[1]

Background

The parties presented an Agreed Statement of Facts and this material is summarised below.
Hamiltons is a registered corporation which has operated as a blasting services provider since 2016. As at 10 April 2018 Mr Hamilton and Ms Lee-Anne Ryan were the Directors and Secretaries of Hamiltons. Ms Ryan is no longer a Director or Secretary of Hamiltons.
Mr Hamilton was the sole shotfirer and sole employee of Hamiltons and was responsible for work health and safety matters. Mr Hamilton held a Blasting Explosive Users Licence to use, possess and dispose of explosives and a NSW Security Clearance to handle explosives and secure sensitive dangerous substances.

[2]

Burgess Earthmoving Pty Limited

Prior to 10 April 2018, Burgess Earthmoving Pty Ltd ("Burgess") had engaged Hamiltons to provide blasting services at the Quarry on four occasions and the Kapooka Quarry on eight occasions.
Burgess is a registered corporation which is the owner and mine operator of the Quarry and the Kapooka Quarry. This involves drilling and blasting operations. Burgess also conducts a separate earthmoving business and has a head office in Wagga Wagga.
Mr Russell Leslie Burgess is the Sole Director and Secretary of Burgess. As at 10 April 2018 Mr Russell Burgess had 42 years of experience in the quarrying industry.
Burgess employed approximately 40 employees at the Quarry including: 1. Mr Hayden Judd, Production Manager/Quarry Manager. 2. Mr Aaron Power, Plant Operator. 3. Mr Daniel Darby, Plant Operator. 4. Mr Wayne Newman, Plant Operator. 5. Mr Gilles Ragobert, Plant Operator. 6. Mr Phil Brown, Plant Operator.
Burgess employed Mr Tim Warnes as Production Manager at Kapooka Quarry.
Mr Judd, as Quarry Manager, was responsible for supervising mining operations at the Quarry. As at 10 April 2018 Mr Judd did not hold a current Practising Certificate which was required by Schedule 10 of the Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW) ("the WHSMPS Regulation") to be a Quarry Manager.

[3]

Blasting Operation on 10 April 2018

In March 2018 Burgess engaged Hamiltons to conduct a blast at the Quarry on 10 April 2018.
Burgess requested: 1. A smaller toe shot to break up oversize rocks on the Quarry floor, beneath the face of the proposed blast area, that had resulted from a previous blast conducted by a different shotfirer ("Toe Shot"). 2. A larger overburden blast along a large bench in the south-western area of the Quarry ("Blast").
The scope of Hamiltons' services to Burgess included: "Technical services, full profile and mark up of drill pattern and supporting documentation, including timing designs, Blast Reports, Safe Work Method Statements ("SWMS") and Bore logs if/when required. In addition, Shotfiring Labour and signage will be included, plus Drill rig and operator if/when required."
Mr Hamilton knew that he was responsible for the organisation of the blasts including surveying, drilling, measuring borehole deviation ("Boretraking"), loading and firing. Mr Hamilton understood that it was Burgess' responsibility to "organise the site and their employees" and to provide employees to "help load the shot". However, Mr Hamilton knew that Mr Judd did not have much knowledge regarding shot firing.
After Burgess engaged Hamiltons, Mr Hamilton took the following steps in preparation for blasting at the Quarry: 1. Attended the Quarry to conduct a survey. 2. Designed a blast. 3. Prepared a drill plan and left that drill plan at the Quarry for the drill contractor who then drilled the holes. 4. Boretraked the drilled holes.
Burgess determined the area where the Toe Shot and Blast would occur and communicated that to Mr Hamilton.

[4]

Blast Design

On 6 March 2018 Mr Hamilton attended the Quarry where he: 1. Surveyed the site of the proposed blasts at the Quarry to obtain a face profile of the blast area. 2. Prepared the drill plan that included the drill pattern and timing and designed the blasts including the location, depth and angle of drill holes. The face had a height of 24 metres.
Mr Hamilton completed a document titled "Blast Details - Clients Copy" ("Blast Details"). The Blast Details noted the blast plan and noted that the bench height was 24 metres. Mr Hamilton left a copy of the Blast Details at the Quarry for the drilling contractor to collect.
Mr Judd passed the Blast Details on to the drillers.

[5]

Blast Hole Drilling

A subcontractor Edge Drilling was engaged to drill the blast holes at the Quarry in accordance with the instructions and Blast Details provided by Hamiltons.
Between 19 March 2018 and 23 March 2018 two Edge Drilling workers attended the Quarry and drilled the blast holes in the locations previously marked by Hamiltons. The drill holes were drilled to a depth of 24 metres.
On 22 March 2018 Mr Hamilton surveyed the blast holes that had been drilled by Edge Drilling using a laser system designed for Boretraking. Mr Hamilton had concerns that the actual burden (the distance between the first row of blast holes and the nearest free face) for some of the blast holes was insufficient due to some drilling deviation.
On 23 March 2018, as a result of the surveying, Mr Hamilton arranged for two of the holes closest to the face (numbers 17 and 18) to be redrilled by Edge Drilling, who were still on site. Those two holes were moved back 0.5 metre and drilled at the original design angle of 10 degrees. However, the redrilled holes numbered 17 and 18 were not measured for borehole deviation.

[6]

Hamiltons Orders Explosives from Orica

In March 2018 Mr Hamilton contacted Orica and requested that it provide explosives for the blasting to be conducted at the Quarry. Mr Hamilton requested that Orica supply 20,000kg of the bulk explosive product known as "Centra Gold" with a density of 1.2 g/cm3.
Centra Gold is an Orica explosive product that consists of more than 60% ammonium nitrate.

[7]

The Day of the Incident

Between 6.30am and 7.00am on 10 April 2018, Mr Judd conducted a morning toolbox meeting for Burgess employees at the weighbridge in the north-east of the Quarry. The attendees included all Burgess employees on site that day including Mr Power, Mr Ragobert, Mr Brown, Mr Darby and Mr Newman. The purposes of the meeting included allocating employees their work for the day.
At this meeting the fact that a blast would occur that day was discussed. However there was no discussion about the details of the Blast, any exclusion zones, the firing location, the risks associated with blasting or any documents in relation to the Blast.
Mr Judd told Mr Power and Mr Ragobert to assist Mr Hamilton to load and stem the blast holes. Neither Mr Power nor Mr Ragobert had been trained in any blasting-related work and neither were informed of risks such as the under-stemming or overloading of explosives.
The remaining Burgess workers were told to perform their usual duties such as operating a loader or a bulldozer. No-one was told by Mr Judd to perform duties as a sentry for the Blast.

