Regan v Austar Coal Mine Pty Limited

Agreed facts 4The defendant was the nominated operator of the Austar Coal Mine - Underground Operation, located within Capital Consolidated Coal Lease Two, approximately 8 kilometres south-west of Cessnock in New South Wales. The defendant commenced mining operations in April 2005. The development consent for the mine permitted long-wall extraction height to 6.5 metres in the initial long-wall panels. At the time of the investigation into the circumstances of the offence, the defendant employed over 250 mine workers and staff and in the period 2006-2007 the mine produced 1.42 million tonnes of raw coal using long-wall top coal caving mining technology and continuous miner development units. 5The long-wall development units of the mine had soft rib conditions which tended to spall from the roof horizon during the development of roadways and further deteriorated when strata loading occurred during long-wall extraction. The Agreed Facts document conveniently explains a number of these terms. Long-wall mining is a method of mining which employs a steel plough or rotation drum which is pulled mechanically across a face of coal that is usually several hundred metres long. The loosened coal falls into a conveyor for removal from the mine. Long-wall top coal caving (LTCC) is a modified long-wall extraction technique considered to be ideal for thicker seams of 4.5 metres or more. LTCC has safety advantages which include providing greater face stability, operational control and management of spontaneous combustion, as well as enabling 80 per cent recovery of additional coal not able to be extracted by conventional long-wall mining techniques. A continuous miner is a machine that simultaneously extracts coal while it loads it and supports the roof and rib. A rib is the side of a pillar of coal, or the wall of an entry, or the solid coal on the side of any underground passage. Spalling occurs when coal falls from the roof horizon in the roadways underground. The roof is the overhead surface of a coal working place, the stratum of rock or other material above a coal seam. The roof horizon is where the roof and rib join. 6The continuous miner, the subject of the incident on 3 March 2008, was a Sandvik ABM 25-35 Bolter Miner (ABM 25-35). It was ordered from Sandvik on or about 5 May 2005 and delivered on 22 December 2005. The defendant engaged Geoff Miller of SP Solutions to conduct an operational risk assessment for ABM 25-35 on 1 February 2006. The operational risk assessment was completed at the mine prior to its commissioning. The process adopted for the risk assessment was aligned to Mining Design Guideline (MDG) 10/10 and AS/NZS 4360-2004 Risk Management. Although the risk assessment reviewed the use of the bolting rigs, it did not identify a risk of entanglement or identify any issue with respect to the shape of the handles on the Logic Control Blocks for the bolting rigs. 7Sandvik provided a compliance statement dated 4 May 2004 with ABM 25-35 upon supply. This compliance statement referred to a different machine located at a different mine, although a machine of the same or similar configuration as ABM 25-35. The compliance statement reviewed compliance against a number of Australian Standards and MDGs. On page 4 it listed a number of non-compliances with draft MDG 35. None of the non-compliances, however, related to the shape, location or separation of the handles on the Logic Control Blocks.

The Logic Control Blocks 8At the time of the incident, there were four roof bolting rigs on ABM 25-35. Each bolting rig had a separate Logic Control Block comprising individual control valve segments. The roof bolting rigs were located towards the front of the ABM 25-35. There were two roof bolting units on each side. In addition, there were two rib bolting units on ABM 25-35, one on each side, located to the rear of the roof bolting rigs. The rib bolting units were operated by separate Logic Control Blocks. 9Each Logic Control Block used to operate its bolting rig was approximately 35 centimetres wide and located at approximately waist height. Each was housed in a metal console. The Logic Control Block for the right-hand outer bolting rig (involved in the incident) was located approximately 500 millimetres from the bolting rig. 10The controls on the Logic Control Blocks consisted of levers which were pushed or pulled by the operator in order to operate the bolting rig. There were six levers on the Logic Control Blocks to operate the roof bolting rigs. From left to right, the functions of the levers were: (i) tilt - tilts the bolting rig forward and backward; (ii) tilt side-to-side - tilts the bolting rig from side to side; (iii) timber-jack - raises and lowers the timber-jack; (iv) feed - raises and lowers the drill chuck; (v) rotate - causes the drill chuck to rotate; and (vi) automatic - puts the rig in automatic function when operated in conjunction with one of the other control levers. 11Each Logic Control Block was comprised of separate Logic Control valve segments, each of which operated a separate function of the drill rig. The lever on the Logic Control valve segment that controlled a specific function was in the same position on each of the Logic Control Blocks. The Logic Control Blocks on each side of the ABM 25-35 were a reverse of each other. On each Logic Control Block, the feed and rotate levers were located on a higher level of the Logic Control Block to provide additional means of differentiation between the functions. The timber-jack, automatic and tilt-forward and backward levers were located one level down and the tilt side-to-side lever one level further down again. An emergency stop button was located to the side of the Logic Control Block and could be operated by standing in a position to operate any of the levers. 12There was a guard rail in front of the levers to prevent inadvertent operation and a guard over the top of the levers to prevent the levers from being struck from above. 13There was, however, no barrier between the feed and rotate handles to prevent their simultaneous operation with one hand. As at 3 March 2008, there were no commercially available Logic Control Blocks which required two hands to operate them.

Change of roof bolting rigs 14At some stage, Austar made enquiries with Sandvik concerning the supply of a spare set of roof bolting rigs, but was advised by Sandvik that they had been superseded and it was no longer able to supply them. On 19 September 2006, Austar placed an order with Sandvik for a replacement set of new drill rigs. These were delivered to the defendant on 22 May 2007 and commissioned on 25 June 2007. The defendant replaced the old roof bolting rigs with the new drill rigs, but did not replace the Logic Control Blocks at the same time. According to the Agreed Facts, this was because they were still fully functional and replacing them would require cutting and welding in the console which housed them. In addition, because of additional hazards associated with the cutting and welding underground, the replacement of the Logic Control Blocks would have required AMB 25-35 being removed to the surface which in turn would have resulted in a significant amount of down-time. At the time of the incident on 3 March 2008, therefore, the Logic Control units supplied in November 2005, had not been replaced. Two handles were replaced on ABM 25-35's right-hand outer drill control unit during routine maintenance by a Sandvik technician, who attended the mine on a weekly basis as part of the routine maintenance cycle for the mine which included maintenance work on the ABM 25-35.

