Orr v Burgess Earthmoving Pty Ltd - [2021] NSWDC 583 - NSWDC 2021 case summary — Zoe

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Orr v Burgess Earthmoving Pty Ltd

[2021] NSWDC 583

District Court of NSW|2021-10-22

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At a glance

Source facts

Court

District Court of NSW

Decision date

2021-10-22

Catchwords

(1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37
(2000) 49 NSWLR 610 EPA v Barnes [2006] NSWCCA 246 Johnson v The Queen [2004] HCA 15
(2004) 78 ALJR 616 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Mill v The Queen [1988] HCA 70
(1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39

Source

Original judgment source is linked above.

Catchwords

(1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37(2000) 49 NSWLR 610 EPA v Barnes [2006] NSWCCA 246 Johnson v The Queen [2004] HCA 15(2004) 78 ALJR 616 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Mill v The Queen [1988] HCA 70(1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited

Judgment (38 paragraphs)

[1]

Background

The parties presented an Agreed Statement of Facts and this material is summarised below.
Burgess is a registered corporation which is the owner and mine operator of the Albury Quarry ("the Quarry"). This involves drilling and blasting operations. Burgess is also the owner and mine operator of the Kapooka Quarry and has a head office in Wagga Wagga. It also conducts a separate earth moving business.
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.

[8]

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 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 (other than Ms Singleton wearing safety boots).
Visitors to the Quarry are 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.
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 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.

[10]

The Incident

Immediately prior to the Toe Shot, Mr Hamilton sounded a warning siren from his Grey Amarok. In order to sound the siren, the bonnet on the Grey Amarok was raised.
At 2.30pm 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.
At 2.32pm 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, approximately 5 to 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 including 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 the 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.
Mr Hamilton video recorded both the Toe Shot and 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. 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 and smashed the windscreen of the White Navara. 5. A rock hit the CAT's excavator's air-cleaner. 6. A rock passed within several inches of Mr Power's head, then hit the boom of the CAT excavator and cracked a hydraulic pipe.

[13]

Safety Management Plan

In November 2017, Burgess engaged an external consultant, Mr Craig Tickner of Safety Compliance Resources, to develop a new mine safety management plan for both the Quarry and the Kapooka Quarry.
Mr Tickner carried out a number of formal risk assessments for both the Quarry and the Kapooka Quarry, including the "Burgess Quarries Site Risk Assessment - Broadbrush Risk Assessment" dated 5 December 2017.
In relation to explosives, this assessment identified the hazard of flyrock and the potential risk of fatality, burns, broken limbs, skin tissue damage, crush injury, musculoskeletal injury, psychological disorders, environmental impact, noise pollution and damage to equipment.
On 1 February 2018 Burgess implemented a new safety management system for the Quarry and the Kapooka Quarry ("New SMS") that had been developed by Mr Tickner. The New SMS replaced the Quarry's previous "Safety Management Plan Albury Quarry Reviewed November 2013" dated 13 June 2014.
The New SMS included: 1. Mine Safety Management Plan dated 1 February 2018. 2. Explosives Management Plan dated 1 February 2018. 3. Contractor Management Plan dated 1 February 2018.
The purpose of the Explosives Management Plan was to provide the framework for controlling and managing the safety of explosives and blasting activities undertaken at the Quarry and the Kapooka 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 the hand-over of the blasting zone from the Quarry's or Kapooka Quarry's Production Manager to the explosives contractor's shotfirer. 8. Blast sentries must block their positions, confirm that they are in position and confirm that their area is secured.
The Contractor Management Plan required that all contractors "formally comply with the Albury/Wagga Quarries SMS or provide a copy of their Safety Management System". The Contractor Management Plan also provided that: 1. The "Production Manager" was responsible for, among other things, reviewing the contractor's Safety Management System to ensure suitability and compliance, participating in incident investigations where required, and conducting regular safety observations. 2. The "Supervisor" was responsible for, among other things, promoting and conducting hazard identification and reporting and providing safety and environment information as required.