[8]

Blast Hole Loading

At 7.00am on 10 April 2018, Mr Hamilton arrived at the Quarry. Mr Hamilton met with Mr Power and Mr Ragobert. Mr Hamilton had never previously met or worked with them.
At 7.00am three workers from Orica arrived at the Quarry to supply and load explosives into the blast holes in accordance with Mr Hamilton's instructions. The Orica workers attended a pre-load toolbox talk conducted by Mr Hamilton. The talk focused on technical aspects of the Blast, weather conditions and the use of personal protective equipment. While Hamiltons' procedures required blast sentries, guards and workers assisting with stemming to attend the toolbox talk, neither Mr Power nor Mr Ragobert, nor any other Quarry employee, attended that toolbox talk.
The Orica workers delivered 18,540kg of Centra Gold for the blasting at the Quarry. Orica did not supply any of the explosive product known as "Centra Eclipse System" (also known as "Centra ES").
The Orica workers' role was limited to supply and loading explosives. The Orica workers loaded (primed) explosives into 118 blast holes for the Blast, and a further 15 blast holes in oversize rock spread over the Quarry floor for the Toe Shot. Mr Hamilton checked that the blast holes were properly loaded with the right volume of material to account for the stemming to later be placed in the blast holes.
The Orica workers then left the Quarry at 12.13pm.

[9]

Blast Hole Stemming

Once the blast holes were loaded with explosives, Mr Power and Mr Ragobert assisted Mr Hamilton with stemming the blast holes and inserting detonators in the blast holes.
The face holes and back holes for the Blast had a minimum 2.5 metres of stemming. In respect of the other holes, some had a minimum 2.5 metres and others between 3 metres and 4 metres. No records were kept of the stemming in each hole.
Mr Power and Mr Ragobert then rolled out two lead-in lines from the two initiation holes for the Toe Shot and the Blast to the firing location identified by Mr Hamilton.
There was 700 metres of lead-in line on each reel. Mr Hamilton did not use the length of the line to determine how far the firing location was from the face.

[10]

Selection of Firing Location

The firing location is the location from which a shotfirer initiates the blasting/firing sequence for a blast. Mr Hamilton chose a firing location in front of the Blast area so that he had good visibility of the Toe Shot. Mr Hamilton did not measure the distance between the Blast and the firing location. The firing location was determined by Mr Hamilton who relied on the technical Boretraking data.
Mr Hamilton could have, but did not, use software or a map of the Quarry to calculate the distance between the Blast and a firing location.
Mr Hamilton also did not use a range finder or other measuring device to calculate distance between the Blast and the firing location. A range finder with a 1000 metre range retails for approximately $150 to $800.
Mr Hamilton could have, but did not, select a firing location that was behind the direction of the Blast (i.e. west of the Blast). A firing location that was behind the direction of the Blast would have reduced the risk of those in the vicinity of the firing location being exposed to a risk of being hit by flyrock.

[11]

Preparation for Blast

On 10 April 2018 Mr Hamilton prepared a blast management plan for the Blast incorrectly dated 10 March 2018 ("Blast Management Plan"). The Blast Management Plan was prepared progressively throughout the day. The Blast Management Plan included sections addressing: 1. Stock Movement Record in relation to detonators and explosives. 2. Shotfirer Checklist: Day of Blast. 3. Blast Guard Information. 4. Post Blast Analysis.
On the Blast Management Plan: 1. the Orica workers signed to acknowledge their attendance at the toolbox talk. 2. Mr Hamilton recorded details of the planned blast including the type and volume of explosive. 3. Mr Hamilton drew a rough diagram of the Designated Safety Zone that was not representative of any blast exclusion zone that was in place.

[12]

Members of the Public

At 2.00pm on 10 April 2018 Mr Judd's partner, Ms Bronwyn Singleton, arrived at the Quarry in a red Nissan Patrol ("Red Patrol") with Ms Vicki Stiler, Mr John Stiler and Ms Lesley Binding (together referred to as "the four public observers").
The four public observers attended the Quarry because Ms Singleton was delivering some office items she picked up in Albury at the request of Mr Judd. They were not aware of any proposed blasting at the time they arrived at the Quarry.
The four public observers in the Red Patrol met Mr Judd at the weighbridge. Mr Judd informed them of the proposed blasts. After obtaining Mr Hamilton's consent, Mr Judd then permitted the four public observers to stay to watch the Blast.
The four public observers were not wearing any personal protective equipment such as a hard hat, hi-visibility clothing, or steel-cap boots (apart from Ms Singleton wearing safety boots).
Visitors to the Quarry were required to sign in at the weighbridge and undertake a site induction. The four public observers did not sign any visitors' book or have their attendance recorded.
Mr Judd and the four public observers then drove into the Quarry to the pad where Mr Hamilton was preparing for the firing of the Blast, south of the crushing plant. The Red Patrol was parked next to Mr Hamilton's grey Volkswagen Amarok ("Grey Amarok") on the pad.
Mr Hamilton knew that the four public observers should not have been at the pad for the blasting but permitted them to remain on the pad. He did not ask that they leave the area.
At 2.00pm on 10 April 2018 Mr Bryce Davies, a truck driver with Abbott Constructions, arrived at the Quarry in a truck to load gravel. Mr Davies drove through the weighbridge without stopping and drove to the loading area (north-west of the crushing plant) where Mr Newman was operating a loader.
Mr Newman said to Mr Davies that the blasting was to soon take place and that he (Mr Newman) wanted to watch the Blast. Mr Davies expressed an interest in also watching the Blast. Mr Newman and Mr Davies then walked up to the pad to watch the Blast.
At 2.15pm on 10 April 2018 Mr Darby returned to the Quarry after going into town to pick up parts. Mr Darby was driving a white Nissan Navara ("White Navara"). When Mr Darby returned, he observed that a group of people were located on top of the pad south of the crushing plant including Mr Davies, Mr Newman, Mr Power, Mr Ragobert, Mr Judd, Ms Singleton and Mr Hamilton. Mr Darby drove the White Navara to the pad.

