Cutri Fruit Pty Ltd v The King - [2025] VSCA 173

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…

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: [2025] VSCA 173
Decision Date: 24 July 2025

CaseChat Overview and Summary

Cutri Fruit Pty Ltd has appealed against its sentence for an offence under section 23 of the Occupational Health and Safety Act 2004. The company was convicted of failing to ensure its workers were not exposed to a risk to their health or safety. The case was heard in the Court of Appeal. The appeal focused on the sentence imposed by the lower court and whether it was manifestly excessive. The appeal also considered whether comparable cases had been taken into account when determining the sentence.

The primary legal issue before the court was whether the sentence was manifestly excessive given the current practices in sentencing for similar offences. The appellant argued that the sentence imposed was disproportionate compared to other cases of a similar nature. The appellant also contended that the sentencing judge did not adequately consider other comparable cases when determining the penalty.

The court found that the sentence was not manifestly excessive and that comparable cases had been considered. The court reasoned that the lower court had taken into account the relevant aggravating and mitigating factors when imposing the sentence. The court also noted that the nature of the offence and the risk to health and safety were significant factors that warranted a substantial penalty. The court concluded that the sentence was within the range of penalties that could be considered appropriate for this type of offence.

The Court of Appeal dismissed the appeal and refused leave to appeal. The sentence imposed by the lower court was upheld as appropriate and proportionate to the offence committed. The court's decision emphasised the importance of considering the specific circumstances of each case when determining an appropriate sentence.

Orders