Dennis Jones Engineering Pty Ltd v The King; Jones v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0226

DENNIS JONES ENGINEERING PTY LTD (ACN 068 568 490)	Applicant
and
DENNIS ANDREW JONES	Applicant
v
THE KING	Respondent

---

JUDGES:	PRIEST, McLEISH JJA and GORTON AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2025
DATE OF JUDGMENT:	11 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 76
JUDGMENT APPEALED FROM:	[2023] VCC 2054 (Judge Hawkins)

---

CRIMINAL LAW – Appeal – Sentence – Company pleaded guilty to recklessly endangering persons at a workplace – Director pleaded guilty to being an officer of a body corporate that failed to provide and maintain safe systems of work – Company fined $2,100,000 – Director fined $140,000 with a community correction order (‘CCO’) of five years’ duration containing condition that he perform 600 hours of unpaid community work – Company’s application for leave to appeal refused – Director’s application for leave to appeal granted – Appeal allowed – Director resentenced to CCO of three years’ duration containing condition that he perform 200 hours of unpaid community work.

---

Counsel
Applicants		Mr R O’Neill SC with Ms A Dickens
Respondent		Mr B Kissane KC, DPP with Mr T Bourbon
Solicitors
Applicants	Russell Kennedy
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
McLEISH JA
GORTON AJA:

Introduction

At relevant times, Dennis Andrew Jones was the sole director, shareholder and manager of Dennis Jones Engineering Pty Ltd (‘DJE’), which operated a machine shop in Morwell. Byron Foley, a second-year apprentice fitter and turner, was employed by DJE.
On 13 October 2021, Mr Jones was operating a Computer Numerical Control (‘CNC’) lathe with the assistance of Mr Foley, when a piece of stainless steel pipe that was being machined bent and whipped, so that Mr Foley was either struck to the left side of his head by the pipe, or his head struck something else after he was flung to the side when the pipe hit him.
As a result, Mr Foley suffered very serious injuries. He was placed into an induced coma and was airlifted to the Alfred Hospital in Melbourne. Mr Foley required skull reconstruction surgery which involved the insertion of a titanium plate. He also suffered a traumatic brain injury which has led to him developing speech aphasia; no longer being able to use his hand; and suffering from balancing and walking issues. Mr Foley experiences seizures and regularly feels fatigued. In addition to Mr Foley’s life-altering physical injuries, his injuries have had a profound emotional, financial, and social impact on both him and his family.
On 9 October 2023, both DJE and Mr Jones pleaded guilty before a judge in the County Court to offences under the Occupational Health and Safety Act 2004 (‘OHSA’). Hence, DJE pleaded guilty to a charge of recklessly endangering persons at a workplace[1] (charge 1); and Mr Jones pleaded guilty to a charge of being an officer of a body corporate that failed to provide and maintain safe systems of work, contrary to s 21(1) and sub-s (2)(a), where that contravention was attributable to the officer’s failure to take reasonable care[2] (charge 2).
[1]OHSA, s 32. The maximum penalty is 20,000 penalty units. At the time of the offending, the value of a penalty unit was $181.74, so that the applicable maximum penalty equated to $3,634,800.
[2]OHSA, s 144(1). The maximum penalty is 1,800 penalty units (or $327,132).
Following a plea, on 9 November 2023 the judge sentenced DJE to a fine of $2,100,000;[3] and sentenced Mr Jones to a fine of $140,000, with a community correction order (‘CCO’) of five years’ duration,[4] a condition being that he perform 600 hours of unpaid community work. Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for Mr Jones’ plea of guilty, she would have imposed a fine of $270,000 (and, by necessary implication, would not have imposed a CCO).
[3]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for DJE’s plea of guilty, she would have imposed a fine of $2,800,000.
[4]Section 37(a) of the Sentencing Act 1991 permits a court to impose a CCO on an offender if he or she has been convicted of an offence punishable by more than five penalty units.
Both DJE and Mr Jones now seek leave to appeal against the sentences imposed on two grounds:
1The sentences imposed were manifestly excessive in all the circumstances.
2The learned sentencing judge erred in sentencing on the basis that anything more than a modest fine would result in the liquidation of Dennis Jones Engineering Pty Ltd.
We would refuse DJE leave to appeal on both proposed grounds, but would grant Mr Jones leave to appeal on the first ground and make consequential orders. Our reasons follow.

