Morrison v New England Antimony Mines NL

Industrial Relations Commission (NSW)|2003-06-19|Before: Peterson J

CITATION : Morrison v New England Antimony Mines NL [2003] NSWIRComm 194 PROSECUTOR Rodney Dale Morrison PARTIES : DEFENDANT New England Antimony Mines NL FILE NUMBER: IRC789 and IRC790 of 2002 CORAM: Peterson J CATCHWORDS : Occupational health and safety - Mine site - Excavation of road in steep country - Employee and non-employee exposed to risk - Non-employee killed by stone bouncing down hillside - No consideration given to possible risk - Conviction record - Penalty imposed. LEGISLATION CITED : Occupational Health and Safety Act 1983 ss15 16 Mines Inspection Act 1901 WorkCover Authority (NSW) (Inspector Dubois) v Concrete Constructions Group Limited (1999) 98 IR 362 CASES CITED : Department of Education and Training v Keenan (2001) 105 IR 181 Pearce v The Queen (1998) 194 CLR 610 HEARING DATES: 04/10/2003 DATE OF JUDGMENT: 06/19/2003

PROSECUTOR Ms K T Nomchong of counsel

RODNEY DALE MORRISON v NEW ENGLAND ANTIMONY MINES NL

Prosecution under s15(1) of the Occupational Health and Safety Act 1983

RODNEY DALE MORRISON v NEW ENGLAND ANTIMONY MINES NL

Prosecution under s16(1) of the Occupational Health and Safety Act 1983

1 The prosecutor, Rodney Dale Morrison, with the consent of the Director-General of the New South Wales Department of Mineral Resources, has commenced two prosecutions against the defendant, New England Antimony Mines. At all relevant stages of the proceedings, both in preparation for the trial of the charges and at the hearing itself, there has been no appearance by the defendant, save for an appearance on behalf of Ferrier Hodgson, the managers and receivers appointed to the defendant. It became clear that there was no intention on the part of the administrator to appear in the matters. Accordingly, notice of the hearing having been given both to the business address of the defendant and to Ferrier Hodgson, the matters went forward on an ex parte basis on 10 April 2003.

2 The evidence tendered by Ms Nomchong of counsel for the prosecutor included affidavit material from Diana Helen Figgis, a solicitor of the Department of Mineral Resources. Annexed to Ms Figgis' affidavit were the authority in the prosecutor to commence the proceedings and an exchange of correspondence between the Department and Ferrier Hodgson and their solicitor, Clayton Utz.

3 The principal evidence tendered in the matter consists of an affidavit of Brian Olds, since 1981 an Inspector of Mines responsible for regulation of safety in mines under the Mines Inspection Act 1901. On 21 February 2000 he was appointed to conduct an investigation into a fatality at the defendant's workplace, which has led to these proceedings. The very substantial report prepared by Mr Olds is in evidence.

4 In broad terms, the prosecutions relate to circumstances surrounding an accident in which an environmental consultant, Dr Paul Broese van Groenou (known as Dr Paul Broese) was struck by a substantial stone or boulder which bounced down a steep hillside, striking him as it passed, after the boulder was dislodged by earthmoving equipment constructing a road, at the defendant's mine site, up the slope above Dr Broese. At the time of the accident Dr Broese was in company with an employee of the defendant, Anthony Birkett. The proceedings brought under s15 of the Occupational Health and Safety Act 1983 ('the OHS Act') relate to the risk to which Mr Birkett was exposed. The s16 proceedings are brought in relation to the risk to which Dr Broese was exposed, on the predication that Dr Broese was not an employee of the defendant.

On 18 February 2000 at the New England Antimony Mines at Hillgrove via Armidale in the State of New South Wales the Defendant, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, in particular Anthony Birkett, in that it failed to provide a safe system of work that protected workers from risk of injury when working in an area of the mine where heavy earth moving machinery was being used in road construction contrary to s15(1) of the Occupational Health and Safety Act , 1983.

