Rodney Morrison v Gregory Alan Gardner

Industrial Relations Commission (NSW)|2003-12-10|Before: Peterson J, Mr J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Rodney Morrison v Gregory Alan Gardner [2003] NSWIRComm 440 Prosecution: PARTIES : Rodney Morrison Defendant: Gregory Alan Gardner FILE NUMBER: IRC6378 of 2001 CORAM: Peterson J CATCHWORDS : Occupational health and safety - Roof collapse in coal mine - miner killed - mine deputy charged with breach - plea of guilty - penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 Coal Mines Regulation Act 1982 Morrison v Powercoal Pty Limited [2003] NSWIRComm 242 CASES CITED : Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (1999) 90 IR 464 R v Thompson, R v Houlton (1999-2000) 49 NSWLR 383

Prosecutor: Mr S. Crawshaw SC with Ms A.F. Backman of counsel Solicitors: Mr I .V. Knight Crown Solicitor LEGAL REPRESENTATIVES: Defendant: Mr J.J.E. Fernon Solicitors: Mr N. Emery Emery Partners

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Prosecution under s19(a) of the Occupational Health and Safety Act 1983 JUDGMENT

1 The defendant, Gregory Alan Gardner, is charged with a breach of s19(a) of the Occupational Health and Safety Act 1983 ('the OHS Act') to which he has now pleaded guilty.

2 Section 19(a) of the OHS Act provides: 19 Every employee while at work -

(a) shall take reasonable care for the health and safety of persons who are at his or her place of work and who may be affected by his or her acts or omissions at work.

3 The circumstances giving rise to the charge are that the defendant, as a Mine Deputy, was in charge of a shift on 17 July 1998 at the Awaba Colliery operated then by Powercoal Pty Limited ('Powercoal'), during which a roof fall occurred which caused the death of an operator of a continuous miner, Barry John Edwards. I have deferred giving this judgment, awaiting the outcome of defended proceedings against Powercoal, judgment in which was given on 21 November 2003: Morrison v Powercoal Pty Limited [2003] NSWIRComm 242.

4 These proceedings were commenced on 26 September 2001. The defendant entered a plea of not guilty before the Registrar on 5 May 2002. The matter was mentioned before me on 28 June 2002 and five days in May 2003 were fixed to hear the matter on a defended basis. Subsequently, a "no bill" application was made on the defendant's behalf but was unsuccessful. In April 2003 my Associate was informed by a representative of the defendant that he intended to enter a plea of guilty when the proceedings came on for hearing, and that up to two of the previously fixed five days would now be necessary.

5 The charge is brought by the prosecutor as a person authorised under the Coal Mines Regulation Act 1982 to commence the proceedings. Formal matters going to the legitimacy of the proceedings were accepted by the defendant. The charge and the particulars thereof are as follows: On or about 17 July 1998 at the Awaba Colliery, Wilton Road, Awaba in the State of New South Wales, the defendant, being an employee, failed to take reasonable care for the health and safety of persons who were at his place of work and who may be affected by his acts or omissions at work contrary to s19(a) of the Occupational Health and Safety Act 1983.

(i) On 23 September 1993, approval was obtained by the Manager, Awaba Colliery, from the Department of Mineral Resources ("DMR") to remove pillars of coal from an area denoted on Plan No A1-A47-A. The approval was subject to conditions entitled "Pillar Extraction Approval Conditions";

(ii) sometime during December 1996, poor roof was encountered by mining crews in 1 and 3 Headings 25 Cut through ("CT") in 304 Panel. Extra support was installed consisting of 6 scatter bolts (at 1 Heading) and 4 "W" straps each with 5 bolts about 1 metre apart (at 3 Heading);

(iii) sometime during September 1997 the pillar stripping method of coal extraction replaced the total pillar extraction method of Awaba Colliery;

iv) On 27 April 1998, the conditional approval granted on 23 September 1993 was extended by DMR until 30 June 2000;

(v) On 20 May 1998, General Rules Pillar Stripping 304 Panel and 14 South Headings ("General Rules") were confirmed as shown on Plan AW1077. Those General Rules required that a stook (a small remnant pillar of coal) was to be unmined for intersection support at the beginning and end of each extraction sequence and have a minimum thickness of 1.5 metres;

(vi) sometime in the first half of 1998, during mining operations in 7 North West Panel (a panel adjacent to 304 Panel), the roof fell in after pillar stripping. The fallen roof was found to consist of mudstone;