[13]

Pre-Blast Briefing

Shortly prior to the Blast, Mr Hamilton conducted a pre-blast briefing near the firing location with some of those present including the four public observers. In that briefing, Mr Hamilton said: 1. There would be a Toe Shot followed by a Blast. 2. The blasting would commence after a siren was heard. 3. There should not be any flyrock, but there is a risk of flyrock, and in the interests of safety those present must watch the Blast and not take their eyes off it. 4. If there is any flyrock then take shelter behind or under the nearby mobile plant. 5. Those present were outside of the exclusion zone and in a safe spot.
In the course of the pre-blast briefing, Mr Hamilton did not show or refer to the Blast Management Plan, or any other maps, plans or drawings related to the Blast.
Immediately following the pre-blast briefing at 2.30pm on 10 April 2018: 1. Mr Davies, Mr Darby and Mr Newman were standing in a location between the Blast area and the proposed firing location, adjacent to an excavator and 275 metres from the Blast area (together referred to as "Group 1"). 2. Mr Hamilton, Mr Judd, Mr Brown, Mr Ragobert, and the four public observers were standing within 10 metres of the three light vehicles (the Red Patrol, White Navara and Grey Amarok) and 320 metres from the Blast area (together referred to as "Group 2"). 3. Mr Power climbed onto the roof of a nearby CAT excavator parked to the east of the three light vehicles.
Mr Hamilton was standing with Group 2. This was the firing location. However, Mr Hamilton had intended for the firing location to be approximately 10-30 metres further east at the back of the pad.
A diagram indicating the location of Group 1, Group 2, the Blast area and the weighbridge at the Quarry is depicted below:
Mr Judd asked Mr Hamilton if the location where persons were standing to observe the Blast was a safe location and Mr Hamilton confirmed that it was. Mr Ragobert also asked Mr Hamilton if the location was safe and Mr Hamilton confirmed that it was.

[14]

The Incident

Immediately prior to the Toe Shot, Mr Hamilton raised the bonnet on the Grey Amarok and sounded a warning siren.
At 2.30pm on 10 April 2018 Mr Hamilton initiated the firing sequence for the Toe Shot. Some of the rock from the Toe Shot was ejected a considerable distance into the air and landed in the dam, but it did not reach the location of Group 1 or Group 2.
Mr Hamilton did not expect that rock from the Toe Shot would land in the dam. Despite that, Mr Hamilton did not delay the Blast, did not direct the members of Group 1 or Group 2 to leave the area, or make any other changes to the controls in place for blasting activities.
At 2.32pm on 10 April 2018 Mr Hamilton said "Alright, ok, is everyone ready? Alright. 1. 2. 3. Firing". Mr Hamilton then initiated the firing sequence for the Blast.
The Blast projected rocks into the air and towards Group 1 and Group 2. The majority of projected rock landed in the dam located between the Blast area and the firing location. However, 5-10 rocks were ejected with sufficient force to clear the dam and fall around Group 1 and Group 2.
Members of Group 1 and Group 2 took evasive action to move out of the path of the flyrock and to shelter in and behind the excavators.
Mr Newman observed rock pass over him.
Mr Power, who was standing on the roof of a CAT excavator at the time of the Blast, observed flyrock heading towards him and jumped down off the excavator.
Mr Ragobert heard Mr Power shout "Incoming!" and looked up to see a rock heading towards him. Mr Ragobert ducked down and covered his head. If Mr Ragobert had not moved after Mr Power shouted "Incoming!", the rock that struck the Grey Amarok may have hit Mr Ragobert and caused serious injury or death.
Mr Hamilton video recorded both the Toe Shot and the Blast. Mr Darby, Mr Ragobert and Mr Newman also video recorded the Blast.
As a result of the Blast: 1. A rock hit the bullbar of the Grey Amarok, knocked its raised bonnet off its mounts and then part of that rock (estimated to measure approximately 400mm x 200mm x 200mm) went through the windscreen and landed on the driver's seat of the Grey Amarok. 2. A rock ricocheted into and broke the rear right window of the Red Patrol. 3. A rock bounced off the roof of the Red Patrol damaging its roof and roof racks. 4. A rock ricocheted into the windscreen of the White Navara, cracking the left-hand corner of the windscreen. 5. A rock hit the CAT excavator's air-cleaner. 6. A rock passed close by Mr Power's head, then hit the boom of the CAT excavator and cracked a hydraulic pipe.

[15]

Burgess' Safety Documents

Burgess had in place the "Burgess Quarries Site Risk Assessment - Broadbrush Risk Assessment" dated 5 December 2017. This identified a range of hazards at the Quarry. In relation to "Explosives", the Burgess Broadbrush Risk Assessment identified the hazard of "Flyrock" and the "Potential Risk/Consequence" of "Fatality, Burns, Broken Limbs, Skin Tissue Damage, Crush Injury, Musculoskeletal injury, Psychological Disorders, environmental impact, noise pollution, damage to equipment".
On 1 February 2018, Burgess implemented a new Safety Management System for the Quarry ("New SMS")
The New SMS included a "Principle [sic] Control Plan - Explosives Management Plan" for "Albury/Wagga Quarries" dated 1 February 2018 ("Explosives Management Plan") that dealt with "the functions associated with the control, use, storage and skills of personnel undertaking blasting work at Albury/Wagga Quarries and outlines the processes developed to manage and control site safety".
The Explosives Management Plan was the first plan developed by Burgess for controlling and managing the safety of drilling and blasting at the Quarry. Its purpose was to "provide the framework for controlling and managing safety of explosives and blasting activities undertaken" at the Quarry.
The Explosives Management Plan provided that: 1. The Shotfirer must make all decisions on all matters relating to site safety during a blast and their decisions are final. 2. Any breach of exclusion zone perimeters during a blast process must cause the process to be aborted immediately by the transmission of the words "Abort, Abort, Abort" over the UHF radio. 3. Red flags and signage must be located at each end of the blast area. 4. Personnel not involved in the loading and preparation of the explosives area must be excluded from the area unless approved by the Shotfirer. 5. The quarry is to be cleared of personnel and plant prior to blasting. 6. Blast sentries must be utilised and briefed prior to taking up their positions. 7. Site clearance and readiness for blasting must be confirmed prior to hand over of the blasting zone from the quarry's Production Manager to the explosives contractor's shotfirer.
As at the date of the incident, Burgess did not have a Safe Work Method Statement ("SWMS") in relation to blasting operations at the Quarry.

[16]

Hamiltons' Systems of Work Before the Incident

As at 10 April 2018 Hamiltons' Safety Management System ("SMS") included the following documents relevant to operations conducted at the Quarry: 1. A "Blast Management and Control Plan" specific to the Quarry dated December 2017 ("BMCP"). 2. Three SWMSs: 1. Operations Blasting version 2 dated January 2017 ("Hamiltons Blasting SWMS"); 2. Markout, Survey & Boretrak version 2 dated January 2017; and 3. Misfire version 2 dated January 2017.
While on site at the Quarry, Hamiltons was required to operate under Burgess' New SMS, but also applied its own SWMSs. However, Hamiltons had not been provided with a copy of the New SMS or any of Burgess' plans, procedures, SWMSs or similar documents in relation to drilling and blasting operations.
In November 2016 Mr Hamilton provided Burgess with a copy of the Hamiltons SWMSs. Burgess subsequently conducted an Assessment of Contractors Safety Management in respect of Hamiltons which included a review of a Blast Management Plan for a blast on 10 November 2016 and four SWMSs (being the three SWMSs in version 1 dated July 2016 and a fourth SWMS for "Working Outdoors - Weather"). The Blast Management Plan is a template document the contents of which are tailored to each blast. A similar Blast Management Plan was completed by Mr Hamilton for each blast.
The Hamiltons Blasting SWMS included a Risk Assessment that included the following table:

Task Description of risk/hazard/issue Initial risk rating Controls Controlled risk level Person responsible

14 Firing the shot Fly rock Critical Risk (20) PPE for purpose and task Mod (10) Shotfirers Shot to be fired from appropriate distance with cover. Follow Blast Management Plan Fly rock Incident Investigation to be actioned (where required). Communicatee [sic] fly rock incident to key stakeholders.