The offending

The offending was very serious, and, as we have said, caused Mr Foley to suffer very serious life-changing injuries.
DJE has several items of plant, which perform machining processes such as drilling, milling, threading, and turning. One of the items was the CNC lathe. Among other things, it can be used for making precise cuts and exact shapes, and to thread the ends of pipes.
Mr Foley began working for DJE as a labourer in 2019, before being offered apprenticeship as a fitter and turner. As we have mentioned, as at 13 October 2021 he was a second-year apprentice. He had been trained in how to thread the ends of short lengths of pipe using a CNC lathe. Mr Foley was not allowed to work alone on pipes that exceeded 1500 mm in length, however, because such pipes protruded from the back of the machine and required additional support.
Using the CNC lathe to work with long sections of pipe carries great risk, because the protruding section of the pipe can wobble and bend or whip, striking anyone that is standing too close to it. Not only was this risk very well-known in the industry, but Mr Jones had personal knowledge of it. Thus, on an occasion in 2012, when he was working alone, turning a brass bar on a CNC lathe where the bar protruded out from the rear spindle of the lathe by approximately 500 mm, the bar snapped or sheared off, flew through the factory’s sheet metal roof, and landed in the yard next door.
One means of reducing this notorious risk is to support the protruding pipe with a portable purpose built steady. DJE had several steadies at the workplace. DJE’s employees also used a ‘G clamp’ to secure a ‘bung’ — a round piece of plastic which encases the protruding pipe — to a table, a ‘V block’ steady, or, if the bar was long enough, a bracket steady that was welded to the wall.
Despite the availability of steadying devices in the workplace, Mr Jones had, on several occasions prior to 13 October 2021, directed a former DJE employee, Josh Edwards, to stand at the end or on the side of a protruding pipe in the CNC lathe and hold a plastic bung in order to manually steady it. At no point did Mr Jones ever explain to Mr Edwards why he directed him to hold a plastic bung instead of using a steady.
On 13 October 2021, Mr Jones and Mr Foley were threading lengths of stainless-steel pipes, ranging from 200 mm to 6000 mm in length, on a CNC lathe. Pipes which were up to 1500 mm long would be contained within the lathe, but the longer pipes would protrude from the rear spindle. Mr Foley had not worked with the longer pipes before.
In anticipation of performing the work, Mr Jones had earlier instructed another DJE employee, Justin McQuillen, to retrieve the portable steady. Mr McQuillen and Mr Foley then carried the steady over to the CNC lathe. Mr Foley machined out the plastic insert sleeve that was to be attached to the steady, so the steel pipe that was protruding from the lathe could fit into it.
Inexplicably, however, instead of using the portable steady, Mr Jones directed Mr Foley to stand at the end of the protruding pipe and to hold a plastic bung around its end in order to manually steady the pipe while he operated the lathe. Mr Jones and Mr Foley threaded 10 pipes in this way. The eleventh pipe was 2720 mm long and it protruded 1460 mm from the rear spindle of the lathe. While they were threading the pipe, Mr Jones noticed that it was ‘wobbling a little bit’. After threading one end of the pipe, the two attempted to thread the other end. The pipe rapidly bent and whipped, however, coming to rest at an almost 90-degree angle, scraping along the ground. As the pipe bent and whipped, Mr Foley was either struck to the left side of his head by the pipe, or his head struck something else after he was flung to the side when the pipe hit him.
WorkSafe inspectors arrived shortly after the incident. Mr Jones co-operated with them. He participated in a video recorded interview in which he explained what had occurred, and demonstrated where Mr Foley had been standing when the pipe bent and whipped. With respect to him instructing Mr Foley to hold the rotating pipe with a bung, Mr Jones said, ‘I know this is a bit agricultural, but we just hold a plastic bung on the end just to steady it, but we’re not spinning super fast, so it’s only – it’s only going slow’. Mr Jones told investigators that he would manually adjust the speed of the lathe depending on the wobble. He would ask Mr Foley if the pipe was good or if there was too much wobble. He estimated that, at the time of the incident, the pipe was rotating at around 300 to 400 revolutions per minute (that is, 5 to 6.67 revolutions per second). Mr Jones acknowledged that there was no legitimate reason why the portable steady was not used.
Importantly, near the rear spindle of the CNC lathe, where the pipe protruded, was a safety plate. The plate depicted the risk associated with a person encountering an item protruding from the lathe. The words ‘1500 MAX BAR LENGTH’ had been handwritten above that depiction. The operating manual for the lathe also contained a section titled ‘Basic Safety Items’, which included the following guidance: ‘Under no circumstances touch a rotating workpiece or the tool with your bare hands or any other object’.
An expert, Peter Elovaris, who was (among other things) an engineering trade assessor, offered the following opinions:
•the pipe had whipped during rotation due to inadequate support of the overhung section of material;
•this is a well-known safety concern;
•any qualified tradesman would be aware of this risk;
•it is something that is taught to first and second-year apprentices;
•it is common knowledge that a steadying device is required for work tasks involving overhung pieces and that it is ‘an absolute no go’ to machine unsupported workpieces;
•‘[A]n unsupported workpiece will start to wobble, and can, and generally will turn the workpiece (especially longer unsupported overhung lengths and or lighter gauge bars) into a “helicopter” at the overhang end … Once the unsupported section starts to wobble and build momentum, it all happens very quickly and within seconds the workpiece can bend to around 90 degrees at the spindle, whip, and helicopter’.
•he had never heard of the practice of using a hand-held steady to support an overhung workpiece whilst operating a lathe, even at low speeds; and
•such a practice is ‘obviously extremely dangerous’ as it puts the person at the danger point in circumstances where there is a high risk of an overhung workpiece ‘whipping’ or ‘helicoptering’.

