Clark Cranes Pty Ltd v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0046

CLARK CRANES PTY LTD	Applicant
v
THE KING	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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JUDGES:	MACAULAY JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers.
DATE OF JUDGMENT:	27 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 259
JUDGMENT APPEALED FROM:	[2023] VCC 297 (Judge Meredith)

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CRIMINAL LAW – Leave to appeal sentence – Applicant erected and commissioned a tower crane at a worksite – Crane component failed dropping a load onto the worksite resulting in death and serious injury – After trial jury found applicant guilty of failure to ensure plant was safe and without risks to health – Convicted and fined $400,000 – Whether sentencing judge failed to properly assess gravity of offending – Whether sentence manifestly excessive – Leave to appeal refused.

Occupational Health and Safety Act 2004, s 30.

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Counsel
Applicant:	Mr N Pappas KC with Mr D Carolan
Respondent:	Ms E Ruddle KC with Mr E Dober
Solicitors
Applicant:	Colin Biggers & Paisley
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MACAULAY JA:

Introduction

The applicant, Clark Cranes Pty Ltd (‘Clark’), erected and commissioned a crane at a development site in Box Hill. On 6 September 2018, the crane failed and caused a load of wet concrete weighing several tonnes to fall from above. The load crushed and killed a worker and seriously injured another. The applicant was subsequently charged with two offences laid pursuant to the Occupational Health and Safety Act 2004 (‘the OHS Act’).
After a trial before a jury in the County Court, the applicant was convicted on 31 January 2023 of one of the two charges, namely, failing to ensure, as a supplier of plant, that the plant to be used at the workplace was safe and without risks to health.[1] After a plea in mitigation, the applicant was sentenced by a judge on 28 February 2023 to a fine of $400,000 with conviction.[2]
[1]Contrary to s 30(1)(a) of the OHS Act.
[2]The maximum penalty for the offence was 9,000 penalty units (for a body corporate). At the time of offending, a penalty unit was $158.57 and, therefore, the maximum penalty for the charge at that time was $1,427,130.
The applicant seeks leave to appeal the sentence imposed by the County Court on two grounds:
Ground 1: The sentencing judge failed to properly assess the gravity of the applicant’s breach, which, in turn, gave rise to a failure to properly assess the objective gravity of the offending.
Ground 2: The individual sentence imposed was manifestly excessive.
For the reasons that follow, leave to appeal the sentence is refused.

Facts

The applicant erected and commissioned a crane at a construction site at 999 Whitehorse Road, Box Hill, after being engaged to do so by Alliance CG Pty Ltd. The applicant said it imported a new MRT-189 Hammerhead Tower Crane from Raimondi, a crane manufacturer in Italy, for the Whitehorse Road site.
The crane was erected onsite around mid-June 2018. It remained in operation until the day of its failure on 6 September 2018. That day, the crane was lifting a kibble, which is a heavy-duty cylindrical metal container, when the crane failed. The kibble, containing wet concrete and weighing several tonnes, entered a ‘freefall’. The kibble crushed and killed a worker, Mr Shaun Burns, who was standing below. Mr John Bubic, a fellow worker was seriously injured. He now suffers from paraplegia as a result of the incident. A third worker, Mr Chris Poi, was also injured.
As to the cause of the crane failure, the judge held:[3]
The cause of the crane failure under load was a missing or improperly fitted split pin, which should have been positioned on a castellated nut, which secured a load bearing component known as the hoist rope termination bolt, part of what is known as the hoist rope termination assembly.
[3]DPP v Clark Cranes Pty Ltd [2023] VCC 297 (‘Reasons for Sentence’), [8].
In simple terms, the castellated nut held the load bearing component of the crane in place. This allowed the load to be lifted and lowered without failure. Over time, it could be expected that the movements of the crane would cause the castellated nut to slowly unwind. The split pin is inserted in the castellated nut to keep it secure and prevent it unwinding and eventually releasing. The expert evidence at trial was that, in this particular model of crane, the split pin was a single point dependency, meaning that if it failed there was no backup system in place.[4]
[4]Reasons for Sentence, [29].

