Cutri Fruit Pty Ltd v The King
[2025] VSCA 173
•24 July 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2025 0007 |
| CUTRI FRUIT PTY LTD | Applicant |
| V | |
| THE KING | Respondent |
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| JUDGES: | KIDD JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 June 2025 |
| DATE OF JUDGMENT: | 24 July 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 173 |
| JUDGMENT APPEALED FROM: | [2024] VCC 2022 (Dalziel J) |
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CRIMINAL LAW — Appeal — Sentence — Fail to ensure persons not exposed to risk to health or safety — Current sentencing practices — Whether comparable cases were considered — Whether sentenced imposed was manifestly excessive — Leave to appeal refused.
Occupational Health and Safety Act 2004 s 23; Sentencing Act 1991 s 5(2).
DPP v Melbourne Water Corporation [2014] VCC 184; DPP v Handcock [2019] VCC 444, distinguished.
DPP (Vic) v OJA (2007) 172 A Crim R 181; DPP (Vic) v Terrick (2009) 24 VR 457; DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428; DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557; Failla v The King [2025] VSCA 132; Fusca v The King [2024] VSCA 297; Hili v The Queen (2010) 242 CLR 520; Hudson v The Queen (2010) 30 VR 610; Le v The Queen [2021] VSCA 220; Lieu v The Queen [2016] VSCA 277; Lowndes v The Queen (1999) 195 CLR 665; Markarian v The Queen (2006) 228 CLR 357; R v Kilic (2016) 259 CLR 256; Scherini v Cleveland Freightlines Pty Ltd [2018] WASC 5, considered.
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| Counsel | |||
| Applicants: | J Gullaci SC | ||
| Respondent/s: | K Argiropoulos SC and L Crosbie | ||
Solicitors | |||
| Applicants: | C Spain, Wotton Kearney | ||
| Respondent/s: | A Hogan, Solicitor for Public Prosecutions | ||
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KIDD JA:
On 12 December 2024, the applicant, Cutri Fruit Pty Ltd, pleaded guilty and was sentenced as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1 Failure to ensure, so far as was reasonably practicable, that persons other than employees were not exposed to risks to their health and safety arising from the conduct of its undertaking.[1] 9000 penalty units ($1,635,660) Convicted and fined $750,000 N/A Total Effective Sentence: Convicted and fined $750,000 Non-Parole Period: N/A Pre-Sentence Detention declaration pursuant to s18(1) of the Sentencing Act 1991 (Vic): N/A 6AAA Statement: Convicted and fined $900,000 [1]Occupational Health and Safety Act 2004 s 23.
The applicant now seeks leave to appeal against sentence on two grounds, namely:
(a)the sentencing judge erred by failing to take into account and deal with the submissions made about the comparable cases beyond merely restating in brief summary form what occurred in those cases; and
(b)the sentence imposed on charge 1 was manifestly excessive.
For the reasons that follow, leave to appeal should be refused.
BACKGROUND
The offending
On 29 June 2006, the applicant was incorporated. Since 2011, the sole director and shareholder of the company has been Gaethan Cutri. The company operates a stone fruit orchard in Woorinen South, which includes 50 hectares of avocado trees and 200 hectares of stone fruit trees.
On 31 January 2022, a workplace incident occurred at the Woorinen premises which resulted in the death of Mr Jaraf Ali Bunyad, a fruit picker employed by AH Vision. This was a labour firm which provided workers to assist with the applicant’s fruit picking operations. Mr Bunyad and his wife were refugees from Afghanistan.
The incident involved a tractor which was towing two trailers in tandem. The two trailers were designed and manufactured by the applicant in approximately 2016. Their purpose was to carry double-stacked fruit bins. Each trailer was fitted with horizontal platforms which were designed to allow fruit pickers to empty their picking bags into the fruit bins. They were not designed to carry people.
On 23 December 2021, approximately five weeks prior to the incident, the applicant’s orchard manager sent a message to staff:
Hi Everyone, No workers should be riding on picking trailers, especially on a public road. There is over 1.5 ton of fruit which could potentially crush someone if there is an accident. Please stop this practice across all farms immediately.[2]
[2](emphasis added).
