaded there was a foreseeable element to the offence which makes it more serious. The defendants were aware of the state of longwall 21 and should have put in place the procedure for temporary support such as mesh and dowels over the longwall face before proceeding with the shotfiring procedure. This risk I find was not only foreseeable but actually foreseen. The risk also became a reality. 33 The rock fall led to one fatality and another crew member was injured. These effects manifest the degree of seriousness of the detriment to safety caused by the failure to provide a safe system of work in securing the face of longwall 21. It is not the actual consequences of the incident but their demonstration as to the seriousness of the risk and its foreseeability which must be reflected in penalty (see Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 475) and the words of Wright J, President in WorkCover Authority of New South Wales (Insp Page) v Walco Hoist Rentals Pty Limited & Anor (No 2) (2000) 99 IR 163 at [22]). 34 In Inspector Ian Clifford Hannah and Wonar Pty Limited (unreported judgment of the Full Court (Fisher CJ, Glynn and Cullen JJ) CT1214 of 1990 dated 30 June 1992) it was noted (at 9): . . . a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences. In this circumstance, the serious consequences of the rock fall while underground mining was being undertaken is indicative of the seriousness of the risk. A rock fall off the longwall face during a shotfiring operation was more likely than not to have serious consequences. 35 In the assessment of penalty, the element of specific and general deterrence are relevant. Both defendants continue mining operations under Xstrata. In Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, the Full Bench said: 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: R v Corner (Court of Criminal Appeal, 19 December 1997, unreported) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (Court of Criminal Appeal, 8 December 1995, unreported). 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 both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. 36 I accept there should be a component of specific deterrence in penalty. I, however, balance this with the acknowledgement of the implementation of safety standards introduced at the colliery where the ore mining is now overviewed by Xstrata Coal (NSW) Pty Ltd. Xstrata runs a number of collieries throughout NSW. While the propensity to re-offend must be considered in determining the weight to be attached to specific deterrence, I am persuaded, with the introduction of Xstrata's rigorous safety standards within the operations of the companies under its banner, concern as to each of the defendant's likelihood to re-offend is alleviated. 37 The Group Safety Manager of Xstrata Coal (NSW) Pty Ltd gave evidence. He is a most experienced mining operator and has been in charge of safety standards for Xstrata's mine operations since 10 February 2001. He attended the scene of the incident. He co-operated with the then NSW Department of Mineral Resources and it is not in dispute that he sought out and provided the Authority's investigation team with all relevant documentation held within both mining companies. 38 The Safety Management framework within Xstrata's mining operations was placed before the court. There is now a universal management framework for health, safety, environment and community within the mines. Standard systems of work have been implemented across Xstrata Coal (NSW) Pty Ltd's mine sites to ensure a consistent approach to safety. The standard is to ensure continuous improvement in workplace safety. The standards implemented are grouped in the following categories: systems; people; workplace; work processes and work environment. In addition to these general standards, there are Site Specific Standards again to establish minimum requirements for performance, design, operation and measurement of quality. 39 Each of Xstrata's sites is required to implement this Safety Management System. Hazards are recognised in categories of which strata failure is the first recognised hazard. The Safety Management System comprehensibly covers all possibilities, including inrush, fatigue and energy isolation. It is a systematic approach to identifying risks. Detailed written risk assessments are required, there are formal procedures required to meet the risk identified and is followed through with training and the rigor necessary to ensure the proposed procedures are carried out. There are both internal and external audits carried out. Any event or near miss is recorded and notified. A group alert system is established where necessary as was activated arising from this incident. 40 A number of subjective factors have been placed before the Court and are appropriately balanced against the assessment of the objective seriousness of the offence. 41 The colliery met the expenses associated with the deceased miner's funeral and wake. All colliery employees were given time off. Compensation was provided to the widow within a month of Mr Jordan's death. Both Mr Jordan's son and son-in-law are employees of the mine and were given compassionate leave. 42 The injured miner, Mr Eckford, was assisted to return to pre-injury duties consistent with a medical return-to-work programme. He has had the appropriate medical assistance when required. 43 I am persuaded each defendant company is committed to the local community within the area they operate mines. Xstrata, through its encouragement of community activities, is a fine community citizen. Through Xstrata's support, both companies have provided computers to local schools, upgrades to outdoor facilities at local pre-schools and assists the local Fire Brigade. Through a social involvement plan from Xstrata, its miners also are encouraged to contribute to the local community. On behalf of the Oakbridge and Wallerawang companies, Mr Mellows expressed deep regret and sorrow over the incident. I accept the appropriate expression of remorse has been made and this is reflected in the refinement of all the collieries safe work procedures. 44 However, an element of general deterrence must be reflected in penalty. Mining companies must be ever vigilant when it comes to safety. Rock and coal falls are a basic risk in underground longwall mining. In an environment where there was already recognised significant spalling and a recognised hazardous procedure was being undertaken, there is a need once again to reiterate to mining companies the need for abundant caution. The general standard for occupational, health and safety puts an obligation on employers to ensure rigorous action to ensure recognised safety procedures are implemented. 