Attorney General for New South Wales v Macmahon Mining Services Pty Ltd

[2019] NSWCCA 8

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Appeal
4. › Crown appeal against inadequacy of sentence
5. › Residual discretion
6. › Whether delay in bringing appeal warranted exercise of residual discretion not to intervene
7. › Whether penalty grossly inadequate such that residual discretion should not be exercised
8. › Criminal Appeal Act 1912 (NSW), s 5D(1)
1. Criminal Law
2. › Sentencing
3. › Work health and safety offences
4. › Category 2 offence
5. › Failure by corporation to comply with duty to ensure safety of workers
6. › Assessment of objective seriousness
7. › Whether sentencing judge erred in assessing objective seriousness as falling at 'low end'
8. › Relevance of foreseeability of risk, probability of occurrence, availability of remedial measures, and offender's state of mind
9. › Work Health and Safety Act 2011 (NSW), ss 19(1), 32
1. Criminal Law
2. › Sentencing
3. › Work health and safety offences
4. › Maximum penalty as sentencing yardstick
5. › Whether sentencing judge failed to have proper regard to maximum penalty
6. › Significance of legislative increase in maximum penalties
7. › Work Health and Safety Act 2011 (NSW), s 32
1. Criminal Law
2. › Sentencing
3. › Appellate review of sentencing discretion
4. › Grounds of appeal alleging failure to give 'due weight' or 'proper regard' to sentencing factors
5. › Whether such grounds identify specific error or merely challenge weight given to factors within discretion
6. › Distinction between specific error and manifest inadequacy

Quick Take

An experienced mining operator that relies on expert advice and departmental approval to defer implementation of simple safety measures against a foreseeable and obvious risk of serious harm cannot thereby reduce the objective seriousness of a WHS offence to the 'low end'. The assessment of culpability for WHS offences requires consideration of the seriousness of the potential consequences, the availability and simplicity of remedial measures, and the foreseeability of the risk, not merely the probability of the event occurring. A fine of $75,000 (after 25% discount) for a category 2 offence involving a fatality where the maximum penalty is $1.5 million was grossly inadequate.