On 15 January 2022, the orchard manager sent another message to staff emphasising that riding in bins and on trailers was ‘extremely dangerous’ and must stop immediately. A short time later, Gaethan Cutri, the applicant’s director, sent a follow message to a similar effect, nothing that staff can drive to blocks in their cars. The applicant’s health and safety guide also contained directions about not riding on a tractor or trailer.
On 31 January 2022, at approximately 12:30pm, Mr Bunyad and three other workers climbed onto the platforms of two trailers which were connected. The four workers were standing on the various trailers, with Mr Bunyad located at the rear of the second trailer. They used the empty bins as support themselves.
The tractor was driven around the premises before proceeding to drive along some public roads adjacent to the premises. As the tractor turned onto a road, Mr Bunyad and another employee fell from the rear trailer along with some of the fruit bins.
The other worker did not suffer any injuries from the fall. However, Mr Bunyad was located lying on the ground with blood coming from his head, ear, and nose. Mr Bunyad was conscious but was non-responsive.
Two passers-by stopped to render assistance and emergency services were called. Mr Bunyad was taken by helicopter to the Royal Melbourne Hospital. Scans revealed he had sustained catastrophic head injuries. On 31 January 2022, his life support was withdrawn and he passed away.
At the time of the incident, the deceased had only worked at the applicant company once before. There was no evidence regarding what training or direction the deceased received regarding the trailers.
A WorkSafe investigation was then commenced.
SENTENCE
The sentencing judge imposed a fine of $750,000 with conviction.
Having examined the circumstances of the offending, the sentencing judge concluded that the gravity of the breach was ‘reasonably serious’, not merely moderate. She noted that the applicant was aware of the risk and failed to take several available steps to reduce or eliminate the risk. These steps were obvious and by no means onerous.
The sentencing judge then turned to examine the victim impact statement from Mr Bunyad’s widow who spoke of her state of grief and loss.
The sentencing judge took account of the mitigating circumstances of the applicant, including:
(a)the history and reputation of the business, the size of the business, that it remains a family controlled operation, is a good corporate citizen and has no prior convictions.
(b)The company’s cooperation with the investigation and early guilty plea.
(c)The company’s acknowledgement of the grief caused by the offence and its expression of regret in breaching the law.
(d)The series of remedial measures undertaken after the offence to mitigate risk against further safety incidents. The remedial measures included modifying all existing trailers to ensure that there were no longer any permanent platforms, better systems and training across the all areas of the business, beyond the risk posed by this particular breach.
The sentencing judge referenced ‘current sentencing practice’ and two cases. I will return to this below.
The sentencing judge noted that in prosecutions like these, general deterrence and denunciation carried significant weight.
THE APPEAL
Ground 1: The applicant submits that the sentencing judge erred by failing to take into account and deal with the submissions made at the plea regarding comparable cases beyond merely restating in brief summary form what occurred in those cases.
Applicant’s submissions
Two comparable cases were relied upon by the prosecution, namely, DPP v Melbourne Water Corporation (‘Melbourne Water’) and DPP v Handcock (‘Handcock’).[3] The applicant also relied upon these cases and submitted that they were more serious examples of offending than the applicant’s case.
[3]DPP v Melbourne Water Corporation [2014] VCC 184 (O’Neill J); DPP v Handcock [2019] VCC 444 (O’Neill J).
It seems that the substance of the applicant’s case is that the sentencing judge either did not have regard to current sentencing practices (and the comparable cases) or did not properly have regard to them.
The applicant’s argument is that the sentencing remarks failed to deal with the extensive submissions made by the parties about these cases. The applicant noted that the sentencing judge only briefly summarised the two cases in her sentencing remarks without any analysis as to how that affected her sentencing calculus.
More specifically the applicant contends that:
•the penalty in this case should have been guided by the relative penalties imposed in those comparable cases (expressed as a proportion of their applicable maximum penalties).[4]
•the sentences in Melbourne Water and Handcock represented 36.38% and 46.42% respectively of the applicable maximum penalties.