(a) On 18 February 2000 the Defendant was undertaking construction of a new road known as Brackins Spur Road ("the Road"). The Road is located in a part of the mine's operation known as Baker's Creek Gorge. The slope of the gorge at the site of the Road construction is steep and variable, having a gradient ranging from about 30% to about 48% from the horizontal in the slope immediately below the new road;

(b) Due to the heavy vegetation in the area, it is difficult to see beyond two or three metres down from the Road into the bush.

(c) The construction of the Road involved the removal and relocation of a significant amount of earth using a process known as "cut and fill". Explosives were also used to cut a drainage channel through solid rock. Following an explosion, the construction crew on the Road operated earthmoving vehicles to remove the debris from the area of the explosion and transfer it onto the road surface;

(d) There was a risk of falling rocks and debris in the area downhill of the site of the Road construction, particularly when the earthmoving vehicles were moving rock debris on the road surface;

(e) On 18 February 2000, Anthony Birkett was working as an assistant to Dr Paul Broese van Groenou ("Dr Broese");

(f) As at 18 February 2000, Dr Broese was a consultant by arrangement with the Defendant providing expert advice and assistance on environmental issues in relation to the working of the mine. Dr Broese reported directly to senior management at the mine.

(g) On 18 February 2000 Dr Broese and Anthony Birkett were walking in the area downhill of the road construction site during a time when earthmoving vehicles were in operation on the Road. Before proceeding to that area neither Dr Broese nor Anthony Birkett indicated their intended movements to any member of road construction crew. Further, no member of the construction crew asked Dr Broese or Anthony Birkett their intended route or where they might be working.

(h) When Dr Broese and Mr Birkett were approximately 100 metres below the level of the road, a rock travelled at speed down the hill, bouncing on the slope as it did so. It rose up into the air to head height and struck Dr Broese on the side of the helmet;

(i) Mr Birkett was in close proximity to Dr Broese when Dr Broese was struck by the rock;

(j) Dr Broese died from the injuries he received as a result of the accident;

(k) As at 18 February 2000, there was no system of work in place at the site of the Road construction which prevented employees going into the area downhill of the Road construction area where earthmoving vehicles were being operated;

(l) As at 18 February 2000, there was no system of work which ensured that all persons, including employees, were directed to report their intended route or work area to any member of the construction crew at the Road construction site;

(m) As at 18 February 2000, there was no system which provided a clear and unambiguous chain of command for all persons, including employees, working at the Road construction site for the purposes of establishing the person to whom everyone was required to report their intended route or work area and being the person who could direct the areas (if any) in which such persons (including employees) were permitted to work when road construction activities were taking place;

(n) there was a risk to the health, safety and welfare of Anthony Birkett in that there was a risk that he may also have been struck by a falling rock or debris from the Road construction site;

(o) the Defendant failed or omitted to institute a system of work which prevented that risk;

(p) there was a causal nexus between the risk to the health, safety and welfare of employees and the Defendant's failure or omission. IRC790 of 2002 - s16(1)

On 18 February 2000 at the New England Antimony Mines at Hillgrove via Armidale in the State of New South Wales the Defendant, being an employer, failed to ensure that persons not in the employer's employment, in particular Dr Paul Broese van Groenou, were not exposed to risks to their health or safety arising from the conduct of the employer's undertaking whilst those persons, in particular Dr Paul Broese van Groenou, were at the employer's place of work in that it failed to provide a safe system of work that protected such persons, in particular Dr Paul Broese van Geoenou, from risk of injury when working in an area of the mine where heavy earth moving machinery was being used in road construction contrary to s16(1) of the Occupational Health and Safety Act 1983."

(b) Due to the heavy vegetation in the area, it is difficult to see beyond two or three metres down from the Road into the bush.

(c) The construction of the Road involved the removal and relocation of a significant amount of earth using a process known as "cut and fill". Explosives were also used to cut a drainage channel through solid rock. Following an explosion, the construction crew on the Road (who were employees of the Defendant) operated earthmoving vehicles to remove the debris from the area of the explosion and transfer it onto the road surface;

(d) There was a risk of falling rocks and debris in the area downhill of the site of the Road construction, particularly when the earthmoving vehicles were moving rock debris on the road surface;

(e) As at 18 February 2000, Dr Broese van Groenou ("Dr Broese") was a consultant by arrangement with the Defendant providing expert advice and assistance on environmental issues in relation to the working of the mine. Dr Broese reported directly to senior management at the mine.

