Director of Public Prosecutions v A1 Engineering (Vic) Pty Ltd

[2023] VCC 853

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT SHEPPARTON

CRIMINAL JURISDICTION

CR 21-00888

DIRECTOR OF PUBLIC PROSECUTIONS

v

A1 ENGINEERING (VIC) PTY LTD

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2023 – 16 March 2023 (Trial), 23 May 2023 (Plea)
DATE OF SENTENCE:	26 May 2023
CASE MAY BE CITED AS:	DPP v A1 Engineering (Vic) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VCC 853

REASONS FOR SENTENCE

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Subject:	CRIMINAL LAW
Catchwords:	Charge of failing to ensure a safe workplace – machinery fell on employees whilst loading container – failure to provide supervision – Remorse – Delay – specific deterrence of little relevance - general deterrence
Legislation Cited:	Occupational Health and Safety Act 2004; Sentencing Act 1991
Cases Cited:	DPP v Prestige Truck Bodies (Aust) Pty Ltd [2023] VCC 747, DPP v Andrew Buchanan Engineering Ltd [2021] VCC 2162, DPP v Multiworks Australia Pty Ltd [2021] VCC 1553, DPP v E. & O. Lagondar Nominees Pty Ltd and Lagondar [2021] VCC 1024, DPP v Pipecon Pty Ltd [2021] VCC 1808, DPP v Elliott Engineering Pty Ltd, Unreported, County Court of Victoria, Judge Murphy, 27 February 2014
Sentence:	Fine of $250,000

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Flynn KC Mr L Cameron	Mr M. Thackaberry Ms I. Anticev Office of Public Prosecutions
For the Accused	Ms F. Livingstone-Clark Mr L. McAuliffe	Mr S. Dekker Mills Oakley

HIS HONOUR:

1This sentencing proceeding under the Occupational Health and Safety Act 2004 (Vic) arises out of a tragic fatal accident on 6 December 2017 at a disused cheese factory in Leitchville in northern Victoria.

2For many years, the factory had been operated by Kraft Foods.  It was subsequently sold to Murray Goulburn Co-operative Ltd.  In around 2012, the factory ceased operations, and efforts were made to sell the plant.  In 2016, the site came under the control of Saputo after the demise of Murray Goulburn although for all intents and purposes it was regarded as a Murray Goulburn site and administered as part of the relevant Murray Goulburn region.  In early 2017, a New Zealand company, Open Country Dairy Ltd, purchased the factory equipment.  A New Zealand contractor, Andrew Buchanan Engineering Ltd, was engaged to supervise the dismantling of the plant and equipment and arranging for it to be shipped to New Zealand for reassembly.

3The principal of the company, Mr Andrew Buchanan, relocated to Australia to coordinate and supervise the work. Until shortly before December 2017, he was also assisted by Mr Drysdale. Mr Buchanan retained the defendant company, a metal fabrication business based in Cobram, to undertake the cutting, dismantling and shipment of the equipment.  He was also involved in engaging other contractors as required to assist, including Big Hill Cranes Pty Ltd and local electrical and refrigeration businesses.  Murray Goulburn remained in control of the site, and a local contractor and former employee, Mr Dehne, was involved in site security and inductions onto the site.  Employees of the defendant company stayed in a local caravan park while working at the site.

4The work commenced around August 2017, with the principal work involving the dismantling of the cheesemaking plant finished by around November.  As the work progressed, a decision was made that another part of the onsite operation, the rapid cool room, would also be dismantled and transported to New Zealand.  The number of employees of the defendant company on the site varied but was down to a handful in late November 2017.  The senior employee was the deceased, Mr Glenn Parsons.  There was also a trades assistant, Mr Crea, and two apprentices, Mr Ventre and Mr Strawhorn.  The four of them were staying at the caravan park.

5From time to time over the duration of the project, a director of the defendant, Mr Barca, would attend at the site to check progress. In addition, Murray Goulburn regional representatives would also attend from time to time and were being provided with progress reports by Mr Dehne.

