Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd & Anor

SECOND DEFENDANT: Andrew Bell FILE NUMBER: IRC 2052 and 2055 of 1998 CORAM: Walton J Vice-President CATCHWORDS : Occupational Health and Safety - Prosecutions under s15 of the OH&S Act - Prosecution arose from collapse of mine roof - Support of mine roof paramount to safety of employees - Statutory scheme for coal mining industry - Statutory scheme concerns support of mine roof and management of rules for same - Public interest requirements - Detriments to safety - First defendants failure to ensure support rules followed - Absence of roof bolts - Failure in brushing procedures - Prosecution for a failure to adequately supervise employees not system of work, training or instruction failure - Settled safety procedure - Procedure would have avoided incident if followed - Instructions and rules not enough - Must ensure adherence to procedures and rules - Need to provide adequate supervision - Failure to maintain adherence to systems of work - Discount having regard to recent acquisition of mine by first defendant and actions to improve safety - Steps taken after incident laudable but also reveal deficiencies in supervision - Absence of brushing rules of minor significance - Incident reasonably foreseeable - Fatality - Offence a serioius one - Need for general and specific deterrence - Subjective features - Thirty percent discount - Finding of guilty - Verdict entered - Conviction - Penalty - Second defendant - Principles relevant to application of s10 of the Crimes (Sentencing Procedure) Act - Operation of s50 of the Act - Second defendant less culpable - Failure to prosecute other managers and supervisors - Principles in this respect - Credit for improvements at mine - Early plea and cooperation - Second defendant contrite - Personal circmstances considered - Affect of incident on second defendant - Found guilty - No conviction - Charge dismissed - Application required if costs sought Coal Mines Regulation Act 1982 ss32; 36; 37; 38; 39; 40; 41; 42 and 102 Coal Mines Regulation (Support - Underground Mines) Regulation 1984 cls 6; 7 and 21 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 s10 Occupational Health and Safety Act 1983 ss15; 50 Crimes Act 1900 s556A Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 Capral Aluminium v WorkCover Authority of New South Wales (2000) NSWLR 61 Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Drake Personnel v WorkCover Authority (Insp Ch'ng) (1999) 90 IR 432 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Nesmat Pty Limited v WorkCover Authority of New South Wales (1998) 87 IR 312 R v Thompson, R v Houlton (2000) 49 NSWLR 383 Schultz v Tamworth City Council (1995) 58 IR 221 Tyler v Sydney Electricity (1993) 47 IR 1 Warman International Limited v WorkCover Authority of NSW (1998) 80 IR 326 Wong v Melinda Group Pty Ltd (1998) 82 IR 118 CASES CITED : WorkCover Authority of New South Wales (Insp Lyons) v Warman International Pty Limited [2001] NSWIRComm 62 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited and Another (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority of New South Wales (Inspector McKensey) v Waste Recycling and Processing Services of New South Wales [2000] NSWIRComm 218 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No. 2) (2000) 99 IR 163 WorkCover Authority of New South Wales (Inspector Riley) v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Pty Ltd (1999) 90 IR 413 WorkCover Authority of New South Wales (Inspector Shepherd) v The State Rail Authority of NSW [2000] NSWIRComm 179 WorkCover Authority of New South Wales (Inspector Thomas) v Cruden (1996) 67 IR 469 WorkCover Authority of New South Wales v Neaves [1996] NSWIRComm 58 WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Hill J, Matter No. CT1280 of 1995, 2 April 1997) WorkCover Authority of NSW (Inspector Riley) v Broken Hill Proprietary Company Limited (1998) 83 IR 427

HEARING DATES: 03/24/2000; 08/31/2000 DATE OF JUDGMENT: 06/12/2001

PROSECUTOR: Mr K Mannion of counsel

SOLICITOR: Mr J Carrol Department of Mineral Resources Legal Services Branch LEGAL REPRESENTATIVES: DEFENDANTS: Mr J N Gleeson QC with Mr M Shume of counsel

SOLICITOR: Mr N Meagher Sparke Helmore Solicitors

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WALTON J, VICE-PRESIDENT 12 June 2001

DEPARTMENT OF MINERAL RESOURCES (CHIEF INSPECTOR BRUCE ROBERT MCKENSEY) V BERRIMA COAL PTY LTD. PROSECUTION UNDER S15(1) OF THE OCCUPATIONAL HEALTH & SAFETY ACT 1983.

DEPARTMENT OF MINERAL RESOURCES OF NSW (CHIEF INSPECTOR BRUCE ROBERT MCKENSEY) V ANDREW BELL. PROSECUTION UNDER S15(1) OF THE OCCUPATIONAL HEALTH & SAFETY ACT 1983.

1 These proceedings involve two prosecutions brought by Chief Inspector Bruce Robert McKensey of the Department of Mineral Resources of New South Wales ("the prosecutor"), against Berrima Coal Pty Ltd ("the first defendant") and Andrew Bell ("the second defendant") (collectively referred to as "the defendants") for a breach of s15(1) of the Occupational Health & Safety Act 1983 ("the Act").

2 The prosecutions arose from an accident in which Robert Bruce Fraser, an electrician working underground in the Berrima Colliery ("the mine"), sustained fatal injuries after an area of unsupported roof under which he was working collapsed during the afternoon of 23 April 1996 ("the incident").

3 The mine is a small colliery which employed approximately 45 employees at the time of the incident. The incident occurred in an area of the 400 Panel of the mine, at the intersection of the "C heading" (a belt road which was intended to accommodate a conveyor belt) and a transverse roadway (known as "69 cut-through"). The incident occurred at approximately three kilometres underground from the mine entrance and at a depth of about 130 metres.

4 The defendants entered pleas of guilty with respect to the charges brought under the amended summonses in Matter Nos. IRC 2052 and 2055 of 1998.

5 The charge against the first defendant was contained within an amended summons in Matter No. IRC 2052 of 1998, as follows: On the 23rd day of April, 1996 at the Berrima Colliery at Medway in the State of New South Wales, the Defendant, being an employer, DID FAIL contrary to section 15(1) of the Occupational Health & Safety Act, 1983 to ensure the health, safety and welfare at work of its employees in that it failed to provide such supervision as may be necessary to ensure the health and safety at work of its employees pursuant to the provisions of section 15(2)(c) of the Occupational Health and Safety Act, 1983.

6 The particulars of the charge against the first defendant were as follows: 1. The Defendant was the operator of the Berrima Colliery at the relevant time.

The Defendant employed workers, including one Robert Bruce Fraser, to work at the said colliery.

The Defendant conducted mining operations at the colliery, which included in April of 1996 the drivage of C heading in 400 panel, and a cut-through known as 69 cut-through.

The Defendant required its employees to brush the roof of the intersection of C heading and 69 cut-through in 400 panel so as to allow for the installation of an overhead conveyor. At the time the brushing took place, C heading had been driven off centre.

The mine manager had in place certain roof support rules.

At the intersection of C heading/69 cut-through, roof support rules were not followed.

The Defendant failed to adequately supervise its employees so as to ensure that the roof was supported in accordance with the roof support rules.

The Defendant failed to ensure on 23 April, 1996 that its employees did not work under an area of unsupported roof which was 22.6 metres in length.

On 23 April, 1996, part of the unsupported roof above the C heading/69 cut-through intersection collapsed, causing fatal injury to Robert Bruce Fraser, who at the time was working under the unsupported roof. 7 The summons then noted that further details of the allegations against the defendant were contained within the affidavit of Bruce Robert McKensey, dated 23 April 1998. 8 The charge against the second defendant was set out in an amended summons in Matter No. IRC 2055 of 1998, as follows: The Defendant is a person concerned with the management of a corporation, to wit, Berrima Coal Pty Limited A.C.N. 064 237 092, an employer WHICH FAILED on 23 April, 1996 contrary to section 15(1) of the Occupational Health and Safety Act 1983 to ensure the health, safety and welfare at work of employees in the employment of the said Berrima Coal Pty Limited in that it failed to provide such supervision as may be necessary to ensure the health and safety at work of its employees pursuant to the provisions of section 15(2)(c) of the Occupational Health and Safety Act 1983 AND the Defendant being a person so concerned, is deemed to have contravened the same provision pursuant to section 50(1) of the Occupational Health and Safety Act 1983.

9 The particulars of the charge against the second defendant were set out as follows: 1. The Defendant was the statutory manager of the Berrima Colliery, owned and operated by Berrima Coal Pty Limited, the "employer".

The employer employed workers, including one Robert Bruce Fraser, to work at the said colliery.

The employer conducted mining operations at the colliery, which included in April of 1996 the drivage of C heading in 400 panel, and a cut-through known as 69 cut-through.

The employer required its employees to brush the roof of the intersection of C heading and 69 cut-through in 400 panel so as to allow for the installation of an overhead conveyor. At the time the brushing operation took place, C heading had been driven off centre.

The Defendant as mine manager had in place certain roof support rules.

At the intersection of C heading/69 cut-through, roof support rules were not followed.

The employer failed to adequately supervise its employees so as to ensure that the roof was supported in accordance with the roof support rules.

The employer failed to ensure on 23 April, 1996 that its employees did not work under an area of unsupported roof which was 22.6 metres in length.

On 23 April 1996, part of the unsupported roof above the C heading/69 cut-through intersection collapsed, causing fatal injury to Robert Bruce Fraser, who at the time was working under the unsupported roof.

10 As with the summons against the first defendant, the summons against the second defendant referred to the affidavit of Bruce Robert McKensey for the purpose of providing further details of the allegations.

Statement of Agreed Facts 11 A statement of agreed facts was entered into evidence by consent in the following terms: 1. At all material times, the Prosecutor was duly appointed as Chief Inspector of Coal Mines and, by virtue of section 48 of the Occupational Health and Safety Act and the provisions of Clause 3 of the Occupational Health and Safety (Administration) Regulation, 1982, was authorised to commence prosecutions under section 15 of the Occupational Health and Safety Act in connection with coal mines within the meaning of the Coal Mines Regulation Act, 1982.

At all material times, the First Defendant Berrima Coal Pty Limited A.C.N. 064 237 092 was a duly-incorporated company.

At all material times the First Defendant was the owner of the Berrima Colliery, situated near Medway in the State of New South Wales.

At all material times the second defendant Andrew Bell was the Statutory Manager of the Berrima Colliery.

At all material times the First Defendant employed persons to work the Berrima Colliery and provide skills and labour ancillary to the working of the Colliery.

The Colliery mined the Wongawilli Seam in the Illawarra Coal Measures, using underground (board and pillar) mining techniques.

At all material times the First Defendant employed one Robert Bruce Fraser as an electrician, to work with an underground mining crew.

At all material times, the First Defendant was working an area underground known as "400 panel".

At all material times, the development of 400 panel included the formation of a "belt road", known as "C-heading".

C-heading was intended ultimately to accommodate a conveyor belt, to carry coal away from working faces in 400 panel.

C-heading was intersected in various places by transverse roadways known as "cut-throughs".

Associated occupational health and safety legislation, namely section 102 of the Coal Mines Regulation Act 1982 requires the manager of an underground coal mine to prescribe rules for the support of the roof and sides of every working place and roadway within the mine.

The "manager's rules" for support are a minimum.

At all material times, the manager of the mine had promulgated such support rules.

At all material times, the first and second defendants intended to construct an overpass for a conveyor belt over an intersection in 400 panel where C-heading met a cut-through known as 69 cut-through.

The construction of the overpass required the cutting of a slot (known as a "brushing") in the centre of the coal roof of C-heading, to a distance of about 10 metres on either side of the centre line of the intersection of C-heading and 69 cut-through.

At the material time, associated occupational health and safety legislation, namely the Coal Mines Regulation (Support - Underground Mines) Regulation 1984 required special rules for the support of a brushed roof.

The formation of a belt road requires that road (and each interval of it) to be excavated to reasonably accurate centres to enable the conveyor belt to be laid out in a straight line.

A roof brushing formed to accommodate an overhead conveyor would have to be formed in the exact centre of a properly-formed interval of a belt road.

Notwithstanding the foregoing, the interval of C-heading between 68 and 69 cut-through in 400 panel was not formed to the required centre.

The interval between 68 and 69 cut-throughs was constructed partly during the afternoon shift of Friday, 19 April, 1996 and partly during the day shift of Tuesday, 23 April, 1996.

The day shift of April 23, 1996 continued the excavation of C-heading to a point approximately 14 metres past the centre line of the intersection with 69 cut-through.

The practice of forming roadways in coal requires mining to stop periodically to allow the roof and sides of the roadway to be supported as the roadway is excavated.

Among other things, the Manager's Support Rules required that the distance between the face of a roadway and the latest permanent support installed in the roof be a maximum of 9 metres.

Notwithstanding the foregoing, the roof of C-heading, in and about the intersection with 69 cut-through, was left without permanent or substantial support during and after the formation of C-heading on either side of the intersection.

The interval of unsupported roof was subsequently established by survey to be 22.6 metres in length.

The roof brushing in C-heading was commenced during the afternoon shift of April 23, 1996.

The brushing was to be formed in the interval of unsupported roof previously referred to.

Special rules for the support of a brushed roof (referred to in paragraph 17) were not applied to the brushing located in the area of the intersection of C-heading and 69 cut-through.

Notwithstanding that the relevant portion of C-heading had been formed off-centre, it was still necessary to form the brushing so as to allow the conveyor belt to be installed in a straight line.

Consequently, the brushing in C-heading was formed so that its edges were positioned about 40cm from the left side of the heading and between 1.6 and 2.3 metres from the right.

The afternoon shift crew excavated the brushing to a length of approximately 14 metres.

During the excavation of the brushing, no supports, whether temporary or permanent, were placed under the 1.8-2.3 metre-wide edge on the right-hand side, or anywhere in or near the brushing.

Once the brushing had been excavated for a length of 14 metres, the afternoon shift crew commenced support of the right-hand edge of the brushing, using roof bolts and lengths of steel bar commonly known as "W-straps".

The crew successfully installed a W-strap some 4.9 metres in length.

At or about 4.30pm on 23 April, 1996, the said Robert Bruce Fraser, one Geoffrey Boothman and one Ronald Foodey, other employees of the

Defendant, were raising a second W-strap to the right-hand edge of the brushing when the portion of the roof which they were preparing to support, fell.

The fall of roof coal landed directly on Mr Fraser.

39. The second defendant and the mine undermanager were not present underground when the relevant work was being carried out.

40. The Defendants failed adequately to supervise the shift crews or the persons ("deputies") in charge of them while underground.

41. Neither Defendant has any previous convictions. Annexed hereto and marked "A" and "B" respectively are reports obtained in relation to the first defendant and second defendant from WorkCover New South Wales.

12 The WorkCover reports mentioned in the last paragraph confirmed that neither defendant had a prior conviction.

The Legislation 13 The prosecution of the first defendant was brought pursuant to s15 of the Act, which provides as follows: 15. Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

(2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health,

(b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances,

(c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees,

(d) as regards any place of work under the employer's control: (i) to maintain it in a condition that is safe and without risks to health, or

(ii) to provide or maintain means of access to and egress from it that are safe and without any such risks,

(e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or

(f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or

(ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. (3) For the purposes of this section, any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person's employer.

