District Court New South Wales Medium Neutral Citation: Nash v Bulga Underground Operations Pty Ltd (re Newstead) [2015] NSWDC 76 Hearing dates: 20 May 2015 Decision date: 26 May 2015 Jurisdiction: Criminal Before: KEARNS DCJ Decision: I fine the defendant $75,000 with a moiety to the Prosecutor. The defendant is to pay the Prosecutor's costs agreed or assessed. Legislation Cited: Occupational Health and Safety Act 2000 Cases Cited: Inspector Nash v Bulga Underground Operations Pty Ltd [2014] NSWDC 186; Morrison v Defence Maritime Services Pty Limited (2007) 156 LGERA 365 Category: Sentence Parties: Jennifer Ann Nash, Director, Mine Safety Performance, NSW Department of Trade and Investment, Regional Infrastructure and Services (Prosecutor); Bulga Underground Operations Pty Ltd (Defendant) Representation: Counsel: Mr C Magee, instructed by Crown Solicitor, appeared for the Prosecutor; Mr D Buchanan SC with Mr M Shume, instructed by Sparke Helmore, appeared for the defendant File Number(s): 12/244559 Judgment Outline 1. The defendant has been found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000. The matter is now before me for sentence. 2. The particulars in respect of which the defendant has been found guilty, in summary form, are as follows: 1. failing to install secondary roof support; 2. failing to ensure that the pick changing was undertaken under supported roof; 3. failing to ensure that the pick changing was undertaken at the maingate drive or at a take-off chute under a supported roof; 4. failing to conduct a risk assessment; 5. failing to ensure that Mr Newstead was provided with adequate information and training; 6. failing to ensure that Mr Newstead was provided with instruction that if the roof supports were not able to be advanced sufficiently to provide roof support, he should not access the work area until secondary roof support had been installed; 7. failing to adequately supervise Mr Newstead and the longwall crew to ensure that the maingate cutter drums were positioned under supported roof; 8. failing to adequately supervise Mr Newstead and the longwall crew to ensure that a risk assessment was undertaken to identify hazards arising from the Huesker mesh. Denial of procedural fairness 1. At the outset, I deal with one submission of the defendant. It is that it was denied procedural fairness in relation to the point as to whether the picks could and should have been changed on the shift prior to the incident. This is no longer the forum for that to be debated or for me to rule on. 2. The defendant maintains that, quite apart from the question of guilt, the finding on this point could adversely affect it on sentence because of the denial of procedural fairness. Assuming, for the moment, a denial of procedural fairness, I am not satisfied that it has resulted in any injustice to the defendant. I am satisfied, however, that the problem, if there be one, is capable of cure. I can ignore my finding in relation to this point in determining sentence. In a nutshell, this case is about roof fall and the risk associated with that. I am satisfied I can determine an appropriate sentence on the basis of other findings. Objective seriousness 1. The objective seriousness of the offence and the defendant's moral culpability may be determined, in part, by the foreseeability of the risk, the foreseeability of the consequences of the risk and the availability of means to minimise the risk. 2. The risk was obviously foreseeable. This does not require detailed analysis. 3. Risk of roof fall in longwall mining is ever present. Unsupported roof will fall. A tip-to-face span of 1.5 metres is unsupported roof. That span existed in this case. When picks were changed on a drum not in the gate road, but out of the gate road and along the face, some part of the operator's body would be beyond the tips of the canopies and under exposed roof. If nothing was done to support the roof in this case, some part of the operator's body would be beyond the tips of the canopies and under exposed, unsupported roof. 4. Insofar as the defendant submits that the risk was unforeseeable because it could not be foreseen that Mr Newstead would be under the unsupported roof, I reject that. The defendant repeated and expanded on the submission made in the earlier hearing that Mr Newstead knowingly and wilfully worked under unsupported roof. I rejected that submission before. I do so again. The defendant defined the risk in a way that required, as an element, the presence of Mr Newstead under unsupported roof. That may be so, but it was the defendant's system, and I shall come to that, that allowed Mr Newstead to be under unsupported roof. 5. Insofar as the defendant submits that the risk was unforeseeable because it could not be foreseen that Mr Power and Mr Neild, armed with the knowledge of the risk, would not act on that knowledge, I reject that. I accept they were competent officers. The submission, however, overlooks that humans do not at all times act according to established systems and protocols. It overlooks that an employee, even a well-qualified one, may act inadvertently or by oversight. I shall mention this again a little later when I deal with system. 