6Unsurprisingly, given the nature of the tasks being undertaken, there was a strong health and safety culture within the company and at this site in particular.  Mr Buchanan was responsible for what he described as the 'infrastructure' of the health and safety regime.  He was required to use relevant forms and procedures that had been obtained from Murray Goulburn.  Each morning, before work commenced, there was a toolbox meeting chaired by him.  Each of the employees and contractors that were involved on the day were required to attend and sign on as to their participation in the meeting.  The minutes were reviewed on a daily basis.  They were left in a canteen room and, when the tasks were completed, were placed in a folder in Mr Buchanan's office in the office complex.

7Mr Buchanan required the preparation of a safe work method system (SWMS) or job safety analysis (JSA) for all major tasks.  Contractors on the site were required to have their own SWMS or JSAs and also to sign on to SWMS prepared by Mr Buchanan where appropriate.

8The regime for SWMS was administered by a former long-time employee at the plant, Mr Dehne, who was retained by Murray Goulburn as the caretaker and who was required to ensure that all persons coming onto the site had completed an induction and had relevant tickets and work permits with an attached SWMS and had met the OH&S requirements of Murray Goulburn.  From time to time, he undertook spot checks around the site.  From time to time, he would also assist employees of the defendant in loading containers, and for this, he would bill Open Country Dairy.  In his duties, he was assisted from time to time by another long-term former employee of Murray Goulburn, Mr Williams.

9By late November, the main contractor on the site assisting the defendant company was Big Hill Cranes Pty Ltd, whose principal operator onsite was Mr Hassall.  Big Hill Cranes had been providing onsite cranes for moving different pieces of equipment into both closed and open containers for shipment.  Big Hill cranes would provide SWMS for different phases of their work to Mr Dehne.  There was what was described as a general lifting SWMS in place in early December.

10On 28 November, Mr Buchanan was required to return to New Zealand for family reasons.  He expected to return to the site on Tuesday 5 December.

11By that stage, the dismantling of the rapid cool room was nearing completion.  The equipment included metal racks, motors, fans and three large condenser units.  Before leaving, Mr Buchanan had a discussion with Mr Parsons as to tasks that the employees of the defendant would undertake while he was away.  He said he gave Mr Parsons a written list.  That list has never been located.  The work to be done was also discussed with the employees concerned.

12It was agreed that Mr Parsons would undertake the daily toolbox meetings while Mr Buchanan was absent.

13Work continued, led by Mr Parsons in the absence of Mr Buchanan.  The family reasons that took Mr Buchanan back to New Zealand did not abate, and he did not return to Australia as envisaged by Tuesday 5 December.  He was unable to recall whether he had discussions with Mr Parsons on the Monday or the Tuesday.  On the morning of Wednesday 6 December, Mr Parsons had a headache and only arrived at the site around the morning tea break, which took place at around 9 am.  There was conflicting evidence as to whether, in fact, there was a toolbox meeting that morning.  Given that Mr Parsons was the most senior employee there and absent, it is highly likely that there was no such toolbox meeting.  Mr Crea said there was no toolbox meeting.  He and the other two employees there continued working on the tasks that they had been doing the day before.  Mr Buchanan from New Zealand had a phone call with Mr Parsons at around 9.30 am in which the discussion was as to where the team were in relation to the removal of the plant from the rapid cool room.  He was advised that the plant had been removed from the room, and the discussion moved onto what was to happen next, and as he recalled it, 'I think it was to load the equipment into flat packs and containers'. The condenser units were to go into a closed container.

14The condenser units at the centre of this event were large metal structures approximately 900 millimetres wide, 1.8 metres high, 3 metres long and weighing approximately 770 kilograms.  They had a high centre of gravity, as they stood on four steel legs.

15Mr Crea gave evidence that when Mr Parsons arrived at the site between nine and 9.20, he had a discussion with him as to what he had been doing.  He advised that they had almost finished welding some frames together for shipment.  There was then a discussion about what tasks were to be done next, and Mr Parsons decided to put the condensers into the container.  He told him, 'I'll talk to the crane driver and see how we're gonna do it'.

16Mr Hassall gave evidence that he discussed with Mr Parsons how to move the condensers, which at that stage were sitting in the yard after having been washed.  The only type of container available at that point was a closed or high cube container.  Mr Hassall, who was a very experienced crane operator, was using a type of non-slewing mobile crane known as a Franna, which consisted of an extendable boom mounted on an articulated truck chassis.