(4) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 16, the court may convict the person of an offence against that section.

14 The charge against the first defendant was brought, in particular, pursuant to s15(2)(c) of the Act. The charge against the second defendant arises from the operation of s50 of the Act. 15 The Coal Mines Regulation Act 1982 should also be considered in this matter. The relevant sections of that Act which provide for the duties of owners, managers, under-managers and deputies within a mining operation, are as follows: 32 Duties of owners

The owner of a mine shall make such provision as is, and take such steps as are, necessary to ensure that: (a) the mine is so planned, laid out and equipped as to enable it to be managed and worked in accordance with this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder; and (b) the mine is so managed and worked.

36. Managers (1) The owner of a mine shall not work the mine at any time when: (a) there is no person appointed or nominated as the manager of the mine under this section; or (b) except as provided by section 48, there is more than one person appointed or nominated as the manager of the mine. (2) The owner or superintendent of a mine may appoint a person as the manager of the mine or the owner of a mine, being an individual, may nominate himself as the manager of the mine. (3) No person, other than an owner or a superintendent of a mine, shall appoint a person as the manager of a mine. (4) The owner or the superintendent of a mine shall not appoint a person as the manager of the mine unless that person, or the owner of a mine (being an individual) shall not nominate himself as the manager of the mine unless the owner is the holder of: (a) in the case of an underground mine at which the total number of persons usually employed below ground during a period of 24 hours when the mine is being worked is more than 15 - a certificate of competency to be a manager of a mine; (b) in the case of an underground mine at which the total number of persons usually employed below ground during a period of 24 hours when the mine is being worked is not more than 15: (i) a certificate of competency to be a manager of a mine; or (ii) a certificate of competency to be an under-manager of a mine and a permit, issued to him by the Chief Inspector under subsection (5) and currently in force, to be the manager of the mine; or (c) in the case of an open cut mine - a certificate of competency to be a manager of an open cut mine. (5) The Chief Inspector may issue to the holder of a certificate of competency to be an under-manager of a mine a permit to be the manager of a mine, specified in that permit, at which not more than 15 persons are usually employed below ground level during a period of 24 hours when the mine is being worked. (6) A permit issued under subsection (5) shall be in force for a period of 12 months, commencing from the date of issue (or, where a later date is specified in the permit, from that date), but may be renewed by the Chief Inspector on the recommendation of the district inspector for further periods, each of 12 months, commencing from the day after a date of expiration of the permit. (7) The Chief Inspector may, by notice in writing given to the holder of a permit issued under subsection (5), cancel that permit. (8) Copies of a notice given under subsection (7) to the holder of a permit to be the manager of a mine shall be sent by the Chief Inspector to the owner or the superintendent of the mine. (9) A person shall not be the manager of more than one mine at the one time except with the approval of the Chief Inspector. (10) The Chief Inspector shall not, under subsection (9), approve of a person being the manager of more than 2 mines at the one time. 37. Functions of managers (1) Subject to any instructions given to the manager of a mine or to another person employed at the mine by: (a) the owner of the mine; (b) a superintendent of the mine; or (c) an assistant superintendent of the mine;

(excluding instructions which are required under section 52 or 54 to be confirmed in writing and which have not been so confirmed), the manager of a mine: (d) shall have full charge and control of: (i) all persons employed at the mine; and (ii) all operations at the mine; (e) shall enforce the observance, by all persons employed at the mine, of this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder; and (f) shall have such other functions as may be conferred or imposed on him by this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder. (2) Without limiting the generality of subsection (1), the manager of a mine shall: (a) appoint the requisite number of officials of the mine required by this Act or the regulations (other than officials who are senior to the manager) to exercise the functions conferred or imposed on those officials by this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder; (b) ensure that the machinery, apparatus and equipment in use at the mine is maintained in a safe working condition; (c) if the mine is an underground mine: (i) ensure that the height and width of roadways in the mine are at all times not less than those specified in the transport rules made in respect of that mine; and (ii) ensure that the roof and sides of working places and roadways in the mine (other than roadways

located in a part of the mine which is fenced off in pursuance of the regulations) are adequately supported where necessary for safety; (d) ensure that officials at the mine are in possession of such information and plans as are necessary to enable those officials to ensure that all operations at the mine for which they are responsible are carried out in a safe manner; (e) ensure that the officials appointed by the manager are trained in the exercise of any functions which they are required to exercise under this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder; (f) display in such manner and for such periods as may be prescribed copies of all exemptions from complying with any provisions of, or made under, this Act which have been granted in respect of the mine; (g) take steps to ensure that any matter which is of an abnormal or unusual nature and which could affect the safety of persons in the mine is promptly brought to his attention; (h) take such steps as may be necessary to ensure that at all times he is in possession of all available information relevant to the behaviour of strata surrounding the mine and its relationship to the safe working of the mine and all available information regarding disused excavations or workings in the vicinity of the mine; and (i) subject to subsection (3)(b), read each report, record or other item of information which is required to be made or recorded under this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder immediately upon his becoming aware of the existence of the report, record or other item. (3) The manager of a mine shall be deemed to have complied with: (a) (Repealed) (b) subsection (2) (i) in respect of a report, record or other item of information referred to in that paragraph if: (i) the manager ensures that it is read by a person appointed by the manager in writing (being a person having such qualifications as may be prescribed for the purposes of this subparagraph) immediately upon that person's becoming aware of the existence of the report, record or other item, and (ii) the manager has taken steps to ensure that any matter disclosed in the report, record or other item which is of an abnormal or unusual nature and which could affect the safety of persons in the mine is promptly brought to the manager's attention. 38. Deputy managers (1) The owner, the superintendent or the manager of a mine may appoint a person as a deputy manager of the mine or appoint a number of persons as deputy managers of the mine. (2) The owner, the superintendent or the manager of a mine shall not appoint a person as a deputy manager of the mine unless that person is the holder of: (a) in the case of an underground mine - a certificate of competency to be a manager of a mine; or (b) in the case of an open cut mine - a certificate of competency to be a manager of an open cut mine. (3) No person, other than an owner, a superintendent or a manager of a mine, shall appoint a person as a deputy manager of a mine. (4) If a deputy manager of a mine is present at the mine while the manager of the mine is absent, the deputy manager: (a) has full charge and control of all persons employed at the mine and of all operations at the mine; and (b) must enforce the observance, by all persons employed at the mine, of this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder; and (c) has such other functions as may be conferred or imposed by this Act on a deputy manager of a mine. 39. Under-managers in charge (1) The owner of an underground mine shall not work the mine: (a) at any time when the manager of the mine is also the manager of another mine in pursuance of an approval given under section 36(9) - unless there is a person appointed under this section as an under-manager in charge of the whole of the mine or there is a number of persons appointed under this section as under-managers in charge in respect of the several underground parts of the mine; or (b) where the Chief Inspector has, by reason of the size or condition of the mine, directed the owner not to work the mine unless a person is appointed under this section as an under-manager in charge of the whole of the mine or such number of persons as is specified in the direction is appointed under this section as under-managers in charge of the several underground parts of the mine - unless there is a person, or there are persons, appointed in compliance with the direction. (2) The owner, the superintendent or the manager of an underground mine may appoint a person as an under-manager in charge of the whole of the mine or appoint a number of persons as under-managers in charge of the several underground parts of the mine. (3) The owner, the superintendent or the manager of an underground mine shall not appoint a person as an under-manager in charge of the whole of the mine or of an underground part of the mine unless that person is the holder of a certificate of competency to be an under-manager of a mine. (4) No person, other than an owner, a superintendent or a manager of an underground mine, shall appoint a person as an under-manager in charge of the whole or of an underground part of an underground mine. (5) If an under-manager in charge of an underground mine is present at the mine while the manager of the mine is absent and while there is no deputy manager of the mine present, the under-manager in charge: (a) has full charge and control of all persons employed at the mine and of all operations at the mine; and (b) must enforce the observance, by all persons employed at the mine, of this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder; and (c) has such other functions as may be conferred or imposed by this Act on an under-manager in charge of an underground mine. 40. Under-managers (1) The owner, the superintendent or the manager of an underground mine may appoint a person as an under-manager of the whole or of an underground part of the mine or appoint a number of persons as under-managers of the several underground parts of the mine. (2) A person may be appointed as an under-manager of the whole or of an underground part of an underground mine notwithstanding that no under-manager in charge of the whole or of the underground part of the mine has been appointed under section 39. (3) The owner, the superintendent or the manager of an underground mine shall not appoint a person as an under-manager of the whole or of an underground part of the mine unless the person is the holder of a certificate of competency to be an under-manager of a mine.

(4) No person, other than an owner, a superintendent or a manager of an underground mine, shall appoint a person as an under-manager of the whole or of an underground part of an underground mine. (5) If an under-manager of an underground mine is present at the mine while the manager of the mine is absent and while there is no deputy manager, or under-manager in charge, of the mine present, an under-manager previously nominated by the manager: (a) has full charge and control of all persons employed at the mine and of all operations at the mine; and (b) must enforce the observance, by all persons employed at the mine, of this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder; and (c) has such other functions as may be conferred or imposed by this Act on an under-manager of an underground mine. 41. Functions of under-managers in charge and under-managers (1) An under-manager in charge, or an under-manager, of an underground mine may have jurisdiction in respect of the whole of the mine or his jurisdiction may be limited to an underground part of the mine. (2) Each under-manager in charge, and each under-manager, of an underground mine shall enforce the observance, by all persons employed in: (a) where the whole of the mine is under his jurisdiction - the mine; or (b) where the whole of the mine is not under his jurisdiction - the part of the mine which is under his jurisdiction; of this Act, the regulations, the rules and any schemes and any directions, or conditions of

exemptions or approvals, given thereunder in working the mine or that part of the mine, as the case may be. (3) Subsection (2) does not apply to an under-manager of an underground mine during a period when he is not on duty at the mine. (4) For the purposes of this section, where a part of an underground mine is to be under the separate jurisdiction of any under-manager in charge or under-manager, the manager of the mine shall cause: (a) that part of the mine to be identified by a distinguishing name or number; and (b) the boundaries of that part of the mine to be: (i) clearly marked underground in a manner approved by the district inspector; and (ii) shown on a plan prepared, and displayed at the mine, as prescribed. (5) The manager of an underground mine shall retain at the office of the mine a record of the starting and finishing times of the shifts of each under-manager of the mine. 42. Deputies (1) The manager of an underground mine shall appoint such number of deputies as is sufficient in his opinion to carry out efficiently the functions at the mine conferred or imposed on deputies by this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder. (2) The manager of an underground mine shall not appoint a person as a deputy unless that person is the holder of a certificate of competency to be a deputy and such other qualifications as may be prescribed. (3) No person, other than a manager of an underground mine, shall appoint a person as a deputy in relation to an underground mine.

16 Further, s102 of the Coal Mines Regulation Act 1982 applies to the making of support rules and provides as follows: 102. Support rules (1) The manager of an underground mine shall make rules (to be known as "support rules"), not inconsistent with this Act, with respect to the support of the roof and sides of working places and roadways in the mine. (2) Where support of the roof and sides of working places and roadways in an underground mine is to be removed under the system of mining in use at the mine, the manager of the mine shall include in the rules made under subsection (1) rules, not inconsistent with this Act, for the removal of that support. (3) Without limiting the generality of subsections (1) and (2), the manager of a mine shall: (a) under subsection (1) - make support rules with respect to such matters as are prescribed for the purposes of this paragraph, and (b) under subsection (2) - make support rules with respect to such matters as are prescribed for the purposes of this paragraph. 17 Further to these provisions, clauses 6, 7 and 21 of the Coal Mines Regulation (Support - Underground Mines) Regulation 1984 ("the Regulations") provide as follows: 6. Support for travelling roadways and working places The person for the time being in charge of a part of a mine shall ensure that the roof and sides of every travelling roadway and working place in that part of the mine are secure in accordance with the support rules for that mine.

7. Unauthorised entry to improperly supported areas prohibited A person shall not enter upon a travelling roadway or work in a place within a mine which is not secure in accordance with the support rules for the mine unless that person has been authorised (by some person who is qualified, under the Act, to give that authority) to do so for the purpose of exploring or repairing. 21. Support rules in case of brushed roadway roof Where, in any mine, the roof of any roadway is brushed, the support rules for the mine shall provide for: (a) the setting of 1 or more bars or other supports as near as practicable to the brushing lip so as to provide effective support for the roof adjacent to the brushing lip; (b) the roof which is newly exposed by the brushing to be forthwith effectively supported; (c) the face of the brushing to be effectively supported at the cessation of brushing; and (d) the maximum length of the roof of any roadway that may be exposed by brushing before supports are to be set to make the roof secure. The Evidence Evidence for the Prosecutor 18 The prosecutor tendered a number of documents, materials and statements to augment the information contained in the statement of agreed facts. These materials were as follows:

a) Statement of Inspector Conlon dated 23 September 1996 (hereinafter referred to as "Inspector Conlon's Report").

b) Statement by Senior Constable William Patrick Turnbull dated 15 May 1996.

c) Police Photographs numbered 1-6 and captioned as per Constable Turnbull's statement.

f) Berrima Colliery Support Rules of 21 April 1986.

g) Berrima Colliery Support Rules for Roadway Development, 400 Panel Development (confirmed by Inspector Conlon on 6 May 1996) accompanied by Plans A-E and Geotechnical Review by Shepherd Mining Geotechnics (Aust) Pty Limited (dated 3 May 1996.

h) Berrima Colliery Support Rules and Development Procedures for Excavation of Conveyer Belt and Ventilation Overpasses. It should be noted that this document contained the notation that the rules and procedures were confirmed by Inspector Conlon 1 July 1996.

i) Berrima Colliery General Roof Brushing Rules (including a plan). It should be noted that this document bore the notation that the rules and procedures were confirmed by Inspector Conlon 1 July 1996.

j) WorkCover NSW Prior Convictions Reports on Berrima Coal Pty Limited and Andrew Bell.

19 Oral evidence was also given to the Court in person by Inspector Conlon. Evidence for the Defendants 20 Mr J Gleeson QC, who appeared for the defendants, tendered a number of materials as follows: a) Report of Dr Simon Grant dated 2 March 2000.

c) Safety and Risk Management Policy of Centennial Coal Company adopted by Berrima Coal.

d) Centennial Coal Company 2 Year Safety & Risk Management Plan 1995 - 1996.

e) Berrima Mine OH&S Audit 1995 based on New Centennial Standard.

f) Small Business Employee Assistance Program flyer.

g) Training document for Shiftmen on improving the awareness of roof bolting needs, prepared for Berrima Colliery by Shepherd Mining Geotechnics dated July 1996.

h) Shepherd Mining Geotechnics Geotechnical review of Manager's Support Rules for headings and 4-way intersections in 400 panel development.

i) Minerals Council of Australia Safety and Health Statement.

j) Various personal references on behalf of the second defendant. 21 The defendants also relied on the evidence of the second defendant and Robert Graham Cameron, Managing Director of the first defendant. Review of the Evidence General 22 In the following review of the evidence I have applied, where findings of fact are made, the principles for the resolution of factual issues in relation to a plea as stated by the High Court in R v Olbrich (1999) 199 CLR 270 at 280 - 281.