The system of work for strata support installation 15The ABM 25-35 required four mine workers to operate it. Two worked on the right of the machine and two on the left. One of the mine workers on the right-hand side was also the driver of the machine which was driven by remote control. The roof bolting rigs were operated by one man on each side of the machine with the second man to assist. One mine worker operated all three bolting rigs (two roof bolting rigs and one rib bolting rig) on his side of the ABM 25-35. The roof bolting rigs were used to drill holes in the roof and the rib bolting rigs were used to drill holes in the ribs of the mine. The rigs were then used to install bolts which, when combined with steel mesh sheets, bound the strata to reduce risk of collapse of the roof rigs. 16At the mine, the defendant had developed a strata support system which involved bolting overlapping steel mesh to the ribs and roof. The bolts were 1.2 metres apart and the outer roof bolt was used to pin two roof mesh sheets and the rib sheet together (three sheets in total) on the roof near the join of the roof and rib. The roof mesh sheets were constructed from heavier gauge steel than the rib mesh. The rib mesh was pliable and could be bent by hand, whereas the roof mesh sheets could not. 17The system involved the following process: (i) a sheet of roof mesh was placed onto the temporary roof support (TRS); (ii) the edge of a sheet of steel rib mesh was bent in order to overlap with the two sheets of roof mesh - one already attached to the roof and one on the TRS; (iii) in order to place the roof and rib mesh in the correct position a drill steel (a piece of steel to which a drill bit could be attached) or guide steel (a piece of steel similar to a drill steel to which a drill bit could not be attached) was placed into the chuck of the outer roof bolting rig; (iv) the drill steel or guide steel was then raised to protrude through all three layers of mesh; (v) once the steel was holding the mesh in the correct position the ABM 25-35 would tram (move under its own power) forward about a metre, the TRS would be raised pinning the roof mesh to the roof and either the hole for the roof bolt drilled with the drill steel or the guide steel could be replaced with a drill steel for the hole for the bolt to be drilled; (vi) lowering and removing the drill steel and replacing it with a roof bolt and then installing the roof bolt. 18This system of work did not require the worker to have his hands on or near the mesh or the top end of the drill steel when operating the controls of the roof bolting rigs. 19The drill bits predominantly used at the mine were twin wing-tipped drill bits which could catch the steel mesh when used during the alignment process. The twin wing-tipped drill bits were used because of specific conditions at the mine which made other drill bits not as effective or efficient. 20At the time of the incident there was no documentation: (i) describing the whole of the process of bolting and mining using the ABM 25-35; (ii) describing the system of work which referred to the use of a drill steel to align the two roof sections of steel mesh and the rib mesh; (iii) concerning whether or not a drill bit should be attached to a drill steel during the alignment stage; (iv) setting out the length of steel to be used as a guide steel and whether or not it should have a drill bit attached. The choice of guide steel was left up to the individual worker. 21Written detail was provided in a Start of Roster Meeting (STORM) on 29 March 2007 where the workers were issued the following instruction: Our roof support will be as per Manager's Rules and increased as required depending on conditions. However, to keep our support as close to the face as possible and minimise the exposed roof from face to last support we ask that prior to the bolt-up cycle the head be set one-third off the floor, the mesh then placed in position with a drill steel in place to hold mesh, then sump head into face 100 mm. By using the stab jacks we can achieve an even better result. 22This system of work was developed because of the particular strata conditions at the mine which required additional strata support to be installed. The overlapping of mesh at the corner of roof and rib was considered necessary to achieve a better and more secure confinement and provide greater safety and security for the workers. The system could be varied to suit the changing strata conditions encountered at the mine. 23Sandvik had provided recommended safe work procedures on the system of work for roof bolting to the defendant when ABM 25-35 was supplied, but this system could not be used at the time of the incident as it was designed to be used with W-straps (ribbed steel plates used as cross-roof support and held in position by roof bolts) and not mesh. Mesh was required to be used at the mine because of the condition of the strata there. 24As at 3 March 2008 no risk assessment had been completed in relation to the installation of three layers of mesh for strata support.

The injured worker 25Mr McSporran was employed at the mine as a permanent full-time mine production worker. He commenced work for the defendant in November 2005 and worked on a shift roster on ABM 25-35, either driving the machine or using the roof and rib bolter. 26His training in the system of work on ABM 25-35 consisted of on-the-job training from the other mine workers. He was shown what to do when he commenced his employment by the mining crew in the panel. Mr McSporran received training from the defendant in bolting procedure and in the operation of ABM 25-35. 27During his first twelve months of employment at the mine Mr McSporran was subject to a series of "safe behaviour audits" which was the defendant's practice with all new and inexperienced workers. On 2 February 2006, he was audited in relation to the use of a roof bolter on a continuous miner. The audit found that he performed the tests in a safe and appropriate manner. On 23 September 2006, Mr McSporran was again audited in respect of production work using an ABM continuous miner. That audit also found that he performed the work in a safe and appropriate manner. On 8 February 2007, he was assessed as competent for ABM drill rig operations and on 7 January 2008 he was assessed as competent to conduct continuous miner operations.

Training of employees 28Mine workers received training and information on strata support placement, bolting techniques, and safe work procedures. Following earlier incidents in which workers were injured, tool box talks were conducted to remind workers of the dangers involved with regard to those incidents. 29In tool box talks the workers, including Mr McSporran, discussed hazards perceived by them to arise in their job and were given information about incidents which had occurred at the mine and the risks associated with the use of the bolting rigs. 30All mine workers were required to demonstrate their competency in operating plant and equipment used at the mine prior to being permitted to operate it. Once their competency had been established they could be issued with an appointment to operate the plant and equipment in conformance with mining industry practice.