The sentencing remarks

In her sentencing reasons, having summarised the offending, the relevant provisions of the OHSA and the applicable sentencing principles, the sentencing judge said that by pleading guilty ‘the company acknowledges that at the time Mr Jones required Mr Foley to hold onto a plastic sleeve that encased the end of a pipe, protruding from a lathe by nearly 1.5 m, and rotating at a speed of between 300–400 rpm, the company … was aware that requiring him to do so would probably place him in danger of serious injury’. For a number of reasons the judge accepted that ‘the offending is objectively very serious and the [scil, that] DJE’s culpability is very high’.
The judge also considered Mr Jones’ offending to be ‘objectively very serious’. Addressing her remarks to Mr Jones, she said:
The breach of duty was directly attributable to your failure, Mr Jones, to take reasonable care. You were aware of the risk involved in the undertaking and of the simple, readily available means to control the risk. You were personally responsible for directing Mr Foley in undertaking the task in the manner he did, placing him in danger of death or serious injury.
…
Mr Jones, your failure to take reasonable care is closely linked to the contravention in respect of which DJE is pleading guilty. Although you are the sole director and owner of DJE, the two entities are distinct and must be treated as such. While drawing this distinction, I note that the Court of Appeal in DiTonto v The Queen[5] commented that the fact that the owner and director of a company will suffer the financial penalty imposed when the two fines are combined is not irrelevant.
[5]Di Tonto v The Queen [2018] VSCA 312, [29] (Priest and Weinberg JJA) (‘Di Tonto’).
The judge then discussed the impact of the offending on Mr Foley and his family, before turning to Mr Jones’ personal circumstances. Mr Jones, the judge noted, was aged 56 years. He had been married for 24 years and had two children, aged 12 and 13. Having qualified as a fitter and turner, and worked in the industry over a number of years, Mr Jones established DJE in 1993. Mr Jones had been involved in the community through his involvement in local sporting and community groups. Moreover, prior to the incident, the Jones and Foley families were close, attending family celebrations together over many years. Relations between the families had, however, broken down since the incident.
DJE, the judge noted, is a family-owned business that has been operating for 30 years. Mr Jones had always had an apprentice working with him — sometimes two or three apprentices at once, as well as many work experience students — and at the time of the incident, DJE had five employees. Following this incident, Mr Jones contemplated selling DJE and began the process of selling plant. The business was formally closed at Christmas 2021 but had since reopened.
The judge noted that DJE operated at a loss in financial year 2021; made a net profit of $800 in 2022; and recorded a profit of $23,751 in the 2023 financial year. DJE is a small company with little to no profit margin. The business supports Mr Jones and his family. He earns an annual salary of approximately $65,000 (equivalent to a weekly take-home salary of $1,250). In addition, he receives distributions from a family trust, which in the previous financial year had amounted to $12,908. If DJE went into liquidation, Mr Jones would lose this income. The judge then observed:
Whilst your counsel submit that you and the company are able to pay a fine, they also submit that if a fine were to be imposed that resulted in DJE having to enter liquidation, it would be unable to continue to provide employment for its employees. I note, this may also result in any fine not being paid.
Whilst unstated, essentially the defence submission in this case, is that anything other than a modest fine will tip DJE into liquidation. I therefore consider it appropriate to have regard to sentencing cases where a company has already been placed in liquidation in an occupational health and safety context, such as R v Denbo Pty Ltd.[6] The approach taken by Teague J in that case was to fix a fine in an amount which would have been appropriate if the company had remained as thriving as it appeared to have been at the time of the contravention of the duty.
[6](1994) 6 VIR 157 (‘Denbo’).
Next, the judge noted that a number of references spoke of Mr Jones’ strong character and strong commitment to the community, and of his commitment to maintaining a safe working environment in his business, before turning to the ‘significant impact’ of the incident on Mr Jones’ mental health. In the initial aftermath of the offending, he felt significant psychological distress, shock, concern and anxiety. He experienced anxiety going about his daily activities in town because he did not want to encounter Mr Foley’s family and cause them distress. A psychologist, Dr Simon Kennedy, expressed the opinion that, following the offending, Mr Jones met the criteria for chronic Adjustment Disorder with mixed anxiety and depressed mood, and with post-traumatic stress features.
The judge accepted that Mr Jones’ personal actions, early plea of guilty (which had utilitarian value) and cooperation with WorkSafe’s investigation were ‘genuine demonstrations of remorse’. Other than the fact that Mr Jones’ psychological condition — which the judge took into account in ‘a general Verdins[7] sense’ — is chronic, there was nothing to impede his rehabilitation. The judge then said:
Rehabilitation is not a sentencing consideration for a company and, together with specific deterrence, has little role to play in light of DJE’s lack of prior offending, good safety record and remorse.
[7]R v Verdins (2007) 16 VR 269.
Neither Mr Jones nor the company, the judge remarked, had prior convictions (or any matters pending). But while DJE had no prior convictions, and had operated in a ‘potentially high-risk industry’ for 30 years, DJE had ‘been involved in a previous incident in which overhanging material had been snapped or sheared off’.
Turning to current sentencing practices, the judge discussed the circumstances of Orbit Drilling,[8] and a sentencing case in the County Court,[9] ultimately concluding that the ‘similarities to the situation in Orbit Drilling are sufficiently close for this to be a relevantly comparable case’ to that of Mr Jones.
[8]Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399 (‘Orbit Drilling’).
[9]DPP v Bedford and Underwater Inspection Services Pty Ltd [2023] VCC 1047. The judge also referred to the circumstances of: DPP v Fergusson and Jacbe Builders Pty Ltd [2017] VCC 1276; DPP v E & O Lagondar Nominees and Lagondar [2021] VCC 1024; and VWA v Valley Sweep Pty Ltd and Anton Zakic (Unreported, Latrobe Valley Magistrates’ Court, 2 October 2020).
The judge then observed:
In occupational health and safety matters, the objective seriousness of the breach constitutes the primary factor in determining the appropriate penalty, and mitigating factors that are subjective to the offender, such as a plea of guilty, remorse or previous good character play a subsidiary role.[10] Despite the objective seriousness of the offence, it is important to note that imprisonment is not a sentencing option open to the Court in this case.
Here, general deterrence is the predominant sentencing consideration. While deterrence cannot be given such weight as to lead to a sentence which is disproportionate to the gravity of the offence[11] that is of no concern here given the very serious nature of the offending.
The Court of Appeal in Vibro-Pile emphasised 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’.[12] That statement is entirely apt in this case.
[10]DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557,565 [35] (Vincent, Eames and Nettle JJA) (‘Amcor’); and DPP v Coates Hire Operations Pty Ltd (2012) 36 VR 361, 379 [79] (Maxwell P, Weinberg JA and Hollingworth AJA).
[11]Veen v The Queen [No 2] (1987) 164 CLR 465.
[12]DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676, 731 [233] (Maxwell P, Redlich and Whelan JJA).