The Purchase of the Mine and Subsequent Safety Initiatives and Record 23 Mr Cameron, the Managing Director of the first defendant, gave evidence for the defendants. He holds a Bachelor of Engineering (Mining) with Honours, a Graduate Diploma in Geoscience and a Master of Business Administration. He also holds a Colliery Manager's Ticket, and Under-manager's Ticket, a Deputy's Ticket and a Mines Rescue Certificate, although the latter is no longer current. He has worked in the mining industry since approximately 1970. 24 Mr Cameron gave evidence that the first defendant is a subsidiary of Centennial Coal Limited ("Centennial"). The mine was purchased by Centennial in 1994. It continued the employment of all of the staff, including the second defendant, who had been working in his present managerial capacity at the mine since 1981. Prior to that he had been the Deputy Manager for a short period of time.

25 Mr Cameron gave evidence as to the first defendant's safety initiatives upon purchase of the mine and prior to the incident. Upon the mine's purchase, the first defendant adopted the safety policy of Centennial, which was in the following terms: OBJECTIVE: To eliminate accidents, incidents and circumstances which lead to personal injury, unhealthy people, property damage or business interruptions. METHODOLOGY: Understand how the business works Identify the areas of high priority in health, safety and risk management Establish and utilise appropriate systems and procedures Investigate fully all significant incidents and modify systems and procedures as required Evaluate the risks of tasks and equipment by planning tasks and specifying equipment in sufficient detail.

SUCCESSFUL IMPLEMENTATION RESULTS IN: Trained, skilled and healthy people Equipment appropriate for the duty required Standard operating procedures A planned, predictable and healthy working environment RESPONSIBILITIES: MANAGEMENT and SUPERVISION: To ensure this policy is the basis for all safety and risk management actions and that appropriate people are involved to develop plans and SOPS. EVERYONE: To carry out in practice the appropriate plans and SOPs to control risk. 26 According to Mr Cameron, this policy was displayed prominently in the office and on a company notice board. 27 A two year safety and risk management plan for the years 1995 - 1996 was also developed in order to achieve the objectives set out in the above policy. The precise date of the commencement of the plan is unclear. However, the document setting out the plan does reveal early steps having been completed under the plan by 28 February 1995. The plan consisted of nine categories for safety achievement which were identified as follows: 1. Commitment and involvement 2. Standard Operating Procedures 3. Education and Training 4. Risk Identification and Risk Assessment 5. Engineering Design and Equipment Purchasing 6. Health Planning and Rehabilitation 7.

Emergency Planning and Response 8. Systems Failure Analysis and Auditing 9. Communications 28 These elements were intended to achieve the following specific goals: 1. A substantial reduction in the Lost-Time Injury Frequency rate for the Group. The composite rate as at December 1994 was 169. Implementation of this plan will assist in reducing this to 80 by December 1995 and then to 40 by December 1996.

2. Reduction of Days lost on Workers Compensation per employee from an average of 3.8 to 2.0 by December 1995 and to 1.0 by December 1996.

3. Achieving a quantifiable and substantial improvement in measurable loss and damage to equipment.

4. An overall reduction in Workers Compensation premiums and in non-personnel insurance costs. 29 The plan was then distributed throughout all of Centennial's mines and once a month the managers from those mines would report on the progress of the plan. 30 After the purchase of the mine an independent audit based on Centennial's new standards was conducted by MineRisk Management Services Pty Ltd ("the auditors") in late September 1995. An underground inspection was conducted by the auditors. They also examined a number of aspects of the mine operations, including roof support. An audit report was issued by the auditors. It was dated 28 and 29 September 1995.

31 The audit assessed the mine's current level of workplace safety against the 9 elements outlined above. Ratings between 1 and 5 were given for each element, 1 being unacceptable practice and 5 being best practice. A rank of 3 was considered acceptable. 32 A report was issued which was entitled "Berrima Mine OH&S Audit 1995: Audit Based on New Centennial Standard" ("the report"). Out of the nine elements set out above, the mine received three ratings of "2", being "poor", three ratings of "2 approaching 3" and three ratings of "3". What each rating meant depended on the element being assessed, however, a "2" always equalled the result of "poor". The report made several recommendations for the improvement of safety at the mine. 33 In cross-examination Mr Cameron explained the "poor" rating in the following terms: Q. Can you explain to me what your understanding of the rating for that element, namely, commitment and involvement to occupational health and safety where they say "Based on the above information the rating for this element is 2." What is your understanding of that rating? A. We of our own volition sought this in the early period of the implementation of our plan that we expected upon purchasing this mine. My comment before was we did it to recognise the problems that were there because we had not long owned or managed this mine. The purpose of this was to identify those areas which our OH & S plan had to address. Clearly we did it so the problems would come out. The consultant identified the areas we needed to address and identified those points you passed over which were the positive things we had done within the four months of implementing our plan. 34 Those positive points related to the company's commitment and involvement to occupational health and safety. They were referred to in the report as follows: · the company safety policy is displayed in several prominent [positions] around the office and surface buildings. · safety glasses were worn by personnel underground (this supports the eye protection policy). · a copy of the health and safety newsletter was found on the panel crib room table and looked well read. · a binder was located in the crib room containing plasticised copies of all the managers rules related to underground operations i.e., support rules, sequence of operation etc. · safety signage around the mine site is in reasonable condition. 35 It should also be noted that the audit also made observations in relation to this element (of commitment and involvement) which may be characterised as negative or wanting in terms of safety. Specifically, the audit noted that there was no Centennial/Berrima Occupational Health and Safety Manual for the mine or Safety Handbook for employees, nor any 'job documents' which described the activities and

accountabilities of various staff at the mine. The result was that there was no specific documented occupational health and safety accountability at the mine. 36 The audit did note, however, that the first defendant was making an effort to improve occupational health and safety, evidenced by Key Performance Indicators adopted by the defendant. It was also noted that there was an effort to accustom deputies further with their occupational health and safety role. 37 The auditors recommended changes in the mine's operation relevant to the topic of "Commitment and Involvement" as follows:

· To improve the level of commitment and involvement at the mine, clear, defined OH&S roles and responsibilities, ideally measurable, need to be developed for all levels of management and supervisors.

· The company health and safety policy should be distributed and explained to all personnel at the mine

38 As to "Standard Operating Procedures", the auditors stated: There are a few documented Standard Operating Procedures at Berrima. A list of areas where the Safety Officer feels that SOPs would be needed has been forwarded to the mine manager at his request.

· A method of confirming/verifying that information is reaching the right person and has been understood should be developed.

40 Mr Cameron gave evidence that since the receipt of the audit results the first defendant had worked consistently to achieve its occupational health and safety goals. The report was discussed between Mr Cameron, the second defendant and "the general mining manager" (presumably from Centennial). He pointed out that the mine now had a full time safety and training officer in a workplace with only 20 employees, and the company had continued to monitor safety issues, including further audits of the implementation of its safety plan. According to Mr Cameron, the mine's lost time injury frequency rate was approximately half the industry average and that two thirds of Centennial's mines had gone for over 12 months without a lost time injury. The mine record for the first defendant stood, at the time of the hearing of the matter, at 455 days without any safety incidents of any kind. That record was, he stated, "extremely good" in this industry.

41 Inspector Conlon gave evidence that the mine had a very good safety record and, indeed, one of the better safety records in the Southern District. Mr Cameron further revealed that the mine had only one other "reportable accident" in its entire 70 year history.

Duties of Various Mine Personnel under the Coal Mines Regulation Act 42 In cross-examination, Inspector Conlon explained the obligations of mine employees and, in particular, those obligations arising under statutory provisions specifically governing coal mines as follows: Q. That means he is a mine worker. Mine workers - and we are moving from the bottom of the table to the top - have certain obligations under the Coal Mines Regulation Act, do they not? A. Yes. Q. In terms of putting up temporary support when carrying out coal mining under clause 8 of the Coal Mines Regulations Act? I can help you with it, it is over at 23 under the heading B, the third dot point, you see clause 8? A. Clause 8, "No temporary support put up by workers." Q. And you see then if you go back to page 9, Mr Jones, Mr Windley and Mr Byfield, they are identified as deputies. You know what a deputy is and I know what a deputy is but there may be some people in the court who do not know what their obligations are. The deputy, putting it in short terms, is a safety officer for the men, is that a way of putting it? A. That is one way of putting it, amongst other things. The deputy, your Honour, would be perhaps related to a foreman in occupations outside of the coal mining industry but, having said that, the deputy does assume the statutory responsibilities of manager and the under-manager in charge in the absence of those people at the site. Q. So, Mr Conlon, they in fact work with the men underground, the deputies? A. Yes, and they supervise. Q. And they are, as you have said, statutory officials under the Coal Mines Regulations Act? A. That is correct. Q. Then we have Mr Roser who is the under-manager in charge? A. That is correct. Q. An under-manager again has statutory obligations under the Coal Mines Regulations Act? A. Yes. Q. Unlike the deputies who work with the men on the job and supervise them as they are carrying out their duties the under-manager usually, and I am sure they will forgive me for saying this about them, may give the men their directions in the morning or perhaps at the commencement of their shift, plan their work but do not work on site underground with the men, is that correct, normally? A. They do not normally work underground on site with the men on a continuous basis. With regard to any instruction given from the under-manager the normal course of duties would be that that would be given from the under-manager to the deputies more so than to the individual workmen. Q. So they instruct the deputies and the deputies instruct the men? A. That is correct. Q. Then you have the mine manager who in this case was Mr Bell and he instructs the under-manager and he is a statutory official under the Coal Mines Regulation Act and he is in charge of the mine? A. That is correct. 43 Mr Bell, the second defendant and manager of the first defendant, gave details during examination in chief relating to the activities of the various statutory roles. As manager he went underground a minimum of once per week and would speak to the under-manager every day. The under-manager would go underground every day during the mine's

operation. The day to day running of the mining underground was left in the hands of the under-manager who issued instructions to the deputies. 44 The deputies would make an inspection of the mine prior to the beginning of every shift. This was explained by the second defendant as involving an inspection of the conditions and the area where they were going to be working to ensure it was safe, as per their obligations under the Coal Mines Regulation Act. Mr Conlon in his evidence explained that, in the absence of the under-manager (and subject to his instructions), the deputies take responsibility for the safety of employees whilst underground.

The Support Rules 45 The first defendant brought into existence rules for the support of the mine, both before and after the incident. These rules shall be hereinafter referred to as "the support rules" and shall be set out below.

46 The Berrima Colliery Support Rules of 21 April 1986, referred to in par18(f) above and operative at the time of the incident, were in the following terms: SUPPORT RULES FOR ALL UNDERGROUND ROADWAYS (PLAN"A") (1) These rules shall apply to all new roadways. (2) The distance shown between roofbolts shall be the maximum permissible. (3) Brattice props shall be set as often as is necessary to ensure that adequate ventilation is provided. (4) The maximum distance between the last roofbolt and the face shall be 9 metres. SUPPORT RULES FOR INTERSECTIONS AND BREAKAWAYS (PLAN "B) 1) Intersections and breakaways will be formed in accordance with the breakaway rules for the mine and supported as per plan "B". 2) Where two or more roadways form [an] intersection or a breakaway is being formed additional roofbolts shall be installed in accordance with plan "B" as soon as is practicable. 3) Where intersections are formed by one road "holing through" into another the bolts shall be installed prior to holing through wherever possible. 4) All distances shown between roofbolts are the maximum. GENERAL 1) Coal must not be cut with the continuous mining canopy beyond the last roof support set. 2) Coal shall not be cut with the continuous miner canopy beyond the end of the brattice. Nothing in these rules shall prevent a workman from installing additional support in his working place at more frequent intervals than those specified.

47 It should be noted that in the material before the Court there was also a copy of the previous Berrima Colliery Support Rules (confirmed by a District Inspector of Coal Mines on 15 February 1985). These rules were similar to those set out above, although the stipulation as to the maximum distance between the last roofbolt and the face was specified as 15 metres. 48 The Berrima Colliery Support Rules for Roadway Development, 400 Panel Development, dated 6 May 1996, and referred to in par18(g) above, were in the following terms: BERRIMA COLLIERY - SUPPORT RULES FOR ROADWAY DEVELOPMENT, 400 PANEL DEVELOPMENT Pursuant to CMRA (Support Underground Mines) Regulations, 1984. Notes to accompany Plan A. 1) These support rules apply to all new roadways in the 400 Panel Development District. 2) Distances shown between bolts are the maximum permissible. 3) Brattice timber (or "Pongo Sticks:) are to be set at not more than 2.0 metre intervals, and not less than 0.8 metres from the ribline. Brattice must be maintained in front of the Miner driver during all cutting operations. 4) The maximum distance from the cutting face to the last installed roof bolt must not exceed 7.0 metres. 5) All bolts consist of the following minimum components;1800mm x 24mm Mild steel roof bolt and nut, "Butterfly" Plate, and flat washer. The assembly is to be anchored with a 440mm long resin anchor. 6) The roof must be "sounded" before the commencement of a bolting cycle. 7) All roadways must be driven to sights on centre, and wherever possible the approved laser should be used. 8) The roadway width must be kept as narrow as practicable and must not exceed 5.5 metres. GENERAL

1. The canopy of Continuous Miner must not proceed part the last roof support set. 2) Coal shall not be cut with the canopy of the miner beyond the end of the brattice. These Rules are support minimum requirements, and nothing in these Rules shall prevent a person from installing additional support at more frequent intervals than specified.

49 The Berrima Colliery General Roof Brushing Rules, confirmed by Inspector Conlon on 1 July 1996, (after the time of the incident) and referred to in par18(i) above, were in the following terms: GENERAL SPECIFICATIONS: 1) All distances shown between roofbolts are the maximum permissible. 2) All roofbolts are a minimum of;1800 x 24mm mild steel roofbolt, 440mm resin anchor, nut, washer and "butterfly". 3) Support in roadways to be brushed is assumed to be in accordance with the development roadway support rules. If existing support is different to that specified in the current support rules the brushing rules will be modified by the Mine Manager to address the specific issues created by the existing supports which will need to be interfered with during the brushing operations. These variations will be communicated to the District Inspector of Coal Mines for approval before proceeding with the brushing of non-standard roadways. 4) Immediately outbye the commencement of roof brushing operations Row "D" bolts are installed as shown on Plan "A" not more than 0.75m outbye. 5) Roofbrushing will proceed with the removal of previously installed bolts as the brushing lip progresses inbye. Typical roof bolts to be removed are indicated on Plan "A".