[14]

Supervision

Mr Judd replaced Mr Dale Burgess as Quarry Manager on 8 November 2017 after a period of 12 months working away from the Quarry. As the Quarry Manager, Mr Judd was responsible for the day to day operations of the Quarry and reported to Mr Russell Burgess.
Although Mr Judd had been present at the Quarry when blasting activities had occurred under the supervision of Mr Dale Burgess, he had no previous experience in supervising blasting activities and Mr Russell Burgess did not conduct an adequate assessment of the competence of Mr Judd to perform the role of Quarry Manager. Mr Judd did not participate in any handover with Mr Dale Burgess in relation to the role of Quarry Manager and Mr Judd was not provided with any instruction in relation to his role as a Quarry Manager.
The role held by Mr Judd as Quarry Manager was a "statutory function" under the Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW) ("WHSMPS Regulation") that could only be exercised at the Quarry by an individual: 1. Who was nominated to exercise that function by the mine operator, Burgess. 2. Who met certain requirements for nomination specified in Sch 10 of the WHSMPS Regulation.
One of the requirements of Sch 10 of the WHSMPS Regulation was that the individual hold a current Practising Certificate authorising the exercise of the statutory function of Quarry Manager.
As at the date of the incident, Mr Judd: 1. Did not hold a current Practising Certificate to be a Quarry Manager. 2. Did not possess the necessary qualifications or experience to fulfil the role of Quarry Manager or obtain a Practising Certificate for that role. 3. Lacked the competence necessary to manage the Quarry.
On 2 November 2017 Mr Russell Burgess called Senior Mine Safety Officer Ron Dillon ("SMSO Dillon") to enquire about nominating a new Quarry Manager for the Quarry. Later that day SMSO Dillon emailed Mr Russell Burgess stating that the Quarry must nominate a person who is competent to supervise the Quarry and attached an internet link to a document titled "Form - Quarry Manager Class Exemption - Notification that nominee is a competent person" ("Exemption Form").
On 11 December 2017 Mr Russell Burgess emailed a completed Exemption Form to SMSO Dillon seeking an exemption under cl 185 of the WHSMPS Regulation to allow Mr Judd to perform the role of Quarry Manager despite not having the necessary qualifications. SMSO Dillon forwarded the Exemption Form to the designated email address. However, the application for an exemption was not processed or approved by the regulator as defined in the WHSMPS Regulation.
The exemption sought by Burgess on 11 December 2017, if granted, could only have been granted for a period not exceeding two months.
Between 1 November 2017 and the incident, Burgess did not: 1. Notify the regulator that Mr Judd had commenced acting in the role of Quarry Manager. 2. Apply for Mr Judd to be granted a Practising Certificate entitling him to perform a statutory function under the WHSMPS Regulation such as a production or Quarry Manager permit.
Mr Judd understood his role was "mainly production and telling the boys what to do", as well as organising trucks and sales at the Quarry. Mr Judd was not aware that his title was "Quarry Manager" but was aware that he was responsible for supervising mining operations at the Quarry.
Mr Judd, Mr Warnes and Mr Tickner participated in at least two days of workshops where the procedures that comprised the New SMS were developed. A copy of the New SMS was available at the Quarry prior to the incident. However, no assessment was done of Mr Judd's understanding of the New SMS and Mr Judd did not access the New SMS that included the Mine Safety Management Plan, Explosives Management Plan or any SWMS prior to the incident. Mr Judd first saw the finalised Explosives Management Plan after the incident.