(vii) On 10 July 1998, production ceased in 7 North West Panel and on 15 July 1998 production commenced in 304 Panel at 25 Cut Through ("CT"), 2 Heading, sequences 4 and 5;

(viii) between 15 July 1998 and during 17 July 1998 various observations and reports were made about the quality of the roof in 304 Panel at 25 CT, in the vicinity of 1 and 3 Headings;

(ix) on 17 July 1998, the defendant was a Mine Deputy who had been requested by the Mine Manager, Peter Lamont Foster ("Foster") to work the 7am to 2pm shift at 304 Panel, 25 CT in the vicinity of 1, 2 and 3 Headings;

(x) other persons present who were under the defendant's supervision and who were working the same shift included; Ian James Mils, Machine Operator, Warren Etheridge, Machineman; Gregory Ian Cornwell, Electrical Fitter; Kevin Arthur Dunn, Machineman; Alyn Rayne Gear, Machine Operator; and Barry John Edwards, Machine Operator;

(xi) at about 12.20pm on 17 July 1998, the roof fell in at 304 Panel intersection of 25 CT and 3 Heading, fatally injuring Barry john Edwards ("Edwards");

(xii) at the time of the fatal accident, the defendant was standing about one metre away from Edwards while Edwards was in the process of skimming coal off the last stook ("stook X"). Immediately before the fatal accident Edwards, with Gardiner directly behind him, had skimmed about 1.2 metres from stook X, thereby reducing stook X in size by an estimated 50% from what was specified in the General Rules for Pillar Stripping confirmed 20 May 1998;

(xiii) the majority of roof fall accidents in pillar recovery occur at intersections. The stability of an intersection during pillar recovery is assisted by the stook of coal left to separate it from the extraction void;

(xiv) the defendant's failure to take reasonable care for the health and safety of persons at his place of work was the failure to prevent Edwards from skimming stook X;

(xv) as a result of the said failure, the other persons nominated in paragraph (x) above were placed at risk from falling roof.

7 Senior counsel for the prosecutor tendered a statement of facts, without objection from the defendant. These were not agreed facts, as is not uncommonly the case, but facts which the defendant accepted the prosecutor would be able to establish if put to proof. Accordingly, some of those facts, identified with precision during the course of the examination of the defendant, were not matters within his knowledge. Where that lack of awareness is significant in assessing the culpability of the defendant, I will refer to it specifically.

8 The statement of facts is in the following terms: 1. At all material times the Prosecutor was and is a person authorised by the Director-General of the Department of Mineral Resources, a Prescribed Officer pursuant to section 48 of the Occupational Health and Safety Act, 1983 to institute proceedings in this matter.

At all material times Powercoal Pty Ltd ACN 052 533 070, ("Powercoal"), was a wholly owned subsidiary of Pacific Power Limited and the proprietor and operator of the Awaba Colliery, with its Head Office situated at 3A Fassifern Road, Fassifern, NSW, 2283.

At all material times Peter Lamont Foster ("Foster") was the Mine Manager, Awaba Colliery for Powercoal Pty Ltd.

At all material times the defendant, Gregory Alan Gardner, ("the defendant") was a Deputy or Team Leader at Awaba Colliery, for Powercoal Pty Ltd.

At all material times, Powercoal employed, amongst other people: Gregory Alan Gardner as a Team Leader or Deputy ("the defendant")

Ian James Miles as a production mineworker ("Miles")

Warren Etheridge as a production mineworker ("Etheridge")

Gregory Ian Cornwell as an electrical fitter ("Cornwell")

Kevin Arthur Dunn as a production mineworker ("Dunn")

Alyn Rayne Gear as a production mineworker ("Gear")

Kenneth Bruce Johns as a production mineworker ("Johns")

Barry John Edwards as a production mineworker ("Edwards")

On 23 September, 1993, approval was obtained by the Manager, Awaba State Coal Mine, from the Department of Mineral Resources ("DMR") to remove pillars of coal from an area denoted on Plan No. A1-A47-A. The approval was subject to conditions, entitled, "Pillar Extraction Approval Conditions".

Condition No. 8 of the Pillar Extraction Approval Conditions states: "Pillar Extraction

Pillar extraction sequences shall be designed in accordance with the requirements of the Pillar Extraction Manual. Within this process all mining officials and workmen associated with the South West Area extraction shall be acquainted, at the appropriate time, of the influence that changing roof conditions may have on goaf formation. In particular, a sandstone/shale roof or a thin conglomerate/shale roof may give no warning of collapse.