Finally, when addressing Mr Jones concerning the CCO to be imposed on him, the judge said:
Mr Jones, your Counsel filed further written submissions seeking that you be placed on a Community Corrections Order [sic], in accordance with the principles in Boulton.[13] I understand the prosecution does not object to such a course. Section 5(6) of the Sentencing Act provides that ‘A court must not impose a community correction order unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by imposing a fine’.
In circumstances where the quantum of the fine to be imposed upon DJE will likely impact on your financial position, Mr Jones, the purpose for which the sentence is to be imposed on you personally will not be achieved by imposing a fine alone. I therefore consider it appropriate to both convict and fine you and place you on a community corrections order to perform unpaid community work. I understand you will consent to being placed on such an order.
[13]Boulton v The Queen (2014) 46 VR 308.
The judge then imposed sentence on DJE and Mr Jones.

The applicants’ submissions in this Court

Under cover of ground 1, counsel for the applicants submitted that they both pleaded guilty at the earliest opportunity. They have no prior or subsequent convictions.
DJE’s profit after tax for the 2023 financial year was $23,000; for 2022 was $800; and it operated at a loss in the 2021 financial year, albeit it does hold a number of assets in the form of land and machinery. Mr Jones’ income is approximately $65,000 to $75,000 per annum, approximately $65,000 constituting his wage drawn from DJE, where he works full time.
Counsel submitted that the fine imposed on DJE is the highest ever imposed on a charge of recklessly endangering persons at a workplace, and the highest fine ever imposed for a single charge under the OHSA. Furthermore, the sentence imposed on Mr Jones, when considered in its totality, is the most severe imposed on an individual in a prosecution under the OHSA — whether or not after a plea of guilty — where imprisonment is not an available option. Putting aside the CCO, the fine alone is one of the two or three highest ever imposed on an individual for a breach of the OHSA. And since DJE is a single director company, the impact of the sentence on the company has a profound impact on Mr Jones personally. Despite the prosecution submitting to the sentencing judge that a CCO without a fine was open, the judge imposed the maximum duration — with the maximum number of community work hours — capable of being imposed under the Sentencing Act 1991, and coupled that to a substantial fine.
The present offending, counsel submitted, lacked the aggravating features necessary to place it at that level for either applicant. Further, they pleaded guilty at the earliest opportunity; Mr Jones apologised unreservedly on his own behalf and that of the company and showed significant remorse; and Mr Jones was a person of positive good character (including as to his attitude to health and safety at work) as evidenced through numerous references, who had made very significant contributions to community groups.
On the plea, the prosecution relied on, and provided the judge with, a number of relevant sentencing cases. Overall, the cases provided to the judge presented a fair picture of relevant sentencing practices, yet the range they illustrated was far exceeded by the sentences imposed on the applicants. Moreover, the judge attributed to the defence ‘no submissions seeking to demur from this characterisation of the gravity of the offending’. In fact, defence counsel, while acknowledging that the company was pleading guilty to an inherently serious offence, submitted that the offending was not at the high end of the range of seriousness. In any event, counsel submitted, regardless of the characterisation of the seriousness of the offending, the penalty imposed on DJE was significantly outside the range of sentences open in the sound exercise of discretion. The sentence imposed on Mr Jones was even more plainly excessive. Accepting that Mr Jones’ case was a serious example of the relevant offence, either the CCO or the fine alone would have been an exceptionally stern sentence. It is impossible to see that Mr Jones derived any benefit from his plea of guilty.
With respect to ground 2, the applicants’ counsel drew attention to the sentencing judge’s observations that: ‘Whilst unstated, essentially the defence submission in this case, is that anything other than a modest fine will tip DJE into liquidation. I therefore consider it appropriate to have regard to sentencing cases where a company has already been placed in liquidation in an occupational health and safety context’. That observation, counsel submitted, was wrong. In fact, the defence submission was that Mr Jones intended to keep operating the company and pay the fine — including by selling investment properties held in a family trust — and that it was only if a fine was imposed in the higher range available to the court that such a course would not be viable.
Counsel submitted that, as a result of the judge’s error, she appears to have failed to consider the possibility of moderating the fine to reflect the subjective circumstances of the company. The fact that a financial penalty ‘ultimately … would be ruinous, and disproportionate to the financial circumstances’ of an offender, is required to be taken into account.[14] The judge appears to have taken the view that, since any fine she would impose would be likely to place DJE into liquidation, there was no need to consider this issue. The sentencing discretion is thereby vitiated.
[14]Di Tonto, [30] (Priest and Weinberg JJA).