The incident 31The precise circumstances of the accident remain unknown. According to the Agreed Facts, shortly before the incident Roger Ansems, the driver of the ABM 25-35, bent the end over on a sheet of rig mesh and handed it to Mr McSporran. Mr Ansems then pushed the button to lower the TRS canopy and turned to walk back to get the remote control for the machine. The ABM 25-35 had electrical power switched on at that time, but was stationary in cut and bolt mode. It was not tramming forward at the time of the accident. Mr McSporran placed the two sheets of roof mesh (one attached to the roof and one on the TRS) and one sheet of rib mesh on a guide steel. The guide steel he used was a 1.3 metre drill steel with a 27 millimetre twin wing-tipped drill bit attached. 32Mr McSporran gave two versions of events that occurred immediately thereafter. In his first interview he said that he remembered standing and waiting for Mr Ansems to finish the rib mesh and then remembered being lifted up and did not remember much else. In his second interview he said that as far as he could remember both his hands were on the mesh holding it down. He was unable to say how the drill commenced rotation. He gave the following description of how the accident occurred: The machine was ... at a standstill and we were ready to move forward to ... the next cycle, and I remember putting the roof mesh on and the rib mesh on, and holding the rib mesh down ready to move, and I remember turning around and looking at the miner driver to see, you know, if he was ready to move forward, and all of a sudden I felt an excruciating pain and ... that was my left arm. 33Mr McSporran could not remember whether his right arm rested on the control unit for the roof bolting rig. There was no evidence that any action of Mr Ansems, or the other two mine workers on the other side of the machine, caused the accident.

Objective seriousness of the offence 34The defendant had, at the time of the offence, a comprehensive system of safety in force at the mine which mitigates what was otherwise a serious breach of s 8(1) of the Act. 35The safety systems prevailing at the mine at the time of the incident have been conveniently set out by Francis Xavier Fulham in his affidavit of 3 March 2011. Mr Fulham has been the General Manager of the mine since 2 June 2008. 36At the time of the incident, the defendant had a health and safety management system in operation which was known as the Austar Coal Mine Safety Management Plan dated 5 June 2006. The Plan had been updated on a regular basis since 2006. It was developed to meet the requirements of two Australian Standards, namely, AS/NZS-4801: 2001, and AS/NZS-4804: 2001. 37The Plan was implemented at the mine through a number of mediums, one of which was the STORM. According to Mr Fulham, STORMs were daily meetings conducted by the Undermanager covering a range of topics including occupational health and safety and performance. Another medium of implementation included toolbox talks which were generally given to the mining crews and concerned safety issues, hazards, risk assessments, safety publications and other information, for example, fire fighting training session dates. Guidelines were developed for the conduct of toolbox talks. The guidelines in force at the time of the offence stipulated, for example, that toolbox talks were to continue, as necessary, as part of the STORMs before any work was commenced. They consisted, in summary, of the following: safety; production; outbye updates. 38The toolbox talks were also a medium of communication for such matters as: incidents, near-misses, or hazards; the suspected cause of incidents; control mechanisms to address an incident, near-miss, or hazard; relevant safety documentation; relevant MDGs and draft MDGs; and, relevant Australian Standards. 39The defendant also had an operational OHS Committee at the time of the incident. The Committee had been established pursuant to the Austar Coal Mine OH&S Committee Charter 2005. All committee members received training conducted by Coal Mine Services Pty Limited in relation to carrying out their functions as members of the Committee. The Charter set out the functions of the Committee which included the following: reviewing measures to ensure health, safety and welfare of the workforce; resolving and investigating any health and safety problems that may affect the workforce; inspecting the workplace as required in a manner determined by the OHS Committee; having access to information regarding accidents or near-miss accidents and occupational diseases in the workplace; and, having access to information regarding the risk to health and safety of equipment. 40The OHS Committee met on a monthly basis. 41In addition, all personnel at the mine, including visitors and contractors, received induction training during which employees were provided with risk management training in relation to risk identification and assessment. At the time of the incident, employees were trained in relation to the operation of vehicles and machinery. The training consisted of a three-stage process during which employees were required to demonstrate their competency when operating particular vehicles or machinery. Mr McSporran, as earlier indicated, had been assessed as competent in drill rig operations on 1 February 2007, and in the operation of drill rigs on the ABM 25-35 on 9 February 2007, and, in the operation of the ABM 25-35 on 7 January 2008. 42The defendant also had a training programme for inexperienced mine workers. Competency records were maintained for every employee from July 2005. 43When Mr McSporran commenced employment at the mine he took part in an induction training programme. He also completed other training and was assessed as competent in areas which included: no standing/safe zones during cutting for remote control miners (27 September 2005); the application of risk management processes (obtained in February 2006); working alone in the underground parts of an underground coal mine (28 May 2007); and, operating platform drill rig operations (29 August 2007). 44The Department of Primary Industry (now known as the Department of Industry and Investment) (DII) had also conducted a training and competence performance review audit of the defendant's mining operations on 18 February 2008. In its summary of findings, it concluded that there were no major non-conformances identified during the audit. 45The system being employed by Mr McSporran on the day of the offence was unsafe in a number of respects as reflected in the defendant's plea of guilty. On the day of the offence, for example, the defendant knew that twin wing-tipped drill bits, which were the main drill bits used at the mine, could catch on the steel mesh because this had happened before. To avoid a recurrence of those incidents bolt cutters had been placed in the continuous miners. According to the prosecution, in submissions, although the immediate cause or causes of the accident remain unknown, the accident could have been avoided if Mr McSporran had been instructed to use steel without a drill tip that could catch on the wire mesh. The defendant had developed its own strata support system which involved the use of overlapping steel mesh. The system, as earlier noted, had developed in response to the conditions in the mine, which, according to the Agreed Facts, could not accommodate Sandvik's recommended system for roof bolting which used W-straps. The problem with the defendant's system was that it had not been assessed for risks. 46In May 2005, the DII published a safety alert entitled "Safety Alert: Drill Rigs and Serious Injuries" (SA05-05). The SA05-05 referred to a number of serious drill rig injuries which had recently occurred at underground mines. It made a number of recommendations, including the use of appropriate risk management processes for drilling and bolting operations. It recommended that systems of work employed in providing roof and rib support must utilise equipment in order to provide a safe workplace, and, as far as practical comply with the intent of Australian Standard AS 4024.1 - "Safe Guarding of Machinery - General Principles". The Standard lists a number of methods of minimising or eliminating hazards and risks such as, "using different physical shapes for different controls". 