Reasons for sentence

The judge commenced his reasons for sentence by noting the maximum penalty for the offence and observing that the applicant’s not guilty plea prevented it from relying on any mitigatory impact of a plea of guilty.[5] He noted that the charge of which the applicant was found guilty is a risk-based offence, as opposed to outcome-based. Thus, he said, the primary significance of the consequences of the breach is to ‘illuminate’ the potentially catastrophic consequences of the risk crystallising, which is relevant to the objective gravity of the offending.[6]
[5]Reasons for Sentence, [3].
[6]Reasons for Sentence, [9].
His Honour referred to four victim impact statements of Mr Burns’ family members, each explaining the devastating impact upon them of his accidental death.[7]
[7]Reasons for Sentence, [11]–[17].
The judge said that the identified risk the subject of the charge was ‘a risk to health and safety from the supply, erection and commission of the crane, in that if the split pin for the hoist rope termination bolt of the crane was not safely inserted when the crane was erected, any load being lifted by the crane could fall to the ground’.[8] The judge explained that the identified measure to address the risk was to ensure that the split pin had been properly inserted in the hoist rope termination bolt of the crane by the time the crane was erected and commissioned at the workplace. This, he said, could have been achieved by completing a thorough inspection of the hoist rope termination assembly (‘HRTA’) of the crane before the crane was used to lift loads, and either inserting a new pin if the pin was absent, or replacing the pin if it was faulty or damaged.[9]
[8]Reasons for Sentence, [18].
[9]Reasons for Sentence, [19].
The judge reasoned that the jury’s verdict indicated that they were satisfied beyond reasonable doubt that the identified measure to address the identified risk was a reasonably practical means of addressing the risk of death or injury from a falling crane load.[10]
[10]Reasons for Sentence, [20].
In assessing the gravity of Clark’s breach of the OHS Act, the judge recognised that it turned on two factors: the extent of Clark’s departure from the duty imposed by the Act and the extent of the risk of death or serious injury resulting from a breach.[11]
[11]Reasons for Sentence, [39].
To place the breach in its proper context, the judge summarised some of the competing expert evidence that had been adduced during the trial: that of Mr Rod Wilkie, a mechanical testing engineer; Mr Shane Tronconi, a crane assessor and inspector; Mr Andrew Taylor, a senior engineer with WorkSafe; Mr Matthew Spinner, the tower crane manager for Clark; and Dr Andrew Baigent, a consulting engineer.
It was not disputed that the crane was new and fully imported and that the HRTA was fully assembled by Raimondi in Italy. It was also undisputed that the crane was erected and commissioned by Clark. Among other things, there was a difference of view as to whether an inspection of the HRTA of the relevant model of crane could occur while the crane was in situ. The judge held that, on any view of the evidence, a check of the assembly and, in particular, the castellated nut and split pin, could have been made prior to the crane being fully erected on site.[12]
[12]Reasons for Sentence, [41].
Nonetheless, the judge was not satisfied that Clark was acting other than in accordance with what were, at the time, prevailing industry standards. This was not a case of blatant disregard of safety, nor reckless indifference to risk. There was no evidence of a similar failure of an HRTA on a tower crane prior to this particular incident.
The prosecution contended that Clark’s offending was a ‘very serious example’ of the offence. Clark disputed that characterisation. Ultimately, the judge did not expressly endorse or adopt the prosecution’s characterisation.
Relevantly, the judge found that the likelihood of crane failure from a missing or improperly fixed split pin on the hoist rope termination bolt was low, but the risk of death or serious injury arising from a failure of the HRTA consequent upon a missing or improperly fitted split pin was high.[13] Further, he stated that the likely outcome of a missing or improperly fitted split pin would be ‘catastrophic’, as the event of 6 September 2018 demonstrated.
[13]Reasons for Sentence, [48].
The judge went on to find that Clark knew or reasonably ought to have known that the relevant component was a ‘single point dependency’, central to the safe operation of the crane, and that it would be obvious to a competent person that a castellated nut ought to be secured by an operational split pin. The means to remedy the risk to safety, the judge determined, was relatively straightforward and not particularly costly. Accordingly, the judge described the extent of Clark’s departure from the duty which it owed as ‘significant’.[14]
[14]Reasons for Sentence, [50].
His Honour considered that general deterrence was ‘of particular importance’ to ‘appropriately reflect the need to emphasise workplace safety’. There was less of a need, in the judge’s view, for specific deterrence because of Clark’s lack of prior convictions, the absence of any further pending charges and the steps it had since taken to address the risks.
The delay of four and a half years between the incident upon which the charge arose and sentencing was also taken into account. The delay was not Clark’s fault; moreover, it had allowed Clark to ‘rehabilitate’ by initiating more stringent inspection measures since the offending. Overall, the judge found Clark to be a ‘good corporate citizen’.
Defence counsel submitted that a conviction was not warranted given Clark’s good corporate character and lack of prior offending, the ‘unprecedented nature’ of the incident and, as Clark would have it, the breach was not of a serious kind. Counsel further submitted that a conviction could impact the applicant’s ability to obtain government or commercial contracts, impacting the applicant’s financial viability. However, the judge noted there was no evidence as to the likely loss that would flow from a conviction. Nor, generally, was there any evidence as to the applicant’s financial circumstances that would suggest that a financial penalty would occasion ‘particular difficulties’ for the applicant.
Rejecting the submission put for Clark, the judge stated that not recording a conviction against Clark would not adequately reflect the significance of the breach. After stating that he had paid regard to the various authorities to which the parties had referred regarding appropriate penalty, the judge imposed a fine of $400,000 with a conviction recorded against the applicant.