17Mr Parsons had the idea to skate them into the container one at a time.  Industrial skates or rollers had previously been used in part of the job.  Mr Parsons and Mr Hassall agreed between the two of them to lift or sling the condenser, remove the legs, and then using the boom, move the condenser into the container.  Skates would then be placed under the two front legs, the condenser would be re-slung and, using the extendable boom, would be pushed into the back of the container.

18Mr Crea was involved in removing the legs of the first condenser.  Mr Hassall then drove the crane carrying the condenser around 30 or 40 metres from where it had been standing to the open container.  The plan proceeded with Mr Parsons inside the container and with Mr Crea directing Mr Hassall using verbal and hand signals from the entrance to the container.

19The condenser was inserted into the container, and Mr Parsons arranged for skates to be placed under the two front legs.  Mr Hassall then lowered the boom, retracted the boom and re-slung the condenser so that it could be pushed further into the container.  Mr Crea was standing at the entrance of the container giving him directions as to how to push the condenser deep into the container.  Upon instructions from Mr Crea, Mr Hassall then released the chains and retracted the boom.  He then drove the crane back to where the other two condensers were standing and commenced to sling the next condenser.

20Meanwhile Mr Parsons was inside the container with a hydraulic jack and some wooden blocks.  Mr Crea was also inside the container next to the condenser.  In the course of Mr Parsons seeking to jack up the condenser to remove the two skates, it toppled over and crushed both men against the wall of the container.  It also trapped Mr Crea's foot.

21Mr Hassall heard a loud bang and rushed over to the container and saw what had happened.  Mr Crea was able to discuss the matter with him, and the CFA and an ambulance were called.  By the time the necessary equipment had arrived and the condenser was lifted up, Mr Parsons had passed away.  Mr Crea suffered significant injuries, being a broken leg and crushed foot.

Victim impact

22Before turning to consider the culpability of the company, I must consider the impact of the offending on any victims.  A victim impact statement was made by the partner of Mr Parsons of 28 years, Ms Thompson.  In the heartfelt statement, she indicated that the death of her partner 'is the most devastating experience I have ever been through'.  It has affected her health, sleep, financial situation and leisure activities greatly.  The children and grandchildren have been impacted and her retirement plans disrupted.  She is waiting for finality in the matter so that she can move on.  She concludes, 'It is really your worst nightmare when the man you adore and love does not come home from work'.

23Mr Parsons sister, Sharyn, has also filed a VIS.  She indicates that the death of Mr Parsons has 'ripped my heart out and shattered my world'.  Life has changed immensely.  She misses him every day.  She is no longer able to work full-time due to depression and fatigue and requires counselling.  She has a bereavement disorder.  She cannot cope with holidays.  It has affected the family, and she was unable to advise her father, who has since passed away.  The memory of her brother is dominated by the circumstances of his death.  She noted that he had 'years of life to look forward to, worked hard, was kind, funny, loved to travel and enjoy people'.

24Mr Crea, who was injured on that day, did not file a victim impact statement.  He gave evidence for the prosecution indicating that he had a broken leg and crushed foot.  It was clear from his demeanour that he is still suffering ongoing physical and mental issues as a result of this incident.

25I am required to take into account the victim impact statements in sentencing.  It is clear from the statements, particularly that of Ms Thompson, that the death of Mr Parsons has had a major impact on her and on the family which is continuing.  I take into account victim impact statements.  The sentence of the Court is to punish the offending company and deter others from similar offending.  It is not in any way to put any sort of value on the life of Mr Parsons.

Subsequent proceedings

26Following investigation, the Victorian WorkSafe authority on 27 November 2019 brought proceedings under the Act against Andrew Buchanan, Andrew Buchanan Engineering Ltd, Big Hill Cranes Pty Ltd and the company.

27The matter was the subject of committal proceedings, and Big Hill Cranes was discharged at the committal.  Following negotiations, Andrew Buchanan Engineering Ltd in December 2021 pleaded guilty to two charges under the Act:  that it failed to have a safe system of work and that it failed to properly supervise employees and others.  The company was sentenced to an aggregate fine of $300,000.