Those areas where the roof is not conglomerate should be denoted and placed on all plans associated with pillar extraction." 8. Sometime during December 1996 during first workings, poor roof was encountered by mining crews in 1 and 3 Headings 25 Cut Through ("CT") in 304 Panel. Extra support was installed consisting of six scatter bolts (at 1 Heading) and four "W" straps each with five bolts about one metre apart (at 3 Heading).

Before second workings were carried out the method of second workings changed during September 1997 from total pillar extraction to pillar stripping. Total pillar extraction is a method of coal extraction whereby the total pillar is removed and the roof is expected to fall soon thereafter. The area abandoned and left to collapse after the extraction of coal is known as the goaf. Pillar stripping occurs where only a portion of the pillar is extracted by a series of what are known as lifts whereby the continuous miner progressively cuts a designated distance into the pillar. The continuous miner works in a manner whereby the operator does not have to go under the untested and unsupported roof where the pillar used to be but remains under the roof of the headings tested or supported at the time of the first workings. At the commencement of each lift timber props known as breaker props are placed in the headings. These props may provide some minimal support. Normal mining practice under both these methods is to not cut into the pillar at either end but rather to leave a small remnant pillar untouched. This untouched portion is known as a stook.

On 27 April 1998, the conditional approval granted on 23 September 1993 was extended by DMR until 30 June 2000.

On 18 May 1998 Foster applied to the DMR to retreat out of 304 Panel and 14 SW Headings by the pillar strip method. On 20 May 1998 the DMR approved General Rules Pillar Stripping 304 Panel and 14 South Headings (AW 1076) (Annexure A) and General Support Rules 304 Panel and 14 South Headings (AW 1077) (Annexure B), promulgated by mine manager Foster. The rules for pillar stripping required breaker props to be erected before the commencement of each lift. At the time of this approval there was an overall plan for pillar stripping in 304 Panel and 14 SW Headings that was signed by the DMR and the Mine Manager (AW 1075) (Annexure C). There was a working plan for the pillar stripping in 304 Panel produced on 13 July 1998 (AW 1078) (Annexure D). The area in which the Work Team was working had a fault running diagonally across it, which had been marked on the working plans.

Sometime in the first half of 1998, during mining operations in 7 North West Panel (a panel adjacent to 304 Panel), the roof fell in after pillar stripping. The fallen roof was found to consist of mudstone.

On 10 July 1998, production ceased in 7 North West Panel and on 15 July 1998 production commenced in 304 Panel at 25 CT, 2 Heading, sequences 4 and 5.

On 15 and 16 July 1998 work occurred in this work area on day, afternoon and what was known as a swing shift. No production took place on the swing shift. Production occurred firstly in Sequence 4 adjacent to 1 Heading with each successive lift moving towards the end of Sequence 5 near 3 Heading. Robert Horn ("Horn") was the deputy in charge of the day shift on 15 July 1998. Johnson was the deputy in charge of the afternoon shift on 15 July 1998. Under-manager in Charge, Stephen Cull ("Cull") who was the mining official above the deputies in the hierarchy, other than Mine Manager Foster, inspected the work area on the afternoon shift. Delacca was the deputy in charge of the day shift and afternoon shift on 16 July 1998.

On 15 July 1998 and through until the fatal accident on 17 July 1998, various observations and reports were made about the quality of the roof in 304 Panel at 25 CT, in the vicinity of 1 and 3 Headings.:

15 July 1998 Deputy's report (morning shift) reports re "State of Roof and Sides and Action Taken: Secure. Sandstone band on roof falling out other place lifted and timbered off"

16 July 1998 Deputy's report (afternoon shift) reports re "State of Roof and Side and Action Taken: Secure drummy roof 4 Heading 7NW fenced off". In a statement made after the accident Mr Dellaca said that a small fall occurred in sequence 4 (about 2 lifts wide and 400mm thick). After this fall Mr Dellaca checked the roof through to 3 heading 25 intersection and found nothing to indicate that anything was wrong and that the fall was mainly a localised bit of poor roof. Delacca noticed that the roof in the stub heading had been strapped indicating: "the roof was scaly and not conglomerate". Mr Dellaca requested the continuous miner driver to leave a larger than normal stook on the left because it had to stand overnight. Mr Dellaca said that the standard procedure is then to erect 2 props in the entrance to the lift. These are indicators to test for weight before recommencing production.