[17]

The initial risk rating for "Fly rock" of "Critical Risk (20)" meant that the risk had been assessed by Hamiltons as being, in the absence of the listed controls, both "Catastrophic" and "Likely".
The Hamiltons Blasting SWMS also referred to other safety controls to be implemented by Hamiltons including: 1. Survey and Boretrak results. 2. Drill logs - ensure no issues. 3. Take 5. 4. Risk Assessment. 5. Calculate explosives on receipt, checklist against purchase order. 6. Senior Shotfirer to observe and clarify all blast crews understand the task and have signed off on the toolbox talk before commencing. 7. Any new personnel coming on to the shot must report to Senior Shotfirer, and have read, understood and signed off on the toolbox talk before commencing work. 8. Clear communication with site management regarding exclusion zones. 9. Final toolbox meeting with all sentries to be held prior to blasting. 10. Blast exclusion zones set in place and controlled before lead in line is run out. 11. Barricading, signage and guarding to prevent access. 12. Shotfirer to stop the shot in the event of an unexpected risk occurrence.
In December 2017, and after Burgess' Assessment of Contractors Safety Management, Burgess developed the BMCP. The objective of the BMCP was to, among other things, "assure the safety of the public, site personnel, contractors and equipment". The plan applied across all locations where Hamiltons provided blasting services.
The BMCP provided that the roles and responsibilities of the Shotfirer included the following: 1. Design the blast according to the requirements of Client Management. 2. Survey the blast and layout blastholes. 3. Supervise the drilling. 4. Ensure blast site security and demarcation of work area. 5. Charge, stem and tie-in the blast. 6. Fire the blast. 7. Provide the Client Management with blast reports, including copies of any risk assessments undertaken for the drilling and blasting activity.
The BMCP also included the following controls to be implemented by Hamiltons for blasting: 1. All blasting to be conducted in accordance with all relevant Australian Standards, applicable guidelines, statutory rules and regulations and in conjunction with site specific blasting procedures. 2. Warning signs "BLASTING NO UNAUTHORISED ENTRY" shall be erected at the boundaries and entry road to the blast area. 3. Only persons authorised by the shotfirer shall be permitted to enter onto the blast. 4. Prior to firing the blast, all personnel (other than the shotfirer) and equipment shall be removed from the blast area. Personnel removed from the blast area are to muster at the nominated muster point. Personnel must remain at the muster point until given the all clear by the shotfirer to re-enter the excavation area. 5. Provided there is no risk of injury from the blast, sentries will be positioned with radio contact at the nominated sentry points.

[18]

Hamiltons Operations at the Quarry

On the occasions that Hamiltons provided blasting services at the Quarry prior to the incident: 1. Mr Hamilton was responsible for managing the blasting including surveying, designing the blast, Boretraking, loading and firing a blast. 2. Mr Hamilton had established an exclusion zone around a blast area bounded by the weighbridge (in the north-east of the Quarry) and front and rear gates of the Quarry (at the south-east and north-west edges of the Quarry). 3. Sentries were placed at the front gate and the back gate to stop people from entering the Quarry during a blast. 4. Workers not involved in a blast or acting as a sentry would be located at the weighbridge, the farmhouse at the Quarry or behind a blast. 5. The firing location would be: 1. near the weighbridge at the Quarry; 2. near the shed at the Quarry (on the corner of Sawyer Road and Hulme Lane); 3. north-west of the blast on Sawyer Road; or 4. the back (eastern) edge of the pad south of the crushing plant at the Quarry.
Similarly, on the occasions that Hamiltons provided blasting services at Kapooka Quarry prior to the incident, sentries were stationed at all three corners of Kapooka Quarry, and all persons other than Mr Hamilton (and occasionally Mr Warne) were located outside the gates to the Kapooka Quarry at the time of the blast. Mr Hamilton would fire the blast from behind the face. Once the shot was fired, Mr Hamilton would then tell others by radio to "stand in position" while he conducted a check before confirming "all clear".
The blast faces that Burgess had requested Hamiltons to blast were relatively high, which increased drill hole depth and therefore the risk of drill hole deviation.
It was common in the mining industry to apply a minimum 500-metre exclusion zone around a blast for personnel and a minimum 300-metre exclusion zone around a blast for plant and equipment. Mr Hamilton was not familiar with that industry standard.

[19]

Australian Standard AS 2187 Explosives - Storage, transport and use

By cl 31(2)(b) of the WHSMPS Regulation Burgess was required to ensure that any dealing with an explosive or explosive precursors at the Quarry was in compliance with the Explosives Act 2003 (NSW) and Australian Standard AS 2187.2 2006 "Explosives - Storage, transport and use" ("Explosives Standard") dated 2 February 2006.
Mr Hamilton was aware of the Explosives Standard and had read it prior to the incident. However, he was not aware that the WHSMPS Regulation required compliance with the Explosives Standard.
Part 2, Appendix E of the Explosives Standard outlines the risks associated with flyrock. Flyrock is defined in the Explosives Standard as "The undesirable projection of rock as a result of a blast".
Part 2, Appendix E, Section E1 of the Explosives Standard states: "Because the potential for severe injury or property damage exists, precautions against flyrock and fly should be foremost in the mind of any shotfirer."
Part 2, Appendix E, Section E2 of the Explosives Standard identifies some of the factors that can contribute to the occurrence of flyrock which include: 1. Weak rock structure. 2. Insufficient front row blast hole burden. 3. Stemming depth. 4. Initiation sequence. 5. Blasthole diameter. 6. Blast pattern shape. 7. Stemming materials.
Part 2, Appendix L of the Explosives Standard provides information regarding the requirement to establish exclusion zones for blasting operations. It includes the following guidance: 1. All blasts require the establishment of an exclusion zone or evacuation zone prior to firing the shot. 2. The size of the exclusion zone shall be such that all fly and associated debris is contained within the zone. 3. An exclusion zone can comprise an inner zone. The inner zone shall be identified by being cordoned off with flagging tape, flags, hazard blast cones, berms, signage or other suitable means visible at all times to restrict unauthorized entry. 4. The requirements for an exclusion zone shall be a component of the Blast Management Plan. 5. The shotfirer and authorised persons may remain in the exclusion zone, at a predetermined location during firing. Final approval for persons to observe or monitor the shot from within an exclusion zone remains with the shotfirer, who should not be subject to any external pressure. 6. It is important that control is established and maintained at all levels of the project and the blasting should not be promoted as a public display.