[15]

Training of Employees

Mr Judd received Quarry Induction Training on 5 May 2016.
Other than to the extent that Mr Judd participated in the development of the New SMS, Mr Judd was not provided with any formal training in relation to: 1. His employment at the Quarry. 2. Safety management systems at the Quarry. 3. How to manage blasting activities at the Quarry. 4. The establishment of exclusion zones when blasting at the Quarry. 5. Selecting suitable firing locations for blasting at the quarry.
Mr Judd was provided a laptop computer or tablet ("the computer") at the time that he commenced the role of Quarry Manager. The computer had safety system documentation on it, however, Mr Judd was not given any instructions in relation to its use nor was he told that the computer had safety system documentation. Mr Judd was given a USB that contained a copy of the Mine Safety Management Plan.
Mr Judd was never asked to familiarise himself with the contents of the computer and Mr Judd never reviewed any of Burgess' SWMSs for the Quarry between 1 November 2017 and 10 April 2018.
Mr Judd was responsible for providing training to other Burgess employees at the Quarry. However, Mr Judd was not provided any training or other support by Burgess to ensure that the Burgess employees at the Quarry were adequately trained.
Between 1 November 2017 and the incident, Burgess and Mr Judd did not: 1. Provide workers with copies of any relevant policies, procedures or management plans, or show workers where any relevant policies, procedures or management plans could be accessed. 2. Provide workers with any formal training or instructions in relation to explosives, blasting or firing locations. He did not inform or instruct Mr Ragobert or Mr Power in relation to the risks associated with drilling and blasting activities and did not provide them with the Explosives Management Plan. 3. Provide workers with a copy of the documents that formed the New SMS or provide training to workers in relation to the New SMS.
Prior to the incident a number of Burgess' employees, including Mr Power and Mr Darby, had not seen, or been trained, in the Explosives Management Plan. However, both Mr Darby and Mr Power were aware of the practice at the Quarry when blasts were undertaken while Mr Dale Burgess was Quarry Manager. The practice required personnel to be stationed at the front or rear gate or weighbridge.
No suitably competent person from Burgess attended the Quarry for the blasting on 10 April 2018.

[16]

Managing the Risk of Flyrock - Industry Standards

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").
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 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.
The Explosives Standard also requires that an "overall blast management plan" be prepared in accordance with Appendix A of the Explosives Standard and prescribes blast design content for that blast management plan.

[17]

Hamiltons' Operations at the Quarry

In November 2016 Burgess 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. 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.
On 12 December 2016, when Hamiltons first started conducting blasting services for Burgess, Mr Russell Burgess and Mr Hamilton discussed blasting at the Quarry. In the course of those discussions Mr Russell Burgess told Mr Hamilton, among other things, that: 1. The exclusion zone for blasting was bounded by the double gates at the Quarry perimeter. 2. The firing location was to be 300m to 400m and "back of the shot".
Mr Russell Burgess' reference to "back of the shot" was a reference to the fact that blasts are directional and a shotfirer should position themselves at a firing location that is behind the direction of a blast, rather than in front of it.
While on site at the Quarry, Hamiltons was required to operate under Burgess' New SMS. However, Hamiltons had not been provided with a copy of the New SMS.
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 loading and firing a blast. 2. Mr Hamilton had established an exclusion zone around a blast area bounded by the weighbridge 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.
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 and shotfiring industry to apply a minimum 500m exclusion zone around a blast for personnel and a minimum 300m exclusion zone around a blast for plant and equipment.

[24]