•both Melbourne Water and Handcock involved more serious breaches than the applicant’s case.
•the sentencing judge erred because she failed to make any findings about where the applicant’s offending sat by comparison with the offending in Melbourne Water and Handcock.
•a conviction and fine of $750,000 on the applicant — representing 45.85% of the applicable maximum penalty[5] — is therefore out of kilter with current sentencing practice. It should have been substantially less.
[4]Citing Scherini v Cleveland Freightlines Pty Ltd [2018] WASC 5 [121]–[124] (Fiannaca J).
[5]The maximum fine was $1,635,660.
Respondent’s submissions
The respondent submits that no error has been established in relation to the sentencing judge’s treatment of the cases, Melbourne Water and Handcock, or current sentencing practices.
The respondent says it is apparent from the sentencing reasons, viewed within the context of the transcript of the plea hearing as a whole, that the sentencing judge appropriately considered and dealt with the cases and associated submissions.
The sentencing remarks comprehensively detail her Honour’s findings regarding the gravity of the offending, including the basis for rejecting the defence submission that the seriousness of the contravention was moderate.
It is further argued that her Honour’s failure to detail the various submissions regarding Melbourne Water and Handcock in the sentencing reasons is not an error, as the failure to mention a particular factor does not mean that it was not considered or given due weight.
With respect to comparable cases, the respondent submits that one must bear in mind the limitations in deriving any current sentencing practices from only a few cases.
Analysis
Section 5(2)(b) of the Sentencing Act 1991 states that the sentencing court must have regard to ‘current sentencing practices.’ This ground contends that the sentencing judge erred in her consideration of ‘current sentencing practices’.
It is convenient to first set out some fundamental principles in this regard:
•‘Current sentencing practices’ result from the ‘accumulation’ of the decisions of first instance judges and of appellate court decisions.[6] They emerge from a review of the earlier sentencing decisions ‘as a whole’.[7]
•The relevance of past individual sentencing decisions is thus tied to the light they shed upon ‘current sentencing practices’.[8] The role of any earlier individual sentence is thus limited. Past sentencing decisions must not be treated as precedents to be applied or distinguished.[9] The outcome in one case cannot dictate the outcome in another.[10]
•Understood in this way, comparable cases can, provide a general impression as to the appropriate range of sentences at least insofar as they provide an overview or guide to current sentencing practices.[11]
•But the authorities are guarded about attempts to examine and compare comparable cases in granular detail.[12] Such an approach tends to encourage the use of earlier sentences as binding precedents.[13]
•Even where there is a discernible pattern, current sentencing practices do not set the limits of the sentencing discretion.[14] While relevant, they are not the controlling or determinative factor, and they are only one of a number of considerations which must be taken into account in the exercise of the sentencing discretion.[15]
•Still less can one or two past sentencing decisions — which do not establish a discernible sentencing practice — set boundaries that bind the sentencing judge. Where only a relatively small number of earlier comparable sentences are relied upon, they should be approached with some caution.[16] A small sample may not establish a discernible sentencing practice or pattern.
[6]Hili v The Queen (2010) 242 CLR 520, 535–537 [54] (French CJ, Gummow, Hayne, Crennan and Kiefel and Bell JJ); [2010] HCA 45.
[7]Lieu v The Queen [2016] VSCA 277 [46]–[47] (Beach and Kaye JJA) (emphasis added); (2016) 263 A Crim R 173.
[8]R v Kilic (2016) 259 CLR 256 [21] (Bell, Gageler, Keane, Nettle and Gordon JJ); [2016] HCA 48.
[9]DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41.
[10]Le v The Queen [2021] VSCA 220 [17] (Niall JA, Priest JA agreeing at [1]); Director of Public Prosecutions (Vic) v OJA (2007) 172 A Crim R 181, 196 [29] (Nettle JA, Ashley and Redlich JJA agreeing); [2007] VSCA 129.
[11]Hudson v The Queen (2010) 30 VR 610, 617 [29] (Ashley, Redlich and Harper JJA) (emphasis added).