47In October 2005, draft guideline MDG 35 was promulgated. Its purpose was to assist various stakeholders, including owners and operators of mobile drill rigs, when assessing safety aspects of mobile bolting equipment used at underground coal mines. In relation to the use of bolting rigs, it recommended that drill feed and drill rotation manual controls should be separated from each other so that both controls cannot be operated by one hand. It explained that this measure was to prevent single-handed operation for drill feed and rotation because of incidents that had occurred due to the operator using his or her free hand while drilling. The draft MDG also contained recommendations in relation to the shape of the handles on the Logic Control Blocks. 48Draft MDG 35 was followed in August 2006 by draft MDG 35.1, which was released for industry comment. It included the following recommendations: 3.5 Controls The bolting and drilling rig controls should be designed to minimise the risks associated with the operation, maintenance and inadvertent operation of bolting and drilling equipment controls, such as: (a) entrapment; (b) incorrect selection of controls; (c) incorrect functionality; (d) incorrect movement. Controls shall be protected to prevent accidental contact by external objects, such as operator or hauling material (roof or rib). 3.5.7.1 General Drill rotation and drill feed manual control shall be separated from each other such that these controls cannot be operated by one hand. NOTE: This is to prevent single-handed operation for drill feed and rotation. Accidents have occurred due to operators using their free hand while drilling and subsequently becoming entangled. 3.5.7.2 Labelling and Shapes of Primary Bolting Controls Rotation controls ... three balls Feed control ... round disc Timber jack control ... rectangle. 49On 18 January 2007, Sandvik produced a technical bulletin, TB 0702, in relation to ABM 20 and 25 continuous miners. The bulletin advised of the new Logic Block handles which conformed to the recommendations set out in the draft MDGs. The bulletin contained a diagrammatic representation of the different handles on the Logic Block Controls recommended by the draft MDGs. According to the Agreed Facts, it is not known whether any of the managers at the defendant's mine were aware of the bulletin before the incident on 3 March 2008. 50There was no dispute between the parties that by reason of the dissemination of the foregoing documentation, in particular, the draft MDGs and SA05-05, the risk of entanglement in moving drill rigs was known within the coal mining industry prior to the date of the offence. The defendant was aware of the documentation, and generally of its contents. Moreover, both SA05-05 and the draft MDGs set out controls directed at obviating the risk. The defendant was also aware of the risk associated with using steel mesh and twin wing drill bits which caught the mesh, as this had occurred previously. The defendant had taken measures designed to obviate the risk by ensuring that wire cutters were placed in the continuous miners. These matters indicate that the risk of entanglement was reasonably foreseeable and appeared in fact to have been foreseen. The defendant, while conceding that the risk was reasonably foreseeable, disputed the prosecution's contention that it was foreseen. According to the defendant, it had engaged Geoff Miller of SP Solutions to conduct an operational risk assessment for ABM 25-35 on 1 February 2006 and, at no stage, was the risk of entanglement identified. Assistance had also been sought from the designer of the ABM 25-35, Sandvik, which provided regular maintenance of the machine and at no time had Sandvik identified the risk of entanglement. 51There can be little doubt that the defendant, prior to the offence, had a number of safe systems operating at the mine. The Court has found that the existence and implementation of those systems operate in mitigation of the objective seriousness of the offence. Insofar as the debate between the parties with regard to whether the subject risk was foreseen, any reliance on Mr Miller's risk assessment must be accorded little weight. This is because it pre-dated draft MDG 35.1 which specifically identified the risk of entanglement arising out of the single-handed operation of the drill rotation and drill feed manual control and the failure to separate the controls in order to prevent operators using their free hand while drilling and subsequently becoming entangled (see draft MDG 35.1 at "3.5.7.1 - General"). 52Also of relevance to the issue of objective seriousness were the number of simple straightforward remedial steps which could have been taken at any stage prior to the offence in order to avoid the risk of entanglement. These steps have been conveniently set out in the Agreed Facts as follows: [64] Immediately following the incident the ABM 25-35 was withdrawn from service and a temporary isolating cover was affixed to the rotation lever on the right hand outer bolting rig control unit to prevent its use for the duration of the investigation. [65] Shortly after the incident a metal dividing plate was fixed between the feed and the rotation handles in order to prevent both handles being operated by a single hand. [66] A Field Service report on 12 March 2008 recommended that all roof bolter and rib bolter handles be changed. By September 2008 the drill rotation handle was three stacked balls, and the drill raise handle was a flat disc, as recommended by the draft MDG 35.1. For example, the shape of the rotate handle was three stacked balls, and the feed handle was a flat disc. [67] A new procedure for installing roof support, SWP-122 was introduced on 12 March 2008. The procedure required roof and rib mesh sheets to be installed separately with no overlap. At no time would there be three sheets of mesh to be joined together. [68] Following the incident, an investigation was conducted into differently designed drill bits which would not easily catch the steel mesh. Full spade bits, which had no opening to catch the mesh and modified spade bits which had an opening too small to catch the mesh were possible replacements for the twin wing bits. The full spade bits were purchased and were to be trialled. It was noted that these bits had caused more frequent blockage of the steel in the past and this would be monitored. [69] A designated guide steel was made available to mine workers. This guide steel had the drill bit thread removed so that a drill bit could not be fitted to the guide steel. [70] These steps were taken at Austar's initiative and did not require the issuing of any statutory notices. 53The prosecutor also submitted that the injury to Mr McSporran was serious and could have been more serious, even fatal. The Court agrees that the injury could have been more serious, but stops short of any finding that it could have been fatal. There is insufficient evidence upon which such a finding could be based. The SA05-05 refers to the types of injury sustained as a result of drill rig incidents occurring at underground mines. These include, "fractures, amputation of fingers, severe soft tissue damage, nerve damage, crush injuries, lacerations and strain". There is no specific mention of the risk of entanglement having caused a fatal injury. 54There is plainly a need in this matter to impose a penalty at a level that will draw the attention of those operating in the mining industry to the necessity of engaging in mining practices that conform to the requirements of the Act: see, for example, Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117 at [101]. In relation to specific deterrence, the defendant conducts an enterprise in one of the State's more dangerous industries. It continues to operate in the industry with a workforce of some 250 employees. In applying the principle I take into account the considerable steps taken by the defendant following the offence to remedy the defects in the machine and to ensure that the risk will not recur. 55The defendant faces a maximum penalty of $550,000 under the Act.