6. New roof bolts are installed as the brushing face progresses inbye in rows of 3 spaced as shown on Plan "A" as solid black squares. The maximum distance between the brushing face and the last row of three roof bolts shall not exceed 5 m. 7) Accurate directional control is essential during this process and wherever possible the laser should not be used. 8) At no more than 0.75m past the finishing point of the roof brushing, Row "E" must be installed as shown on Plan "A". 9) The brushed roof is to be thoroughly sounded at the completion of each cut prior to bolting. These Rules and Procedures are minimum requirements and nothing in these Rules shall prevent a person from installing additional support at more frequent intervals than specified.

Investigation and Reports of the Incident 50 As earlier mentioned, a report on the incident was produced by Inspector Jeffrey James Conlon of the Department of Mineral Resources. Inspector Conlon was the District Inspector of Coal Mines for the Wollongong region. 51 After being made aware of the incident at approximately 6:55pm on 23 April 1996, Inspector Conlon attended Berrima Colliery, arriving at approximately 8:05pm. After a briefing in the office of the mine, a number of witnesses were interviewed. Following this at 11:36pm, Inspector Conlon conducted an underground investigation in the presence of Mr T Abbot, Senior Inspector of Coal Mines, Mr P Roser, the under-manager in charge, Mr G Dwyer, a District Check Inspector, Mr R Veigel, a safety training officer, Mr B Smith, a mine surveyor, Senior Constable W Turnbull of the Goulburn Crime Scene Unit, Senior Constables D Buggie and D Kell of Bowral Police and Mr Bell, the mine manager and second defendant in these proceedings. 52 Whilst underground Inspector Conlon made the following observations, as set out in his report of 29 September 1996:

1 'C' Heading had been driven off centre approximately 900mm.

2 A roof brushing (cut out) had been formed in the roof by the continuous miner from approximately 7.5 metres outbye of the C/69 intersection in 'C' Heading to a point 3 metres inbye of the 69 cut through centre line. The depth of the cut out was approximately 0.8 to 1.0 metres. The width of the cut out was the width of the miner head, 3.3 metres.

3 The above cut out was not central to the 'C' Heading roadway due to 'C' Heading having been driven off centre. This resulted in the left-hand lip of the cut out being only 400mm from the left-hand rib. The right-hand lip was approximately 2.5 metres from the right-hand rib line.

4 The fall of top coal had occurred adjacent to the right-hand side of the miner from the driver's cabin to the front of the cutter drum. The fall extended into 69 cut through for a distance of 2.5 metres where it was broken off by the first row of bolts situated in the cut through.

5 The thickness of the fallen ply of top coal was approximately 375mm and was calculated by the Department of Mineral Resources Surveyor, Mr E Barclay, to be approximately seven (7) tonnes.

6 A 'W' strap had been erected alongside the right-hand lip of the roof brushing and was secured to the roof by three (3) roof bolts. The inbye end of a second 'W' strap was visible under the fallen coal.

7 Several 75mm x 75mm square section timber props had been erected in the general area of the fall to secure the area sufficiently to allow the members of the production crew to recover Mr Fraser from under the fall.

8 Two (2) roof bolts were observed protruding from the roof cut out near the left-hand lip. These roof bolts had obviously been installed to the normal roof horizon during the mining of 69 cut through prior to the drivage of 'C' Heading.

9 The last roof bolts set in 'C' Heading terminated 10.8 metres outbye of the centre of C/69 intersection and recommenced 11.8 metres inbye of the intersection centre. This was a linear distance of 22.6 metre without any roof bolts having been set to the roof at the time of drivage.

10 The face of 'C' Heading was driven a distance of 24.1 metre from the centre of C/69 intersection, the last 12.3 metre of this drivage was roof bolted to the required standard. 53 The group then returned to the surface at approximately 4:00am on 24 April 1996. A further investigation of the site was undertaken on 1 May 1996 in the company of Mr E Barclay, a Department of Mineral Resources Surveyor and Mr Alex Brown, who had been appointed to the manager's position at Berrima Colliery after the second defendant was hospitalised after suffering a heart attack. 54 The investigation continued over the following weeks. The aforementioned report was then issued, dated 29 September 1996. In that report Inspector Conlon set out the details of the incident and his opinions on the cause as follows: The Afternoon shift crew on 18 April 1996 drove 69 cut though approximately 25 metres past where 'C' heading would later hole into it to form C/69 intersection. Roof bolts were deliberately left out in the area where the overpass excavation was to be formed so the bolts would not have to be cut out. On afternoon shift, 19 April 1996, the crew flitted the continuous miner from the face of 69 cut through back to 'C' Heading and advanced 'C' Heading approximately 15 metres from the centre of C68 intersection. On day shift, 23 April 1996, 'C' Heading was advanced approximately 14 metres past the C/69 intersection. No roof bolts were installed in 'C' Heading in the area of the proposed overpass excavation. This represented a linear distance of 22.6 metres without any roof support. The afternoon shift crew on 23 April 1996 extended the drivage of 'C' Heading to 25 metres inbye C/69 intersection centre then pulled the miner back to commence cutting the roof out for the belt overpass. Cutting of the roof commenced immediately in from of the last row of roof bolts outbye of C/69 intersection (ie, 11 metres outbye of C/69 intersection centre).

The roof cut out commenced from the normal roof horizon and was excavated into the roof to a depth of approximately one (1) metre. The width of the cut out was the width of the continuous miner head, 3.3 metres. The length of the cut out at the time of the accident was 14 metres. A 4.9 metres long 'W' Strap had been erected along the right-hand lip of the roof cut out. The 'W' strap was secured to the roof by three (3) roof bolts. A second 'W' strap was in the process of being erected to overlap the previous 'W' strap. A hole had been drilled in the roof to accommodate this. Geoff Boothman was positioned at the end of the first 'W' strap ready to insert the roof bolt into the hole. The second 'W' strap had been overlapped prior to the installation of the roof bolt. The second 'W' strap was being held to the roof by Ron Foodey. Bruce Fraser was holding up the end of the 'W' strap on the inbye side. Both R Foodey and B Fraser were standing under unsupported roof under the lip of the roof cut out, whilst holding the 'W' strap to the roof. No temporary supports were erected in this area. (Refer to position of Boothman, Foodey and Fraser as detailed on Plan A3-BE16/1). At this time the fall of top coal occurred resulting in Mr Fraser receiving fatal injuries. ... 55 The contributing factors leading to the collapse were identified in the Inspector's Report as follows: I) 'C' Heading driven off centre The off centre drivage of 'C' Heading resulted in the roof cut out not being in the centre of the roadway. Once the roof cut out had been made it did not align with the area of 69 cut through where roof bolts had been omitted during the drivage of 69 cut through. The roof cut out resulted in an excavation lip of only 400mm from the left-hand rib line of 'C' Heading, consequently the right-hand side lip had a cantilever effect of some 2.5 metres from the lip to the right-hand rib line and 3 metres to the closest roof bolts in 69 cut through. II) The Roof Cut Out The roof cut out for the overpass excavation penetrated through the coal plies of the immediate roof stratum exposing a second "free face". This promote bed separation of the roof plies due to time of exposure and the effects of gravity on the coal plies. This, added to the cantilever without any support, finally resulted in failure of the roof beam resulting in the fall. The integrity of the immediate roof beam to bridge across the intersection was destroyed when the roof cut out was undertaken. III) Survey Sights and Laser Alignment To enable accurate "on centre" drivages to be undertaken, accurate sights and laser alignment are essential. One sight string was missing from 68 cut through 'C' Heading so sight strings from further outbye had to be utilised; this can compound inaccuracies. 'C' Heading was advanced without the laser being available until the day shift Deputy, I Jones, located the laser and commissioned it as best he could. It was during this early part of the day shift production shift that the 'C' Heading drivage deviated from centre. [a section of the document was here excluded by agreement of the parties] IV) Failure to support roof in the area of C/69 Intersection The failure to set roof supports in the C/69 intersection area resulted in 22.6 metres of unsupported roof. The workmen would have been exposed to this unsupported roof during the initial drivage of 'C' Heading through the C/69 intersection area …

56 Inspector Conlon was of the opinion that if the workers followed the support rules in place at the mine, the collapse would not have occurred. In cross-examination, Inspector Conlon confirmed his opinion that adherence to the rules, coupled with support being provided by way of straps and bolts placed around the lip where the cut out was to be formed, would have prevented the tragic incident.

Conflict in Statements given by the Deputies and the Under-manager 57 Inspector Conlon stated, both in his written report and orally at the hearing, that there was a conflict in the evidence of the deputies and the under-manager as to what instructions had been given to the deputies in relation to the section of the mine where the incident occurred. The deputies claimed that the under-manager's instructions were to leave roof bolts out of the intersection when the 'C' Heading was being driven. 58 Inspector Conlon described the statement made by the deputies in his report as follows: The Deputies claim that the under-manager gave no instructions concerning the support of the C/69 intersection except to leave roof bolts out from 10 metres outbye of the intersection to 10 metres past the intersection to allow the roof excavation to be formed. 59 Inspector Conlon noted that this would, in effect, be an instruction to ignore the mine's support rules and their duties under the Coal Mines Regulation Act 1982.

60 In the account given by Inspector Conlon, the under-manager claimed that he gave instructions to bolt 'W' straps to the roof along the lips of the roof cut out as the 'C' Heading was advanced. He stated that the second defendant had contended that, when making his statement at the time of the incident, the under-manager had informed the second defendant that instructions were given to the deputies to "pre-support the area prior to undercutting the underpass". Mr Conlon also stated, in cross-examination, that he was advised by one of the deputies that the crew (the shift crew) had been reluctant to set the supports. 61 Inspector Conlon did not make any findings in his report in relation to these different accounts. Indeed, Inspector Conlon stated in his oral evidence that he found it difficult to ascertain who was telling the truth and so his report left the matter open. No evidence was called in these proceedings by the prosecutor or the defendants to assist in the resolution of this issue. 62 It was pointed out, however, by Inspector Conlon and the second defendant in their evidence before the Court, that regardless of whether the instruction was given or not by the under-manager, the failure to follow the support rules represented a breach in the statutory duties by both the deputies and the under-manager, and in that case, both parties "should have known better".

63 The Colliery was known to have excellent roof conditions. Mr Cameron gave evidence that whilst the mine had a good roof there was no excuse for a failure to support. In cross-examination, Inspector Conlon stated that, in his experience, this could have led to complacency in relation to 'the roof' and decisions taken to support it. It was noted that measures may be taken by non-supervisory employees to erect temporary supports. Inspector Conlon also stated, in cross-examination, that one miner who had been interviewed had raised the question as to why roofbolts would be put in when you had to then return to "cut them out".

Unsupported Roof - Roof Bolts 64 In paragraph 25 of the agreed statement of facts, it was noted that the roof of the C heading in or about the intersection of 69 cut-through was left without permanent or substantial support during and after the formation of C heading on either side of the intersection.

65 The second defendant, who was early on the scene, immediately recognised that the support rules had not been followed.

66 Mr Cameron described the absence of support at the time of the incident as follows: Q. You did an inspection? A. Yes.

Q. Did you get a surprise when you did this inspection in relation to the - - A. I had heard that there was a lack of support but I was still surprised to see it, yes.

Q. Even though you mentioned "good roof", that is no excuse is it for a lack of support? A. No. You have to have support.

Q. And it was clear to you that the support rules had not been followed? A. Yes, there was clearly a lack of support and I knew there were managers' reports.

67 Inspector Conlon's report described the requirements for 'roof bolts' to support the roof of the mine as follows: The support rules for the mine [document (vi)] require the setting of roof bolts to the roof at two (2) metres spacing/1.5 metres each side of the centre line in roadway drivages. The maximum distance between the last roof bolt and the face shall be 9 metres (Plan A) as shown in document (vi) The support rules for intersections and breakaways (Plan B) require additional roof bolts to be set in the intersection "as soon as practical" and in the case of one road "[h]oling through into another the bolts shall be installed prior to holing through wherever possible." Although it may have been inconvenient to install roof bolts where an overpass would later be cut, it was nevertheless possible to have installed them. The support rules were not complied with in this instance for the formation of C/69 intersection. There were no support rules for roof brushings (ie, overpass cutouts) as required by Clause 21 Coal Mines Regulation (Support - Underground Mines) Regulation 1984.

W Straps 68 Inspector Conlon's inspection of the site after the incident revealed that a 4.9m long W strap had been erected along the right hand lip of the roof cut which was secured by three roof bolts. A second W strap was in the process of being erected to overlap the previous W strap. A hole had been drilled in the roof to accommodate this.

69 Inspector Conlon's report noted that in his diary entry and statement, the under-manager had tabled a plan requiring straps to be set and bolted along the lips of the proposed excavation prior to cutting it out.

70 The workers erecting the further W strap were standing under an unsupported roof, under the lip of the roof cut out. No temporary supports had been erected.

71 In his submissions, Mr Gleeson submitted that having both a roof bolt and a W strap added an additional and better support. He also submitted that there was no evidence of a flagrant breach of the rules in erecting a W strap.

72 In re-examination, Inspector Conlon indicated that the W strap was not consistent with the existing support regulations. Those regulations required roof bolts to be inserted at regular intervals. This view is consistent with the support rules in operation at the time of the incident which refer to the fixing of roof bolts in underground roadways (see Plan A attached to the rules) and intersections (see Plan B attached to the rules).

73 Inspector Conlon also indicated, in re-examination, that a W strap roof support was a means of supporting the lip of the excavation for a longer period of time in the event that a particular contingency had arisen. In his report, the Inspector indicated that if W Straps were placed on the roof along the lips as the roof cut out was advanced, the cantilever effect would have been minimised and the roof integrity across the span of "C/69 intersection" would have been maintained.

Brushing 74 In his report, Inspector Conlon indicated that the roof cut-out combined with the cantilever effect of the C heading being driven off centre contributed to the collapse of the roof. In re-examination, he indicated that the brushing resulted in the cutting of a slot in the roof. This interfered with the integrity of the roof beam by exposing "the second free face which allowed those plies of coal to separate due to time, gravity and the weight of the coal plies stacked". He further indicated this resulted in "the cantilever effect … referred to in [his] report because there [were] no roof bolts put in to support those plies prior to the roof being excavated".

Duration of Unsupported Roof 75 During the course of the prosecutor's submission as to the sentencing of the second defendant, it was submitted that a decision was taken improperly that the employees were required to work under an unsupported roof contrary to the support rules. The following exchange then occurred between counsel and the Court: HIS HONOUR: Does the evidence disclose what was the date of the instructions on whatever version either one version or the other to the deputy?

MANION: It would appear, if you go to page 18 it says at the bottom of the page 18 the evidence is "The deputy stated … - this is Mr Conlon's report - was being driven". So that would put it on or about the 18th.

GLEESON: No it would not with great respect. It would have been about 22 or 23rd. It was three days when they weren't working.

MANION: Yes. It was the afternoon shift on 19 April. Page 13 of Mr Conlon's report he says "On the afternoon shift 19 April 1996 … intersection". So at that point C heading was being driven.