[12]Hudson v The Queen (2010) 30 VR 610, 618 [33] (Ashley, Redlich and Harper JJA).
[13]Hudson v The Queen (2010) 30 VR 610, 618 [33] (Ashley, Redlich and Harper JJA).
[14]Le v The Queen [2021] VSCA 220 [17] (Niall JA, Priest JA agreeing at [1]).
[15]Sentencing Act s 5(2); DPP v Dalgliesh (2017) 262 CLR 428, 434 [9], 444 [48] (Kiefel CJ, Bell and Keane JJ), 453 [82] (Gageler and Gordon JJ); [2017] HCA 41.
[16]Fusca v The King [2024] VSCA 297 [51] (Walker and T Forrest JJA).
I turn now to the complaint under ground 1.
Prior to the plea hearing, the prosecution and defence each filed comprehensive written submissions that included references to the so-called comparable cases, Handcock and Melbourne Water.
During the plea hearing, the sentencing judge indicated that she had read all the documents filed by the parties, including the two comparable cases.
There was some discussion about these two comparable cases during the plea hearing. The focus of submissions — especially by the applicant — was primarily upon Handcock as a comparable case. During the plea, the sentencing judge said this of Handcock:
You’re right, Handcock has a lot of similarities but that was a very small operation, it was a much smaller operation and it was just a standard practice for people to ride on the tractors or on the trailers, because that was the easiest way to get around and nobody really turned their mind to the risk.
And it was only when somebody died I think that they had to address it. So there are clear differences. There’s obviously a great deal of similarity in terms of how the incident unfolded, which led to the involvement of WorkSafe but there are obviously differences, as you pointed out.
In relation to Melbourne Water, the sentencing judge made these observations at the plea:
So just under half for a more serious breach but then in Melbourne Water, which is I think very comparable to this case in terms of the gravity of the breach because the risk was known and what was described as simple and inexpensive fixes were not done, again, there the maximum was, we’ll call it $1,000,000, give or take …
The fine there was 400,000, so again just proportionately a bit less than half. …
Obviously this is not a mathematical process …
In her sentencing remarks, the sentencing judge made specific reference to the facts and disposition of these two cases under the heading of ‘Current Sentencing Practice’:
The parties referred me to two cases. One involved the sentencing of MelbourneWater after a worker had fallen and drowned. Grating had been noted as becoming loose for several years before the incident, but the accused company had not taken a simple and inexpensive step to rectify the issue. It was described by the learned sentencing judge as a clear and substantial failure, with potentially dire consequences. The maximum penalty which applied in that case was $1,099,260. His Honour imposed a fine of $400,000.
The other case was DPP v Handcock. Mr Handcock and his parents ran a small, a 32 acre, farm, growing hops. It was a normal practice for workers to ride on a trailer, around the farm. In the incident which brought the matter to the court, the trailer had been moving down a steep incline, and the driver lost control of it. Most of those riding on the trailer jumped clear but one worker fell from the trailer, suffered head injuries and died. The accused was a natural person, with no priors. It appears from the sentencing remarks that the learned sentencing judge took into account his limited capacity to pay a fine. The learned sentence judge imposed a fine of $130,000, in circumstances where the maximum applicable was $280,000.[17]
[17]Reasons [38]–[39].
While not an ex tempore sentence, the sentencing remarks must be read within the context that the plea had been conducted that morning.
It is instructive that when the sentencing judge’s observations at the plea hearing are added to her sentencing remarks she in fact teased out several points of comparison between Handcock and the applicant’s case:
•Handcock was a very small operation by comparison with the applicant’s operation.
•Nobody really turned their mind to the risk in Handcock. In the applicant’s case, the sentencing judge found that the applicant did have knowledge of the risk. It is clear that the sentencing judge saw the applicant’s knowledge of the risk as a factor which informed the gravity of this offending.[18]
•Handcock had limited capacity to pay a fine. The applicant never asserted any incapacity to pay a fine.
[18]Reasons [24].
When the sentencing judge’s observations at the plea hearing are added to her sentencing remarks about Melbourne Water, she acknowledged:
•Melbourne Water was a comparable case.