The respondent’s submissions

With respect to ground 1, the respondent’s counsel submitted that, although as a matter of first impression the sentences might appear to be ‘high’, upon full consideration they can be seen to fall within the range of sentences reasonably open to the sentencing judge.
Counsel for the respondent submitted that the objective seriousness of the offending is the primary factor in determining the appropriate sentence to be imposed for a contravention of the OHSA.[15] The sentencing judge described both DJE’s and Mr Jones’ offending as ‘very serious’, and was satisfied that DJE and Mr Jones had both demonstrated a ‘wanton disregard’ for the safety of DJE’s employees. The unchallenged expert evidence was that ‘any qualified tradesman’ would be aware that machining protruding pipes without using a steadying device was an ‘extremely dangerous’ practice and an ‘absolute no go’. Notwithstanding this, and other overt warnings about the risk, DJE and Mr Jones had, on several occasions, directed DJE’s employees to manually steady protruding pipes by holding a plastic bung.
[15]Counsel cited Amcor, 565 [35] (Vincent, Eames and Nettle JJA).
Contrary to the applicants’ contention that DJE’s offending lacked certain aggravating features, counsel for the respondent contended that the 2012 incident was a significant aggravating feature, which was highly relevant to the gravity of both DJE’s and Mr Jones’ offending. Following that incident, DJE and Mr Jones were on notice about the very serious risks involved with machining protruding pipes without using a steadying device. Invoking the principles in Frewstal,[16] counsel submitted that the gravity of the breach was very significant, and the extent of the risk was patent.
[16]DPP v Frewstal Pty Ltd (2015) 47 VR 660, 686 [127] (Priest JA and Kaye JJA).
With respect to DJE, the respondent’s counsel submitted that it cannot be overlooked that the company fell to be sentenced for a ‘high culpability offence’;[17] and that, within that context, the sentencing judge found that DJE’s culpability was ‘very high’. The sentencing judge was also obliged to have regard to the fact that the applicants’ offending resulted in Mr Foley’s quality of life being severely diminished. Counsel submitted that general deterrence needed to be given considerable weight in the sentencing process. There was also a need to strongly denounce the applicants’ conduct and to punish them for it. Having regard to all relevant considerations — including subjective factors — the sentences were not manifestly excessive.
[17]Counsel cited Orbit Drilling, 414 [59] (Maxwell P, Bongiorno JA and Kyrou AJA).
So far as ground 2 was concerned, the respondent’s counsel submitted that the sentencing judge did no more than have regard to the principles that apply when a company in liquidation is being sentenced; that is, an appropriate sentence still needed to be imposed. Counsel submitted that the sentencing judge did not fail to consider DJE’s financial circumstances, nor the possibility that the imposition of a significant fine might be ruinous to it. To the contrary, the judge clearly acknowledged that DJE’s financial circumstances were relevant to the sentencing exercise. The judge was alert, however, not to place too much weight on that factor, which might have resulted in the imposition of a sentence that failed to reflect the very serious nature of DJE’s offending, or which might have failed to give sufficient weight to the predominant sentencing purpose of general deterrence. The applicant’s complaint that the sentencing judge failed to consider the possibility of moderating the sentence to reflect DJE’s subjective circumstances is also without foundation. Thus, counsel submitted, ground 2 is not reasonably arguable.