17 July 1998 Shift commences at about 7.50am. Before the props which had been put in place by the previous shift were knocked out, Mr Miles, with a 5 ft steel drill, walked to the left side of 25-3 Hdg intersection and sounded the roof. Mr Miles checked the whole area that it was necessary to wheel under and "it sounded good". Mr Miles said that he did this because there had been some trouble with the roof flaking and bits falling in the area already extracted in previous lifts on prior days. Mr Miles had signalled Mr Gear on a couple of occasions of some very small dribbles of roof in the fendered area off to the left about 4 to 5 lifts back. Mr Etheridge in a statement after the accident said that after going to the face on the day of the accident the roof was tested and it was checked that sufficient timber was erected. More props were put on the right hand side. He did not observe any signs of dribbly roof or creaking when at the face. He did not notice any signs of roof deterioration during the shift. No one questioned why straps were there. Mr Etheridge said "that's why we tested the roof because it was probably drummy there". Mr Cornwell did not see and sign of roof deterioration during the shift. After the accident he stated that there had been no near misses - "some splash falls have occurred about 1ft thick in some areas in 304 but nothing that came out into the roadway". Of roof deterioration Mr Dunn did not observe anything out of the ordinary. - " perhaps a few little bits flaking "from the roof during the shift". Mr Gear observed that the defendant tested the area where the unit was to work using 5 ft bar to sound the roof. The roof sounded good. Mr Edwards also checked the area and then checked the miner that it was right to go. Mr Gear observed that there was no crush on the back of the pillar behind, no rib spall or flaking on any ribs and no weight on the stooks. In his statement Mr Gear said "We noticed the flaking and were testing the roof continuously - after the first fender lift and after setting breakers and in the 25 c/t 3 Hdg intersection." In a statement after the accident Mr Horn who was the section deputy on 15 July on day shift said that he did not notice any sign of roof deterioration during the shift. In consultation with the Under Manager there was no mention of any roof problem. He was not present on 16 or 17 July 1998. Mr Horn noticed extra supports in bye of 25CT in 1 and 3 Headings. Mr Horn did not speak to the Under Manager or the other deputies about the extra supports in the stub headings as he did not feel that he needed to.

On 17 July 1998, the defendant who was a Deputy was requested by the Mine Manager, Peter Foster, immediately before the commencement of the shift to work the 7am to 2pm shift at 304 Panel 25 CT, in the vicinity of 1, 2 and 3 Headings. Foster handed Gardner a plan of the section. Prior to 17 July 1998, Gardiner had never been in 304 workings. He was the backbye deputy. The usual 304 Panel deputy was on leave.

Other persons present who were under the defendant's supervision and who were working the same shift included: Miles, Machine Operator; Etheridge, Machineman; Cornwell, Electrical Fitter; Dunn, Machineman; Gear, Machine Operator; and, Edwards, Machine Operator. They were all very experienced.

At about 12.20pm on 17 July 1998 the roof fell in at 304 Panel intersection of 25 CT and part of 3 Heading, fatally injuring Edwards, who was working at 3 Heading.

At the time of the fatal accident, the defendant was standing about one metre away from Edwards while Edwards was in the process of skimming coal off the last stook ("stook X"). Immediately before the fatal accident, Edwards, with the defendant directly behind him, had skimmed about 1.2 metres from stook X, thereby reducing stook X in size by an estimated 50% from what was specified in the General Rules for Pillar Stripping confirmed 20 May 1998. In an interview conducted on 20 July 1998 between Gardner and Inspector L J Beatty, District Inspector of Coal Mines (Annexure E), Gardiner gave his account of events leading up to the fatal accident: "We finished then brought the continuous miner out, set 5 breaker props and then commenced producing in the last lift.

I got Alyn Gear to stop the miner. I walked to the off side to check again for any bent props or signs of weight, everything was alright.

About this time I suggested that the intersection 3 Hdg 25 should be tightened up with more timber. There were 5 props as normal already on the right hand cut-through entrance and we set a couple of props spanning across to leave a roadway into the last lift. We went in, continuous miner drivers changed over - Barry Edwards taking over towards the end of the lift. He had been working as a cable hand and shift worker in the face all shift. Barry finished the place off. We pulled out and set the left breaking off timber for the last lift. It was all very tight. I had to move a prop over about 1 metre to let the continuous miner through to the stub to finish up cleaning up the coal on the floor - I did this myself. Barry cleaned up the coal skimming props on the left and the last stook. He was on the second car loading it. I was standing beside prop 'Y' and just behind Barry. I was looking everywhere purposely watching down through the timber keeping an eye out for him while he was loading. Within a split second I heard a crack and looked up to see the roof falling. I cringed waiting for the roof to hit me. I stumbled a couple of steps before I turned around and saw Barry and I knew he was dead." 20. The interview on 20 July was terminated because it became too distressing for the defendant to continue. On the resumption of the interview on 27 July 1998 the following exchange took place: Q. Whose decision was it to go back in and clean up the coal in the stub heading? A. It was both of us together discussing and deciding, there was no problems apparent with this. Q. In coming back into the stub was any of the stook taken? A. It was skimmed.