Mine Safety Management System Prior to the Incident

In November 2017 Burgess engaged Safety Compliance Resources ("SCR") to conduct a review and improve Burgess' safety policies and procedures. SCR was engaged to undertake a desktop audit and gap analysis of the MSMS and develop the necessary updates to the current system to provide compliance with the latest legislation.
On 5 December 2017 Mr Craig Tickner, WHS Manager at SCR, led a workshop with Ms Sue Eagle, WHS Manager at SCR, Mr Judd and Mr Newman to facilitate a BroadBrush Risk Assessment and other risk assessments specific to the Quarry.
In addition to the development of the risk assessments, SCR, with the assistance of Mr Judd and Mr Warnes, updated the MSMS which comprised of the: 1. Mine Safety Management Plan. 2. Principal Mining Hazard Management Plans (including the Fire and Explosion Management Plan). 3. Principal Control Plans (including the Explosives Management Plan). 4. Contractor Management Plan.
Because Mr Judd and Mr Warnes were involved in the development of the new MSMS, Mr Russell Burgess held an expectation that Mr Judd and Mr Warnes would effectively implement the new MSMS at the quarries that they were responsible for managing.
Prior to the incident it was not Mr Russell Burgess' usual practice to observe all blasting activities at the Quarries as he considered Hamiltons to be a safe operator. Mr Burgess expected the Quarry Manager to report any issues regarding blasting activities to him. Up until the incident, Mr Burgess did not have any concerns about Mr Hamilton's blasting work or safety practices.
Mr Warnes told Mr Russell Burgess that on the occasions that Hamiltons undertook blasting activities at the Quarry and the Kapooka Quarry prior to the incident, Hamiltons had established exclusion zones around a blast area and ensured that workers not involved in a blast or acting as sentries were located at the weighbridge (at the Quarry) or the gates (at the Kapooka Quarry).
Mr Russell Burgess stated that as a qualified shotfirer, he is aware of the importance of blasting exclusion zones and that members of the public are not permitted to observe blasts.

[26]

Changes Introduced After the Incident

On 30 April 2018 Mr Russell Burgess telephoned SMSO Dillon and told him that he intended to appoint Mr Warnes as the Acting Quarry Manager. Mr Warnes commenced employment at Burgess in March 2010 as Plant Operator and in 2011 commenced in the role of Quarry Manager at the Kapooka Quarry. Mr Warnes held a Quarry Manager Practising Certificate and a Security Clearance issued by SafeWork NSW.
Mr Judd commenced in the role of Operator and remained in that role until resigning two to three months later.
On 15 October 2018 Mr Navybox commenced as the new Quarry Manager of the Quarry. Mr Navybox held a Quarry Manager Practising Certificate for a tier 1 quarry which exceeded the requirement for the Quarry as it is deemed a tier 2 quarry. Mr Navybox ceased working for Burgess on 7 January 2021. Currently, Mr Warnes is Acting Quarry Manager at the Quarry.
Burgess introduced a new role to provide an additional layer of supervision above the Quarry Manager. When Mr Warnes is not Acting Quarry Manager at the Quarry, he oversees the operations of the Quarry and the Kapooka Quarry. A large component of Mr Warnes' role is supervising activities at the quarries and ensuring their safe operations. Mr Warnes attends every blast at the Quarry and the Kapooka Quarry to ensure that the relevant safety rules are being followed. Mr Warnes is also responsible for Burgess' safety documentation and implementing Burgess' safety documentation.
Burgess has introduced the following further safety measures: 1. On 17 November 2018 Burgess introduced a Blast Management Plan which provides the basis for ensuring that safe practices and procedures for blasting are adopted. The Blast Management Plan was updated on 5 May 2021 and again on 8 June 2021. 2. On 11 January 2019 and again on 13 September 2021, Burgess updated the Explosives Control Plan ("ECP") which references and is read in conjunction with the Blast Management Plan. 3. On 22 January 2021 Burgess introduced a new SWMS and Risk Assessment for Drilling and Blasting which provides an overall risk assessment of the risks associated with blasting operations at the Quarry. 4. Burgess has introduced three checklists, each of which must be completed prior to a blast. 5. Burgess introduced a process of the quarries formally completing and submitting Daily Production Reports. 6. Pursuant to the ECP, Burgess engages MAXAM Terra Solutions ("MAXAM") for all blasts undertaken on site. MAXAM or its contractor Edge Drilling undertakes all drilling and loading of explosives. 7. Before a blast is conducted there is a toolbox talk and discussion of the blast, the exclusion zone, the firing location and the risks associated with blasting. 8. A blast exclusion zone of 800 metres must be evacuated prior to blasting. Only the shotfirer, blast guard and sentries are permitted to stand at the 800 metre mark. Any other Burgess worker must remain outside the Quarry gates and members of the public are not permitted to be on site.
On 22 June 2021 Mr Warnes trained all the Burgess employees who work at the Quarry and the Kapooka Quarry in the latest version of the Blast Management Plan and Explosives Control Plan, the SWMS and Risk Assessment for "Drilling and Blasting", and the three checklists.
Burgess employees Mr Warnes, Mr Leitch, Mr Christopher Frater and Mr Daniel Melbourne are currently completing a Certificate IV in Surface Extraction.
Burgess is in the process of reviewing and updating its MSMS to simplify it as part of its commitment to continuously improving its safety management systems.