Did the judge fail to properly assess the gravity of the breach?

By the applicant’s first proposed ground of appeal, it contended that the judge failed to properly assess the gravity of the applicant’s breach which, in turn, gave rise to a failure to properly assess the objective gravity of the offending.
In DPP v Frewstal Pty Ltd,[15]this Court set out the principles to guide sentencing judges in sentencing offenders for breaches of the OHS Act with respect to duties to ensure the health and safety of persons in the workplace. The Court enumerated four principles.[16] The first and fourth of those principles were that the occurrence of death or serious injury is not an element of the offence charged, and the fact that the breach in a particular case resulted in death is relevant only in the sense that it might manifest or demonstrate the degree of seriousness of the relevant threat to health and safety resulting from the breach.
[15](2015) 47 VR 660 (‘Frewstal’).
[16]Ibid [127].
More relevantly for present purposes, the second and third principles were as follows:
Secondly, the gravity of the breach is measured by two factors — the seriousness of the breach itself (that is, the extent to which the defendant has departed from its statutory duty); and, the extent of the risk of death or serious injury which might result from the breach.
Thirdly, an assessment of the extent of the risk itself involves consideration of two factors — the likelihood of the occurrence of an event as a result of the breach (such as the event that occurred in the particular case) endangering the safety of employees or others; and the potential gravity of the consequence of such an event (in particular, whether there is a risk of death or serious injury).[17]

Submissions

[17]Ibid.