Subjective factors 56According to the prosecution, the defendant entered its plea of guilty following four directions hearings. It was submitted by the prosecution that in the circumstances a discount in the order of some 20 per cent was warranted for the utilitarian value of the plea. It was put on behalf of the defendant on this issue that a discount within the range of 20 to 25 per cent was warranted, but the Court was at liberty to award a discount higher than 20 per cent when consideration is given to a number of factors. These include the fact that the defendant is a corporation charged with an offence under the Act, and such matters take a very significant time to investigate, usually culminating in the production of a large brief of evidence which requires some time in which to assimilate relevant information before contemplating whether a plea of guilty should be entered. The defendant also pointed to other considerations which, it was submitted, were relevant. These included the amount of court time taken up and any inconvenience to witnesses. 57The prosecution, in submissions, conveniently set out a number of authorities on the issue. In one of those, R v Robert Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32], the Court of Criminal Appeal set out in point form, principles laid down by that Court to be applied by sentencing courts in the application of the discount for the utilitarian value of a plea. Some of those principles are set out below: (a) a discount for the utilitarian value of a plea will be determined largely by the timing of the plea so that the earlier the plea the greater the discount ( R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [154]); Regina v Warren Alan Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 at [116]; (b) some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154]; (c) the utilitarian discount does not reflect any other consideration arising from the plea such as saving witnesses from giving evidence, although this is relevant to remorse: Thomson at [119]-[123]; (d) generally the reason for the delay in the plea is irrelevant because if it is not forthcoming the utilitarian value is reduced: Regina v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510; Nguyen Giac v R [2008] NSWCCA 280; (e) the utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Regina v Dib [2003] NSWCCA 117; Ahmad v Regina [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: TC v Regina [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis ; Saad v R [2007] NSWCCA 98. 58The amount of the discount is not necessarily dependent upon the administrative arrangements, or any practice of a particular court, or by a particular judge for the management of trials, or otherwise. In Regina v Dib , Hodgson JA observed: If a plea is entered a long time after a person is charged but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25 per cent discount and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount. 59The Application for Order in these proceedings was filed on 18 February 2010 and first came before the Court on 23 March 2010. Directions hearings followed on 24 May 2010, 9 August 2010, and 23 September 2010. On 12 October 2010 the defendant entered a plea of guilty to an amended Application for Order handed up in Court the same day to the particulars in the amended charge, with the exception of Particular 2(c). Neither party in submissions provided any explanation for the delay of some several months before the plea was entered to the amended charge. In the circumstances and taking into account the authorities mentioned above, it is appropriate to assess the utilitarian value of the plea at 20 per cent. 60The defendant has no prior convictions and is entitled therefore to leniency normally extended to an offender not adversely recorded. 61On the issue of contrition, the defendant authorised Mr Fulham to make the following statement on its behalf to the Court: The Board of Austar and I deeply regret the breaches of the Occupational Health and Safety Act 2000 to which a plea of guilty was entered in relation to this incident, and that Mr McSporran suffered serious injuries as a result. Austar accepts responsibility for its part in the incident and has consequently entered a plea of guilty to the charge. Austar is committed to making sure that incidents of this kind do not occur again and has taken significant steps in this regard. 62In his affidavit, Mr Fulham also set out a number of remedial measures implemented at the mine following the offence. These include in summary form a risk assessment for the purpose of identifying hazards and risks associated with the operation of the bolting rigs and the installation of roof support. The defendant engaged a safety specialist to facilitate this risk assessment. New safe work procedures were also introduced for installing roof support. Two-handed control bolting rigs were introduced on 12 December 2008, and training on the bolting rigs was provided following the installation of the two-handed drill rigs, in January 2009. The defendant also spent considerable amounts of money on training and safety-related initiatives from 2008. The approximate amounts have been set out by Mr Fulham in his affidavit: (a) $867,980.03 (2008); (b) $923,321.33 (2009); and, (c) $1,178,591.13 (2010). 63Mr Fulham also records that the training budget has been allocated by the defendant for the calendar year 2011 in the amount of $1,650,000. 64These measures, together with those post-offence measures earlier set out, are both extensive and comprehensive and demonstrate the defendant's commitment to occupational health and safety matters at the mine. They also meet with the requirements of s 21A(3)(i) of the Crime (Sentencing Procedure) Act 1999 being evidence of contrition expressed by the defendant which will be taken into account on penalty. 65The defendant also provided assistance to Mr McSporran in the form of a return-to-work programme on 4 August 2008. 66The defendant has also demonstrated good corporate citizenship. Mr Fulham's affidavit sets out the defendant's support for its local community and charitable groups through financial donations and sponsorships within the last three years.

Victim impact statement 67During the sentence proceedings, the Court received a victim impact statement from Mr McSporran. His statement illustrates the dreadful impact that the accident has had, both on himself and on his family. Some time after the accident, Mr McSporran had to have a prosthetic arm fitted. As a result, Mr McSporran found that he was not able to participate in the usual activities with his son, for example, helping his son put together a new Star Wars toy. He has also had to cope with his children being teased at school on the basis that their father is not able to do certain things anymore. He has also experienced some psychiatric problems as a result of the injury, which culminated in admittance for a short period of time to a psychiatric hospital. On a more positive note, Mr McSporran, who described himself as a lover of sports, has been able to return to a number of sporting activities with success. He related, however, that he experiences constant pain in his arm, which he continues to endure. He said that the accident has resulted in a huge change in his life, but that overall he has wonderful support from his family and friends and he knows he can achieve a lot more in years to come. 68The Court can only express its deepest sympathies for the difficulties that Mr McSporran has had to endure as a direct result of the accident and hopes that his positive attitude will remain with him and that he will continue to enjoy the support of his family and friends.