Ground 2

It is convenient to turn first to ground 2, which complains of discrete error; that is, that the judge erred in sentencing on the basis that anything more than a modest fine would result in the liquidation of DJE.
Counsel in this Court submitted that the judge’s remarks[18] mischaracterised the submissions that had been made. On the plea, counsel had submitted that Mr Jones intended to keep operating DJE, and would only be unable to do so if the fine imposed was in the ‘higher range of the maximum available’. The result of the judge’s error appears to be that she failed to consider the possibility of moderating the fine to reflect the subjective circumstances of the company, thereby vitiating the exercise of the sentencing discretion.
[18]See [24] above.
It cannot be doubted that, on the plea, senior counsel for the applicants had made it clear that, so long as it was viable for him to do so, Mr Jones intended to pay a fine imposed on DJE — even if it were a ‘heavy fine’ — and continue to operate the company. But counsel also made it clear that, whether it remained viable to operate the company would depend (at least to some extent) on the magnitude of the fine, submitting that ‘a fine in the higher range of the maximum available’ would render the continuation of the company non-viable. Hence, senior counsel submitted:[19]
After the incident, Mr Jones contemplated selling the business and indeed started selling off some machines to facilitate this and closed it but in the end decided to reopen and continue, and he proposes still to continue … even in the face of a heavy fine in this matter, to, if necessary and if practicable – and I’m very conscious that Your Honour has a very high range of penalties available to you in terms of a maximum penalty, and it will depend to some degree on what that penalty is, whether it is viable to pay the fine and continue the business operating, but that is his intention.
…
… So having to sell the business assets would create issues for the viability of the business. So what Mr Jones proposes to do, if it’s realistic, is to sell personal assets in order to keep the business running, pay the fine, and hopefully obtain an instalment plan through Fines Victoria. Taking all that together, make it viable for it to continue. Certainly a fine in the higher range of the maximum available to Your Honour however would not be viable for that to be done.
…
So Your Honour perhaps has a difficult sentencing exercise in reflecting what is the conceded seriousness of this offending but at the same time, doing so in a way which reflects the circumstances of this accused man or offender and this company, which the Court of Appeal in Di Tonto^[[20]] makes clear in our submission that it is appropriate to moderate a fine that may have been imposed against a business of – with large resources and there’s specific reference in the case to the modest circumstances of Mr Di Tonto and that company and the Court of Appeal indeed significantly reduced the fine imposed on first instance on the basis that the sentencing judge appeared to not have taken that into account in an appropriate way.
[19]Emphasis added.
[20]Di Tonto, [29].
As the passages extracted above demonstrate, senior counsel for the applicants had informed the judge that Mr Jones intended to continue to operate DJE even if the sentencing judge imposed a ‘heavy fine’. Only ‘a fine in the higher range of the maximum available’ would render the continuation of the company unviable. In our opinion, nothing in counsel’s submissions implied or insinuated that ‘anything other than a modest fine will tip DJE into liquidation’. Thus, in our view, the judge was wrong to characterise counsel’s submissions in the manner that she did.
The judge’s error is, however, immaterial. Although it is curious that neither counsel nor the judge made reference to s 52(1) of the Sentencing Act 1991 — which requires a court imposing a fine to ‘take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose’ — it is clear from her reference to Denbo that the judge considered that she should fix a fine that would be appropriate for the company as a going concern, and that any such fine should reflect the need for general deterrence.
In Denbo, a company had pleaded guilty to manslaughter at common law arising out of an incident in which an employee was killed on 12 February 1991 driving a truck with brakes that company management knew to be defective. At the time of sentence, the company was in receivership, owing millions of dollars, with no funds being available to distribute to unsecured creditors. As a result, ‘any fine set by [the judge] will impose no burden on anyone as it will not be paid’.[21] Notwithstanding that fact, in sentencing the company Teague J said:[22]
In the circumstances, I propose to fix a fine at an amount which would have been appropriate if the company had remained as thriving as it appeared to be as at February 1991, but which otherwise reflects the need to take account of normal sentencing principles. That includes taking account the plea of guilty, although that is hardly a matter of great moment in the company’s present position. It also includes that the amount of the fine ought to be substantial because it ought to be directed at achieving a generally deterring effect. Put another way, the safety of its employees must be given the highest possible priority by every employer. If it is not, the employer should have to pay dearly.
[21]Denbo, 159.
[22]Ibid.
Immediately after the remarks impugned under cover of ground 2, the judge made it tolerably clear by her reference to Denbo that the amount of any fine she would impose ‘ought to be substantial because it ought to be directed at achieving a generally deterring effect’. Moreover, in other remarks in her sentencing reasons the judge had made it plain that the objective seriousness of the offending was ‘the primary factor in determining the appropriate penalty’, and that ‘general deterrence is the predominant sentencing consideration’.[23]
[23]See [29] above.
Given the foregoing, we consider that the judge’s error can have had no material influence on the sentence she imposed.
Leave to appeal on ground 2 should be refused.

