Regan v Austar Coal Mine Pty Limited (ACN 111 910 822) [2011] NSWIRComm 112

Industrial Relations Commission New South Wales Medium Neutral Citation: Regan v Austar Coal Mine Pty Limited (ACN 111 910 822) [2011] NSWIRComm 112 Hearing dates: 8 and 9 March 2011; 6 and 7 April 2011 Decision date: 19 August 2011 Jurisdiction: Industrial Court of NSW Before: Backman J Decision: (1) The defendant is convicted of the offence in the Amended Application for Order in relation to Particulars 1(a), (b) and (c) and Particulars 2(a), (b) and (d). (2) The defendant is fined $105,000 with a moiety to the prosecutor. (3) Costs are reserved. (4) The matter is set down for a directions hearing in relation to the outstanding issue of costs at 9.30am on 1 September 2011. Catchwords: OCCUPATIONAL health and safety - offence under s 8(1) of the Occupational Health and Safety Act 2000 (the Act) - plea of guilty to Particulars 1(a), (b) (c) and Particulars 2(a), (b) and (d) - plea of not guilty to Particular 2(c) - risk of entanglement in machinery used at underground coal mine - worker on a continuous miner suffers serious injury when left arm becomes trapped while using drill steel to position steel roof and rib mesh - system of work for strata support installation developed to accommodate specific conditions at the mine - no risk assessment completed in relation to the use of this system - system of work in place at the mine - objective factors considered - subjective factors considered - victim impact statement - contested Particular 2(c) considered - contested Particular 2(c) not made out: evidence not sufficient to prove Particular beyond reasonable doubt - orders - costs reserved Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Cases Cited: Ahmad v Regina [2006] NSWCCA 177 Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117 Nguyen Giac v R [2008] NSWCCA 280 Regina v Dib [2003] NSWCCA 117 R v Robert Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 Regina v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Regina v Warren Alan Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 Saad v R [2007] NSWCCA 98 TC v Regina [2009] NSWCCA 296 Category: Principal judgment Parties: Robert William Regan (Prosecutor) Austar Coal Mine Pty Limited (Defendant) Representation: Ms V Hartstein (of counsel) (Prosecutor) Mr B Hodgkinson SC (Defendant) I V Knight, Crown Solicitor Crown Solicitor's Office (Prosecutor) Sparke Helmore (Defendant) File Number(s): IRC 119 of 2010