On the day shift of 23 April C heading was then advanced a further 14 metres past the C/69 Intersection. So it appears from the evidence that C heading was being driven on 19 April 1996 and on 23 April which was the next working day, the day advancing beyond the cut through leading 22.6 without roof support.

HIS HONOUR: So by what time on your submission were the requisite distances reached for the purposes of plan A and plan B?

MANION: It would appear to be in Mr Conlon's report day shift on 23 April.

HIS HONOUR: But it would seem to follow from the facts of the distances referred to, would it not?

MANION: It may, it may also be that. Yes, I think it would have to be. I think on 19 April C heading had advanced 15 metres from the centre of the C/68. It would appear that it must have gone through C/69 on the day shift of 23 April. That then left the relevant period of time before the afternoon shift came on to do something about it.

MANION: In a matter as important as the failure to support a roof of an underground mine, where minutes can be important, your Honour, the lapse of time between day shift and afternoon shift in my submission is a relevant consideration - a significant consideration.

MANION: I don't think we can say that from the evidence, you Honour, other than it would be a number of hours.

MANION: It would have been in the same time frame as a day.

HIS HONOUR: I must say, Mr Manion, these are questions that were in my mind in asking the prosecution to consider the question I asked to be considered at the close of the proceedings on the last occasion, with respect to Mr Bell.

MANION: Yes. The other aspect of Mr Bell's failure to supervise, your honour, goes to the fact that the roof brushing wasn't square.

HIS HONOUR: When did that occur, do you say - that is relevantly in the sense of the detriment to safety that you have described?

MANION: It commenced during the afternoon shift on 23, your Honour, but the cut-through itself, the heading itself, where it was off centre, was cut on 19 and 23.

76 It was indicated in the statement of agreed facts that the interval between 68 and 69 cut-throughs was constructed partly on the afternoon of 19 April 1996 and partly during the day shift of 23 April 1996. It was then indicated that the day shift of 23 April 1996 continued the excavation of the C heading, to a point approximately 14 metres past the centre line of the intersection with the 69 cut-through.

77 In Inspector Conlon's report, it was indicated that the afternoon shift crew on 18 April 1996 drove 69 cut-through approximately 25 metres past where C heading would later "hole" to form C/69 intersection. He then indicated that on the afternoon shift of 19 April 1996 the crew "flitted" the continuous miner from the face of 69 cut-through to C heading and advanced C heading approximately 15 metres from the centre of C/68 intersection. It was then indicated that on day shift 23 April 1996 the C heading was advanced approximately 14 metres past the C/69 intersection. It was further indicated that roof bolts were deliberately left out of the area where the overpass excavation was to be formed. These bolts were left out on 18 April when the 69 cut-through was driven prior to the C heading intersecting that "drive". However, by reference to the length of time that the roof bolts were left out from the 22.6 metres of unsupported roof where the fatality occurred, it was indicated that the unsupported roof had eventuated on 23 April 1996 (and not 18 April 1996) when the C heading was actually

driven. The roof bolts should have been fitted both on 18 April and again on 23 April when the C heading was advanced approximately 14 metres past the C/69 Intersection. 78 Upon the basis of this evidence, and having regard to the concessions made by the prosecutor, I consider that the period of time during which the roof of C heading in or about the intersection of the 69 cut-through was left without permanent or substantial support was during the day and afternoon shifts of 23 April 1996. The roof bolts were left out when the 69 cut-through was driven prior to the C heading intersecting that "drive" on 18 April. I note that the brushing process had commenced on 19 April 1996 and continued into the morning shift of 23 April 1996.

79 As to the appropriateness of leaving the roof unsupported for one shift, the Inspector commented as follows: Q. Of itself, being unsupported for one shift in an area of excellent roof may not be bad mining practice?

A. It would be bad mining practice because if it was unsupported it did not comply with the rules of the mine.

Q. So even unsupporting it for one shift would be bad mining practice?

A. Yes. Changes in Procedure and Safety Initiatives Introduced by the First Defendant after the Incident 80 After returning to work the second defendant stated that changes had been introduced at the mine. His observations at that time are contained in the following section of the evidence: Q. When you came back there were some things implemented? A. Yes, we continued to review the systems at the mine and improve them because obviously there had been deficiencies highlighted by the fatality and the subsequent interviews, including the system of supervision, improved training and improved communications and planning.

Q. There was certainly a need to have recording of instructions given to avoid the problems that arose because of the dispute between people under you as to what instructions were given and when? A. That is right

Q. The training session that was implemented, that was Dr Sheppard? We have heard Mr Cameron give evidence about that? A. Yes.

Q. Can you tell us a bit about the new communication system you say came into being? A. We improved the documentation, we improved the instruction sheets and the checks and balances. There was a weekly plan implemented for the operations the following week which were documented and safety issues were highlighted.

Q. This communication system was very important to avoid a future disagreement between management and workers in relation to instructions? A. It had to be obvious there had to be improved documentation of instructions.

Q. Was a monitoring system introduced? A. Yes.

Q. Was the purpose of that to ensure that people carried out their duties? A. Yes.

81 Further, as to supervisory changes, the second defendant stated in cross-examination: Q. You said in part of your evidence that since the tragedy there has been an improved system of supervision at Berrima of the mine? A. Yes.

Q. What improvements precisely - I know you have enumerated some - but what improvements do you say have taken place in relation to the supervision of the staff and particularly the mining staff at the mine? A. The frequency of supervision has increased because of the size of the operation. At the time of the accident the mine inspections were once every eight production shifts and now it is once every four production shifts. The under-manager was inspecting every two production shifts and now he inspects every one of them. The main thrust has been on documenting and itemising instructions, what instructions have been given and signed off by the deputy, so there is a record. There are increased checks and balances.

Q. Part of the improvement that has been put into place now is really a method whereby instructions are now to be verified or proved? A. Yes.

82 Mr Cameron gave evidence that the Centennial group had taken lessons from the incident and applied that learning across the entire mining group. Specifically, at the mine, much procedural review was undertaken including reviews of the communications, planning, documentation and meetings systems. This has included a system of documentation to prevent conflicts in the accounts of what instructions have been given in relation to procedure in the mine. 83 Refresher training also occurred by way of engaging the services of an external consultant. This training centred around mine roof bolting and included an overview of the purpose of bolting during mining operations and specifically the purpose of same in mining even in a "good" roof. The training also dealt with common bolting problems and identification of those problems. 84 In addition, Mr Cameron indicated that the safety risk management plan had been revised by "[reordering] its priorities from the lessons …learnt from this experience". A geotechnical review of the support rules was carried out, again by an external consultant. The review occurred soon after the incident, that is on 3 May 1996, and concluded that the support rules then promulgated represented the minimum support. Additional bolts should always be installed where there is doubt about the integrity of the roof. The report noted that the Colliery's proposed new Support Rules of 2 May 1996 would produce stable roof conditions if properly implemented. 85 Mr Cameron also stated that there has been continual monitoring and supervision at the site: The general manager mining reports to me and the managers report to him. In turn of course at the mine site, the under-manager reports to the manager and the deputy to the under-manager. What we have done right through that generally is emphasise the need for good communication for planning, or mentoring of the people below you and for doing hands on in understanding what is going on with those people who are reporting to you so we have looked at all those communication channels and put a bit emphasis on making sure that people are aware of what is happening. 86 The company has further emphasised its commitment to safety in the mining industry by Mr Cameron signing a pledge on behalf of himself, the first defendant and the Centennial group. The pledge is the Minerals Council of Australia's Safety and Health Statement. It states

that its vision is an "Australian mineral industry free of fatalities, injuries and diseases". The personal commitment to which Mr Cameron has become a signatory is in the following terms: I personally commit to contributing to the improvement of the safety and health performance of the Australian minerals industry by: · Demonstrating strong personal safety and health leadership; · Showing zero tolerance to unsafe acts and conditions; and · Promoting a culture of an injury-free workplace.

The Second Defendant 87 The second defendant has a distinguished experience in the mining industry. He holds a United Kingdom National Certificate of Mine Surveying, the Mining Qualifications Board's Mine Surveyor's Certificate, a Higher National Diploma in Mining and the Mining Qualifications Board's Manager's Certificate with first class competency which was endorsed for use in New South Wales in 1976. He has been a Fellow of the Australian Institute of Mining and Metallurgy since 1990 and has a work history which includes mine surveying and managerial duties in mines ranging in size, from the current 45 employees to 2,300 employees. He has a total of 43 years experience in the mining industry.

88 The second defendant had worked at the mine for 19 years at the time of the incident. He is 60 years of age. He desires to continue work in the industry.

89 The second defendant stated that he felt stressed after the incident. About four days after the incident he started to develop chest pain and ultimately suffered a heart attack. He was placed in intensive care originally at Bowral Hospital and then the Royal Prince Alfred Hospital. He did not return to work for 2 months. He wishes to resume his position as mine manager. He wishes to continue his work in the coal mining industry and retain his certification of competency.

90 References were tendered in favour of the second defendant.

SUBMISSIONS ON PENALTY Submissions for the Prosecutor 91 It was submitted by Mr Manion of counsel, who appeared for the prosecutor, that the maximum penalty applicable to the first defendant was $550,000.

92 Mr Manion submitted that the first defendant had allowed work to be performed under a section of unsupported roof for a distance in excess of 22 metres. This was in breach of the regulations which were in operation at the mine.

93 The first defendant failed, it was submitted, to adequately supervise the work of miners, deputies and the under-manager so as to ensure the proper support of the mine.

94 It was submitted that the failure by the defendant was twofold. The first defendant failed to ensure that roof bolts were appropriately put in place. It also failed to ensure that workmen did not work under an unsupported roof. It was submitted that the support of the mine roof is the most fundamental task of supervision in an underground mine.

95 Further, it was submitted that the first defendant failed to ensure compliance with the support rules. There were two schemes for roof support in the mine. Firstly, there was the requirement for a maximum distance of 9 metres from the last roof bolt to the mine face. Secondly there was a requirement for the setting of roof bolts in a pattern described in the support rules in relation to intersections. In the latter respect, it was submitted that even if the under-manager (contrary to the statements of the deputies) had instructed the erection of 'W straps', this instruction would not have complied with the support rules which required the placement of roof bolts at the intersection.

96 The first defendant had, it was submitted, an obligation to supervise all employees at the mine, including the mine manager. Mr Manion submitted that rules and regulations will not be sufficient to ensure safety unless such rules are enforced by adequate supervision. Furthermore, the remedial actions taken at the mine after the incident were simple and straightforward.

97 It was initially submitted by the prosecutor that the omissions by the first defendant began on 18 April 1996 and continued through to 23 April 1996 (excluding the weekend and one strike day) when the 'C' Heading was advanced a further 14 metres past the 'C/69' intersection. It was submitted throughout this entire time that the first defendant allowed its employees to work under a dangerous unsupported roof, in contravention of regulations and its common law duties. However, those submissions were modified later in the prosecutor's submissions so that the omission of relevant roof support was said to have essentially commenced on the morning shift of 23 April and continued until the afternoon shift. It was submitted that, in this respect, the failure was significant as "minutes can be important" in a failure to provide adequate roof support.

98 It was also submitted that the first defendant failed to comply with the regulations. It was the responsibility of the first defendant to ensure compliance with roof rules. Clause 21 of the regulations is mandatory but was not complied with on this occasion.

99 The first defendant also failed to ensure that roof brushing rules had been put in place. Brushing work should not have been permitted to be performed until such regulations had been observed.

100 It was submitted that, in addition to a failure to apply roof bolts, the first defendant had increased the risk of a roof collapse by failing to ensure that the roof brushing was situated in the centre of the road way. There was a cantilever effect resulting from this manner of brushing, the result of which was a larger unsupported roof area.

101 It was also submitted that the detriment to safety was foreseeable as the purpose of the rules, which were not followed, was to reduce the risk of collapse. Where rules which are made for the purpose of safety are not followed there is an increased risk of injury.

102 The prosecutor submitted that the objective seriousness of the offence is at the higher end of the range, although not the highest as the corporation was a first offender. However, the offence was serious as it was so easily foreseeable and avoidable. The seriousness of the offence warranted a penalty of between 80 - 90% of the maximum.

103 The prosecutor submitted that the maximum penalty applicable to the second defendant is $55,000.

104 In relation to the second defendant, the prosecutor submitted that a mine manager had duties above those at common law by virtue of the various pieces of legislation which applied to his position. Under s37 of the Coal Mines Regulation Act 1982, the manager had a duty to enforce the observance of rules. He also had responsibility to ensure the roof and sides of work areas and roadways within the mine were adequately supported, and that any matter which may affect safety is brought to his attention. All of these duties necessarily involve supervision of those under him. The evidence established that the second defendant had failed to comply with s37. The failure of the second defendant to rectify the situation and prevent work under such conditions was a failure to supervise. 105 The prosecutor submitted that it was not suggested that a mine manager must be present in a mine at all times for that is an impossibility. However, the second defendant should have ensured that the rules and regulations that governed the safety of those working underneath the surface were complied with when he was absent and there should have been a system to ensure that those rules were followed when he was not present.

106 As to the sentencing of the second defendant, counsel for the prosecutor submitted: … the prosecutor is of the view that your Honour may well find that s10 has some applicability to the circumstances of this case. Submissions for the First and Second Defendants 107 Mr Gleeson submitted that the facts and circumstances in these matters can be assessed in a similar manner for both defendants for the purposes of sentencing.

108 It was submitted that the true measure of penalty lies in the nature and quality of the offence. In that respect, it was submitted that the breach could not be categorised as a failure to take precautions or to maintain a safe system of work. Nor is it a failure to provide instruction or training. At its highest, the offence concerned a failure to supervise the statutory supervisors and, thereby, warranted characterisation as being at the lower end of the scale, especially in relation to the second defendant.

109 There are statutory duties according to the regime established by the Coal Mines Regulation Act 1982. Persons holding responsibility under that Act did not, in this case, comply with those duties. The first defendant placed greater reliance on those persons due to the presence of the statutory scheme. It was because of such reliance (that is, reliance upon those who had particular skills and certifications) that the offence was at the lower end of the scale of culpability.

110 It was submitted that there was a hierarchy of authority and responsibility in the mine. The first defendant supervised the second defendant. The second defendant supervised the under-manager who, in turn, supervised the deputies. It was submitted that the deputies had prescribed daily duties to ensure safety, including making inspections of work sites before mining was commenced. Further, the deputies worked with other employees in the mine.

111 If the deputies considered there was an unsafe situation, work should not have been commenced in the area where the incident occurred. It was important to bear in mind, it was submitted, that the deputies carried statutory duties and required certification to carry out their roles.

112 Mr Gleeson also pointed to the evidence of Inspector Conlon where the Inspector stated that it was fair to assume the workers had become somewhat complacent about roof support because the mine was a safe one which had had few problems.