Particular 2(c) 69Particular 2(c) alleges that the defendant had no safe or no adequately safe system for circulating, either electronically, or by printed copy, certain specified documents, namely, MDGs, draft MDGs 35 and 35.1, AS 4024.1, and "safety information issued by (DII), or information about those documents" to its employees to alert them to measures necessary to adopt to ensure plant such as the Logic Control Blocks on ABM 25-35 was safe. 70In proving the Particular, the prosecution relied on the evidence of several witnesses called during the proceedings. The evidence of the witnesses is summarised below. 71At the time of the offence, Anthony Bendeich, was employed at the mine as a mechanical operations engineer. He explained that there were three distinct departments, or streams, operating at the mine at the time of the offence. The first of these was the mechanical stream in which he was directly involved, followed by the electrical stream, and the mining stream. The mining stream involved the actual mining operations of the type in which Mr McSporran was engaged at the time of the incident. In examination-in-chief, Mr Bendeich said he was familiar with certain sections of AS 4024.1. He was familiar with draft MDG 35 and MDG 35.1 at the time of the offence. He could not recall SA05-05 issued by the DII. He had seen and was aware of the general contents of the draft MDGs, although he did not have a thorough working knowledge of them. He knew, for example, that draft MDG 35 cross-referenced AS 4024.1. He said the Standard is a generally recognised document within the mining industry, as are the MDGs. He explained that draft MDG 35.1 recommended that drill rig controls had shapes or were required to have shapes or were recommended to have shaped handles that were specific to the functionality of the handles. In cross-examination, he said that he had seen Safety Alerts at the mine. He said they were generally posted on noticeboards around the mine on a frequent basis. He also said that any relevant information deemed necessary to be passed on to the mining crews was disseminated via the toolbox talk format, which was delivered to each crew at the start of a shift generally by the Undermanager. He said that he was often the author of those toolbox talks and that the subject matter of the talks involved safety issues which included safety topics contained in the various Safety Alerts. He also mentioned receiving safety information from Sandvik while he was working at the mine. He also said that reports produced by departmental inspectors who attended the mine from time to time were posted on noticeboards at the mine. He explained that the STORM meetings were avenues of communication for relevant safety information. He attended those meetings as often as he could. In re-examination he recalled the content of a Safety Alert which he said he had received from Sandvik, explaining that it was in relation to handles recommended by the draft MDGs, although he could not recall the medium through which that "safety alert" was communicated to him. 72The second witness, Anna Walsh, was a mining engineer employed at the mine at the time of the offence. She was not sure whether she received Australian Standards, but she knew of their existence. She recalled receiving Safety Alerts at the mine by email and she also saw Safety Alerts on the noticeboard at the mine. It was not part of her job description to notify any person at the mine of the contents of the Safety Alert she received. She could not specifically recall having received a copy of SA05-05. In cross-examination, she explained that she had seen MDGs and Australian Standards prior to working at the mine. She explained that her sphere of operations at the mine was in technical services which was different from the area of responsibility for the extraction of coal (the mining stream). She said she attended all safety meetings and also attended operations meetings which mining stream personnel also attended. She raised safety matters at those meetings. Her sources of information were Safety Alerts and mining incidents. She was aware of the draft MDGs. She attended toolbox talks where safety issues were discussed. Topics included the discussion of Safety Alerts. She said documentation recording the toolbox talks was published on the noticeboard and each record of a toolbox talk was read out at the start of each shift before being displayed on the noticeboards. She also saw reports produced by the departmental inspectors which were placed on the noticeboards. 73The next witness called by the prosecution was Anthony Joseph Linnane, employed by DII. Mr Linnane worked at the mine at the time of the offence as the Acting Manager of Information and Communication. He said that the DII prepared information in the form of MDGs, Safety Alerts, Safety Bulletins, Safety Newsletters, etc. He explained that the Safety Alerts were published on the Department's website and distributed electronically to members within the Department. The Safety Alerts were also produced in hardcopy and distributed to people in organisations in the mining industry. 74The next witness called by the prosecution was Stephen John Chandler, employed at the mine at the time of the offence as a production superintendent. He said he was not familiar with AS 4024.1, but was familiar with draft MDGs 35 and 35.1. He was also familiar with SA05-05. In his role as production superintendent at the mine, Mr Chandler explained that one of his functions was to ensure that the mine inspection system in place was complied with. Another function involved the organisation of communication paths and in that regard he set up the toolbox talk system in order to disseminate information at the start of every shift. He said that the toolbox talks dealt with safety issues. He said that Safety Alerts were received at the mine from the DII and that information in those Safety Alerts he deemed relevant would be read by him at the toolbox talks. They were also placed on noticeboards located outside the bathhouse and in the muster area. He also said the Undermanager would read out Safety Alerts to persons present at the toolbox talks. He also said that Safety Alerts were also presented in the OHS Committee meetings which he attended when the mine manager could not attend. In re-examination he said that all Safety Alerts deemed to be of relevance to his area of expertise were disseminated by him within the mine. He said he received all Safety Alerts sent to the mine. With regard to the draft MDGs he said that they were works in progress and he could not recall whether, at any of the meetings he attended, he had referred to the MDGs. 75The next witness called by the prosecution was Sharif Burra who was the Acting Mine Manager at the mine for a period of three months prior to the offence. Before his appointment as Acting Mine Manager he was employed in the technical services team at the mine. He explained that in that position he focussed on issues of ventilation, spontaneous combustion, strata control, scheduling and plant, etc. He confirmed that during the period up to 3 March 2008 he saw Safety Alerts which had been issued by the DII. He said that upon receipt at the mine, the Safety Alerts were mailed directly to himself as the manager of mining engineering and were put on the noticeboard as required for a period of 30 days. He explained that the noticeboard was locked so people were unable to remove documents placed there until 30 days had expired. In his capacity as Acting Mine Manager, he also said he attended many of the occupational health and safety committee meetings where he said Safety Alerts were tabled by members of the Safety Department. He said he also attended STORM meetings. He said the type of information presented at those meetings involved safety information which was passed on to people with regard to operations, or events that may have occurred. He said the findings or results of inspections by DII inspectors would often be tabled at those meetings. Mr Burra said that the STORM meetings were used to communicate a wide array of safety-related material and issues. They were used as a means of training in relation to likely conditions that might be encountered during underground mining operations. He said toolbox talk meetings typically took place on a shift-by-shift basis. He said he attended many toolbox talks and that one of the primary objectives of those talks was to convey information to the workforce at the start of each working shift. 