(f) On 18 February 2000 Dr Broese and an employee of the Defendant, Anthony Birkett, were walking in the area downhill of the road construction site during a time when earthmoving vehicles were in operation on the Road. Before proceeding to that area neither Dr Broese nor Anthony Birkett indicated their intended movements to any member of road construction crew. Further, no member of the construction crew asked Dr Broese or Anthony Birkett their intended route or where they might be working;

(g) When Dr Broese and Mr Birkett were approximately 100 metres below the level of the road, a rock travelled at speed down the hill, bouncing on the slope as it did so. It rose up into the air to head height and struck Dr Broese on the side of the helmet.

(h) Dr Broese died from the injuries he received as a result of the accident;

(i) As at 18 February 2000, there was no system of work in place at the site of the Road construction which prevented persons going into the area downhill of the Road construction area where earthmoving vehicles were being operated;

(j) As at 18 February 2000, there was no system of work which ensured that all persons who were at the road construction site were directed to report their intended route or area in which they would be present to any member of the construction crew at the Road construction site;

(k) As at 18 February 2000, there was no system which provided a clear and unambiguous chain of command for all persons working or present at the Road construction site for the purposes of establishing the person to whom everyone was required to report their intended route or work area and being the person who could direct the areas (if any) in which such persons were permitted to work when road construction activities were taking place;

(l) there was a risk to health or safety to which Dr Paul Broese van Groenou was exposed in that he was at risk of being struck by a falling rock or debris from the Road construction site;

(m) the Defendant failed or omitted to institute a system of work which prevented that risk;

(n) there was a causal nexus between the risk to the health or safety of persons, in particular Dr Paul Broese van Groenou, at the Defendant's place of work and the Defendant's failure or omission.

6 The report of Mr Olds identifies the background facts and usefully provides a series of photographic images, many of which were recovered from Dr Broese's camera and were taken by him prior to the accident. The report includes the following: The Hillgrove gold-antimony field lies approximately 32km by road east of the regional centre of Armidale in north eastern NSW. Hillgrove Gold NL [HG], through its wholly owned subsidiary New England Antimony Mines NL [NEAM], an underground mine, has been producing gold and antimony products from the Hillgrove Goldfield since 1970. It is the only company in Australia producing antimony concentrates, which are exported to world markets, providing some 2.5% of world output. Western industry refines antimony concentrates for use as flame retardants for plastics manufacture.

Much of this underground mine's operations are centred about the 500 metre deep Baker's Creek Gorge which provides access to orebodies using roads constructed down the steep gorge walls, from which adits [horizontal tunnels] provide entry into the earth for the ore to be mined.

Dr Paul Broese van Groenou sustained serious head injuries at about 11.00am on 18 February 2000 as a result of being struck by a rock. Those injuries later proved to be fatal. At the time of injury, Dr Broese was providing environmental consulting services for the construction of a new road, known as Brackins Spur Road, located within the Baker's Creek Gorge 1.4 km down Smith's Road from the top of the escarpment. He was struck by the rock at a location 100 metres below the active roadworks, the impact causing him to tumble a further distance of 29 metres before coming to rest against a log.

Consent conditions require the conduct of regular visual inspections and environmental surveys of the road profile prior to and during vegetation clearing and road construction. Dr Broese and an assistant, Anthony Birkett, were conducting an environmental survey of the proposed route of the road when the incident occurred.

8 Having examined the incident scene, Mr Olds described it as consisting of:

· an incomplete cut and fill road construction site · an assortment of parked earthmoving machinery · a steep wooded slope below the active roadworks containing a siltation barrier · the site commencing 100 metres below the roadworks where Dr Broese was critically injured.