28The Director of Public Prosecutions filed an indictment in this court against A1 Engineering alleging four breaches of the Act.  Charge 1 alleged a breach of the lifting regulations of the Occupational Health and Safety Regulations 2017 arising out of a failure to ensure control of the load when the condenser was loaded into the container. The specific allegations were that there was no qualified dogman nor rigger to guide the load and/or taglines were not used to prevent pendulum motion of the load.

29Charge 2 alleged a failure to have a safe system of work.  The particular allegation was a failure to ensure which employees were required to undertake the work and ensure they were suitably qualified and experienced to undertake the work.  It was alleged that the company had failed to liaise with Andrew Buchanan to ensure employees were suitably qualified and experienced to undertake the work.

30Charge 3 alleged that in having Mr Parsons and Mr Crea undertake the work which involved a risk of injury, A1 engineering had failed to provide necessary supervision to ensure that the work was undertaken safely and without risk to health.  The particular allegation was that A1 engineering should have ensured that:

(a)there was a supervisor actively supervising them to undertake the task; and/or

(b)the supervisor was aware of their qualifications and experience and ensured that they were working in a role for which they were qualified and experienced.

31Charge 4 alleged that the company had failed to provide necessary instruction to its employees to ensure that when a new task was undertaken, there was a risk assessment and instruction provided that the employees were not to undertake work outside of the scope agreed.

32After a strongly contested 12-day trial at the Shepparton County Court, on 16 March 2023, the company was acquitted of Charges 1, 2 and 4 and found guilty of Charge 3.  Mr Buchanan gave evidence for the prosecution.  The company did not lead any oral evidence, but a number of documents were tendered.

33The maximum penalty is $1,427,130.

34Ms Flynn KC, with Mr Cameron, appeared for the prosecution, and Ms Livingstone Clark and Mr McAuliffe appeared for the company.

Assessing the moral culpability of the company

35It is important to note that one of the primary objects of the Occupational Health and Safety Act is to secure the health, safety and welfare of employees and other persons at work.  The Act recognises that employees or other persons at work and members of the public be given the highest level of protection against risks to their health and safety as is reasonably practicable in the circumstances.  The principles of the Act emphasise that those who control matters that give rise or may give rise to risks to health and safety are responsible for eliminating or reducing those risks so far as reasonably practicable.

36The legislative scheme requires employers to take a proactive approach to workplace safety; that is, to take steps that are reasonably practicable to provide and maintain a safe working environment, including, where appropriate, taking an active, imaginative and flexible approach to potential dangers in the workplace.

37The principles to be applied in sentencing for breaches of the Act have been considered in a number of cases.  It must be made clear that unlike cases of unlawful homicide, the occurrence of death or serious injury is not an element of the offence charged.  An offender is to be punished according to the gravity of the breach of duty under the Act, not according to the result or consequences of the breach.

38The gravity of the breach is measured by two factors:

(1)the seriousness of the breach itself; that is, the extent to which the offender has departed from its statutory duty; and

(2)the risk of death or serious injury that might result from the breach.

39The assessment of the extent of the risk itself involves consideration of two factors:

(i)the likelihood of the occurrence of an event as a result of the breach endangering the safety of employees; and

(ii)the potential gravity of the consequences of such an event, in particular where there is a risk of death or serious injury.

40The fact that a breach in a particular case resulted in death is relevant only in the sense that it might manifest or demonstrate the degree of seriousness of the relevant threat or risk to health and safety resulting from the breach and to the impact on the victims.

41These are the principles which must be applied to assess the moral culpability of the company in this particular case.

42The prosecution relied on the evidence of a consulting engineer, Mr McDonald, as to the risks involved in the ad hoc task undertaken by Mr Parsons and Mr Crea, with the assistance of Mr Hassall on 6 December 2017 of moving the condensers into the container.

43The jury found the defendant guilty of failing to ensure that the employees were properly supervised.  As noted, within the structure of the company operations on this project, it was Andrew Buchanan who was providing the supervision of its employees although the most senior and qualified employee, Mr Parsons, was also able to provide supervision to those underneath him.

44The company did have a safety culture for daily tasks which centred around toolbox meetings conducted by Mr Buchanan.  Mr Parsons, who was to conduct the meeting during his absence, was not present on the site when in the usual course the meeting would have taken place.