•Like in the applicant’s case, the risk was known in Melbourne Water.
•Like the applicant’s case, simple and inexpensive fixes were not done in Melbourne Water.
The sentencing judge had also observed during the plea hearing that the penalties in both cases fell roughly just under half of the applicable maximum penalties.
To the extent that this ground asserts that the sentencing judge did not have regard to current sentencing practices, I think this is without merit. The contention cannot be sustained that the sentencing judge overlooked current sentencing practices as a relevant consideration or ignored them altogether.
It is apparent from the reasons for sentence, as well as from the plea hearing, that the sentencing judge had regard to current sentencing practices as one of the relevant considerations. She also had regard to the two comparable cases, which she used to inform current sentencing practices
While some degree of comparison with the two comparable cases was required — albeit a broad one — it is not reasonably arguable that the sentencing judge failed to do this. So much is clear from the discussion which occurred at the plea hearing itself. It is abundantly plain that the sentencing judge had read and considered the cases as a broad guide.
To my mind, the applicant’s argument seeks to impermissibly treat so called comparable cases as precedents which must be followed unless distinguished. It elevates the significance of these cases from being but two historical examples of sentences — which informed current sentencing practices — to the status of binding authorities which mathematically fixed boundaries within which the sentencing discretion had to be exercised. As much as the applicant distances himself from any suggestion of numerical or mechanistic reasoning, I think his argument is ultimately afflicted by mathematical thinking.
The applicant says that the fact that submissions were only made about two comparable cases was all the more reason why her Honour was required to undertake and reveal her comparative analysis. The import of the argument is that the fewer the comparable cases there are, the more significant they become in the sentencing calculus. If anything, the opposite must be true given that the fewer there are, the less discoverable a sentencing practice will be.
Her Honour was required to have regard to current sentencing practices. The sentencing judge was thus required to inform herself about current sentencing practices to the extent that one could be discerned. The two cases — on any view, a small sample — to some extent informed current sentencing practices. The sentencing judge used the cases for that purpose.
The sentencing judge was not required to make precise findings about where the seriousness of the applicant’s offending sat relative to the offending in the two cases, or to engage a micro comparison with the cases as if they had direct and precedential relationship with the instant case.
The sentencing judge took them into account as a general guide as to the level of fines imposed for serious breaches after a plea of guilty, but ultimately the penalty imposed here had to reflect the facts and circumstances of this case. In my view, her approach did not bespeak error.
I will make one final observation under this ground. This ground is redolent of a complaint that the sentencing judge failed to attribute due weight or sufficient value to a relevant consideration (i.e., current sentencing practices). A complaint that the sentencing judge essentially paid insufficient regard to current sentencing practices — as distinct from a complaint that the current sentencing practices were overlooked altogether — is akin to a complaint that too much or too little weight was given to a particular sentencing factor. Such a complaint is ‘almost always untestable’, in the absence of some specific error.[19] The underlying complaint here — that the sentencing judge failed to really ‘deal with’ the issue — is also effectively untestable.
[19]Director of Public Prosecutions (Vic) v Terrick (2009) 24 VR 457, 459 [5] (Maxwell P, Redlich and Robson JJA); [2009] VSCA 220.
Like any complaint about weight, in the absence of specific error, the only way in which such complaints can be addressed — on an offender’s appeal — is whether it is shown that the sentence imposed was outside the range reasonably open to the sentencing judge, taking into account all the relevant sentencing factors, including current sentencing practices.[20]
[20]See Markarian v The Queen (2006) 228 CLR 357, 370 [25]; [2005] HCA 25; citing House v The King (1936) 55 CLR 499, 504–5.
I now turn to the question manifest excess.
Ground 2: The applicant submits that the sentence imposed on charge 1 was manifestly excessive. The applicant relies on the following particulars:
(a)the nature of the offending, including an absence of aggravating factors;
(b)plea of guilty;
(c)an absence of prior or subsequent matters/good corporate citizen; and
(d)current sentencing practice.