6. This risk was readily foreseeable. 7. The consequences of the risk, if it occurred, were readily foreseeable and included potential fatal injuries. The defendant was aware of this. 8. Means to avoid the risk were readily available to the defendant. They are covered in the earlier reasons and I need not repeat them. 9. The known almost inevitability of a roof fall, the known potential consequences of that and the availability of means to minimise the risk justify categorising this offence as serious. 10. There are, however, other factors that bear on seriousness and the defendant's culpability. 11. The parties were at issue as to whether the offence should be categorised as one arising from a failure of the defendant to have proper, safe systems in place, or as one resulting from behavioural acts or omissions of an employee or employees in the presence of a proper safe system. The truth lies somewhere in between, but it lies considerably in favour of the defendant. I do not find helpful a minute detailed analysis in determining this. In this regard, I do not find Mr Harvey's affidavit (Exhibit DX 2) helpful. 12. A vast amount of the hearing time and a vast volume of the exhibits in the primary hearing went to various safe systems the defendant had in place. Paragraphs 73 and 74 of the earlier judgment summarise part of that evidence. I accept the defendant's submission that whilst this might not be relevant on guilt, it is on sentence. The defendant had numerous safety systems, measures and documents in place covering all aspects of longwall mining, including pick changing. I need not set them all out. The systems were audited. It may be described as Judge Curtis did in Inspector Nash v Bulga Underground Operations Pty Ltd [2014] NSWDC 186 as a "well-developed and robust health and safety management system". The system served the defendant and its employees well. Apart from the incident that Judge Curtis dealt with, which was unusual and unrelated to this one, the defendant has a clear record. The problem seems to be that its systems did not expressly cover the added hazards that arose with pick changing at the end of the longwall when Huesker mesh was deployed. This is in a context where the defendant's practice was to change picks on both cutter drums at the same time. The result was that the picks on one drum were changed when that drum was not in the gate road and was out along the face with the drum partially under exposed roof. It is in the context also that this exposed roof was unsupported roof. It was in the context also that it was known that the roof was unsupported because of the tip-to-face span. It was known also that to change the picks part of the operator's body would be under that exposed, unsupported roof. 13. Bearing in mind, however, the complexity of operations in a longwall mine, and the vast variety of different activities necessarily involved in the process of longwall mining, it is not surprising that not everything was expressly covered. Had this subject matter been the subject of specific content in the defendant's system, it can be inferred that both Mr Power and Mr Neild would have acted on it in the circumstances. 14. To the extent that this might be described as a systems failure, so far as such a failure goes, it was at the low end of any scale of such failure. Deterrence 1. I do not consider there needs to be any weight given to specific deterrence. The defendant had, but for this incident and the earlier one dealt with by Judge Curtis, well established and sound safety and health management systems. They let the defendant down here and the defendant has suffered a most expensive financial consequence as a result. It has no doubt expended considerable amounts in legal fees which it would unquestionably have no desire to do. The prospect of undergoing that again, no doubt, acts as a deterrent to the defendant. Added to that will be the considerable costs it will be required to pay to the Prosecutor. More to the point, however, the defendant acted immediately on the outcome of the incident. It put in place systems, which I need not detail, to prevent this happening again. 2. General deterrence remains a factor. It is important because this is a high risk industry and others operating in it must know that safety is paramount and that there are consequences for breach of the statutory obligations. I reject the submission that a penalty for this offence is not capable of deterring others from committing a similar offence. In this case, the defendant took action to prevent recurrences. Others may be able to do likewise. Mitigating factors 1. A number of subject matters operates in mitigation. 2. For a start, there is the action taken by the defendant to shore up its already solid safety system and prevent further incident. 