In overview, the applicant contended that the judge made errors in assessing the two factors identified in the second principle, namely, the seriousness of the breach (ie, the extent of the applicant’s departure from its duty) and the extent of the risk.
Regarding the seriousness of the breach, the applicant focussed on what it contended were inconsistent findings made by the judge. On the one hand, the judge said he could not be satisfied that the applicant was acting other than in accordance with ‘prevailing industry standards’ and found that this case was not one of blatant disregard of or reckless indifference to safety. On the other hand, the judge found that it would have been obvious to a competent person that a castellated nut ought to be secured by an operational split pin.
Moreover, the applicant submitted, the relevant factor for the purposes of assessing the seriousness of the breach was whether the applicant had complied with industry standards; not what a competent person would have understood had that person conducted an inspection that was not required by industry standards.
Additionally, the applicant questioned how the concept of a ‘single point dependency’ would be sheeted home to the applicant when the judge had accepted that the applicant had acted in accordance with industry standards.
For these reasons, the applicant submitted that the judge erred in finding that its departure from its duty was ‘significant’, thereby infecting the judge’s overall assessment of the gravity of the offending.
Turning to the judge’s assessment of the extent of the risk, the applicant reiterated its concession, made in written submissions to the sentencing judge, that the potential gravity of the consequence of failure was ‘grave’. Nevertheless, the applicant highlighted certain evidence that the judge had noted, namely that there was no evidence of any similar failure of an HRTA component prior to 6 September 2018; Raimondi, who had manufactured 18,000 tower cranes, had never experienced a failure of the HRTA component; and Dr Baigent gave evidence that there were approximately 100,000 tower cranes operating worldwide and he was unaware of any failure of an HRTA component.
As regards the judge’s findings about the extent of the risk (see [18] above), the applicant did not allege that those findings were erroneous. Instead, the applicant submitted that the proper characterisation of the extent of the risk should have been ‘mid-range’.
In summary, the applicant contended that a ‘proper assessment’ of the seriousness of the applicant’s breach was ‘low’ and the extent of the risk ‘mid-range’. These, it submitted, are markedly different from the judge’s assessment that the departure from the statutory duty was ‘significant’.
The respondent submitted that the applicant’s argument with respect to the seriousness of the breach (the extent of the departure from the statutory duty) conflates industry practice with statutory duty. The verdict of the jury was that the applicant failed to comply with the statutory duty, notwithstanding its compliance with industry standards.
The respondent pointed out that the judge explicitly adopted the Frewstal guidelines when assessing the objective gravity of the breach. According to the respondent, the essence of the applicant’s argument is that the judge failed to place a label on his assessment of the two factors identified in the second Frewstal principle. Properly understood, submitted the respondent, the judge’s description of the applicant’s departure from duty as being ‘significant’ was not a finding limited to the first of those two factors (i.e., the extent to which the applicant departed from its statutory duty, being the seriousness of the breach). Instead, read carefully, the judge’s reasons demonstrate that the word ‘significant’ represented the judge’s conclusion after having carefully considered the matters which bear upon both the extent of the departure from the duty (the first factor) and the extent of the risk (the second factor), each informing the judge’s assessment of the gravity of the breach.
The respondent submitted that nothing in Frewstal or general sentencing principles required the judge to ascribe any particular label to his characterisation of the extent of the departure from the duty or the extent of the risk. Since the judge did, nevertheless, consider and take into account each of those factors, no error could be identified in the application of sentencing principle.
Assuming, therefore, no specific error had been identified, the respondent then turned to address the question whether it could be said that the judge’s conclusion about the gravity of the offending was not reasonably open. The respondent took the judge’s reasons to mean that he had assessed the objective gravity to be ‘significant’. In circumstances where the potential consequences of the failure were (and proved to be) so high, and the measures available to address the risk so modest, the respondent submitted that the judge’s assessment of the objective gravity of the offending was wholly open.

Consideration

It is difficult to discern precisely what error of sentencing principle the judge is said to have committed by not ‘properly’ assessing the gravity of the offending. On one view, the applicant is simply quarrelling with the judge’s ultimate assessment after taking into account the relevant considerations identified in Frewstal. Neither does the applicant submit that the judge’s findings were not reasonably open to him even though the respondent addressed an argument of that nature as if it had been made.
To the extent that any errors of principle have been alleged, I take them to be that the judge:
(a)did not clearly ‘demarcate and engage with each of the two Frewstal considerations’ and
(b)took into account an irrelevant consideration, namely what a competent person would have understood about the significance of a missing split pin in circumstances where it was not a contravention of industry standards not to conduct any inspection that would reveal it was missing.
The judge plainly identified the two factors — taken from the second Frewstal principle extracted at [26] above — which, together, inform the assessment of the gravity of the breach.[18] Having done so, the judge considered the evidence that bore upon each factor.
[18]Reasons for Sentence, [39].
As for the first factor — the extent of the departure from the duty — the judge considered the evidence regarding the critical nature of the split pin holding the castellated nut within the HRTA, the opportunity that the applicant had to check it, standard industry practice at the time with respect to such inspections, the difficulty or cost associated with carrying out such an inspection and the technical ease or difficulty in detecting the relevant problem if an inspection was carried out.