Applicant’s submissions
The applicant relies on many of the matters raised under ground 1 in support of its position that the sentence was manifestly excessive.
With respect to the offending, the applicant concedes that it was serious, however, argues that this was not a case of blatant disregard of workplace safety or reckless indifference to a risk which clearly existed. The applicant also pleaded guilty to the offence at an early stage, warranting a substantial discount.
Regarding a lack of prior history, the applicant submits that the company had been in operation for 15 years at the time of the incident and had no prior matters nor any subsequent matters since the offending.
Finally, with respect to current sentencing practices, it is submitted that general sentencing practice for breaches of section 23 of the Occupational Health and Safety Act 2004 was relevant, and that many cases were available to her Honour which could provide guidance regarding the sentence to be imposed. With respect to the two comparable cases, the applicant refers to and repeats the points it made under ground 1.
Respondent’s submissions
The respondent submits that the sentence imposed was not manifestly excessive in all of the circumstances.
With respect to the nature of the offending, the respondent contends that the applicant pleaded guilty to a single charge encompassing two distinct contraventions of the Occupational Health and Safety Act 2004, which carried a maximum penalty of 9,000 penalty units.
The sentencing judge made a number of key findings with respect to the gravity of the applicant’s offending which contributed to the conclusion that the applicant’s conduct was a ‘reasonably serious instance’ of the offence, and the respondent maintains this categorisation of the offending conduct.
The respondent contends that all mitigatory matters were properly taken into account by the sentencing judge, noting that in sentencing for occupational health and safety offences, the objective seriousness of the offending takes precedence in the sentencing synthesis.
Finally, with respect to the comparable cases, the respondent repeats its contentions under ground 1 regarding the limited use of comparable cases. Even having regard to the sentences imposed on other cases involving a contravention of section 23, including Melbourne Water and Handcock, the respondent submits that the sentence imposed in this case was within range.
Analysis
As this Court recently reaffirmed in Failla v The King, to succeed on this ground the applicant must show that the sentence imposed by the judge in the exercise of his discretion was ‘wholly outside the range of sentencing options available’.[21] As this Court has often observed, this is a ‘stringent requirement’, which is difficult to satisfy.[22]
[21]Failla v The King [2025] VSCA 132 [39] (Emerton P and Boyce JA) See also Lowndes v The Queen (1999) 195 CLR 665, 671–2 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); [1999] HCA 29.
[22]Failla v The King [2025] VSCA 132 [39] (Emerton P and Boyce JA); Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
I am not persuaded that it is reasonably arguable that the applicant has satisfied this stringent requirement.
The sentencing judge made a number of important findings relevant to her Honour’s assessment of the gravity of the offending, none of which are challenged by the applicant:
•The applicant was ‘clearly aware of the risk posed by people riding on the picking trailers and that this behaviour posed a risk of serious injury or death’.[23] So much is established by the multiple messages from the Orchard Manager and the director to staff. They acknowledged that the applicant was aware that workers would ride on the picking trailers and that the practice was ‘extremely dangerous’.
•The steps taken by the applicant were insufficient, and the applicant needed to take practical steps to prevent that happening.[24]
•The set up of the tractors was ‘an invitation to people to stand on them. In the absence of other forms of transport, the likelihood of people using trailers as transport between worksites was very high.’[25]
•The likelihood of the risk that people riding on the tractors could fall from them, and be seriously injured or killed, was a ‘clear risk’[26] and ‘more than theoretical’ given the number of people engaged in picking.[27]
[23]Reasons [24].
[24]Reasons [25].
[25]Reasons [26].
[26]Reasons [27].
[27]Reasons [28].
In my view, the sentencing judge was right to:
•reject the characterisation of the breach by defence counsel at the plea as moderate,[28] and
•conclude that the applicant’s offending was ‘a reasonably serious instance of this offence, having regard to the company’s failure to take reasonably practicable steps to ameliorate a known risk, where the foreseeable consequences were death or serious injury, and that there was a more than remote chance of that harm eventuating’.[29]
[28]Reasons [29] (emphasis added).
[29]Reasons [29].