3. The defendant has only one prior conviction. It can certainly be said that it does not have any significant record especially bearing in mind the earlier offence was unrelated, was most unusual and Judge Curtis contemplated a s 10 order in that case. In this case, I consider that s 21A(3)(e) trumps s 21A(2)(d). The defendant's record stands to its credit. 4. The defendant is a company of outstanding involvement in its local community. Details are contained in Mr Harvey's affidavit of 5 May 2015. 5. There has been some degree of contrition and remorse, but it is tempered by the fact that the contrition does not extend to the offence. It is also tempered by the fact that the defendant did not renew Mr Newstead's contract. It had at the time what it thought was a sound reason for that, but there is no evidence that the result of these proceedings has caused it to acknowledge any error there. The contrition and remorse must also be tempered by Mr Power's and Mr Nield's expressed views that they thought they had done nothing wrong and by Mr Munro's reluctance to take disciplinary action against them. 6. There was debate over whether costs may be taken into account. I have done so in considering specific deterrence. It has the effect of acting in mitigation of the penalty. I do not propose to take costs further into account. Penalty 1. The maximum penalty available is $825,000. Bearing all matters in mind, I think an appropriate penalty is $75,000. Costs 1. The parties were at issue as to whether the defendant should be ordered to pay the whole of the Prosecutor's costs or only a portion. Argument centred on whether success or failure on charges, particulars or issues should determine whether an order for a portion of the costs should be made. The Prosecutor's submission was that there was one charge and she succeeded and, therefore, there is no basis for apportioning at that level. 2. The next submission was that the summons contained five particulars, e to i inclusive, of contravention. All but one of those particulars contained sub-particulars. Further and better particulars were sought and supplied in relation to those particulars and sub-particulars. In respect of each of the particulars in the summons, the plaintiff succeeded on some of the sub-particulars and some of the further and better particulars. The result was that the Prosecutor had success on each of the particulars in the summons. The argument proceeded that, therefore, there was no basis for apportioning costs. 3. The Prosecutor's arguments are correct in their premises, but the conclusions do not necessarily follow. 4. I take as a guiding principle that costs might be apportioned where the prosecutor has failed "on a dominant or separable and substantial issue" – Morrison v Defence Maritime Services Pty Limited (2007) 156 LGERA 365 [17]. I am not satisfied that there were such issues in this case. 5. The defendant has set out in written submission the issues where the Prosecutor failed. As to some, the Prosecutor failed because the evidence from Mr Munro established that the documents relied on did not apply to pick changing. This was after the defendant had supplied these documents to the Prosecutor as being documents relevant to pick changing. It was the defendant's conduct that led the Prosecutor into prosecuting those issues. Other issues were all bound up as part and parcel of the work processes of the defendant applicable at the time. I am not satisfied that there is an issue here that is dominant or substantial or separable. 6. The defendant had a submission that it was prejudiced by the failure of the inspector and investigator to conduct a proper inspection. I do not accept that, nor that it impacts on this issue of costs. The defendant had its own duty to investigate. The most cursory of inquiries in an investigation would have informed the defendant: 1. of the position of the drum when the picks were being changed. (Paragraph 22(d) of the defendant's submission wrongly records that I found the face edge of the drum had to be at least 500mm away from the face. The context makes it plain that was a finding relating to the ply that fell. The drum was considerably further from the face.); 2. that the AFC had been pulled back off the face to achieve that position; 3. that the AFC was pushed back towards the face after the incident to enable Mr Newstead to be moved out on the stretcher. 1. Several witnesses were able to convey each of those facts to the defendant. Further, had inquiries been made of Mr Neild and Mr Power, the defendant would have learned: 1. that when the picks were being changed, or to be changed, there was a tip-to-face span of 1.5m; 2. that both Mr Neild and Mr Power were aware or ought to have been aware of that span; 3. that neither Mr Neild nor Mr Power communicated their observations to any of the crew. ORDERS 1. I fine the defendant $75,000 with a moiety to the Prosecutor. 2. The defendant is to pay the Prosecutor's costs agreed or assessed. ********** Amendments 29 May 2015 - Paragraph [23]: "s 21A(3)(d)" amended to now read "s 21A(3)(e)". 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