Inspector Nash v Macmahon Mining Services Pty Limited (re Junk) [2016] NSWDC 171

District Court New South Wales

Medium Neutral Citation: Inspector Nash v Macmahon Mining Services Pty Limited (re Junk) [2016] NSWDC 171 Hearing dates: 20 July 2016 Date of orders: 19 August 2016 Decision date: 19 August 2016 Jurisdiction: Civil Before: KEARNS DCJ Decision: The defendant is convicted and fined the sum of $75,000 with a moiety to the prosecutor. The defendant is to pay the prosecutor's costs as agreed or assessed. Catchwords: Work Health and Safety Act 2011 ss 19 (1), 32 – plea of guilty – mining worker fatally injured when riding in a kibble – defendant contracted with mine operator to extend the mine shaft depth – defendant employed injured worker – workers aware of need to stay within the confines of the kibble – foreseeability of risk – low probability of incident occurring – measures available to control risk were not utilised by others operating in the industry – foreseeability of the consequences of the risk – measures available to minimise the risk – defendant had extensive safety systems in place prior to the incident – low end of objective seriousness – general and specific deterrence – extensive measures taken by defendant post-incident – no prior convictions – high risk industry – expression of remorse and acceptance of responsibility – defendant unlikely to reoffend – cooperation with regulator – consideration of defendant's liability for prosecutor's costs in assessing penalty – consideration of victim impact statements Legislation Cited: Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999 Category: Sentence Parties: Inspector Nash, Director, Mine Safety Performance of the New South Wales Department of Trade and Investment, Regional Infrastructure and Services (Prosecutor) Macmahon Mining Services Pty Limited (defendant) Representation: Counsel: Mr D Jordan SC with Mr C Magee, instructed by Henry Davis York, appeared for the Prosecutor Mr J Sexton SC with Mr N Read, instructed by Clyde & Co, appeared for the defendant File Number(s): 2015/75525