[20]

AEISG Code of Good Practice, Blast Guarding in an Open Cut Mining Environment, Edition 1, March 2011

The Australian Explosives Industry and Safety Group Inc Code of Good Practice, Blast Guarding in an Open Cut Mining Environment, Edition 1, March 2011 ("Blast Guarding Code") "sets out the recommendations and precautions to protect the community, customers, employees and the environment in relation to the duties and obligations of persons performing all of the roles associated with the process 'Blast Guarding' in an open cut mining environment". It notes that adverse consequences of using explosives to break rock may include persons being "at risk from flying rock generated by the blast".
The Blast Guarding Code defines: 1. "Blast Exclusion Zone" as "The area that is determined by the risk assessment process, to ensure that all the expected/foreseen dangers and effects of the blast, are maintained within a controlled area. The Blast Exclusion Zone may be layered, with an inner zone parameter being defined as the minimum distance for equipment and an outer zone parameter being defined as a personnel zone". 2. "Blast Guard" as "a hard barrier consisting of a suitable person and equipment (visual indicators, suitable vehicle and communications equipment), strategically located to act as a hard barrier against unauthorised access to a designated Blast Exclusion Zone". 3. "Unauthorised Persons" as "Personnel not associated with the firing of the blast and, within the designated Blast Exclusion Zone once the Shotfirer/Blast Controller have closed the roadways and accesses to the designated Blast Exclusion Zone".
The Blast Guarding Code says that it is the "responsibility of the site Supervisor to ensure all personnel involved in the Blast Guard operations complete training in, and adhere to, the company and/or the site specific Standard Operating Procedure or Standard Work Practice prior to participating in the activity". It identifies the PPE required to complete the task including approved hi-visibility clothing, safety footwear, and eye protection, and states that a Blast Exclusion Zone map should be maintained.
The Blast Guarding Code provides that the Blast Plan should include, among other things: 1. The Blast Exclusion Zone for all equipment. 2. The Blast Exclusion Zone for all personnel. 3. The nominated distances for each Blast Exclusion Zone (equipment and personnel). 4. The location of the required Blast Guards and their respective areas of control. 5. A list of the names of the individual Blast Guards.

[21]

Hamiltons' Failures in Relation to the Incident

Hamiltons' failures in relation to the incident are as follows: 1. Any blast exclusion zone, if it existed, was not adequately demarcated. 2. Any blast exclusion zone, if it existed, had not been effectively communicated to the four public observers or anyone else at the Quarry at the time (contrary to the Hamiltons Blasting SWMS). 3. Some warning signs had been installed at the haul road leading to the blast area. 4. Mr Judd did not take any steps to clear the Quarry of personnel and plant prior to blasting. Nor did Mr Hamilton (being the person in charge of the blasts) ensure that persons were not within the range of the Blast and outside an adequate exclusion zone (contrary to the Explosives Management Plan, Hamiltons Blasting SWMS and BMCP) prior to Mr Hamilton firing the shots. 5. No blast sentries (or blast guards) were briefed by Mr Hamilton, or were in position at the front or rear gates to the Quarry or elsewhere to ensure the blast exclusion zone was evacuated prior to blasting (contrary to the Explosives Management Plan, Hamiltons Blasting SWMS and BMCP and measures that had been implemented by Mr Hamilton on previous blasts). 6. Neither Mr Hamilton nor Mr Judd confirmed that there were sentries in place at the weighbridge, front gate or back gate. 7. The distance between the blast area and Group 1, being approximately 275 metres, had not been measured and was an inadequate distance to ensure the safety of members of Group 1. 8. The distance between the blast area and Group 2, being approximately 320 metres, had not been measured and was an inadequate distance to ensure the safety of members of Group 2. 9. The firing location was not behind the blast area, that is, the Blast was designed to throw material in a roughly south-easterly direction and the firing location was in a roughly easterly or north-easterly direction from the blast area.
The excavators, and the other light vehicles, were the only cover or shelter available to persons in the firing location.
Hamiltons and Mr Hamilton had management and control of the blasting activities and could halt the same if a safety issue arose. However, Burgess and Mr Judd also retained the authority to halt any blasting at the Quarry for safety reasons regardless of the fact that blasting was being conducted by Hamiltons and Mr Hamilton.

[22]

Post-Incident Events

On 10 April 2018, following the Blast, Mr Hamilton updated the Blast Management Plan including completing the Post Blast Analysis section.
The Post Blast Analysis referred to the "Explosive Type" used being "Centra Gold" and made no reference to any Centra ES.
The Post Blast Analysis section completed by Mr Hamilton included the following Blast Review table: Requirements Provide Details Was there a misfire YES/NO NO Was a misfire management system used and followed YES/NO N/A Was any fly rock / fly generated? YES/NO NO Results of post blast assessment and inspection GOOD POST RESULTS Was there incidents/complaints? NO Stock reconciliation All stock used Are changes proposed to future blasts? NO Post blast comments: All Holes loaded to Design. Kg - 2 - 4m clay - stemming Height. No other issues. good Result some oversize through Blast.

[23]

On 18 April 2018 Mr Hamilton emailed Mr Burgess providing him with a copy of the Blast Management Plan and the Boretrak results for the blast holes drilled for the blasting on 10 April 2018.
The Blast Management Plan provided to Mr Burgess on 18 April 2018 did not include any reference to Centra ES or any reference to flyrock.
On 23 April 2018 Hamiltons issued Burgess an invoice dated 23 April 2018 in relation to the blasting conducted at the Quarry on 1 April 2018 for a total of $66,929.45 including GST.
On 3 September 2018 Mr Hamilton provided Mr Warnes with the Blast Details, the Blast Management Plan (in the same form as previously provided to Mr Burgess and without any reference to Centra ES), and a Hamiltons Incident Report.
The Hamiltons Incident Report said that: 1. "The result of the incident was motor vehicle damage". 2. "small fly rock was released from the bottom of one of the face holes (either number 17, 18 or 19)". 3. "to reduce the risk even further I used Centra Gold ES Emulsion (which is a low density and lower energy bulk explosive designed for use where charge weights and total energy needs to be managed) on face holes 17, 18, 19, 20 and 21."

[24]

Disturbance and Failure to Notify

The incident was a "notifiable incident" within the meaning of s 14 of the WHSMPS Act because it was a "dangerous incident" within the meaning of cll 179(a)(ii), 179(a)(xv) and 179(f) of the WHSMPS Regulation.
As a result of the incident being a notifiable incident: 1. Hamiltons had a duty under s 15(2) of the WHSMPS Act to ensure that the Regulator was notified immediately of the incident. 2. Hamiltons and Mr Hamilton had a duty under s 17(1) of the WHSMPS Act to ensure, so far as was reasonably practicable, that the incident site was not disturbed until an inspector arrived at the site or any earlier time that a government official directed.