45As it emerged from the evidence, the particular task involving the condensers only came to be commenced around 9.30 am on 6 December 2017.

46After the phone call between Mr Buchanan and Mr Parsons as to the duties that were to be undertaken, Mr Parsons was left to his own devices to devise a system of work with Mr Hassall without the benefit of a SWMS or advice or second opinion from Mr Buchanan.  While Mr Parsons was a qualified boilermaker and a highly experienced and well-regarded employee, he was left with no supervision whatsoever.

47The task itself, as articulated by the evidence of Mr McDonald, was fraught with risks due to the need to use a crane, the particular container available and the mass and high centre of gravity of the condenser.  On the evidence of Mr McDonald, the individual elements of the task required both dogging and rigging skills for those involved.  Neither Mr Parsons nor Mr Crea had these occupational tickets.  The container itself was not suitable.

48As noted earlier, the company faced four different charges.  Much of the evidence, and in particular the cross-examination of Mr McDonald, focused on Charge 1, relating to an alleged breach of the lifting regulations, and whether the use of a crane and an additional employee such as a dogger or rigger was required.  The company was acquitted of this charge.

49Charge 2 related to the failure to have a safe system of work and in particular the failure to identify the range of work which employees would be required to undertake and to ensure that they were suitably qualified and experienced to undertake that work.  It was reasonably practicable for the company to liaise with Mr Buchanan in relation to the work and the qualifications of the employees.

50The company was acquitted of this charge, and it was also acquitted of Charge 4.

51In relation to Charge 3, the employees of the company were effectively lent to Andrew Buchanan Engineering Ltd.  Because the duty of an employer under the Act cannot be delegated, the company was still required to comply with its obligations under the Act.  The defence case in relation to Charge 3 was that notwithstanding that Mr Buchanan was not on site that day, there were other supervisory structures in place that discharged the obligation of the company to its employees.  It was not clear what structures the defendant company was relying on.  The jury must be taken to have rejected this defence.  The particulars allege that the company did not have a supervisor actively supervising the employees and that the supervisor had to be aware of the qualifications and experience to ensure that they were working in a role for which they were qualified and experienced.

52In the plea submissions, it was almost intimated that Mr Parsons was supervising himself.  This could not be the case.  After Mr Parsons, along with Mr Hassall, devised the system of work, they were unsupervised as they put it into effect.  Further, the jury must have accepted the evidence of Mr McDonald that in undertaking the task, Mr Parsons and Mr Crea required appropriate rigging and dogging tickets for that task, and I accept the submissions from Ms Flynn that his evidence in relation to Charges 1 and 2 remained relevant in relation to Charge 3.

Assessing the relative culpability of the company and Andrew Buchanan Engineering Ltd[1]

[1]DPP v Andrew Buchanan Engineering Ltd [2021] VCC 2162

53Andrew Buchanan Engineering pleaded guilty to two charges under the Act.  The first was a failure to have a safe system of work, and the second was to have adequate supervision.  Judge Coish referred to a number of unusual and unique circumstances surrounding the event.  He referred to a complicated employment structure on the site.  He found, however, that there were serious departures from the statutory duties required.

54In his sentencing remarks, Judge Coish noted that Mr Buchanan frankly admitted that work should have stopped when he was not in attendance supervising although he believed that Mr Parsons and Mr Crea, as experienced capable workers, could continue in his absence.

55Mr Buchanan was operating in a dual role.  The employees of the accused company had been lent to his operation for the purpose of dismantling the plant.  The accused company was relying on Mr Buchanan to discharge its duties to its employees.  It failed to have any fallback mechanism to ensure that when Mr Buchanan failed in his supervisory obligations, its employees were not exposed to risk in their employment.

56Given the central role of Mr Buchanan, I regard the accused company and Andrew Buchanan Engineering as equally culpable in relation to this offending.  I will return to this issue in a moment.

Subjective considerations

57I turn now to matters subjective to the company.  The company is a small to medium sized family business operating in a country town.  It has around
15-20 employees.  I am satisfied that it has a good safety culture and no prior convictions.  It had a safety induction process and documented manuals to ensure the safety of employees, and supervision was undertaken by experienced employees.