9 The road construction site and works were described this way: Construction of Brackins Spur Road commenced on 14 February 2000 from Red Corner on Smith's Road. From then until the incident, about 170 metres of road construction had occurred. This work involved the use of earthmoving equipment to disturb natural ground and move it to provide a stable gravel road surface. The roadworks commenced with a bend to the left to allow the correct angle of approach to the gorge wall, since roads need to be cut at a shallow angle to the slope contours to provide an acceptable road gradient of less than 10o to the horizontal. The construction of the bend involved significant removal and relocation ["cut and fill"] of earth and stone and the use of blasting to provide a drainage channel through solid rock.

Upon exiting the bend, the cut and fill process continued, the road being formed from the material excavated from the wall of the gorge. A longitudinal gutter drain was formed along the road's inner edge by sloping the road surface back into the gorge wall away from its outer edge. Where necessary, the outer edge of the road surface was raised by applying an additional coverage of earth and stone excavated elsewhere to ensure the correct drainage profile.

10 The road construction machinery in use at the site consisted of:

· a Caterpillar 955 tracked front end loader [earthmoving machine]

· a Hyundai 30 tonne hydraulic excavator [earthmoving machine]

· a Sullair "Sullitrack" airtrack drill [not involved in the incident]

· a Holman 900 cfm mobile air compressor [not involved in the incident]

11 The gorge slope below the roadworks area had, shortly below the work area, and about 15 metres below a bend, a 30 metre long and about 100mm high siltation barrier, consisting of siltstop fabric covering arcmesh panelling supported by star dropper fence posts. Photographic evidence records the success of that barrier in having trapped rock fragments of varying sizes. There was no such barrier in place for the remainder of the road construction over a distance of about 100 metres and it was in this area that the stone which struck Dr Broese was dislodged.

12 The slope below the roadway was very steep, varying between 30 and 48 degrees.

13 Statements were taken by Inspector Olds from the employee accompanying Dr Broese, Mr Birkett, and also other managerial and workplace employees. Mr Birkett recorded that he was employed as an environmental technician with the defendant between 13 September 1999 through to 18 February 2000. At the date of the accident he was engaged as offsider to Dr Broese. They arrived at the Brackins Spur Road construction site at about 9.20am and met the members of the roadcrew: Messrs Ruthberg, the supervisor, Williams, a transport operator and Beaton, a truck driver who also operates heavy machinery such as dozers and excavators. After undertaking some work in preparation for the blasting of a trench drain in the corner of the bend in the road under construction, Dr Broese took some photographs of the blasting. They inspected the drain and thereafter walked back up the road to a point where Dr Broese "walked off down the gully. Paul didn't say anything and I just followed him". Mr Birkett's statement continued:

We walked to a point about 100 metres down from the road before we turned to the right and walked about what felt like another 120 metres. It felt that we were continuing further down away from the road. Paul was walking ahead of me and I had no idea where we were going or for what purpose.

I caught up to Paul and he asked me to stand in between two pegs. The pegs are related to the location of the new road. I stood at this location and I saw Paul take a photograph of me.

After I got out of the gulley, I heard noise from the road works above me. It appeared that these noises were coming from above and to the left of me. I was not in a position to see the road or the machinery causing these noises. At this point, I realised that Paul and I may be directly underneath the road construction work. This concerned me as I was worried that something may fall down from the road.

I put that concern aside and I didn't say anything to Paul as I thought he knew exactly where we were and he did not appear concerned at all. I tried my best to walk behind trees so that I was protected from anything falling. Paul then lined up to take a photograph however, he put his camera away.

I began to walk off and immediately heard something falling towards Paul. Paul then yelled out something and then turned as if he was avoiding something. I then saw a rock larger than a basketball bounce up and hit Paul in the head. Paul was wearing a safety helmet at the time and was wearing it in the approved manner. I was about ten to fifteen metres away from Paul and I had a clear vision of him.

Paul then fell to the ground and then began to roll down the hill. He tumbled down the hill for about ten metres before coming to a rest. Whilst he was tumbling, the helmet came off his head.