113 It was also submitted that the absence of "brushing rules" was not a relevant issue as the absence of such rules was not causative of the incident. He submitted that the risk to safety of employees was occasioned by the absence of compliance with support rules. Further, as to the use of "W straps", Mr Gleeson contended that the "W strap" was, at least, as effective as a roof bolt.

114 As to the conflicts between statements given by the under-manager and the deputies, it was submitted that, even if this were of some consequence to sentencing, it must be remembered that adverse findings of fact may be made against a defendant in the sentencing process only if they are proven beyond reasonable doubt. 115 It was submitted, particularly in relation to the first defendant, that the Court should not consider general deterrence to be "critical". It was also submitted that specific deterrence was not relevant in this case. The Court cannot effectively deter complacency in statutory officials like under-managers and deputies. The first defendant had relied on these officials carrying out their duty. They should have known better. What was required was, in any event, in accordance with good mining practice and commonsense. The company had put in place support rules. It was submitted that it was difficult to see what more the defendant could do in the circumstances.

116 Mr Gleeson referred to the measures the first defendant had taken since the incident. He referred to changes in the training of employees, a review of the communications system to ensure written records of instruction, the introduction of weekly plans for the operations of the coming week, the revision of support rules, the introduction of a safety risk management plan and counselling and mentoring for the second defendant. It was also submitted that the first defendant also provided counselling for employees and their families and made an ex gratia payment of $10,000 to the family of the deceased immediately after the incident. It was further put that the company had a generally strong commitment to workplace safety which was exemplified by the fact that it instituted an audit process when it first purchased the mine. The first defendant had developed a safety risk plan.

117 It was submitted that both defendants had suffered remorse, shock and distress over the incident. Specifically, on behalf of the first defendant, it was noted that Mr Cameron gave expressions of condolences, attended the funeral of Mr Fraser and unveiled a plaque at the site on the first anniversary of the incident which commemorated Mr Fraser.

118 It was further submitted that the second defendant could be justified in feeling some sense of moral injustice in that, although other statutory officers had liability according to occupational health and safety principles, the second defendant was the only officer charged in relation to this incident.

119 For both defendants, it was submitted that, as guilty pleas had been entered as early as possible, the maximum discount of 25% should apply. It was also noted for both defendants that there are no previous convictions. In particular, it was submitted that the first defendant not only had no prior record but had a good safety record. There had only been one other reportable incident at the mine in 20 years and it was agreed by Inspector Conlon that the mine had one of the better safety records of the southern district. The first defendant had an excellent record on time lost for injury. 120 It was submitted that the circumstances of the second defendant warranted the application of s10 of the Crimes (Sentencing Procedure) Act 1999. Aside from his expressions of remorse and contrition, it was noted that the second defendant had ongoing health problems given that he suffered a heart attack shortly after the event which resulted in a two month absence from work. Mr Gleeson referred to the second defendant's age (he is 60 years old) and problems he would have with certification if convicted. His desire to continue working in the field would be adversely affected by a conviction.

121 It was submitted that the second defendant commenced his career in Scotland in 1957 as an Assistant Colliery General Manager where 2,300 men worked. Upon arriving in Australia in 1976, he worked as an

under-manager at Lithgow for four years. The second defendant then commenced work at the mine in 1980. He commenced as Deputy Manager and became Mine Manager in 1987.

Relevant General Principles 122 I have recently set out the principles to be applied in relation to the sentencing of an offender under the Act in WorkCover Authority of New South Wales (Insp Lyons) v Warman International Pty Limited [2001] NSWIRComm 62. I adopt those principles for the purposes of this decision.

Conclusions General 123 Mr Gleeson submitted that the facts and circumstances in this matter can be assessed in a similar manner for both defendants. I do not propose, however, to adopt this approach in the assessment of penalty for the defendants.

124 Whilst there is a common substratum of facts (as reflected in the earlier review of the evidence in this judgment) from which these prosecutions arise, and upon which the sentencing of the defendants may be evaluated, there should be, in my view, a separate consideration of the factors relevant to the assessment of penalty for each defendant. This approach will enable a proper assessment of the respective culpabilities of the defendants.

125 With respect to the objective seriousness of the offences charged, there are different implications arising from the facts and circumstances for each defendant. Furthermore, attention needs to be given to the operation of s50 of the Act in the light of those facts and circumstances so as to enable a proper assessment second defendant's culpability. Consideration also needs to be given to the provisions of s10 of the Crimes (Sentencing Procedure) Act 1999 in the case of the second defendant. It should also be noted that the subjective features of the matters are somewhat different for the respective defendants.

126 In adopting this approach, it is necessary to carefully examine and weigh the respective culpabilities of the defendants when viewed against the facts and circumstances of these matters and evaluate the subjective features arising in each case. Before doing so, however, I shall initially turn to some other general considerations.

127 The provision of proper and adequate support for the roof of a mine where persons are engaged in underground mining activities is paramount to the safety of those persons. This much is reflected in the statutory scheme governing coal mines. The provisions of the Coal Mines Regulation Act 1982 and the Regulations are directed to the elimination of the very real danger occasioned persons working in coal mines where there is not adequate support of the roof of a mine.

128 The Coal Mines Regulation Act requires the making of rules with respect to the support of the roof of a coal mine (see s102). There are substantial duties imposed upon the owner and managers and supervisors of such mines to ensure compliance with such rules. Those obligations are structured in a hierarchical fashion so as to ensure, at every relevant level of supervision, there is adherence to the support rules. The Regulations prohibit a person from entering upon a travelling roadway or working place within a mine which is not secure in accordance with the support rules of the mine unless the person is authorised to do so (see cl7).

129 The provisions of the Coal Mines Regulation Act and the Regulations also illustrate the public interest requirements arising in this matter.

130 In any event, as observed by Inspector Conlon, the provision of adequate support in accordance with the rules of the mine is a matter of simple, good mining practice, irrespective of the state of the roof of the mine or the duration of the omission of support.

131 There are two factors giving rise to the detriments to the safety of employees in this matter. Firstly, and of primary significance, there was a failure to provide adequate support to the roof of the mine in accordance with the support rules of the mine, namely, by the provision of roof bolts in accordance with those support rules. The W-straps which were erected (and were also in the process of erection) in the mine at or about the time of the incident may, as indicated by Inspector Conlon, have minimised the cantilever effect created by the operations being conducted on the roof and maintained, or assisted in maintaining, the integrity of the roof. However, the erection of W-straps did not satisfy the requirements of the support rules and should not, therefore, be used in substitution for the roofbolts in that respect. Furthermore, it would appear that the W-straps were not placed in a timely manner so as to be erected as the cut-out was advanced.

132 Secondly, the off-centre drivage of the C heading resulted in the roof cut-out not being in the centre of the roadway. The roof cut-out resulted in a small excavation lip on the left hand rib line of the C heading. The right hand side lip then resulted in the cantilever effect referred to by Inspector Conlon (as set out earlier in the review of the evidence). Further, the roof cut-out of the overpass excavation penetrated through the coal plies of the immediate roof substratum exposing, as Inspector Conlon reported, a second "free face". In the result, as Inspector Conlon concluded, the integrity of the roof was then further adversely affected by the absence of roofbolts to support those plies prior to the roof being excavated.

Assessment of Penalty for the First Defendant 133 Mr Gleeson emphasised in his submissions that this is not a case where the first defendant was charged with failing to provide a safe system of work or adequate instruction or training. Rather, the first defendant was charged with failing to provide such supervision as may have been necessary to ensure the health and safety at work of its employees pursuant to s15(2)(c) of the Act. I agree that this is an important distinction for the purposes of assessing penalty in this matter.

134 The first defendant did have in place a settled safety procedure and instructions. Its manager, the second defendant, had promulgated support rules in accordance with the statutory requirements (albeit prior to the first defendant taking over the mine). Whilst those support rules were modified after the incident, no complaint was made by the prosecutor that the support rules were inadequate or ineffective at the time of the incident. Indeed, it was Inspector Conlon's conclusion that if the support rules had been followed the incident would not have occurred.

135 The existence of settled safety procedures and instructions is a factor which may mitigate the seriousness of the offence: Warman International Limited v WorkCover Authority of NSW (1998) 80 IR 326 at 342; WorkCover Authority of NSW (Inspector Riley) v Broken Hill Proprietary Company Limited (1998) 83 IR 427 at 429 and Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 25. This factor will result in a discount in penalty in this matter.

136 Further, in this respect, I have also had regard to the fact that there existed a system of work which may have prevented the accident had it been adhered to: Warman v WorkCover Authority of New South Wales (1998) 80 IR 326 at 342.

137 Mr Gleeson described the failure by the first defendant as being a failure to supervise the statutory supervisors. This warranted, it was submitted, a lower penalty. He referred to the hierarchy of duties established under the Coal Mines Regulation Act 1982 and to the responsibilities held by persons occupying various positions under that Act. He also referred to the failure of the deputies, in particular, to ensure adherence to the support rules.

138 It is true that the Coal Mines Regulation Act 1982 does require managers and supervisors of mines (including deputies) to ensure adherence to the support rules. That responsibility reposes in each such manager and supervisor. It is appropriate, in assessing the culpability of the first defendant, to have regard to those statutory requirements as the first defendant is entitled to rely, in this respect, upon the compliance by those persons with their statutory obligations. Whilst this factor diminishes the responsibility of the first defendant there does, nonetheless remain a significant failure in the provision of adequate supervision by the first defendant.

139 The systems of work adopted by an employer must include searching for and identifying all possible risks and the institution of safety measures to guard against those risks: WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Hill J, Matter No. CT1280 of 1995, 2 April 1997 at 21). Employers are required to maintain constant vigilance and take all practical precautions to ensure safety in the workplace: Capral Aluminium v WorkCover Authority of New South Wales (2000) NSWLR 610 at [77]. A corporate defendant will, in particular, need to ensure that those in its employ meet such obligations. That duty includes the superintendence of the conduct of the staff of the first defendant charged with the responsibility of ensuring the establishment of and adherence with safe systems of work.

140 The Act compels an employer to ensure that those systems of work, which it has designed to ensure the safety of its employees, are complied with at all times. This requires not only the promulgation of rules and instructions establishing a safe system of work, but the provision of adequate supervision to ensure they are complied with. The Full Bench in WorkCover Authority of New South Wales (Inspector Riley) v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 stated in this respect (at [16]): Similarly, it is important for employers to actively ensure that instructions given are both sufficient for and complied with by employees. We refer to the judgment of Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited (Unreported, 19 October 1999) as follows: In any event, the mere stipulation of procedures and instructions to carry out the work may not be enough to satisfy the requirements of s15 of the Act. The employer should ensure that procedures and instructions are actively and positively complied with by employees. In Dawson (at 121 and 125) the failure by a foreperson to supervise a qualified and experienced linesperson to the extent of instructing the employee as to the safest available method (where the employer had laid down a procedure for work and various methods of performing the work were available) would constitute a breach of s15 (although in that matter it was found the failure was that of the foreperson and not the employer). I note that in an English High Court case, Pope v Gould (HM Inspector of Health and Safety, 20 June 1996, unreported but cited at p44 of Redgrave's Health and Safety, 1998, Third Edition) it was held in England, under the equivalent of s15, that it is not a sufficient defence for an employer to demonstrate that he had instructed the employee to operate machinery in a particular way and the employee had not followed his instructions. There, it was held, that the legislative provision was not concerned solely with the giving of instructions; rather it imposes upon the employer positive duties in relation to ensuring safe systems of work and safe machinery. It was held not to have been sufficient for instructions of a health and safety nature merely to have been given to employees; an employer must also ensure that those instructions are carried out (see also Haynes at 181-182, Kirkby at 53 and McMartin at 8).

141 In the instant case, the first defendant failed to ensure that its supervisors adequately maintained the systems of work which had been established to ensure the health and safety of its employees. This was not simply a failure to ensure that the managers and supervisors carried out a statutory function by reminding those persons of their obligations. The failure was more fundamental. There was an absence of arrangements for the superintendence of managers and supervisors, including systems of communication and monitoring as would ensure that all instructions for the safe operation of the mine were implemented at all levels of supervision. This failure included an absence of an appropriate system of checking and balancing supervisory arrangements.

142 It should be noted that, in making this assessment, I have taken into account, in favour of the first defendant, that: 1. the mine had operated for a considerable period prior to the first defendant taking over the operations in 1994; 2. after taking over the mine, the first defendant immediately took steps to improve procedures at the mine in relation to nine significant areas bearing upon the safety of employees at the mine; 3. the first defendant had attempted to pursue the achievement of its safety standards at the mine by the conduct of an audit; and

143 4. the first defendant had commenced to implement its safety plan (and audit findings) by the time of the incident.

144 On the evidence, the mine had a very successful history from an occupational health and safety perspective, with only one reportable incident in 70 years. Nevertheless it would appear that there were deficiencies in the safety procedures at the mine at the time the first defendant assumed responsibility for its operations. This would seem to follow from the findings of the auditors. Complacency may have arisen in relation to roof support, although, in this regard, the evidence is not clear. There are, however, clearly counterbalancing considerations which identify the culpability of the first defendant in relation to supervision. By the time of the delivery of the auditor's report in September 1995, the first defendant was aware that the mine was rating poorly in a number of areas arising under its safety and risk management plan. The deficiencies related directly to the quality of management and supervision such as, commitment and involvement, operating procedures and communications. Those deficiencies were reflected, at least to some extent, in the failures giving rise to the incident. Both Mr Cameron and the second defendant conceded that there were deficiencies in supervision at the mine at the time of the incident.

145 The first defendant did take immediate steps to alter its supervisory arrangements after the incident so as to ensure compliance with the support rules (and indeed modified the support rules thereafter). The changes made were relatively simple and straightforward. Whilst they are laudable they also reveal the steps which may have been taken by the first defendant to prevent the incident: WorkCover Authority of New South Wales (Inspector McKensey) v Waste Recycling and Processing Services of New South Wales [2000] NSWIRComm 218.

146 In WorkCover Authority of NSW v Warman International Pty Ltd [2001] NSWIRComm 62 it was stated, in this respect [at 84]: The actions taken by the defendant after the incident to remedy any deficiency in safety and to further improve the overall occupational health and safety of its employees at the workplace are factors in favour of the defendant in the assessment of penalty. However, such actions also clearly demonstrate the flaws in the existing system and steps which could have been taken to remedy those flaws: WorkCover Authority of New South Wales (Inspector Kelsey) v University of Sydney (unreported, Hill J, Matter no CT1280 of 1995, 2 April 1997), Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476 (at 21 - 22).

147 Additionally, I consider the absence of brushing rules to be relevant to the assessment of sentence. Conditions for brushing were not incorporated in the support rules for the mine at the time of the incident, contrary to the requirements of the Regulations. Clause 21 of the Regulations provided that the support rules must require effective support of a roof when brushing occurs and that the face of the brushing must be effectively supported at the cessation of brushing. The absence of roof support in conjunction with the manner in which the brushing was undertaken was identified by Inspector Conlon as a factor resulting in an increased risk to safety of employees at the mine. The absence of rules for brushing represented then an omission of relevant supervision of the mining operation and resulted in a risk to the safety of employees.