The key to the sentencing judge’s assessment of the gravity of the applicant’s breach was the fact that the applicant had turn its mind to the risk — explicitly and repeatedly — but in the face of this knowledge failed to take practical steps to prevent that risk eventuating. True, the applicant had identified the risk and sent communications to staff but this was woefully inadequate. I agree with the sentencing judge’s characterisation that the steps that could and should have been taken were ‘obvious and by no means onerous’.[30] The applicant’s failure represented a significant departure from the duty in s 23.
[30]Reasons [22].
The applicant’s manifest excess argument is anchored to the proposition that the offending in Melbourne Water and Handcock were more serious than that committed by the applicant. The applicant then says that the penalty imposed upon it relative to the maximum penalty (45.85%) is out of kilter with the relative penalties imposed in those cases (36.28% and 46.42% respectively).
The applicant’s argument at the plea hearing, and at the oral hearing of this application, really focuses upon Hancock as being the most comparable case, at least on the facts concerning the incident.
I start by making the observation I made at the beginning under ground 1: one or two past sentencing decisions said to be comparable cases will likely have limited significance in providing a guide as to current sentencing practices.
With that qualification in mind, I do not accept that the offending in Handcock was a more serious example than the applicant’s case.
The applicant’s argument that Handcock was more serious, turns upon the fact that in that case workers were directed to sit on the trailer to avoid the crush points and this had become standard practice; whereas in the applicant’s case, the danger had been identified and steps had been taken to address the risk (through the email communications).
I think this downplays the degree to which the applicant’s advertence to the risk informed its moral culpability. It knew about the risk and the potential danger yet failed to practically address it. This is why her Honour considered the applicant’s case to be so serious.
By contrast, in Handcock the risks had not been ‘perceived’ before the accident.[31] Insofar as knowledge of the risk and dangers were concerned, the offending in that case was inadvertent.
[31]DPP v Handcock [2019] VCC 444 [36] (O’Neill J).
There are also other factors present in Handcock which moderated that sentence, including the fact that he was an individual. It is true — as the applicant observes — that the status of the offender in Handcock as an individual (not a corporation) was already reflected in the much reduced maximum penalty. Accepting that, my impression is that the sentence in Handcock was significantly tempered by factors related to the offender’s personal and mitigating circumstances and to the overall scale of the business operation in question:
•Handcock operated a very small farming enterprise in which he played an operational role while his wife completed the bookwork. The farm was owned by his parents.
•The sentencing judge in Handcock placed emphasis repeatedly in the sentencing remarks on his ‘modest’ financial means, and that a large fine was likely to be simply beyond him to pay in the foreseeable future.[32] The sentencing judge in that case was conscious that the farm was owned by his parents, not by him.
[32]DPP v Handcock [2019] VCC 444 [39] (O’Neill J).
In this case, while the applicant’s agribusiness remains family controlled, it was of a different scale and sophistication from Handcock. The applicant comprises some 300 workers and four working farms in North Western Victoria. It exports to the USA and Asia and sells fruit to the major supermarket chains in Australia.
As for Melbourne Water — which involved a serious breach where the risk was known and could have been inexpensively addressed —it may be accepted that the penalty in that case was less than in the applicant’s case (relative to the applicable maximum penalty).
But this is one case, and any comparison should be treated with caution.
In support of its submission that the fine was manifestly excessive, the applicant refers to two court of appeal decisions and an additional six cases.[33] I tend to agree with the respondent’s submission that these cases are of limited assistance in demonstrating a possible range or pattern of sentences.
[33]DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69 (Niall and Macaulay JJA) (‘Heavy Mechanics’); Midfield Meat International Pty Ltd v The King [2023] VSCA 106 (Walker, Macaulay JJA and Kidd AJA) (‘Midfield Meat’); DPP v Seascape Constructions Pty Ltd [2020] VCC 1132 (Cannon J); DPP v Royal Automobile Club of Victoria [2021] VCC 2150 (Hampel J); DPP v Melbourne Health [2021] VCC 407 (Fox J); DPP v Cranbourne Turf Club Inc [2023] VCC 506 (Rozen J); DPP v MacKillop Family Services Ltd [2021] VCC 1810 (Wraight J); DPP v The Crown in the Right State of Victoria [2021] VCC 1956 (Maidment J).