Ground 1

DJE

To risk repetition, DJE pleaded guilty to a charge of recklessly endangering persons at a workplace, in breach of s 32 of the OHSA.
In Orbit Drilling, it was held that the recklessness provided for in s 32 of the OHSA did not require foresight on the part of an offender that the offender’s actions would probably cause serious injury, but rather foresight on the part of the offender that the conduct to be engaged in would probably have the consequence that another person at the workplace was placed, or could be placed, in danger of serious injury.[24]
[24]Orbit Drilling, 404–5 [22] (Maxwell P, Bongiorno JA and Kyrou AJA).
The Court observed that the offence of reckless endangerment under s 32 is, ‘by definition, as well as by express intent’, a ‘high culpability offence’.[25] The degree of culpability of an offender who contravenes s 32 will depend on what is established regarding the offender’s awareness of: first, the degree of probability that the worker would be placed in danger of serious injury; and, secondly, the nature of the probable danger thus foreseen.[26] Moreover, the Court made it plain that ‘for offending of this kind, general deterrence is a consideration of great importance’.[27]
[25]Ibid 414 [59].
[26]Ibid 411 [49].
[27]Ibid 414 [60].
Importantly, the Court in Orbit Drilling drew a distinction between the general ‘risk-based’ offences in Part 3 of the OHSA, and the offence of reckless endangerment in s 32. Hence, the Court observed:[28]
With OHS offences of the conventional risk-based kind, the consequences of the company’s safety breach are generally viewed as of little relevance to the assessment of objective seriousness. When an accident occurs, it is not the accident itself which constitutes the offence but, rather, the failure of the employer to ensure (so far as reasonably practicable) that its employees were not exposed to risk. It is the extent of that failure which determines the gravity of the offence. The occurrence of an accident, and the sustaining of injuries by an employee, may nevertheless provide relevant evidence of the existence of the risk to health and safety, and of the seriousness of that risk. In the present case, what happened to [the victim] highlights the gravity of the danger to which the company exposed him and, hence, the high degree of culpability attaching to its reckless conduct.
The distinctive character of the offence of reckless endangerment may mean that closer attention should be paid in sentencing to the actual consequences of the offence. As already discussed, the offence under s 32 involves the knowing exposure of a particular person (or persons) to a probable risk of serious injury. As with other risk-based offences, the offence is committed at the point when the employee is knowingly exposed to the risk, and the fact that no injury is suffered in no way lessens its gravity. But, where the employer’s reckless conduct does cause actual harm, the extent of the harm might be thought to be relevant to penalty, at least where what occurred was within the scope of the danger foreseen. It might be said, for example, that the reckless exposure of an employee to risk would be viewed more seriously when it resulted in the employee’s death than when it resulted in serious injury. The point was not argued, however, and we need say nothing further about it in the context of the present appeal.
[28]Ibid 414–5 [62]–[63]. (Footnotes omitted; emphasis added.)
By its plea, DJE acknowledged that Mr Jones’ conduct would probably have the consequence that Mr Foley would, or could, be placed in danger of serious injury. Indeed, it is clear that Mr Jones — and therefore DJE — was aware of the risks involved in operating the CNC lathe with a pipe protruding from it without the use of a suitable steadying device. Such a practice involves a high risk of the overhanging pipe ‘whipping’ or ‘helicoptering’, thereby exposing a person in proximity to the lathe to the risk of being seriously injured. The evidence was that any qualified tradesman would be aware of the risk. And not only is that kind of risk common knowledge in the industry, but Mr Jones himself had actually been exposed to the risks associated with the practice in 2012, when a brass bar he was turning on a CNC lathe — with the bar protruding from the rear spindle of the lathe — snapped or sheared off and flew through the factory’s roof. That experience should have been — but apparently was not — a salutary lesson for Mr Jones of the risks involved.