Contrary to the respondent’s submission, it is sufficiently clear from a careful reading of his reasons that, in respect of the first factor, the judge concluded that the extent of the departure from the statutory duty — in other words, the seriousness of the breach — was ‘significant’.
As for the second factor — the extent of the risk of death or serious injury consequent upon a breach — the judge pointedly and correctly considered the two sub-factors described in the third Frewstal principle (extracted above at [26]). As previously noted, the judge found that the likelihood of the occurrence of an event as a result of a breach was low but the potential gravity of the consequence of such an event was high. No error is alleged with respect to these findings.
There is, therefore, no merit in the argument that the judge failed to engage with each of the two Frewstal considerations. Insofar as the applicant argued that the judge failed to ‘demarcate’ his analysis of the two considerations, the argument seems, at least to a degree, to be little more than an observation that the judge’s findings need to be gathered from a reading of the whole of his reasons and are not, entirely, expressed in a neat linear fashion. If so, it is an argument about form rather than substance.
Taking the judge’s label ‘significant’ to refer to his assessment of the seriousness of the breach (that is, the extent of the departure from the statutory duty), it is fair to observe that the judge does not, in explicit terms, apply any evaluative label to the headline consideration of the objective gravity of the breach. Nonetheless, by carefully considering each of the factors that inform that assessment, the judge has plainly addressed it. As noted, he did not endorse the prosecution characterisation of the gravity of the offence as being ‘very serious’. From his findings as to the ‘significant’ departure from duty, ‘low’ risk of occurrence but ‘high’ degree of consequence from it, it is sufficiently clear that the judge assessed the objective gravity of the breach as being something less than very serious but more than low level. An assessment of the objective gravity as being ‘significant’, assuming the respondent’s interpretation of the judge’s reasons was accepted, amounts to substantially the same thing.
As for the second possible error — the finding about what a competent person would have understood about the necessity for a split pin to secure a castellated nut — there was clear evidence to support such a finding. The judge referred to Dr Baigent’s evidence that whenever one saw a castellated nut, one would expect a split pin to go with it and that a competent person in the industry would know that a castellated nut and split pin go together.[19] The applicant’s real point, it seems, is that because it was industry practice not to conduct an inspection of a fully assembled HRTA when a tower crane was being erected, it was irrelevant what a competent person would have detected had such an inspection taken place.
[19]Reasons for Sentence, [35].
There is no merit in this submission. As argued by the respondent, this argument conflates industry practice or standards with statutory duty. This very argument was advanced by the defence, disputed by the prosecution and, evidently, rejected by the jury when it gave its guilty verdict. The judge took into account, as he was required to do, that the jury’s verdict implied that an inspection was required to remedy the risk in conformity with the statutory duty, in which case it would have been obvious that a split pin was missing. Nevertheless, for the purpose of sentencing, the judge also took prevailing industry practice into account in the applicant’s favour when finding that this was not a case of blatant disregard of safety.
On the same reasoning, there was no inconsistency with the judge not being satisfied, for sentencing purposes, that the applicant was acting other than in compliance with industry standards yet also making the finding about the obviousness that a castellated nut should be secured by a split pin.
Leave to appeal on the first proposed ground is refused.

Is the sentence imposed manifestly excessive?

By the applicant’s second proposed ground of appeal, it submitted that the sentence imposed upon it is manifestly excessive.
To succeed on an argument that a sentence was manifestly excessive, the applicant must establish that the sentence imposed was wholly outside the range available in the sound exercise of the sentencing discretion.[20] The exercise of the sentencing discretion reposed in a sentencing judge does not yield a single correct sentence, but it is only if the sentence is found to be unreasonable or plainly unjust that a challenge of manifest excess succeeds.[21]

Submissions

[20]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350.

[21]R v Pham (2015) 256 CLR 550, 568 [56] (Bell, Gageler JJ).