Under section 42 Coal Mines Regulation Act 1982 ("CMRA"), deputies must be appointed by Managers of an underground mine. Gardner was appointed by J Beddon, Mine Manager on 26 June 1984: Form of Appointment Elcom Collieries Pty Ltd dated 26.6.84 (Annexure F).

A deputy's functions and duties are set out in Part 6 of the Coal Mines Regulation (Managers and Officials - Underground Mines) Regulation 1984 ("the Regulation"). Section 45 of the Regulation headed "Deputy's functions", sets out those functions: 45. Deputy's functions

(1) A deputy at a mine shall, during the deputy's shift in the deputy's district assigned to the deputy and subject to any instructions given by senior mining officials:

(a) have immediate charge of the workers for the time being in that district and of all operations carried on by them therein;

(b) make such inspections and carry out such other duties with regard to the presence of gas, the state of the ventilation and of the support of roof and sides and general safety and working conditions as are required by the Act, the regulations or any rules or schemes; and

(c) without delay report to the manager, deputy manager, under-manager in charge or under-manager any matter which may come to the deputy's knowledge and which in the deputy's opinion is likely to constitute, or constitutes, a danger to the persons employed at the mine and make an entry of such matter in the deputy's report for that shift.

(2) Subject to subclause (3), a deputy to whom a deputy's district is assigned for a shift shall devote the whole of the shift to the duties specified in subclause (1).

(3) ......... 23. Mr Edwards was fatally injured at an intersection. The stability of an intersection during pillar recovery may be influenced by the stook of coal left to separate it from the extraction void. The stook was required to be at least 1.5m in thickness (see AW 1076). The stook was had been reduced in size at the time of the fall considerably below 1.5m in thickness.

The defendant's failure to take reasonable care for the health and safety of persons at his place of work was the failure to prevent Edwards from skimming stook X.

As a result of the defendant's failure, Ian James Miles, Warren Etheridge, Gregory Ian Cornwell, Kevin Arthur Dunn, Alyn Rayne Gear, and Barry John Edwards were placed at risk from falling roof.

It is alleged that the defendant has breached s19(a) of the Occupational Health and Safety Act 1983 in that, on or about 17 July 1998, at the Awaba Colliery, Wilton Road, Awaba in the State of New South Wales, Gregory Alan Gardner, being an employee of Powercoal, failed to take reasonable care for the health and safety of persons who were in his place of work and who may be affected by his acts or omissions at work.

9 The defendant, while qualified as a deputy and with experience as a production deputy in another area of the Awaba Mine, the 5 East Section, where he had been involved in total pillar extraction, was in the period preceding the accident causing risk in this case, what is called a Back Bye Deputy. This function did not involve the supervision of the mining team but the patrol of conveyor belts and headings. There is no doubt that the defendant was properly qualified to supervise the work of pillar stripping in 25 cut-through in the vicinity of 3 Heading in the 304 Panel. However, the circumstances on 17 July 1998 were that the defendant attended work expecting to continue in his duties as the Back Bye Deputy, to be informed approximately five minutes before the start of the shift that the Production Deputy was sick. He was asked to take over as Production Deputy and informed by the Mine Manager that the Pre-shift Deputy had rung through and said everything was okay. The crew the defendant was to supervise were all very experienced to his understanding. He was intimately associated with them and had been over a period of many years. He had worked as a deputy at the mine since gaining his qualification in 1981.

10 It was also established that the defendant did not read deputys' reports made prior to the fatal accident on 17 July 1998, which recorded aspects of the roof which were not conglomerate. These references are contained in paragraph 15 of the statement of facts set out above.

11 It is also the position that the defendant was not informed by any member of the mining team of their observations of a roof in poor condition. The defendant, together with two members of the team, sounded the roof in the area where work was to be performed and found it did not exhibit any indications of drumminess. The areas adjacent to the work site which had formerly been stripped were timbered, as was the area in front of the continuous miner, and the timbers were not showing any signs of pressure from the roof, whether by bending or cracking.