14 The statements of Messrs Ruthberg, Williams and Beaton detail their activities on the day. They make clear that neither Dr Broese nor Mr Birkett indicated where they were going when they left the work site after the blasting operation. They were equally unaware that there was anybody downhill of where they were working. Mr Ruthberg stated: "If I had known people were down there, I would have stopped the construction immediately. To my knowledge, no one has ever been down hill of where construction was occurring on Brackins Spur Road".

15 The defendant's standard operating instructions for the construction of hall roads in gorge country at Hillgrove (Brackins Spur Hall Road August 1999) detail, in a lengthy document, the necessary requirements for the construction including the care which is to be taken to protect the creek and prevent the washing of sediment from the road construction area, but provide no specific instructions with respect to safety and certainly nothing in relation to persons working in the proximity.

16 It is also necessary to refer to the evidence relating to the status of Dr Broese. Dr Broese as principal of his company, Arnhem Environmental Impact Assessors, was appointed as Environmental Officer at Hillgrove by letter dated 6 May 1999. The letter of appointment is somewhat equivocal as to status although it includes the following: Remuneration for the position is as discussed, being $400 per day, with call-outs being chargeable at $60 per hour up to the day rate. Invoices should be presented monthly, together with a short summary of activities for cost allocation purposes.

17 There is no other indication, in the letter of appointment or the terms of appointment, of the legal relationship intended to be created. However, the evidence includes copies of invoices, which billed the defendant in gross sums for "Professional Services for Environmental Management & Site Investigations".

18 Mr Olds also interviewed Edgar P C Bradley, the Managing Director of Hillgrove Gold NL and General Manager of New England Antimony Mines NL. In the course of the interview the following questions and answers were obtained:

Q15. Who was Paul Broese van Groenou employed by? A. Hillgrove Gold NL.

Q16. When did he commence employment with this company? A. 6 May 1999.

Q17. What was Paul's position? A. Designated Environmental Officer

19 Having regard to this material, I am satisfied beyond reasonable doubt that Dr Broese was not an employee of the defendant. The evidence relating to the relationship with the defendant is indicative only of a consultancy between Dr Broese's firm and the defendant under which he would be required to provide professional services. To the extent that there is any evidence to suggest employment, that employment is not with the defendant but with a related company, Hillgrove Gold NL. Although I have some doubt about the accuracy of the observation by Mr Bradley in this regard, one thing is clear; the observation cannot support any conclusion that Dr Broese was an employee of the defendant. Accordingly, the relevant feature of s16(1) of the Act is satisfied.

20 The prosecution has also satisfied the other elements of the offence. The Australian Securities and Investments Commission "Historical Company Extract" shows the defendant's registration as a no liability public company since 26 November 1953 and its currency as at 18 February 2000. That the defendant was an employer is also clear. Apart from Mr Birkett, seven other persons are identified in the statements of interview as employees.

21 The exposure of Mr Birkett to risk is clear on his evidence. He was at his place of work at the time of the accident and it is readily apparent that the defendant failed to ensure that the work system was safe. The relevant detriment to safety occurred in the circumstances where Dr Broese and Mr Birkett were enabled to work downhill from the road construction operation or, alternatively, where the road construction operation was enabled to be carried on without awareness of their presence downhill. This risk is attributable to the failure of the defendant to make any provision for that matter in its standard operating instructions. The prosecutor's submissions in this regard are detailed and pertinent. They were as follows: 3.39 The defendant's General Surface Induction Manual dated May 1999 did not contain any induction material specific to the dangers associated with road construction in the gorge. There are directions as to Basic Safe Working and Safety Procedures for use of vehicles. However, none of those directions deal adequately with the conditions prevailing at the Brackins Spur Road on 18 February 2000.