76In support of its case, the prosecution also tendered a statement of Barry John McKay who was employed at the mine at the time of the offence as the manager for mechanical engineering. Mr McKay explained that his primary function in that role was to advise the Mine Manager on standards and systems of safety in his area of discipline. He said he alerted the Mine Manager to any major deviation to those standards, or procedures, or safety concerns. He said he received Safety Alerts issued by the DII. He recalled receiving SA05-05 dated 4 April 2005 at some stage before the incident of 3 March 2008. He also recalled draft MDG 35 and draft MDG 35.1. The latter document he said was first brought to his attention in August 2006 during a presentation at the mechanical engineering-in-charge meeting. He was shown a copy of draft MDG 35.1 dated August 2006 and confirmed that that was the document to which he had been referring. He also said he was aware of a review at the mine prior to the offence of the rig upgrade of the control unit by reference to draft MDG 35.1. Having been made aware of the document the mine, he said, wanted to improve the ergonomics and layout of the installed rigs. 77The prosecution also tendered a statement of Graham Morris who was employed as a shift Undermanager at the mine on 3 March 2008. He described his role as organising working shifts at the mine, allocating men, planning the work, attending to any safety issue that was raised or found, and all functions which involved organising operational issues. He was also aware of the Safety Alerts put out by the DII. He said they were emailed to them through the user process and were also on the noticeboard and were usually read out at the start of shift meetings. He also recalled seeing SA05-05 dated 1 April 2005. When asked if he had any recollection of any specific items in SA05-05 addressed at the mine he said: Well all these points are relevant to bolting so and all of these things have happened so yeah it's just something that I understand and ... am mindful of .... He did not have any knowledge of draft MDG 35, but he said the MDG would have been placed on the noticeboard. He did not recall seeing draft MDG 35.1. 78The prosecution also called Antony Smith, an Inspector employed by the DII. Inspector Smith explained that part of his duties involved an investigation into the circumstances of Mr McSporran's accident at the mine on 3 March 2008. He said that during the course of the investigation he caused to be sent a s 62 Notice to the defendant requesting a number of documents. He was asked in evidence to look at a s 62 Notice and he confirmed that it was a copy of the Notice he served on the defendant on 18 March 2008. He also identified certain documentation sent by the defendant in response to that Notice. It emerged in evidence that the documentation identified by the Inspector was in relation to only one category of seven categories of documents requested in the Notice, namely, documentation in response to Category 5 which requested training records relating to roof/rib bolting tasks for an unspecified period and in relation to all continuous miners in use at the mine. It also emerged in the evidence that he had caused to be served on the defendant two s 62 Notices, requesting documentation. He was unable to identify with any certainty other documentation sent by the defendant in response to either Notice. 79The prosecution also called Greig Duncan, who was a senior site executive at the mine on 3 March 2008. Mr Duncan said he was not familiar with AS 4024.1, but he was familiar with draft MDG 35. He was not familiar with draft MDG 35.1. He explained that safety bulletins and Safety Alerts were sent directly to him at the mine and he distributed them around the site. He said he accessed the latest information that was available on the DII site and also attended seminars and read articles and other technical information. He explained that Safety Alerts that came from the DII which he received would automatically be entered by him on a circulation list and given to his personal assistant who then distributed that information around the site. He also said that anything that came across his desk pertaining to the operation of the mine that he believed was relevant would be copied by him to the departmental heads at the mine. With regard to the draft MDGs, he said he was familiar with them but not across all the detail and he did not disseminate the draft MDGs around the site. He said Safety Alerts were also put on the noticeboards. In cross-examination, he explained that his role at the site was making sure budgets were met in line with systems put in place for the extraction of the coal. He also explained that from time to time he stepped into the role of Acting Mine Manager and at those times he had a more detailed involvement in mining operations. He also said he attended a daily meeting where any safety issues that had arisen in the previous 24 hours were discussed. Following those meetings, generally a report would be furnished, an incident investigation would follow and it would be reviewed at another meeting. The daily meetings, he said, were attended by the Mine Manager, statutory engineers, representatives from technical services and from other operation groups, representatives from the coal preparation plan, and representatives from projects. He also attended monthly meetings during which those present reported to the Managing Director of the mine on its performance. He said the first item on the agenda at those meetings was safety performance. 80The next witness called by the prosecution was Phillip John Wolfenden, employed in the position of Engineering Manager at the mine at the time of the offence. He said he believed he had seen SA05-05. He was familiar with AS 4024.1, as well as draft MDGs 35 and 35.1. He explained that a system which existed at the mine was that Safety Alerts were posted on noticeboards and work orders raised. He said prior to the incident, Safety Alerts came via email and were also posted to the mine. If they were in his area of responsibility he would address them, but in his role as Engineering Manager he did not receive many. He also said that he did not bring to the attention of other engineering staff the provisions of draft MDG 35 or 35.1. That role was assigned to Barry McKay, the statutory engineer in charge. In cross-examination, he said he occasionally attended toolbox talks at the mine. He said in those toolbox talks safety information was discussed. He was shown SA05-05 and confirmed that he had seen the document prior to 3 March 2008, though he had not been to a toolbox talk where that document was specifically addressed. Other information received by him at the mine consisted of safety bulletins from manufacturers, including safety bulletins from Sandvik. 81The prosecution submitted that the method by which the documentation and the information nominated in Particular 2(c) was disseminated at the mine was not adequate. This was said to be because witnesses who were questioned about the documents were not aware of their contents and because the records of toolbox talks produced to Inspector Smith in response to the s 62 Notice did not refer to draft MDG 35 or 35.1 or AS 4024.1 or SA05-05 or other Safety Alerts dealing with drilling or bolting. 