[25]

Disturbance of the Incident site

On the afternoon of 10 April 2018 Mr Hamilton drove the Grey Amarok from the pad to a farmhouse at the front of the Quarry. The Grey Amarok was then covered until it was picked up and driven away from the Quarry on a tilt-tray tow truck on 11 or 12 April 2018.
On the afternoon of 10 April 2018 Ms Singleton removed the broken glass from the Red Patrol, and then drove the Red Patrol home. Mr Judd subsequently replaced the broken window on the Red Patrol himself.
On 12 April 2018 Mr Judd and Mr Darby arranged for the replacement of the windscreen on the White Navara.
On 12 April 2018 a contractor attended the Quarry to conduct repairs on the CAT excavator's damaged hydraulics.

[26]

Failure to Notify

The incident was not reported to the Regulator by Hamiltons, Mr Hamilton or Burgess until Burgess reported the incident on 7 September 2018.

[27]

Late Notification to the Regulator

On 7 September 2018 Mr Warnes notified the Regulator of the incident, initially by email to Senior Mine Safety Officer Dillon and then to the Department's Central Assessment Unit. The report referred to two light vehicles being damaged and acknowledged that "this should have been reported to the NSW Resources Regulator as soon as possible".
Burgess and Mr Hamilton were aware that the incident was required to be reported to the Regulator but neither had reported the incident by the time that Burgess reported the incident on 7 September 2018.

[28]

Changes Introduced after the Incident

Following the incident, Hamiltons: 1. In August 2018 updated the Hamiltons Blasting SWMS. 2. In December 2018 developed an updated Blast Management Procedure that: 1. applied specifically to the Quarry; 2. included blast exclusion zone maps detailing the location of sentries; and 3. identified a powder factor for granite of 0.7. 1. Ensured that workers remain outside quarry grounds during blasting. 2. Determined exclusion zones utilising a GPS finder. 3. Reviewed administration processes and controls.

[29]

Evidence for the Defendant

Mr David Steven Hamilton swore an affidavit on 26 November 2021. Mr Hamilton is the Sole Director, owner and shot firer of Hamiltons.

[30]

Background and Experience

Mr Hamilton is 46 years old and has two children.
Mr Hamilton worked in the automotive industry for 10 years before starting a position as a trainee technical surveyor at Impact Drill and Blast ("Impact") in 2002. At Impact, Mr Hamilton progressed to trainee shotfirer and then Operations Manager within four years.
At Impact Mr Hamilton was trained and actively involved in all aspects of shotfiring and blasting, technical surveying and Boretraking, using different methods and technologies.
While at Impact, Mr Hamilton was involved in shotfiring safety systems and trained in Work Health and Safety. Impact had a library which had blast management plans and safety plans which Mr Hamilton became very familiar with.
In 2008 Mr Hamilton obtained his shotfiring licence.

[31]

Background of Hamiltons

Mr Hamilton established Hamiltons in 2016. Hamiltons provides technical surveying, drilling and blasting services to quarries and is based in Geelong, Victoria.
Hamiltons is a small company but has been reasonably successful since it was established.
Hamiltons has five regular clients across quarries and mines in New South Wales and Victoria.
Hamiltons has performed approximately 180 blasts for quarries, mines, the forestry industry and projects for the construction industry such as windfarms, landfill projects and commercial building projects.
Mr Hamiltons has recently employed a contractor and a casual employee to meet the growing demands from clients. Mr Hamilton is the only other employee.

[32]

The Quarry

Hamiltons was first engaged by Burgess in November 2016 to improve the quality of blasting performance.
Prior to the incident Hamiltons had conducted six blasts at the Quarry. These blasts had been successful and without incident.

[33]

Systems of Work Before the Incident

When Hamiltons was established, Mr Hamilton put the following safety systems in place: 1. Mr Hamilton developed SWMSs identifying the hazards and relevant controls. 2. Mr Hamilton completed blast management plans and drill plans specific to each job. 3. Mr Hamilton completed a technical design plan. 4. Mr Hamilton carried out toolbox talks prior to the loading of each blast. 5. Prior to the blast each site was delineated with red warning signs. 6. Prior to any blast all aspects were to be completely audited, checked and signed off by clients. 7. Mr Hamilton wore PPE at all blasts which consists of high-vis, hard hat, gloves and glasses.

[34]

Blasting Operation on 10 April 2018

Mr Hamilton was first contacted about the 10 April 2018 Blast on 13 February 2018 by Mr Judd, the Production and Quarry Manager. Mr Judd was Mr Hamilton's regular contact at Burgess and they had a good relationship.

[35]

Preparatory Work

Mr Hamilton attended the site on three occasion prior to 10 April 2018, as was his practice.
On 5 March 2018 Mr Hamilton spent 4-5 hours on site. Mr Judd told Mr Hamilton where Burgess wanted the Blast and Mr Hamilton used laser technology to accurately determine the face of the Blast and the design. Mr Hamilton surveyed the land and created a detailed laser profile and 3D image on the computer. The 3D image enabled Mr Hamilton to determine the exact angle and depth of the holes against the free face and ensure the correct spacing, design and amount of burden.
Mr Hamilton was particularly careful when designing the burden of the holes as he had noticed that there were a couple of cracks which were a couple of millimetres in depth in one of the corners of the designated blast area.
Mr Hamilton designed the shot and prepared a drill plan.
Mr Hamilton attended the site the following morning and completed the drill plan and technical survey.
Mr Hamilton went back to the Quarry for a third time on 22 March 2018 and spent 4-5 hours on site. Mr Hamilton conducted a full audit of the face holes using the Boretraker program. He did this by placing the physical probe down each blast hole to check the design drill angle.
Mr Hamilton used his laptop to compare the Boretraker results against his original design. He realised that there were a few anomalies as there was some deviation of just over 16 metres.
Mr Hamilton addressed the deviation in his design and moved the holes back to increase the burden to avoid the potential for flyrock.
Mr Hamilton asked for blast hole 17 and 18 to be re-drilled as the drill angle deviation was inadequate. The burden had deviated forward and it would have been high risk to fire.
Once the preparatory work was complete, Mr Hamilton organised the explosives from Orica and arranged delivery directly to the Quarry to arrive by 10 April 2018.
As at 10 April 2018 Mr Hamilton had the following documents in place: 1. Hamiltons SWMS: Operations Blasting. 2. Blast Details and Blast Management Plan (site specific). 3. Updated Blast Management Plan. 4. Hamiltons SWMS: Markout, Survey & Boretrak. 5. Hamiltons SWMS: Misfire. 6. Drill Plan. 7. Blast Management and Control Plan (general). 8. Explosives Design Plan. 9. Explosives Timing Sequence.