45 A guilty plea was entered but only after Further Amended Applications for Order were filed. In accordance with the principles in R v Thomson; R v Houlton (2000) 49 NSWLR 383 there can be a discount for the utilitarian value of the plea. Matters were first filed on 1 December 2003 and the court record demonstrates the matters required a significant number of mentions and appearances leading up until the Further Amended Applications for Order were filed in February 2008 when the pleas of guilty were immediately entered. Counsel for the defendant, Mr Hodgkinson SC, contends in such a circumstance where a plea was entered at the earliest possible time to the Further Amended Applications for Order there should be the benefit of a full discount. He relies upon the view expressed by Boland J in Inspector Nguyen v Western Sydney Area Health Service [2003] NSWIRComm 268 who made reference to Cameron v The Queen (2002) 209 CLR 339 (at 345) saying at [56]: . . . Gaudron, Gummow and Callinan JJ appear to have endorsed the proposition that the test as to whether the plea was entered at the earliest opportunity is when it is reasonable, in all the circumstances and as a matter of practicality, to have expected a plea of guilty to be announced and, further, that regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others remained pending against him. 46 In 2005, 16 days were allocated for a defended hearing in early 2007. The number of days for hearing was extended to 20 days and then to 24 days. The dates for hearing in 2007 were vacated due to illness (not a matter of fault). The court then allocated 24 hearing days in February and March 2008. As the court does not operate with a running list, the value of the court's time must be respected. Notwithstanding the utilitarian value of the plea, the way these matters proceeded to a plea has frustrated the court's valuable time. In the use of my discretion I accordingly allow only a 15 percent deduction for the utilitarian value of the plea. 47 As to penalty in a circumstance where the particulars are similar in each charge and arise from the same incident, it was held in Newcastle Wallsend Coal Company Pty Limited & Ors v Stephen Finlay McMartin [2006] NSWIRComm 339 as follows: 584 The correct approach to sentencing involved taking each of the six offences for one of the corporate appellants and, having regard to all of the relevant circumstances including the objective and subjective factors, arriving at a separate penalty for each offence. It would then have been open to the sentencing judge to apply the totality principle, which requires consideration of the overall criminality involved in the offences for each defendant and which requires that regard be had to the principle that a defendant is not to be punished more than once for elements which are common to the offences as well as ensuring the aggregate sentence or penalty is just and appropriate: Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 at [37]. Once the totality principle had been applied it will then usually be appropriate to fix separate penalties for each offence. 585 This process would then be repeated for the other corporate appellant having regard also to questions of parity or consistency in sentencing. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [62]. 48 In accordance with legal principles, no defendant is to be punished more than once for elements common to each offence. The principle of totality will be applied to the two offences established against each defendant and the Court notes it is appropriate to fix separate penalties for each offence. Given exactly the same particulars are relied upon arising from the same incident and similar breaches are pleaded against each defendant, I will apply the principles of parity to each sentence in recognition of achieving equal justice between co-offenders. The maximum penalty prescribed by the Legislature for an offence by a corporation under both s8(1) and s8(2) of the Act is $550,000. 49 Taking into account the subjective features of the offence but giving weight to the objective seriousness of the offence, I find each defendant guilty of the breaches under s8(1) and s8(2) of the Occupational Health and Safety Act 2000. 50 Accordingly, as to penalty, in Matter No. IRC5056 of 2003, the charge against Oakbridge Pty Limited under s8(1) of the Act, I find the defendant company guilty of the offence as charged. The defendant company is fined in the sum of $90,000. 51 In Matter No. IRC5057 of 2003, the charge against Oakbridge Pty Limited under s8(2) of the Act, I find the defendant company guilty of the offence as charged. The defendant company is fined in the sum of $90,000. 52 In application of the principle of totality, I fine the defendant $140,000. The defendant is therefore fined for each breach of the Act in the sum of $70,000. 53 As to the charges brought against The Wallerawang Collieries Ltd, I find the essential elements of the charges similar to those against Oakbridge and therefore apply the principle of parity as well as totality. I do not accept the fact that more persons were put at risk by this employer is relevant to the court's consideration of the objective seriousness of the offence. The risk was most serious be it to one or more of the miners. All were exposed to the same risk of injury and it is to this risk that penalty for the charges are directed. 54 In Matter No. IRC5058 of 2003, the charges against The Wallerawang Collieries Ltd under s8(1) of the Act, I find the defendant company guilty of the offence as charged. In the application of the principle of parity the defendant company is fined in the sum of $90,000. 55 In Matter No. IRC5060 of 2003, the charge against The Wallawarang Collieries Ltd under s8(2) of the Act, I find the defendant company guilty of the offence as charged. In the application of the principle of parity the defendant company is fined in the sum of $90,000. 56 In application of the principle of totality, I fine the defendant $140,000. The defendant is therefore fined for each breach of the Act in the sum of $70,000. Orders 57 Accordingly, the Court makes the following orders: 1. In Matter No. IRC5056 of 2003, I find the defendant company guilty of the offence as charged. In Matter No. IRC5056 of 2003, the defendant company is fined in the sum of $70,000 with a moiety to the Department of Primary Industries. 2. In Matter No. IRC5057 of 2003, I find the defendant company guilty of the offence as charged. In Matter No. IRC5057 of 2003, the defendant company is fined in the sum of $70,000 with a moiety to the Department of Primary Industries. 3. In Matter No. IRC5058 of 2003, I find the defendant company guilty of the offence as charged. In Matter No. IRC5058 of 2003, the defendant company is fined in the sum of $70,000 with a moiety to the Department of Primary Industries. 4. In Matter No. IRC5060 of 2003, I find the defendant company guilty of the offence as charged. In Matter No. IRC5060 of 2003, the defendant company is fined in the sum of $70,000 with a moiety to the Department of Primary Industries. 5. As there has been no agreement between the parties as to the quantification of the costs, I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. 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.