[29]

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.
The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading "Assessment of Risk" said: "The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors."
Further at [42] his Honour continued: "The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: "It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken."
My findings about the defendant's level of culpability are based upon the following: 1. Burgess through its Director and Managers knew of the risk. In any event the risk was foreseeable and there was guidance material directed to this particular risk. 2. The likelihood of the risk occurring was significant. 3. The potential consequences of the risk were death or serious injury. 4. Simple and well-known steps were readily available to eliminate or minimise the risk. Indeed had Burgess followed its own safety system for blasting, most of the workers and other people put at risk would have been well outside the Quarry. Instead they were permitted by Burgess to stand in harm's way treating the Blast as some sort of entertainment. 5. There was no great burden or inconvenience in these steps being implemented. Burgess took remedial measures quickly after the incident. 6. Only through good luck most spectators at the Blast were uninjured. However Mr Power suffered Post Traumatic Stress Disorder. Six workers (most of whom should not have been there) and five members of the public were exposed to the risk of death or serious injury, for no reason. 7. The maximum penalty for each offence is a fine of $1,500,000, which reflects the legislature's view of the seriousness of the offence. 8. Burgess did have a documented safety system in place. That was of little use when personnel were not trained, supervised or even suitably qualified. 9. Hamiltons was the specialist shotfirer and clearly had its own duties. However Burgess was the owner and operator of the Quarry and had the power, and a non-delegable duty, to keep persons away from the Blast site.
I find that the level of culpability of Burgess is in the upper half of the mid range.

[35]

Totality

The charges in the two Amended Summonses arise out the same set of facts. The s 19(1) charge relates to the six workers who were exposed to risk during the blast. The s 19(2) charge relates to the five members of the public who were exposed to the same risk. The failure by Burgess to take reasonably practicable steps to guard against the risk is the same in both charges. I must therefore have regard to the principle of totality when imposing sentence. 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.
A recent example of a case under the Act in which this was done is the decision of Judge Scotting SafeWork NSW v Elgas Ltd [2021] NSWDC 101. His Honour found that the appropriate fine for breach of the s 19(2) duty was $425,000 and the appropriate fine for breach of the s 19(1) duty was $340,000. Taking into account the principle of totality his Honour imposed a fine of $100,000 for the s 19(1) offence. The total fines payable for the two offences amounted to $525,000.
At [89] his Honour said: "I have taken into account the principle of totality. The two offences arise from the same incident. For the breach of the s 19(2) duty, the establishment of an exclusion zone for other persons on the premises was an additional matter that should have been specified in the SOP and the tanker drivers trained on it. In my view, this offence was more serious because there were more people exposed to a risk of death or serious injury. For transparency in the sentencing exercise, I will nominate the appropriate fine for each offence but will reduce the fine for the s 19(1) offence to reflect the just and appropriate measure of the total criminality involved."
In accordance with the authorities referred to above I will take the same approach.
I regard the s 19(2) offence as more serious since five citizens who had no inkling of the possible risks and who had no protective equipment were exposed to the risk. They should not have even been inside the Quarry, let alone near the Blast.

Orr v Burgess Earthmoving Pty Ltd

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