148 I do not accept Mr Gleeson's submission that the absence of brushing rules was irrelevant because, as he put it, the absence of such rules was not causative of the incident. In order to make out an offence under s15(1) of the Act, it is not necessary to demonstrate a causal connection between the conduct of the first defendant and the precise circumstances of the accident which gave rise to the prosecution. Rather, the causal connection must be between that conduct and the risk to safety: Drake Personnel v WorkCover Authority (Insp Ch'ng) (1999) 90 IR 432 at 452 - 453. The relevant conduct here is the failure to promulgate rules in order to bring about the requisite level of supervision of employees engaged in brushing operations.

149 However, the risk created by the brushing procedures adopted at the time of the incident arose substantially from the absence of roof bolts. In the result, this feature of the matter should be accorded relatively minor significance (particularly so as to avoid the risk of double counting with other considerations concerning roof support earlier discussed in this judgment).

150 The risk to safety of employees, occasioned by the failure to adequately supervise with respect to the support rules of the mine, was reasonably foreseeable having regard to the proper test of foreseeability: Capral at [81]. The Coal Mines Regulation Act emphasises the need for adequate supervision at all relevant levels. This is plainly directed to the safe operation of the mine. This statutory scheme also reflects the inherent dangers in mining operations and the necessity of ensuring adherence to safety rules, including support rules. It was reasonably foreseeable that inadequate supervision of the implementation of safety procedures and, in particular, supervision of compliance with the support rules would increase the risks to the safety of the employees engaged at the mine. Further, the first defendant was cognisant of the need for the reform of safety procedures when, in 1994, it implemented new safety standards at the mine. That need for change was emphasised by the audit report which made clear the existence of deficiencies at a number of levels that reflected upon supervisory arrangements at the mine. The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature: Capral at [82].

151 Another consideration which is relevant to the objective seriousness of the offence is that the failure of supervision in relation to roof support gave rise to the very real prospect of serious consequences for employees working in the mine. I refer to the statement of the Full Bench in Capral (at [94]) in this respect, which was as follows: We consider that the limited injuries suffered by Mr Stafford must be seen in the context of that evidence and also in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries suffered, or which may have been suffered, and the gravity of the offence. We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9; Watson v Southern Asphalters Pty Limited (1996) 83 IR 446 at 456; Wong v Melinda Group Pty Limited (1998) 82 IR 118 at 131; WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409; Lawrenson Diecasting Pty Limited at 476; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited at 90 - 91; and Page v Walco Hoist Rentals Pty Limited (No. 2) at 22.

152 On balance, I consider that the offence by the first defendant in this matter is a serious one.

153 Before considering the subjective features of this matter, I shall deal with the submissions on behalf of the first defendant as to the issue of deterrence. It was submitted that general deterrence was not "critical". It was also submitted that specific deterrence was not relevant in this matter as the Court could not effectively deter complacency in statutory officials like under-managers and deputies. The first defendant had simply relied, it was submitted, upon those officials and they should have known better.

154 The issue of deterrence has been dealt with determinatively in Capral. I set out the relevant passages of that judgment at [74 - 79]: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm at 40 - 43) we would expect such cases to be very rare , and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. We now refer more particularly to the issue of personal or specific deterrence. For the reasons we have given, we do not accept that the appellant's submissions could have a substantial impact upon the weight to be attached to general deterrence in determining an appropriate penalty in the present case. Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable. On the other hand, the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence: see Ruby, Sentencing (5th Edition, Butterworths, Toronto, 1999) at 10. The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence. In R v Pickard [1998] VSCA 50, for example, Winneke P and Charles JA of the Victorian Court of Appeal stated (at 4): An assessment by the judge of the risk of a prisoner re-offending is not a feat which requires any refinement of thought process. If the judge is satisfied that the accused constitutes such a risk that the penalty to be imposed should reflect an aspect of specific deterrence, it will be because he or she has no doubt that the accused poses such a risk. In our view, it is not a question of distinguishing between degrees of risk. It is simply because the judge perceives that the risk is such that the penalty should be one which will deter the accused from re-offending. The greater the judge perceives the risk to be, the more heavily specific deterrence will weigh in the instinctive decision as to the appropriate sentence. In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act . At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety : see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at 46. We would have considered that this approach was appropriate even before the significant increase in levels of penalty were legislatively imposed effective from 1996. However, that legislative step is itself relevant to this question. As Spigelman CJ held (with the concurrence of Wood CJ at CL and McInerney J) in R v Howland 41 and 43: 41 ... the community has indicated that it wishes to denounce this conduct in the strongest terms. ... By the increases in the maximum sentences, the community, acting through the Parliament, has indicated that this is a crime which it wishes to denounce and deter. It is the duty of the judges to reflect this community concern … 43 Sentencing has always been based on the acceptance of the proposition that condign punishment of offenders will have deterrent effect on others. We conclude, in the light of the extract from the judgment in R v Howland that the significant increases in penalty which occurred from 1996 are of considerable significance in emphasising the importance of both particular and general deterrence in the sentencing process for offences against the Act and that the approach exemplified by the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited is decisively confirmed by that legislative intervention. It follows that we do not accept the appellant's submissions in relation to the question of deterrence, although the precise weight to be given to that issue is inevitably within the sentencing judge's discretion : Director of Public Prosecutions v El Karhani (1990) 21 NSWLR 370 at 378. We conclude that in this case, although deterrence in both of its relevant respects is pertinent here, weight should also be given to the particular circumstances of the appellant . (emphasis added)

155 I consider that there is a need for general deterrence in this matter. As noted at the outset, the offence raises significant public interest considerations. Furthermore, the risk to safety occasioned by the first defendant in this matter is the very one sought to be avoided by the statutory scheme governing coal mines. The legislature specifically required mine operators to establish rules for the support of mine roofs and laid down strident obligations for management to ensure the implementation of same.

156 As to specific deterrence, in Capral, the Court considered that it was unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. Where the offender continued to be an employer, such as in this case, the risk to safety of its employees or contractors "may exist" or "be possible". Thus, the Court came to the view that in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so when, as in this matter, an enterprise involves inherent risks to safety.

157 Having regard to the principles for sentencing in Capral, specific deterrence should feature in the assessment of penalty in this matter. It is necessary, in my view, to encourage a sufficient level of diligence by the first defendant to ensure an effective system of supervision at the mine. This is particularly so when the very nature of the mining process requires that the work activity will take place at a remote, underground location and where lines of communication between the various levels of managers responsible for the supervision of employees will invariably be met by some communication difficulties.

158 I do not accept Mr Gleeson's submission that the specific deterrence is unnecessary as the Court cannot effectively deter complacency in statutory officials. Deterrence is required to ensure constant vigilance and a pro-active approach by the first defendant, specifically to manage and control the work of those persons it engages to supervise its employees.

159 The first defendant shall receive a discount on penalty having regard to the actions taken by it to improve safety after the incident: Tyler v Sydney Electricity (1993) 47 IR 1 at 5 and Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 at 103. I have also taken into account the assistance afforded to the deceased worker's family after the incident and the assistance afforded to other employees.

160 The defendant has entered an early plea of guilty which will give rise to a reduction in sentence upon the principle stated in R v Thompson; R v Houlton (2000) 49 NSWLR 383. Further, the defendant has co-operated with the prosecutor in the investigation of the incident. In all these respects, I consider that the defendant has demonstrated contrition and deserves a discount based on subjective factors.

161 In applying the judgment in R v Thomson, I have had regard to the decision of Wright J, President, in WorkCover Authority of New South Wales (Inspector Shepherd) v The State Rail Authority of NSW [2000] NSWIRComm 179. I adopt his Honour's judgment in relation to the application of the guideline judgment. Wright J, in this respect, stated at [37 - 40]: On 17 August 2000, after judgment was reserved in this matter, the Court of Criminal Appeal ( Spigelman CJ, Wood CJ at CL, Foster AJA, Grove and James JJ) delivered judgment in R v Thomson; R v Houlton [2000] NSWCCA 309, the guideline judgment as to pleas of guilty in criminal proceedings. The guideline adopted and other pertinent observations are set out in the judgment of the Chief Justice as follows: 160. The Court should adopt the following guideline applicable to offences against State laws: (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.

(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount. 161. The Court was asked to clarify its earlier guideline judgments in the light of any guideline it might propose in this respect. The standard case identified in each of Jurisic and Henry included a plea of guilty. That was not the case in Wong in which the range encompassed relevant matters, including a plea. In each of Jurisic at 231 and Henry at [162], the Court was concerned with a guilty plea of limited value. The guidelines for the offences considered in those cases should be understood to involve a late plea of guilty, for purposes of the application of the guideline promulgated in these reasons. 162. The discount range propounded for a guilty plea based on utilitarian consideration is not intended to result in any change in the level of sentences generally. Nothing in these reasons should be construed as indicating an opinion that trial judges have not in fact been giving appropriate consideration and weight to pleas in such a way as to distort the general level of sentences. The purpose of identifying a discount range is to improve the transparency of the process and to alter the widespread perception that there is no benefit from an early plea. Insofar as existing sentencing practice has been to allow discounts for pleas up to 35 percent, encompassing all relevant matters, such a practice remains appropriate. The guideline is to be considered with the relevant provision of the Crimes (Sentencing Procedure) Act 1999 which replaced s439 of the Crimes Act 1900 and which provides: 22(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:

(a) the fact that the offender has pleaded guilty, and

(b) when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court. Also relevant is the approach followed and applied many times by this Court in R v Winchester (1992) 58 A Crim R 345 where Hunt CJ at CL said, at 350:

A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will depend upon many different factors. The plea may in some cases be an indication of contrition, or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from the recognition of the inevitable: Shannon (1979) 21 SASR 442 at 452; Ellis (1986) 6 NSWLR 603 at 604. The plea of guilty may also be taken into account as a factor in its own right independently of such contrition, as mitigation for the co-operation in saving the time and cost involved in a trial. Obviously enough, the extent to which leniency will be afforded upon this ground will depend to a large degree upon just when the plea of guilty was entered or indicated (and thus the savings effected): Beavan (unreported, Court of Criminal Appeal, NSW, Hunt, Badgery-Parker and Abadee JJ, 22 August 1991), at p 12. The considerations cited from R v Winchester are to be applied in this matter. The plea should be considered as an early plea; and although the Court does not find that a conviction would have been inevitable in the absence of a plea, the matter should be approached on the basis that a conviction was likely. I consider it is appropriate to apply the guideline judgment in R v Thomson; R v Houlton in determining the fine that should be imposed on the defendant in these proceedings.

162 The prior record of the defendant is also a relevant factor to be considered when determining penalty. The defendant has no prior convictions. As I noted in Department of Mineral Resources v Kembla Coal and Coke at 30, the previous good industrial citizenship of the defendant should be recognised and this is clearly a factor to be taken into account in mitigation. In particular, I have had regard to the long period over which the mine has operated without serious incident and to the efforts by the first defendant after acquiring the mine in 1994 to further improve safety. These factors are particularly important given the inherently dangerous nature of the first defendant's operations: WorkCover Authority of New South Wales v Warman International Ltd [2001] NSWIRComm 62 [at 90].

163 I have also taken into account, in the assessment of penalty, the evidence led on behalf of the first defendant as to the extensive measures taken by it to ensure the occupational health and safety of employees at the workplace. I have set these measures out in some considerable detail earlier in the judgment as they are commendable.

164 Having regard to the entirety of these circumstances, I consider that a substantial discount for subjective features should be allowed. That discount, including the utilitarian component, shall be 30 per cent.

165 In assessing penalty in the case of the first defendant, I have also taken into account the objective features of the offence and all matters raised by the first defendant in that regard as to the issue of aggravation. I note, in this respect, I shall assess penalty upon the basis that the maximum penalty for the offence for the first defendant is $550,000.

166 For the foregoing reasons, I consider, after discount for the subjective factors, that the appropriate penalty with regard to the offence, as charged, in the case of the first defendant is $91,000. The prosecutor should have a moiety of the fine.

The Second Defendant 167 As earlier mentioned, Mr Gleeson sought that the provisions of s10 of the Crimes (Sentencing Procedure) Act 1999 be applied to the second defendant. The prosecutor also submitted that the provisions of this section may well be applicable in the case of the second defendant.

168 Section 10 of the Crimes (Sentencing Procedure) Act 1999 provides as follows: 10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make either of the following orders: (a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years.

(2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

(b) that it is expedient to release the person on a good behaviour bond.

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

(4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and

(b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and

(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.

(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.

169 The application of the former equivalent of s10 of the Crimes (Sentencing Procedure) Act 1999, that is, s556A of the Crimes Act 1900, was recently and comprehensively considered in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700. In that decision, the Full Bench of the Commission in Court Session pointed out the clear and long standing authority which established the rarity of situations in which such an ameliorative provision was available to a defendant under the Act.

170 The Full Bench stated (at 26): Nevertheless, in occupational health and safety offences before this Court the exercise of the discretion under s 556A (cf s 10 of the Crimes (Sentencing Procedure) Act 1999) must be considered as extraordinary and highly exceptional. When a defendant seeks its exercise cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission. The obligation is increased rather then diminished in a situation, such as the present, where the exercise of the discretion is not sought by the defendant but raised by the Court. 171 It should be noted that the Full Bench in Profab followed the judgment of the former Industrial Court in WorkCover Authority of NSW v Waugh (1995) 59 IR 89 at 101 wherein it was stated that the discretion available under s556A would be rarely available in significant offences against the legislation.

172 Further, in a recent discussion of s10 of the Crimes (Sentencing Procedure) Act 1999, the Full Bench of the Commission in Court Session reiterated that the exercise of such a discretion is saved for extraordinary and highly exceptional circumstances (see Australian Grader Hire). I shall apply the principles stated in Profab and Australian Grader Hire in this matter.

173 In Waugh, the former Industrial Court had noted that the company and the personal defendant had a prior good character. However, this seemed to be due to good fortune rather than good conduct. The Court approached the question of s556A in quashing the decision at first instance as follows (at 101): We consider that in serious cases where, as found by her Honour, the risk of injury from an accident was not one difficult to foresee, where the breach could and did result in serious consequences to the health of the injured man, where the risk of injury was preventable and where a safety fence with an isolation device was installed without difficulty after a second inspection, the operation of s556A of the Crimes Act to such proceedings would seldom be appropriate. If such an application is pressed but opposed it should normally be supported by evidence subject to cross-examination rather than the untested assertions made from the bar table.

174 This approach was applied by Hungerford J in WorkCover Authority of New South Wales v Neaves [1996] NSWIRComm 58. His Honour rejected an application under s556A of the Crimes Act 1900 because the detriment to safety there occasioned by the employee had been foreseeable and the work practice involved was known to be dangerous and resulted in serious injury. His Honour found that the risk could have been prevented.

175 In applying the foregoing authorities to an application for the exercise of the Court's discretion under s10 of the Crimes (Sentencing Procedure) Act, it is important, however, to bear in mind that each matter requiring consideration under s10 of that Act needs to be considered in the light of its own particular circumstances: WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Pty Ltd (1999) 90 IR 413 at 430.