[36]

The Day of the Incident

Mr Hamilton arrived on site at 6.30am on 10 April 2018.
On arrival, Mr Hamilton put the two red warning signs at the entrance on Haul Road.
The accessories were delivered shortly after by Orica. Mr Hamilton checked the delivery to ensure that the order had been correctly provided and everything that he needed was there.
At 7.30am on 10 April 2018 Mr Hamilton conducted a toolbox talk with the Orica Contractors who had arrived with the delivery. The toolbox talk was part of Mr Hamiltons usual practice. Mr Hamilton told the contractors from Orica exactly how he wanted the shot to be loaded. He explained that there were 117 holes at 24 metres that needed to be single-primed. He explained that he wanted to load holes 17 to 24 with Centra Gold ES Emulsion to minimise any risk with the side face. Mr Hamilton and the Orica Contractors discussed in depth the holes and the amount of explosives to be used.
At 8.00am on 10 April 2018 Mr Hamilton conducted a separate toolbox talk with the Quarry employees assigned by Mr Judd to assist him in loading the blast holes. This toolbox talk covered the exact same matters as the previous toolbox talk. Mr Hamilton did not keep a record of the toolbox talk with the Quarry employees.
Mr Hamilton then loaded the blast holes with the assistance of the Quarry employees and Orica staff. They put the detonators and the booster into the holes. This process took 4-5 hours. Mr Hamilton was heavily involved the entire time and supervised all of the work that was done.
Given the concerns Mr Hamilton had with holes 17 to 20, he loaded them with a lower density emulsion. The product used in holes 17 to 20 was a lower density performance product which meant that it was not as high powered as the product used in the other holes.
Once the holes were loaded, Mr Hamilton checked that everything was done correctly.
At 1.30pm on 10 April 2018 Mr Hamilton contacted Mr Judd and asked him to clear the Quarry of all traffic and machinery. Mr Judd confirmed that the quarry was clear of all traffic and machinery and further advised Mr Hamilton that: 1. The blast sentries were in place at every entry point to the Quarry. 2. Someone was manning the weighbridge to stop anyone coming in. 3. Someone was standing at the back gate. 4. Mr Judd had organised a truck to be parked so that nobody was able to pass it.

[37]

Failure to Notify

Mr Hamilton telephoned Mr Burgess immediately after the Blast and told him what had happened. Mr Burgess told Mr Hamilton to "leave it with him".
Mr Hamilton believed that Mr Burgess would notify the Regulator of the incident.
Mr Hamilton now recognises that he should have notified the Regulator himself immediately.

[38]

Changes Introduced After the Incident

Since the incident, Mr Hamilton has reviewed Hamiltons' operations to ensure that such an incident does not happen again. Mr Hamilton has taken the following steps: 1. Mr Hamilton consulted with a Quarry Health and Safety Manager in early 2019 to review all internal operating processes, SWMSs and safety mechanisms in place. This involved a thorough review of all procedures and policy documents. 2. Following the consultation with the Quarry Health and Safety Manager, Hamiltons made the following changes: 1. Mr Hamilton now takes drone and video footage of the area before and after a blast. 2. Mr Hamilton now includes maps detailing the exclusion zone in the Blast Management Plan. 1. Hamiltons reviewed all internal policies and procedures. 2. Hamiltons ensures that all aspects of the process are cross-checked and reviewed. This allows for amendments to be made if necessary. 3. Hamiltons will not fire a blast until the site is fully evacuated. Mr Hamilton now has a document called "Blast Final Acknowledgment" which the Quarry Manager signs off confirming that everyone is out of the Quarry during a blast. 4. Hamiltons has implemented new survey and scanning technology called "Quarry X" to assist with the design of a blast. 5. Hamiltons consults with a Blasting Engineer from Orica if there are any concerns regarding a blast. Following the consultation Mr Hamilton implements any recommendations that Orica provides.
These improvements continue to be in place today. Mr Hamilton is involved in regular reviews of all systems to ensure that they are "living documents" that remain relevant and effective for the work being performed.
Since the Blast, Mr Hamilton goes to greater lengths to ensure that the firing location is the safest possible position to fire from. He also does not allow members of the public or workers at the site to be anywhere inside the site when the blasting occurs.
Mr Hamilton has an ongoing interest in safety and better practices in the blasting industry. He has attended conferences with the International Explosives Engineers Society Australian Chapter, which deal with blasting and safety practices.
Mr Hamilton is also an active member of the Construction Processing Material Association and the Institute of Quarrying Australia. He attends annual conferences and workshops. He regularly discusses safety measures with his colleagues in the industry.

[39]

Acknowledgment

Mr Hamilton stated that he is "extremely remorseful and contrite about what has occurred".
Mr Hamilton has been working in this industry for 20 years and this is the first serious safety issue that he has been involved in. Since the incident he has not been involved in any other safety incidents.
Mr Hamilton understands how dangerous the profession is and he takes his responsibilities extremely seriously.
The incident has had a profound effect on Mr Hamilton and he wants to make amends for what has occurred.
Mr Hamilton stated that he did do a great deal of preparatory work to ensure the Blast of 10 April 2018 was safe, however he takes responsibility for the fact that people were placed in danger.
Mr Hamilton stated that it was a serious error of judgment on his part to allow members of the public and staff from the Quarry to watch the Blast. He accepts that the appearance of the members of the public at the Quarry should have alerted him to the fact that the sentry arrangements put in place at the Quarry were inadequate.

[40]

Co-Operation with Investigation

Following the incident, Mr Hamilton attended a lengthy interview with the inspectors and provided all documents requested in a prompt manner.

[41]

Prior convictions

Neither Hamiltons nor Mr Hamilton have had any prior convictions.

[42]

Consideration

I have had regard to the objects in s 3 of the WHS Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

[43]

Objective Seriousness of the Offence

The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.
The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

[44]

Deterrence

The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].
The penalty must reflect the need for specific deterrence. Hamiltons is still conducting a business and Mr Hamilton is still the Director of the business. Its operations involve technical surveying, drilling and blasting services and the continuing engagement of workers.

[45]

Aggravating Factors

Counsel for the prosecutor conceded that there were no aggravating factors.

