Attorney General for New South Wales v Macmahon Mining Services Pty Ltd [2019] NSWCCA 8

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Attorney General for New South Wales v Macmahon Mining Services Pty Ltd [2019] NSWCCA 8 Hearing dates: 11 April 2018 Decision date: 26 February 2019 Before: Beazley P at [1] Fullerton J at [27] McCallum J at [28] Decision: 1. Appeal allowed. 2. Quash the monetary penalty imposed in the District Court. 3. In lieu thereof, order that the respondent pay a penalty of $375,000. 4. Note that the respondent is to be given credit for the amount of penalty already paid. 5. The remaining orders of the District Court are confirmed, amended as necessary in accordance with these orders. Catchwords: SENTENCING – appeal by Attorney General against inadequacy of sentence – failure by corporation to comply with duty under Work Health and Safety Act to ensure the safety of workers under its direction – category 2 offence – whether fine imposed manifestly inadequate – where worker suffered fatal injury – whether sentencing judge erred in his assessment of the objective seriousness of the offence – whether sentencing judge failed to apply maximum penalty or pay due regard to recent increase – whether sentencing judge failed to place due weight on general deterrence Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g) Criminal Appeal Act 1912 (NSW), s 5D(1) Occupational Health and Safety Act 2000 (NSW), ss 8(1), 12 Occupational Health and Safety Amendment Bill 2011 Occupational Health and Safety Bill 2011 Work Health and Safety Act 2011 (NSW), ss 3, 19(1), 19(3)(f), 32 Cases Cited: Attorney General for the State of New South Wales v Ceerose Pty Ltd [2019] NSWCCA 35 Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33 Barnes v R [2008] NSWCCA 136 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Green v The Queen; Quinn v The Queen (2011) 244 CLR 584; [2011] HCA 49 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Inspector Nash v Macmahon Mining Services Pty Limited (re Junk) [2016] NSWDC 171 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling Pty Ltd v R (2012) 35 VR 399 R v Baker [2000] NSWCCA 85 R v Darwich [2018] NSWCCA 46 R v Slattery (1996) 90 A Crim R 519 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 Yeung v R [2018] NSWCCA 52 Category: Principal judgment Parties: Attorney General for New South Wales (appellant) Macmahon Mining Services Pty Ltd (respondent) Representation: Counsel: J Agius SC, C Magee, P Boncardo (appellant) J E Sexton SC, N D Read (respondent)