176 An illustration of the extraordinary and highly exceptional circumstances under which a discretion has been exercised pursuant to s556A of the Crimes Act 1900 was given by the Full Bench in Profab by reference to the decision of Hungerford J in Wong v Melinda Group Pty Ltd (1998) 82 IR 118. The Full Bench in Profab identified those circumstances as follows at [22]: The most recent case in this jurisdiction where a matter was dealt with pursuant to s 556A is that heard by Hungerford J in Wong v Melinda Group Pty Limited (1998) 82 IR 118 at 133. The unusual circumstances of the case and the reservation expressed by his Honour demonstrate both the limited nature of cases where s 556A will be appropriate and the reluctance in this jurisdiction to invoke it: I wavered during the hearing, as debated with Mr. Goot , whether this case was appropriate for the application of s.556A. However, on balance, and after reviewing the evidence, I am comfortably satisfied it is. In all the circumstances, I cannot conceive it to be just for the defendant to suffer a criminal record for what occurred. The defendant has no prior convictions and it pleaded guilty to the present charge in a timely way. Its attention to safety considerations in respect of the King Street building over very many years was well established and, in particular, its actions in arranging an appropriate and safe system for the external cleaning of the building's windows, including the approval of the WorkCover Authority, is clear. The real and effective culpability for the tragic accident which occurred to Mr. Child was that of a tenant, Mr. Timmins, and of Mr. Child's employer, Towabug Pty. Limited. The defendant was simply unaware of the arrangements for the work to be performed by Mr. Child and, in view of its policy on window cleaning and the steps for a safe system, could not reasonably have foreseen the accident which occurred. Indeed, the defendant engaged a consultant, Alan Keevers Enterprises Pty Limited, to provide building services, necessarily including safety arrangements, for the King Street property and that corporation must bear a degree of responsibility for the incident. The defendant, in my view, has been subjected to extenuating circumstances over which it had no direct control. It follows, in my view, that it is inexpedient to inflict any punishment on the defendant. I propose to apply the provisions of s.556A of the Crimes Act by dismissing the charge.

177 Another example of the exercise of a discretion pursuant to s556A of the Crimes Act is the decision of the Industrial Court of New South Wales in WorkCover Authority of New South Wales (Inspector Thomas) v Cruden (1996) 67 IR 469. This matter concerned a prosecution of a person under s19 of the Act. Marks J considered the defendant to be guilty and then considered submissions as to whether the matter was appropriate to be dealt with under s556A. After considering authorities dealing with the exercise of discretion under s556A (including Schultz v Tamworth City Council (1995) 58 IR 221, which was also considered in Profab at [19]) the Court reached the view that the matter should be dealt with under s556A as:

1. there had not been a systematic course of conduct over a period of time where the defendant engaged in the same or similar breaches of the Act; and

2. the defendant had not been properly instructed and trained by his employer.

178 In assessing the culpability of the second defendant, it is also necessary to consider the application of s50 of the Act. Wright J, President, discussed the construction and implications of s50 of the Act in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No. 2) (2000) 99 IR 163 at [38]. His Honour's construction of the section, with which I agree, was as follows at [38]: Having reached those conclusions in relation to the culpability of the first defendant it is necessary to consider that of the second defendant. The construction and implications of s50 are relevantly these. First, the level of culpability of a personal defendant who is deemed to have committed the offence by virtue of s50(1) cannot be greater than that of the corporation who has been convicted or otherwise assumed to be guilty for the purposes of the operation of the section. However, most pertinently for the present proceedings, it must be recognised that the culpability of the personal or individual defendant may be less than that of the corporate defendant. It is not, in my view, a question of considering their relative contribution but assuming that the purpose of the provision is to make an individual who is responsible to an extent for the management of the corporation similarly responsible and culpable for the acts or omissions of the corporation. Although the relevant consideration is not whether, or to what extent, there is a level of contribution as between the corporate and individual defendants for the particular breach of safety which arose under the Act, it is nevertheless necessary when dealing with the precise gravity of the offence committed, or deemed to have been committed by the personal defendant, to accept the possibility or, in many cases where the individual is not simply the alter ego of the corporation, the likelihood that the level of gravity of the offence attributable to the personal defendant may be less than that which has been found to have been committed by the corporate defendant - that is, in these proceedings the first defendant.

179 His Honour also made some observations relevant to the assessment of culpability in the light of a prosecution arising in consequence of the operation of s50 of the Act as follows (at [39]): In assessing the culpability of the second defendant it is, in my view, important to place particular weight upon the role of the defendant in the management of the corporation and the nature of the gravity of the offence as identified in relation to the first defendant, and to make an assessment in that context of the situation of the second defendant. …

180 The provisions of s10 of the Crimes (Sentencing Procedure) Act 1999 are not entirely amenable to the consideration of a prosecution brought under the Act against a corporate defendant. Matter No IRC2055 of 1998 concerns, however, a personal defendant. Further, the prosecution of the defendant arises as a result of the operation of s50 of the Act. Having regard to the principles as stated in Walco, the second defendant should not simply be treated as the alter ego of the first defendant, a corporation.

181 The first question which arises then, in relation to the exercise of the Court's discretion under s10 of the Crimes (Sentencing Procedure) Act 1999, is whether the culpability of the second defendant was less than that of the corporate defendant. In my view, this question must be answered in the affirmative.

182 It is true that the second defendant had obligations under the Coal Mines Regulation Act 1982. In particular, he had charge and control of persons employed in the mine and the operations of the mine. Furthermore, he had the responsibility of enforcing observance of the support rules.

183 These broad obligations need to be balanced against the second defendant's actual involvement in the management of the mine in relation to the incident. Having regard to the duration of the unsupported roof (as discussed earlier in this judgment), it is clear that the second defendant did not directly observe the unsupported roof at any time prior to the incident. Nor was there any reasonable opportunity for him to do so as it would appear that the timing of the incident did not coincide, on the available evidence, with his regular weekly inspection of the underground operations. It was not suggested that the frequency of his inspections was inadequate. Further, the second defendant did not have reported to him any non-observance of the support rules.

184 Taken with the consideration of the duration of the unsupported roof, it is reasonable to conclude that at no stage did the second defendant have any knowledge that the support rules of the mine had not been observed by the time of the incident. Nor did he know that the person next in charge, namely the under-manager, had not taken steps to prevent the unsupported roof.

185 These factors do not exhaust the consideration of the second defendant's culpability. That must be considered in the light of the findings earlier made in this judgment in relation to the first defendant as to the inadequacies in the systems of supervision at the mine.

186 The second defendant was required to establish support rules. He did so and in a manner which was not criticised during the proceedings. It is not clear, on the face of the legislative provisions, that the manager had any direct and specific responsibility to establish the brushing rules. For present purposes, I am not prepared to assume a dereliction of duty by the second defendant in this respect.

187 However, the second defendant, like the corporate defendant, had an obligation to ensure adherence to the support rules. Ordinarily a mine manager would take considerable responsibility in this respect, given that he would be responsible for both direct supervision of mining operations as well as the effective supervision of persons lower in the supervisory hierarchy. He also had a particular responsibility under the Coal Mines Regulation Act 1982 in this respect. This consideration might normally weigh considerably against the exercise of the Court's discretion under s10 of the Crimes (Sentencing Procedure) Act 1999.

188 This is not, however, such a matter. It must be borne in mind that the mine changed hands in 1994. Changes were introduced at the mine by the first defendant from this time. In particular, adjustments were made by the first defendant to the supervision of the mine's operation and its employees including the management and planning of mine operations, safety procedures and communications. It was these very factors which were later identified by the first defendant as needing rectification after the incident.

189 Thus, the mine was in a process of transition and review (in the sense that an audit of the mines operations had been produced) at the time of the incident. The first defendant was addressing deficiencies in supervision at the mine at the time of the incident (and allowance for this factor has been made in the assessment of the culpability of the first defendant). However, the nature and timing of the changes to the mine operations and the evaluation and implementation of the audit report was, at the time of the incident, being managed and controlled by the first defendant (although the process would, no doubt, have involved consultation with the second defendant). The state of supervision of employees at the mine at the time of the incident was then substantially the province of the first defendant in the course of it implementing its own standards for mining operations. I do not consider that a manager of the mine can be held significantly responsible for defects in supervision at the mine when those arrangements are in transition and the subject of refinement by the first defendant who ultimately (and particularly at that transitional point) directed and controlled the mining operations and the manager. I note that there was no evidence that any pre-existing deficiency in procedures at the mine (such as may have existed) were attributable to the second defendant.

190 These are the particular circumstances in which the culpability of the second defendant must be assessed. They distinguish the culpability of the second and first defendants - demonstrating that culpability of the second defendant in this respect was considerably less than the first defendant.

191 There are further considerations relevant to the assessment of the objective seriousness of the offence in the case of the second defendant. Mr Gleeson submitted that the second defendant was entitled to feel some injustice as there had been a failure to prosecute the other statutory officers.

192 In Nesmat Pty Limited v WorkCover Authority of New South Wales (1998) 87 IR 312, a Full Bench of the Court considered that the absence of prosecution against other parties upon whom a defendant had reasonably relied meant that the sentence imposed upon the defendant gave rise to a justifiable sense of injustice (at 322 - 323). 193 This contention was also raised in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited and Another (2000) 95 IR 383. In that case the defendants relied upon the Nesmat decision and Wong v Melinda Group Pty Ltd (1998) 82 IR 118. In Wong, the defendant was charged after a window cleaner died as a result of a fall from a building owned by it. Charges were only laid against the defendant, even though the deceased was not its employee and it had not been informed that the work was occurring contrary to its own policy. The Court concluded that these circumstances were relevant to the assessment of penalty. Of particular relevance was the "equality of treatment in terms of the relative seriousness of the offence". In the McDonalds case I considered that what the Court was paying regard to in Wong was the: … actual contribution of the defendant for the purposes of assessing penalty … [having] regard to the fact that the defendant was virtually wholly removed from the causal factors for the incident or the work actually performed by the window cleaner and even lacked knowledge of the performance of the work actually performed … (at 437).

194 Further, I stated (at 437): The absence of a prosecution of another entity merely serves to emphasise the unfairness that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of their contribution to an accident is not undertaken.

This approach is consistent with the approach in Nesmat and Wong . Nothing in the decision in Nesmat warrants the adoption of the further approach contended for by the defendants that the Court should assess, in the context of the sentencing of the defendants, whether a prosecution should have been continued against Lennard and Mercer. Nor is it consistent with the principle of parity or the abovementioned decisions for the Court to embark upon an inquiry in sentencing proceedings which, in substance, would require the Court to make specific findings as to the culpability of such entities under s17 and the 'nature and quality' of any offence committed by them.

195 I note also that this analysis of Nesmat and Wong has been affirmed by Wright J, President, in Walco (No.2) where his Honour stated at [31]: … In any event, as I understand the decision of the Full Bench in Nesmat Pty Ltd it was not held that the failure to prosecute a defendant which was otherwise appropriate to be prosecuted was a matter which, of itself, would mitigate the penalty. Rather, what the Full Bench decided was that in a situation where there had been a failure, in assessing a defendant's relative culpability, to consider the inter-related culpability of another party which had not been prosecuted, and that failure resulted in an inappropriate penalty being imposed, that situation itself engendered an appropriately based sense of grievance which was in turn emphasised by the failure to prosecute the other potential defendant. 196 And further at [33]: The Court was there reflecting upon a number of considerations, both objective and subjective (but particularly the former), which it concluded had not been taken into account sufficiently at first instance. Particularly relevant was the role of the other potential defendant which had not been charged and its role, both independently and contributory, in the events which had led to the defendant's conviction. Such matters, as is clear from the second last paragraph cited, were crucial to an assessment of the culpability of the defendant. The reference to the "justifiable sense of grievance" is also relevant to the application to the appeal principles which were applicable at the time of that appeal (for example, House v The King (1936) 55 CLR 499 and Cranssen v The King (1936) 55 CLR 509) which are different to those now applicable under s 196 of the Industrial Relations Act 1996 and, for example, Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 75. This analysis is consistent with the approach of Walton J, Vice-President, in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (unreported, IRC98/1104 and 1106, 4 February 2000) at 104 - 107. The significance of the failure to prosecute, or to continue the prosecution of the other potential defendants, is not that fact but rather the fact that any assessment of the role of the present defendants must be considered in the light of the consideration that the criminality for the breach of occupational health and safety was one which did not fall solely on the shoulders of these defendants. That fact, of itself, involves consideration of matters which may mitigate the conclusion as to the objective seriousness of the offences committed and thus the penalty which should be imposed in relation to them.

197 I consider that the second defendant's culpability should be assessed in a relatively favourable light against the culpability of the under-manager and deputies. His contribution to the incident was, in my view, less than those other statutory officers (although it should be noted that he had a somewhat broader and different responsibility). In this respect, the failure to prosecute the under-manager and deputies is significant.

198 I shall now turn to consider the subjective features in the case of the second defendant.

199 The second defendant has no prior convictions and entered a plea of guilty at an early time. He actively co-operated with the prosecutor.

200 Furthermore, the second defendant should be given credit for the efforts to improve safety after the incident and for the overall good industrial citizenship of the first defendant.

201 The second defendant has had an impeccable record as a manager in the mining industry. His continued career in that industry is threatened by any conviction under this Act. Further, he is 60 years of age and will thereby reasonably soon look to retirement. These are also factors relevant to the consideration of the application of s10 of the Crimes (Sentencing Procedure) Act 1999 with respect to the second defendant.

202 I have had the opportunity of observing the second defendant giving evidence in these proceedings. He was genuinely contrite. He has suffered remorse, shock and distress over the incident. Four days after the incident he started to develop chest pains and ultimately suffered a heart attack. In my view, this had a direct connection to the death of Mr Fraser. The second defendant did not return to work for two months, yet continues to suffer, in my view, at a personal and psychological level as a result of the incident.

203 In all these circumstances, I consider that extraordinary and highly exceptional circumstances do exist in the case of the second defendant to warrant the exercise of the Court's discretion pursuant to s10 of Crimes (Sentencing Procedure) Act 1999.

204 I find that the offence is proven against the second defendant. He is guilty of an offence pursuant to s15 of the Act. However, I shall not proceed to conviction and shall make an order directing that the charge against the second defendant be dismissed.

Orders Matter No. IRC2052 of 1998 205 I make orders with respect to the first defendant as follows:

1. The offence is proven and verdict of guilty entered;

2. The defendant is convicted of the offence, as charged; 3. The defendant is fined an amount of $91,000 with a moiety thereof to the prosecutor;

Matter No. IRC2055 of 1998 206 Pursuant to s10 of the Crimes (Sentencing Procedure) Act 1999, I do not proceed to conviction of the defendant and dismiss the charge against him.

Costs 207 Any application as to the costs of the proceedings shall be made within 7 days of this judgment.

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