[46]

Mitigating Factors

Neither Hamiltons nor Mr Hamilton has a previous conviction: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
Hamiltons and Mr Hamilton are otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps taken after the incident demonstrate this. Hamiltons and Mr Hamilton have been in business for five years. The five character references which were tendered spoke highly of the professionalism of Mr Hamilton.
Hamiltons and Mr Hamilton are unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.
Hamiltons and Mr Hamilton have good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. Mr Hamilton, on behalf of Hamiltons, have taken positive steps to guard against the risk of an incident such as this ever happening again. Hamiltons have brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.
Hamiltons and Mr Hamilton have shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Hamilton has provided evidence that both he and Hamiltons have accepted responsibility for their actions.
Hamiltons and Mr Hamilton entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give both Hamiltons and Mr Hamilton a 25% discount for an early plea.
Hamiltons and Mr Hamilton gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. They co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

[47]

Parity

Burgess was also prosecuted for a breach of its health and safety duties arising under the WHS Act, relating to the same incident.
Where two or more offenders are involved in the same criminal conduct or enterprise the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [30].
The principle operates in the nature of a "check" required of the sentencing Court: DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [31]. The Court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [139] Justice Campbell said: "An essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence."
The court should not use a co-offender's sentence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v The Queen at [32]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.
It is appropriate for the court to consider the respective contributions of Burgess and Hamiltons. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 at [241].
I find that Hamiltons was more culpable than Burgess. Firstly, Hamiltons has pleaded guilty to a Category 1 offence but Burgess pleaded guilty to a Category 2 offence. Secondly, Hamiltons had expertise, experience and qualifications which Burgess did not have. Hamiltons was engaged by Burgess to perform specialised blasting services. Thirdly, Mr Hamilton was the person with the ultimate authority to conduct the Blast and was the person who pressed the button to fire the Blast. He could and should have declined to do so while there were any persons in the Quarry, a matter which he acknowledged in his evidence.

[48]

Capacity to Pay a Fine

I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said: "First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to 'the means' of the defendant, pursuant to s 6 of the Fines Act 1996."
There was no submission about capacity to pay, so this issue does not arise.

[49]

Costs

The parties have agreed to an order that the defendant is to pay the prosecutor's costs.

[50]

Totality

Where a court sentences an offender for more than one offence, the aggregate or overall sentence must be "just and appropriate" to the totality of the offending behaviour: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63. The principle of totality is applicable where the penalty imposed is by way of fine: Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683 at 704.
In Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 the High Court expressed a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. In Pearce v The Queen (1998) 194 CLR 610 the High Court said at [45]: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."
In EPA v Barnes [2006] NSWCCA 246 at [50] the Court of Criminal Appeal said that if the sentencer believes that the totality principle requires an adjustment to the fines which may otherwise be appropriate, the court should first fix a sentence for each offence and then consider questions of totality.
The Category 1 offence under the WHS Act arises from acts and omissions immediately before the Blast. By contrast the failure to notify offence and the failure to preserve incident scene arise from later failings by Hamiltons. In my view there is no overlap between these offences charged against Hamiltons.
There is an obvious overlap between the two s 19(2) proceedings, but the court is not sentencing Hamiltons for the Category 2 (s 32) offence, as it is being taken into account on a Form 1 when sentencing for the Category 1 s 19(2) offence. Thus the totality principle does not come into play.
Counsel for the defendants submitted that the principle of totality should operate in relation to the breach of s 19(2) of the WHS Act offence charged against Hamiltons and the breach of s 19(2) of the WHS Act offence charged against Mr Hamilton.
I do not accept this submission. It is true that Hamiltons is a "one person company" and that person is Mr Hamilton. However, in law a corporation is a separate legal person: Salomon v A Salomon & Co Ltd [1896] UKHL 1; [1897] AC 22 . There are advantages for a person such as Mr Hamilton, who operates in a potentially dangerous industry, in conducting shotfiring and blasting through a corporate vehicle. These include limitation of personal liability (in a civil context) and asset protection. Mr Hamilton cannot take the benefits of incorporation without also accepting the burden - that there are two legal persons and two offenders being sentenced.

[51]

Form 1: Section 19(2) and Section 32 Offence

Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSP Act") deals with taking further offences into account when determining "the principal offence".
Where a person is before the court for sentencing, it may take into account further offences with which the offender has been charged but not convicted, being offences which the offender "wants the court to take into account when dealing with the offender for the principal offence" - s 32(1) of the CSP Act.
If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account - s 33(3) of the CSP Act.
If a court takes a further offence into account, the court may make such ancillary orders as it could have made had it convicted the offender of the offence when it took the offence into account, but may not impose a separate penalty for the offence - s 34(1) of the CSP Act.
The offender is not convicted of the offences taken into account - s 35(4) of the CSP Act.
There is no statutory or common law requirement to take into account that an offender pleaded guilty to an offence when the court is not passing sentence for that offence but taking it into account pursuant to the provisions of Pt 3 Div 3 of the CSP Act: Gordon v R [2018] NSWCCA 54 at [95].
In the guideline judgment of Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146, Spigelman CJ stated at [39]: "The sentencing court is sentencing only for the principal offence. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a 'discount' for the use of the procedure."
Spigelman CJ said at [42]: "…although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another."

[52]

In District Court proceedings 2020/254026 1. Hamiltons Blasting Services Pty Ltd is convicted. 2. The appropriate fine is $400,000 but that will be reduced by 25% to reflect the early plea of guilty. 3. Order Hamiltons Blasting Services Pty Ltd to pay a fine of $300,000. 4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. 5. Order Hamiltons Blasting Services Pty Ltd to pay the prosecutor's costs.

[53]

In District Court proceedings 2020/254003 1. Note that this charge has been taken into account on a Form 1 in dealing with District Court proceedings 2020/254026.

[54]

In District Court proceedings 2020/253975 1. Hamiltons Blasting Services Pty Ltd is convicted. 2. The appropriate fine is $16,000 but that will be reduced by 25% to reflect the early plea of guilty. 3. Order Hamiltons Blasting Services Pty Ltd to pay a fine of $12,000. 4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. 5. Order Hamiltons Blasting Services Pty Ltd to pay the prosecutor's costs.

[55]

In District Court proceedings 2020/253944 1. Hamiltons Blasting Services Pty Ltd is convicted. 2. The appropriate fine is $16,000 but that will be reduced by 25% to reflect the early plea of guilty. 3. Order Hamiltons Blasting Services Pty Ltd to pay a fine of $12,000. 4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. 5. Order Hamiltons Blasting Services Pty Ltd to pay the prosecutor's costs.

[56]

In District Court proceedings 2020/254184 1. David Steven Hamilton is convicted. 2. The appropriate fine is $30,000 but that will be reduced by 25% to reflect the early plea of guilty. 3. Order David Steven Hamilton to pay a fine of $22,500. 4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. 5. Order David Steven Hamilton to pay the prosecutor's costs.

[57]

Amendments 20 December 2021 - Representatives Typographical error par 258 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2021

McColm v Hamiltons Blasting Services Pty Ltd; McColm v Hamilton

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Legislation Cited (6)

Cases Cited (42)

Cited By (1)