The only unifying feature in the list of County Court sentences is that they involved a breach of s 23 of the Occupational Health and Safety Act 2004 and resulted in a workplace fatality. As this Court has said in DPP v Frewstal Pty Ltd (2015) 47 VR 660, the fact of a fatality is not a unifying feature between cases.[34]
[34]DPP v Frewstal Pty Ltd (2015) 47 VR 660, 671 [47] (Maxwell, Priest and Kaye JJA); [2015] VSCA 266.
I accept the respondent’s argument that Midfield Meat was different from the applicant’s case. Midfield Meat was sentenced upon the basis that the pleaded measure would have ‘reduced rather than eliminated’ the risk of serious injury, and that the likelihood of the risk materialising was ‘relatively rare’.[35]
[35]Midfield Meat International Pty Ltd v The King [2023] VSCA 106 [140] and [148] (Walker, Macaulay JJA and Kidd AJA).
Heavy Mechanics is also quite different. That case concerned a servicing regime relating to a coupling between truck and trailer. Heavy Mechanics had taken steps to address the risk concerning the coupling used. The company had conducted a test in relation to the coupling.[36] The mechanics believed those steps were adequate.[37] Although this was insufficient to detect the risk, it is different from the inadequate steps taken by the applicant in this case in response to a ‘known risk’.[38] In Heavy Mechanics, it was also accepted that a significant fine would create financial hardship for the company.[39]
[36]DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69 [39]–[41] (Niall and Macaulay JJA).
[37]DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69 [71] (Niall and Macaulay JJA).
[38]DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69 (Niall and Macaulay JJA).
[39]DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69 [47] (Niall and Macaulay JJA).
To the extent that Handcock and Melbourne Water — and the other cases referred to —provide a broad guide as to the fines imposed (relative to the applicable maximum penalty) for relatively serious breaches after a plea of guilty, then it seems to me that the applicant’s sentence is not out of kilter with this yardstick. Certainly, the sentence is not so inconsistent with current sentencing practice that it suggests something has gone obviously awry.
The respondent accepted at the oral hearing that this was ‘a relatively high sentence’, noting that it is actually the highest penalty imposed for a single offence involving a contravention of s 23 of the Occupational Health and Safety Act 2004, in terms of dollar figures.[40]
[40]The respondent noted that it certainly is not anywhere near the highest for financial penalties imposed for offences involving a contravention of Section 21 of the Occupational Health and Safety Act 2004.
Of course, the sentencing range — including the measures of manifest excess and manifest inadequacy — are not ‘capped and collared’ by sentences previously imposed.[41] The applicant must also go further than establishing that the sentence is relatively high or high;[42] it must ultimately show it was ‘wholly outside the range of sentencing options available’.
[41]DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 445 [51] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41 citing Director of Public Prosecutions (Vic) v OJA (2007) 172 A Crim R 181, 196 [30]–[31] (Nettle JA, with whom Ashley and Redlich JJA agreed); [2007] VSCA 129; Kwag v The King [2024] VSCA 279 [58] (Macauley and Kaye JJA).
[42]Brown v The Queen [2021] VSCA 204 [48] (Maxwell P and Sifris JA).
All of the matters relied on by the applicant in mitigation were properly taken into account by the sentencing judge, including the applicant’s early plea of guilty, lack of prior convictions and good corporate citizenship.[43]
[43]Reasons [36].
However, as the respondent submitted, in sentencing for occupational health and safety offences, subjective factors, such as a plea of guilty, cooperation with the investigation and subsequent measures taken to improve safety, while relevant, must play a subsidiary role.[44]
[44]DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557, 565 [35] (Vincent, Eames and Nettle JJA); [2005] VSCA 219.
I am unpersuaded that it is reasonably arguable that the sentence imposed in this case — for reasonably serious offending — was ‘wholly outside the range of sentencing options available’.
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