Furthermore, Mr Jones well knew that there was a readily available means of mitigating the risk. He knew that a fixed steadying device was required to safely operate the lathe for tasks involving protruding pieces — he had asked Mr Foley to obtain a fixed steady — yet he instead procured Mr Foley, a second-year apprentice, to use a hand-held bung as a steady. Using a hand-held steady to support an overhanging workpiece whilst operating a lathe — even at low speeds — is ‘obviously extremely dangerous’, since it puts the person holding the steady at the danger point in the event that an overhanging workpiece becomes subject to ‘whipping’ or ‘helicoptering’. Mr Jones must have been aware of the extreme danger posed to Mr Foley by having him use a hand-held steady in preference to a fixed device, yet he proceeded to turn a protruding piece of pipe in the lathe without resorting to the simple expedient of employing a freely accessible fixed steadying device.
Moreover, the risk of serious injury to Mr Foley flowing from Mr Jones’ reckless conduct in fact eventuated, in circumstances where the injuries caused must have been within the scope of the danger foreseen by Mr Jones. As Orbit Drilling makes clear, given that Mr Jones’ reckless conduct resulted in actual harm, the extent of that harm is relevant to any penalty to be imposed on DJE.[29] Quite plainly, what happened to Mr Foley underscores the gravity of the risk to which Mr Jones exposed him, and, as a result, the high degree of culpability attaching to DJE’s reckless conduct.
[29]See also Sentencing Act 1991, s 5(2)(daa), (da) and (db).
In light of the foregoing, DJE’s offending was objectively very serious. Given the potential consequences of its conduct for its employees, and the extent of its evidenced disregard for the safety of Mr Foley in particular, we regard DJE’s culpability — as did the sentencing judge — as being very high.[30]
[30]Amcor, 565 [35] (Vincent, Eames and Nettle JJA).
Additionally, as the authorities make clear, general deterrence needed to be given considerable weight. In the circumstances, there was also a need to denounce strongly DJE’s conduct and to punish the company for it. Subjective factors were subordinate to these requirements.
The approach to a complaint that a sentence is manifestly excessive was discussed in Leimonitis:[31]
As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument, since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long. A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate. But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.
[31]Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA, Weinberg JA agreeing at [38]) (footnotes omitted).
Although we regard the fine imposed on DJE — the equivalent of about 58 per cent of the available maximum — as stern, we are not persuaded that it is manifestly excessive. The objective seriousness of the offending, and the need for general deterrence, denunciation and just punishment, had to be reflected in the sentence imposed. Having regard to those factors, it cannot be concluded that the fine imposed on DJE is wholly outside the range open to the judge in the sound exercise of discretion.
So far as it concerns DJE, we would refuse leave to appeal on the first ground.

Dennis Jones

Albeit that manifest excess is a conclusion which does not depend upon the attribution of identified specific error, it is noteworthy that the judge gave no reasons for imposing a CCO of the maximum available duration on Mr Jones,[32] with the maximum available number of hours of unpaid community work.[33]
[32]By virtue of s 38(1)(b) of the Sentencing Act 1991, the maximum period of a CCO imposed by the County Court is five years.
[33]See s 48C(4) of the Sentencing Act 1991.
Moreover, beyond remarking that ‘the quantum of the fine to be imposed upon DJE will likely impact on [Mr Jones’] financial position’, and ‘the purpose for which the sentence is to be imposed on [him] personally will not be achieved by imposing a fine alone’,[34] the judge did not adequately explain why she considered it to be appropriate to couple a CCO of the maximum duration, with a punitive number of hours of unpaid community work, to a fine of over 40 per cent of the maximum ($140,000).
[34]See [30] above.
Although Mr Jones’ offence — being an officer of a body corporate that failed to provide and maintain safe systems of work, where that contravention was attributable to his failure to take reasonable care — was serious; and notwithstanding that general deterrence, denunciation of his conduct and just punishment, were important to the exercise of the sentencing discretion; there were a number of mitigating features that needed to be reflected in any sentence imposed upon him.
Of those mitigating features, it is difficult to detect in the overall sentence imposed any ‘discount’ being afforded to Mr Jones for his plea of guilty, which, coupled with his co-operation with investigators, the judge considered demonstrated genuine remorse. Indeed, it is impossible to discern any mitigation at all of the punitive aspects of the CCO, or the sentence generally, flowing from the guilty plea. As mentioned above,[35] the judge stated that, but for the plea of guilty, she would have imposed a fine of $270,000; but, given the plea of guilty, she would impose a fine of $140,000, coupled with the CCO of five years’ duration, a condition of which was that Mr Jones perform 600 hours of community service.
[35]At [5].
In our view, the fact that Mr Jones had pleaded guilty at the earliest opportunity, apologised unreservedly and showed significant remorse; and the fact that he was a person of positive good character (as evidenced through many references), who had made very significant contributions to the community; were all features that needed to be given adequate recognition in the sentencing synthesis. The sentence imposed demonstrates, however, that they cannot have been afforded sufficient weight.
Instinctively synthesising all relevant factors — those features going in mitigation, and those in aggravation, together with the circumstances of the offending and of the offender — we have concluded that the sentence imposed on Mr Jones is altogether outside the range of those available to the judge in the sound exercise of the sentencing discretion.
For these reasons, we would grant Mr Jones leave to appeal on the first ground; allow the appeal; set aside the sentence first imposed; and exercise the sentencing discretion afresh.
Taking into account all relevant features (including that the financial resources of DJE and Mr Jones are intertwined), in lieu of the sentence imposed in the County Court we would impose a CCO of three years’ duration, with a condition that he perform 200 hours of community work. Pursuant to s 6AAA of the Sentencing Act 1991, we would declare that, but for Mr Jones’ plea of guilty, we would have sentenced him to pay a fine of $190,000.

Conclusion

In the case of DJE, leave to appeal against sentence should be refused.
The application for to leave to appeal against sentence by Dennis Andrew Jones should be granted; the appeal allowed; the sentence imposed in the County Court set aside; and, in lieu, Mr Jones is sentenced to a CCO of three years’ duration, with a condition that he perform 200 hours of unpaid community work.

---

[2025] VSCA 76

11 April 2025