Nash v Silver City Drilling (NSW) Pty Ltd;; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Nash v Silver City Drilling (NSW) Pty Ltd;; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Hearing dates: 24 March 2017 Decision date: 16 May 2017 Before: Basten JA at [1]; Hoeben CJ at CL at [80]; Walton J at [81] Decision: (1) In respect of the appeal against sentence:

(a) allow the appeal and set aside the orders made by Curtis DCJ on 12 August 2016; (b) in lieu thereof make the following orders– (i) convict the respondent, Silver City Drilling (NSW) Pty Ltd of an offence under s 32 of the Work Health and Safety Act 2011 (NSW) for contravening s 19(1) of the Act with respect to its workers at Ashton Coal Mine on 12 August 2012; (ii) order that the respondent pay a fine in the amount of $212,500 of which a moiety should be payable to the prosecutor.

(2) In respect of the appeal against the refusal of the costs application:

(a) allow the appeal and set aside the order made by Curtis DCJ on 12 August 2016 refusing the application; (b) in lieu thereof order that the respondent pay the prosecutor's costs of the proceedings in the District Court, not including any costs incurred in preparation for a trial in which the particulars withdrawn in the further amended summons were to be relied upon, such costs to be agreed or assessed. Catchwords: CRIME – appeal by Attorney General against inadequacy of sentence under Criminal Appeal Act 1912 (NSW) s 5D – respondent company convicted of failure to comply with health and safety duty under Work Health and Safety Act 2011 (NSW), s 32 – whether fine imposed inadequate – whether sentencing judge erred in determining objective seriousness of offence, weight to be placed on deterrence, and appropriate discount for guilty plea – whether Court should exercise power to resentence