Proceeding from its submissions on the first proposed ground, the applicant submitted that the objective gravity of its offending should be categorised as ‘low’ or ‘low to moderate’. Contrary to the judge’s assessment, the applicant submitted that the seriousness of its breach was not ‘significant’, despite the tragic outcome.
The applicant also argued the judge gave manifestly insufficient weight to one or more of the following factors in sentencing the applicant such that the sentence imposed was unreasonable and unjust:
(a)The breach of OHS standards, on a proper construction, was not serious or significant;
(b)As a supplier, as opposed to an employer, the applicant had no control over where workers were positioned relative to the crane when the incident occurred;
(c)The fact that the applicant had no prior convictions, despite having traded for nine years at the time of the incident, and was of previous good corporate character with a good safety record;
(d)The evidence that, following the incident, the applicant and the industry as a whole implemented inspections targeting the hoist rope termination assembly; and
(e)The delay of over four years between the offending and the sentence as a result of the COVID-19 pandemic, during which the applicant evidenced corporate rehabilitation.

Consideration

In my view there is no merit in the applicant’s contention under its second proposed ground. In large part, its argument depends upon undermining the judge’s assessment of the objective gravity of the offending, the subject of its proposed ground 1. Without succeeding on that ground its argument under its second proposed ground is significantly weakened.
The judge expressly took into account each of the matters listed above at [54(c)-(e). The judge found that the applicant was a ‘good corporate citizen’ and referred to the measures it took during the delay in the proceeding coming to trial to initiate inspections of the HRTA’s of both new and used cranes. The factor mentioned in [54(a) is contrary to the judge’s findings. The factor mentioned in [54(b), while not expressly addressed in the judge’s reasons, is hardly likely to have had any mitigatory impact given that the judge found that the kind of failure that occurred was one that was likely to occur when the crane was in operation at a time when the site was occupied.[22]
[22]Reasons for Sentence, [48].
The judge found that the applicant’s departure from its duty was significant and, although the likelihood of the risk eventuating was low, the gravity of that risk once realised was catastrophic. It was a risk that could be easily remedied by a straightforward and inexpensive inspection.
In DPP v Vibro-Pile (Aust) Pty Ltd,[23]this Court endorsed the significance of general deterrence for this type of offending, saying that sentences imposed ‘need to draw attention to the importance of workplace safety, and to send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment’.[24]
[23]DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676, 730 [233] (Maxwell P, Redlich, Whelan JJA) (‘Vibro-Pile’).
[24]Vibro-Pile (2016) 49 VR 676, 730 [233]. See also DPP v AMCOR Packaging Australia Pty Ltd (2005) 11 VR 557, 565 [36] (‘AMCOR Packaging Australia’) and DPP v Heavy Mechanics [2023] VSCA 69, [85] (‘Heavy Mechanics’).
Further, as required by s 5(2)(daa) of the Sentencing Act, the judge took into account the impact of the offending upon the victims.[25]
[25]See also Vibro-Pile (2016) 49 VR 676, 722 [195].
The fine imposed was 28 per cent of the maximum penalty. After contesting the charge, the applicant could not call upon the mitigatory benefit of a plea of guilty. Although the financial position of an offender can be a significant factor in the amount of a fine,[26]no evidence was adduced at the plea on that issue. Finally, mitigating factors that are subjective to the offender — such as previous good character, the impact of delay, or financial capacity — play a subsidiary role.[27]
[26]Heavy Mechanics [2023] VSCA 69, [81]–[82].
[27]AMCOR Packaging Australia (2005) 11 VR 557, 565 [35]; DPP v Coates Hire Operations Pty Ltd (2012) 36 VR 361, 379 [79]; Heavy Mechanics [2023] VSCA 69, [85].
As has been observed, it is a difficult task to establish that a sentence was wholly outside the range of sentencing options available to the sentencing judge.[28] Having regard to all of the factors that the judge was required to balance in this sentencing exercise, the applicant has no reasonable prospect of succeeding in establishing this ground. Leave to appeal on this proposed ground must also be refused.
[28]Osman v The Queen [2021] VSCA176, [97].
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[2023] VSCA 259

27 October 2023