12 The General Rules of Pillar Stripping 304 Panel and 14 South Headings require that a wedge shaped wall of coal be left at the end of the area of a pillar to be stripped. In other words, the pillar is removed except for these wedged shaped walls, called stooks, which those Rules require be left at a minimum width of 1.5 metres over the length of the stook. It follows that where a pillar is being extracted, as here, in a cut-through (roadway), the original line of the cut-through will be maintained by the ends of the stooks at each end of a pillar.

13 In this case, the evidence establishes that the stook at the right hand end and adjacent to the continuous miner at the time of the fall was very much shortened and thus smaller than required by the Rules.

14 The defendant said in evidence that the miner was "skimming" the stook in 3 Heading at the time of the fall. He also said that "we were working as we always worked".

15 In the course of his evidence the defendant indicated that he accepts he is guilty of a breach of the OHS Act. He accepts it has been proven that he made an error of judgment for which he is deeply remorseful, but he was only doing what he thought was correct at the time.

16 The defendant also indicated in evidence that he was not aware that the Pillar Stripping Rules provided for the stook to be left in this minimal condition. However, the diagrammatic evidence shows the roof fall to have continued immediately past the foreshortened stook into the heading where the continuous miner was then situated. It also shows that the line of the fall avoided two areas between the stook ends, which had been provided with extra support by the miner having left two buttresses in the middle of the area which had been mined. Paragraphs 23 and 24 of the statement of facts are significant. I emphasise, in paragraph 23, a matter of which the defendant was aware, namely that "The stability of an intersection during pillar recovery may be influenced by the stook of coal left to separate it from the extraction void".

17 In paragraph 24 of the Statement of Facts the defendant's failure was identified as failing to prevent Mr Edwards from skimming stook X (the right hand stook adjacent to the miner at the time of the fall). It seems to me that, whether the defendant was aware or not that the stook should be left at a minimum width of 1.5 metres, the fact here is that the stook was foreshortened considerably and it was this act which was critical, not necessarily to the cause of the roof fall itself, but to the relevant risk or detriment to safety to which Mr Edwards was exposed.

18 The prosecutor has submitted that this failure was a significant one. In the circumstances of coal mining operations where there is an inevitable element of risk which requires proper management, the failure to conform with Pillar Stripping Rules, even if one was somewhat surprisingly unaware of them, must be regarded as a serious failure. It follows unavoidably that any penalty appropriate to that failure cannot be at the lower end of the range. The nature and quality of the offence, and the fundamental requirement for the court to take into account the notion of general deterrence call for a consideration of penalty in the mid to upper range.

19 It is now well recognised that the true measure of penalty lies in the nature and quality of an offence (Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (1999) 90 IR 464 at 474-475). Here, despite the defendant's approach to the matter of his liability, I consider the failure in point to have been a serious one. In assessing the defendant's culpability I have taken into account that he had been performing back-bye deputy's work for some six months prior to the accident and was asked to supervise this shift at the face only on the morning of the accident.

20 However, the defendant is entitled to the benefit of a number of mitigating features of the case. The first is the fact of his entry of a plea of guilty. As Spigelman CJ observed in R v Thompson; R v Houlton (1999-2000) 49 NSWLR 383, even a plea entered at the beginning of a trial anticipated to deal with a plea of not guilty is entitled to a discount on penalty of the order of 10% within the normal range of 10 to 25%. That judgment also accepts that other features may attract a further discount on penalty, such as first offence, cooperation with authorities, etc. Here, the defendant's late plea seems to me not to justify any discount in that respect greater than 10%. The strength of the prosecution's case is also a matter which militates against a more substantial discount in that respect.

21 The defendant is also a first time offender with little prospect of re-offending. He surrendered his deputy's ticket and now wants no job with responsibility for others. As a result of the accident he has been unable to continue in working in mines and now works as a labourer at a marina. He is now unable to continue with his past roles in his chosen sport of sailing, where he was successful at world championship level and sailed as a watch captain in ocean racing. He can no longer accept the responsibility involved and is now without the confidence he had prior to the accident. He has suffered depression, with periods of excessive drinking the result.

22 The maximum penalty in respect of this offence is $3,300.00. I would assess penalty is this case at the mid-range of $1,500.00 which I would discount, taking into account the above factors, by 15%.

23 I convict the defendant of the offence with which he is charged and impose a penalty of $1,275.00 with a moiety of penalty to the Department of Mineral Resources. I order that the defendant pay the prosecutor's costs in a sum as may be agreed or, if not agreed, as determined by the court.

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.

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