3.40 Moreover, there was nothing in that manual as to the chain of command in so far as it applied to Dr Broese when he was on site. Mr Kalman Salgo was, at all relevant times, employed as the Manager Mining Operations with the defendant. Prior to the construction of the Brackins Spur Road commencing, Mr Salgo was directed by Mr Bradley to provide training in conjunction with Dr Broese to the construction crew in respect of the latest version of the standard operating instructions for the construction of hall roads in gorge country. According to Mr Salgo's statement taken on 15 March 2000, Dr Broese was heavily involved in the compilation of the instructions and they were endorsed by the General Manager in August 1999. However, Mr Salgo stated: "The content of the instructions is largely related to environmental issues and construction methods. It is not specifically designed to address safety issues." 3.41 Similarly, the defendant's Standard Operating Instructions for the construction of haul-roads in gorge country at Hillgrove - Brackins Spur Haul Road dated August 1999 contains no directions or procedures in relation to safety matters.

3.42 The defendant's Safety Manual similarly contains no specific directions in relation to safety issues in relation to people working in the area of road construction. There are general directions in relation to road safety but these are transport rules. The communication section of the Manual deals with tool box talks and the like but does not provide for a chain of communication applicable to the circumstances of road construction. The provisions in relation to middle management OHS responsibilities includes that referable to Mr Ruthberg. Clause 2.2.2f stipulates that Mr Ruthberg was to: "provide OH&S leadership to all site personnel to ensure that their normal day to day decisions and actions are consistent with the intent of the Company's OH&S Policy and Site OH&S objectives." 3.43 Unfortunately because of the blurred lines of communication and the difficulty in determining Dr Broese's (sic).

3.44 Mr Salgo notes that the training session took place on the morning of 14 February 2000 but Dr Broese was not present. Mr Salgo states: "6. . . . I took the participants through the text of the manual with the exception of technical issues relating to flora and fauna. The work crew were made fully aware of Paul's environmental responsibilities and were also instructed that the environmental department had authority over the job.

In the course of the training, I covered the need to minimise the amount of rock going into the creek and the erection of a silt fence including arcmesh banking which would support the weight of material that may have been deposited against the silt fence. I also covered the fact that Jerry Ruthberg was the supervisor for the job and the need for the crew to organise communication as per normal site procedures for gorge entry and exit. These procedures relate to vehicle ingress and egress."

3.45 Accordingly, it is clear that there was no instruction or training in relation to communication as between the construction crew and Dr Broese. Further it is readily concluded that from the nature of the instruction given by Mr Salgo the construction crew may have been under the impression that they had no authority to direct Dr Broese in relation to his activities at the site.

3.46 It is apparent from Mr Salgo's statement that directions in relation to communication were vague and stated only to be in accordance with normal site procedures. Moreover the construction crew had been advised that Dr Broese had authority over the job. Accordingly, the lines of communication and the chain of command in respect of safety issues was blurred.

3.47 Mr Bradley, in his statement, advised that Dr Broese reported directly to the Managing Director and yet the construction crew reported to Mr Bradley as General Manager.

3.48 No risk analysis had been undertaken. Mr Bradley stated in his statement that an environmental risk assessment was conducted but not a safety risk assessment.

3.49 The defendant failed to implement even a simple system of mandatory communication such that all persons in the area were required to advise the site supervisor of their whereabouts and intended movements.

3.50 Further, there would have been a clear and unambiguous chain of command in relation to safety issues. A safety barrier could have been erected - as it was after the accident.

3.51 However, it is not incumbent on the prosecution, at this point at least, to show how the risk could have been eliminated and, hence, the safety of the worker guaranteed.

3.52 There was a clear failure on the part of the defendant to eliminate the risk of injury.

22 The maximum penalty in each matter is $550,000. The defendant has no prior convictions.

23 As to mitigating factors, the prosecutor submitted: The conduct of the employer following the accident was exemplary. Not only did mine management staff assist in all ways possible at the time of the accident, they were fully compliant with both the DMR and the police in their investigations following the accident.

Moreover, the mine management immediately took steps to redress the absence of a risk management plan and standard operating instructions for the road were devised and implemented.