82It does not follow from any of these matters in my view that the documentation or the information contained in the documentation, the subject of Particular 2(c), was not circulated by various employees, either electronically or by printed copy. In fact, the evidence called by the prosecution suggests the contrary. In addition, Inspector Smith's evidence was, in some respects, problematic. The s 62 Notice, a copy of which Inspector Smith identified in evidence as being served on the defendant, contains seven categories of documents, but the Inspector was only able to identify one category, which was shown to him during his evidence, as having been received by him in response to the s 62 Notice. Inspector Smith said the documents which were received by him in response to the s 62 Notice were received either by email or by courier. In relation to the bundle of documents shown to him in his evidence, he said those documents were provided in response to Category 5. Category 5 in the Notice asked for, "Training records related to roof/rib bolting tasks on all miners". The bundle of documents on the other hand includes minutes of STORM meetings, toolbox talks and inspection reports which do not specifically address issues of training. Moreover, it has not been demonstrated in the evidence that the bundle of documents constitutes a complete set of records of toolbox talks and STORM meetings. Inspector Smith agreed under questioning that the documents corresponded to Question 5 as constituting training records relating to roof/bolting tasks on all continuous miners in use at the mine during an unspecified period. His attention was directed to a covering letter sent by the defendant which referred to two s 62 Notices and documents sent by both courier and also by email. When shown this letter, the Inspector said that it was his understanding that the documents he was being asked to identify in his evidence were the same as those supplied by the courier and that they matched the documents received by email. He then said that the bundle of documents was extracted by him from the prosecution brief of evidence, and not from the email attachment. He could not recall whether he had received other documents. 83The effect of this evidence is that the Court has before it only one category of documents which does not purport to be a complete record of documents obtained by the prosecution. Moreover, the documents were received in response to a category which was expressed in broad terms, including all continuous miners in use at the mine for an unspecified period. It does not follow from this evidence that because the records tendered into evidence, said to be obtained in response to the s 62 Notice, did not refer to draft MDG 35, 35.1, AS 4024.1, or SA05-05, or other Safety Alerts, that those documents (that is, the draft MDGs, AS 4024.1, and the Safety Alerts) or the information contained in those documents were not circulated or disseminated at the mine, either through toolbox talks or some other medium of communication. The Court notes in any event that none of the categories specified in the s 62 Notice referred specifically to any draft MDGs, or Australian Standards, or SA05-05, or Safety Alerts in general. 84The prosecution also sort to rely on evidence from some of the witnesses, which it was said tended to confuse technical bulletins from the manufacturers with Safety Alerts from the DII. What the witnesses were really talking about, according to the prosecution, were technical bulletins, not Safety Alerts. 85In re-examination, Mr Bendeich recalled a Safety Alert he said he had received from Sandvik. It is not entirely clear from this evidence whether Mr Bendeich was referring to a technical bulletin or a Safety Alert issued by the DII. According to the evidence of Mr Linnane, the DII distributed "safety bullentins", as well as Safety Alerts. In any event, Particular 2(c) is expressed generally. It does not refer at all to Safety Alerts, but to "safety information" issued by the DII. There is no specific reference, for example, to SA05-05 in the Particular. The evidence of the witnesses was clearly to the effect that they recalled receiving Safety Alerts. Many of them specifically recalled SA05-05 and some of them recalled, generally, its contents. The Particular alleges a failure to have in place a system or an adequate system of circulation of documents or the information contained in those documents at the mine. The evidence which I have attempted to summarise earlier indicates in my view that there was a system of circulation of the documents and the information contained in those documents in existence at the mine at the time of the offence. That system involved safety information being disseminated through the medium of toolbox talks, STORM meetings (which may or may not have been the same as toolbox talks), as well as daily, weekly, and monthly meetings held at the mine. It also included circulation by email of documents such as Safety Alerts to various personnel within the mine. Safety Alerts were also circulated by way of the toolbox talks and written records were made of those talks which were then posted on various noticeboards at the mine. Most of the witnesses called by the prosecution had seen or were familiar with the Australian Standard and draft MDG 35 and draft MDG 35.1. Mr McKay, for example, said that he received Safety Alerts issued by the DII. He specifically recalled receiving SA05-05 before the incident of 3 March 2008. He also recalled draft MDG 35 and draft MDG 35.1. The latter document was brought to his attention during a presentation at the mechanical engineer-in-charge meeting in August 2006. According to the witnesses, Safety Alerts were also tabled at the monthly occupational health and safety committee meetings. According to Mr Duncan, Safety Alerts from the DII received by him were entered on a circulation list and distributed around the site. They were also put on noticeboards. According to the evidence of Mr Fulham, toolbox talks were a medium of communication for such matters as relevant safety documentation, relevant MDGs and draft MDGs, and relevant Australian Standards, (although in cross-examination Mr Fulham could not point to any toolbox talk record which had expressly referred to draft MDGs). 86The prosecution also sort to rely upon what was said to be conflicting evidence about noticeboards in relation to their number and location at the mine. I do not see that this feature of the evidence progresses the prosecution case. No submission has been made attacking the credibility of any of the witnesses. There is nothing in the evidence to support a finding that their evidence should not be believed or was otherwise unreliable. What the evidence demonstrated conclusively was that there was in place at the mine at the time of the offence a system of circulation of the documentation and information outlined in Particular 2(c), which included placing the documentation on a noticeboard, or noticeboards. 87Proof that there was no, or no adequate, system of circulation of documents is not facilitated by evidence of witnesses called by the prosecution that they were aware of the documents and aware, generally, of the information contained in those documents. Nor is it facilitated by evidence that the documents, in particular SA05-05, other Safety Alerts, and safety information, were disseminated or circulated at the mine through various mediums of communication, including noticeboards, toolbox talks, STORM meetings and other meetings held daily, weekly and monthly. The evidence, as a whole, is not sufficient to enable the Court to conclude, beyond reasonable doubt, that the prosecution has made out its case with regard to Particular 2(c). 88In IRC 119 of 2010, the Court makes the following orders: (1) The defendant is convicted of the offence in the Amended Application for Order in relation to Particulars 1(a), (b) and (c) and Particulars 2(a), (b) and (d). (2) The defendant is fined $105,000 with a moiety to the prosecutor. (3) Costs are reserved. (4) The matter is set down for a directions hearing in relation to the outstanding issue of costs at 9.30am on 1 September 2011.

Amendments 24 August 2011 - "R v Thomson; R v Houlton [2005]" amended to read as "R v Thomson; R v Houlton [2000]". Amended paragraphs: 57(a) 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: 26 August 2011