58I am further satisfied that the company is a good corporate citizen.  At the plea, the company tendered four references as to its high reputation in the area and in its field and its safety culture.  I take them into account, and the company is entitled to credit for being a good corporate citizen in the local community and the contributions it makes by way of sponsorships and donations.

59Also included was a reference from Mr Crea.  He sustained serious injuries yet remains employed in the company and fully supported it in his reference.  The company has put significant resources into providing him with further qualifications.  I see this as evidence of remorse by the company notwithstanding its decision to contest the charges.  I also note in the company's favour that the management of the company remain on good terms with Ms Thompson.

60In sentencing, consideration of specific deterrence is usually relevant.  In the present case, given the company's good prior record, the lapse of time since this offence and the material put before me as to its safety culture, I see considerations of specific deterrence having little relevance here.

61I have taken into account the delay of over five and a half years since the offending.  There are always delays in the criminal justice system, particularly in circuit matters and during the pandemic.  The matter would have been resolved earlier had the company pleaded guilty.  Despite negotiations, the parties were unable to agree upon a plea deal.  In sentencing, the company is not entitled to the benefit of facilitating the course of justice.  I do take into account that the matter has been hanging over the head of the principals of the company for this time.  As indicated by Ms Flynn, however, it has also been hanging over the head of Ms Thompson and other victims in the matter.

Comparable cases and parity

62The parties referred to a number of cases that may provide evidence of current sentencing practices. [2]  I have considered those cases but do not find them of great assistance.  In the present case, the critical issue is one of parity with the sentence imposed by Judge Coish on Andrew Buchanan Engineering.

[2] DPP v Prestige Truck Bodies (Aust) Pty Ltd [2023] VCC 747, DPP v Andrew Buchanan Engineering Ltd [2021] VCC 2162, DPP v Multiworks Australia Pty Ltd [2021] VCC 1553, DPP v E. & O. Lagondar Nominees Pty Ltd and Lagondar [2021] VCC 1024, DPP v Pipecon Pty Ltd [2021] VCC 1808, DPP v Elliott Engineering Pty Ltd, Unreported, County Court of Victoria, Judge Murphy, 27 February 2014

63The principle of parity requires that like cases be treated alike and that relevant differences between offenders are capable of justifying different outcomes provided that there is no unjustifiable disparity.

64Here, as I have indicated, I regard the company and Andrew Buchanan Engineering as equally culpable.  However, Andrew Buchanan Engineering pleaded guilty to two charges and was sentenced to an aggregate fine of $300,000.  Here, the company pleaded not guilty but was found guilty of Charge 3, failing to properly supervise, which was the same as the second charge to which Andrew Buchanan Engineering pleaded guilty.

65In sentencing, Judge Coish indicated that had Andrew Buchanan Engineering not pleaded guilty, he would have imposed a fine of $500,000.  The company was given a significant discount for pleading guilty, particularly where the plea was entered during the pandemic.

66Under the principles of equal justice, I must have regard to the fine imposed on Andrew Buchanan Engineering.  As I have indicated, however, it followed a plea of guilty and was a sentence for two charges.

67The company is also entitled to have the Court consider any differences in subjective considerations.  It is clear that Andrew Buchanan Engineering was dealt with as a first offender with a good reputation and safety culture.  It is not clear what material was before Judge Coish.

68In the present case, there is significant material as to the reputation and safety culture of the company, and it has a very good reputation.

69In sentencing under this Act, general deterrence is one of the principal sentencing considerations.  Subjective matters play a less salient role.  However, they remain relevant.

70The sentence of the Court must send a message to all businesses that deters them from risking the safety of those affected by the risks that arise from their undertakings.  The Court must send a message that failure to eliminate or mitigate safety risks will attract significant punishment.  The maximum fine of $1,427,130 shows the seriousness with which Parliament views the obligations imposed on employers under the Act.

71The sentence of the Court must also manifest the denunciation of the community for the conduct of the company.

72Employers are required to be ever vigilant to ensure that the risks associated with their operations are mitigated to the greatest extent possible and employees are not exposed to unnecessary risks.

73Taking into account the maximum penalty, the objective gravity of the offence, the impact on the victims, the sentence imposed on Andrew Buchanan Engineering and the other matters to which I have referred, I impose a fine with conviction of $250,000 on the company.  I will grant a stay of three months.

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