24 I consider the failures of the defendant in these matters to have been serious. The concentration upon environmental risk assessment and an apparent total absence of concern or consideration to human risk assessment is very difficult to understand. I would be prepared to infer that the defendant, in considering the effects of any dislodgement of silt or stone from the road construction site, considered only its obligations with respect to protecting the creek environment, but did not anticipate the effects upon any persons who might be present in the vicinity. It may be that the attendance of persons down the slope from the construction site was simply not thought of. However, the defendant on any view of the facts as they are established, did not act proactively to search out likely possibilities in that regard. The concern for the environment would seem to have obviously raised the possibility that Dr Broese might feel obliged to check upon the effects of the construction work. He was left to his own devices, which, as so often occurs in cases where employers have taken an inactive stance, led to the exposure to risk. The position was no different for Mr Birkett, who was required to accompany Dr Broese. I find the defendant guilty of each charge.

25 Here, the two charges are brought under s15 and s16 of the OHS Act, both of which have been identified as imposing "statutory obligations which conceptually overlap, although the identity of the persons the object of the obligations specified is different" (per Wright J in WorkCover Authority (NSW) (Inspector Dubois) v Concrete Constructions Group Limited (1999) 98 IR 362 at 373. This observation was referred to, with approval, by a Full Bench of the Court in Department of Education and Training v Keenan (2001) 105 IR 181 at 198-199.

26 It was the occurrence of common elements in multiple offences which occasioned the Full Bench in that matter to deal extensively with the effects of the High Court judgment in Pearce v The Queen (1998) 194 CLR 610 where the majority (McHugh, Hayne and Callinan JJ) said: To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

27 After discussing a number of decisions in this court applying the principle of totality (and some similarly in the Supreme Court), the Full Bench determined: This review of the authorities establishes that in determining penalties for multiple offences under the Occupational Health and Safety Act the Court is required to determine separately an appropriate penalty for each offence. Having done so, the Court should then consider what the appropriate penalty should be by applying the principle of totality. Where the multiple offences contain common elements, the principle of totality must, for that reason alone, be applied to ensure that the defendant is not punished more than once for the common elements of the offences and to avoid the double jeopardy that would follow if that occurred. The principle must also be applied for the reasons stated in Pearce and Mill.

We should emphasise that the principle that a defendant is not to be punished more than once for the common elements of the offences does not require that a single penalty only should be imposed for the multiple offences. The Court is required to determine a separate penalty for each offence before applying the principle of totality. It will then usually be appropriate to fix separate penalties for each offence. It is in applying the principle of totality - which requires the consideration of the overall criminality involved in the offences - that regard should be had to the principle that a defendant is not to be punished more than once for elements which are common to the offences as well as ensuring the aggregate sentence or penalty is just and appropriate.

28 That approach is, accordingly, apt here, where the failure of the defendant in respect of both charges is essentially the same failure. It follows that penalty is to be determined in relation to each charge and then the overall criminality involved is to be considered to ensure that the aggregate penalty is just and appropriate.

29 However, the circumstances raise a difficulty in terms of sentencing. The facts of the matter, where two persons were walking down-slope from the construction site and thus exposed to risk, would have given rise, were those two persons employees, to one breach of s15. Or, if it were to be treated as two breaches of s15, the elements of each breach would be identical and the principle of totality would have the quantum of penalty amounting in total to no more than that applicable were it one breach, "to ensure the defendant is not punished more than once for the common elements of the offences . . . ", to borrow from the Full Bench.

30 The fact that one person was an employee and the other a non-employee raises separate liabilities from the same facts. It exposes the defendant to a consideration of penalty in the context of the two separate offences. While the underpinning notion for the assessment of penalty in the context of the totality principle is the overall criminality involved, in this case the identity between the elements of the offences suggests to me the overall criminality is only marginally greater than it would be were the case one of a single offence.

31 I consider an appropriate penalty in each matter would be $140,000 before any reduction in penalty in relation to matters of mitigation. I would give the defendant credit for its clean prior record and its cooperation with the prosecutor and post-accident conduct at the level of 10% reduction in penalty. The appropriate penalty thus would be $126,000. In the circumstances, an overall penalty of $140,000 would be the appropriate result. I convict the defendant of each of the charges and impose a penalty of $70,000 in each matter with a moiety of penalty to the New South Wales Department of Mineral Resources. The prosecutor should have an order for its costs.

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