Clark Cranes Pty Ltd v The King - [2023] VSCA 259

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSCA 259
Decision Date: 27 October 2023

CaseChat Overview and Summary

Clark Cranes Pty Ltd was prosecuted under the Occupational Health and Safety Act 2004 for the erection and commissioning of a tower crane that resulted in the death of an individual and serious injury to another. The case was heard by the court, which found the applicant guilty of failing to ensure the plant was safe and without risks to health. The applicant was fined $400,000, and subsequently applied for leave to appeal against the sentence. The legal issues that the court had to decide were whether the sentencing judge failed to properly assess the gravity of the offending and whether the sentence was manifestly excessive. The court held that the sentencing judge did not fail to properly assess the gravity of the offending. The court held that the sentence was not manifestly excessive. Leave to appeal was refused.

The court reasoned that the applicant's conduct was a serious breach of the Occupational Health and Safety Act 2004. The court held that the sentencing judge had considered the gravity of the offending and had imposed a sentence that was appropriate to the seriousness of the offending. The court held that the sentence was not manifestly excessive because it was within the range of sentences that could be imposed for this type of offending. The court held that the fine imposed was sufficient to deter the applicant and others from engaging in similar conduct in the future. The court held that the sentence was not unjust or disproportionate to the offending.

Orders