Director of Public Prosecutions v Ace Metal Treatment Services Pty Ltd

[2021] VCC 1420

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01672

DIRECTOR OF PUBLIC PROSECUTIONS

v

ACE METAL TREATMENT SERVICES PTY LTD (ACN 154 562 222)

---

JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2021
DATE OF SENTENCE:	28 September 2021
CASE MAY BE CITED AS:	DPP v Ace Metal Treatment Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VCC 1420

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Occupational health and safety – Failure to provide and maintain a safe plant or systems of work – Metal electroplating machine – Fatality – Relatively serious departure from the company’s statutory duty.

Legislation Cited:      Occupational Health and Safety Act 2004 ss 5, 21; Sentencing Act 1991 ss 5(2)(d), 6AAA.

Cases Cited:DPP v Frewstal Pty Ltd (2015) 47 VR 660; Dotmar Epp Pty Ltd v The Queen [2015] VSCA 241; The Queen v Commercial Industrial Construction Group (2006) 14 VR 321; DPP v Weybury [2018] VSCA 120; DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676.

Sentence:                  Fine of $300,000 with conviction.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S Tatas	Office of Public Prosecutions
For the Accused	Mr S Russell	HWL Ebsworth Lawyers

HIS HONOUR:

Introduction

1Ace Metal Treatment Services Pty Ltd (‘AMTS’) has pleaded guilty to one charge of failing to provide and maintain a safe plant or systems of work contrary to ss 21(1) and (2)(a) of the Occupational Health and Safety Act 2004 (OHSA) which carries a maximum penalty of 9000 penalty units, which equates to $1,486,980.

2AMTS has no prior Criminal Record.

Circumstances of the offending

3A prosecution opening was tendered on the plea and may be summarised as follows:

The Employer

4AMTS is a company that undertakes metal heat treating and surface finishing works. At the time of the offending, AMTS was an employer within the meaning of s 5 of the OHSA and maintained workplaces at 11 Williamson Street, Delacombe and at Clayton. The offending relates to an incident at the Delacombe workplace, where AMTS employed three people: Greg Allie, Chris Jones and Brad Jones. Mr Allie was born on 26 July 1969 and had worked for AMTS for approximately 20 years prior to the incident.

The Workplace

5AMTS maintained a PAL Barrel Acid Zinc Plate Line at the workplace (the machine). The machine was used for electroplating metal. Part of the machine consisted of two transporters that collected and placed barrels of items that were to be treated. The transporters travelled along overhead runways adjacent to a raised walkway with open stair access at each end.

6The machine had emergency stop buttons which, if activated, were intended to halt the system until and unless a separate manual push button was pressed.

7The machine also had an emergency stop wire running along the walkway side which would disable the transporter when activated. Safety guards on the side of the machine were designed to shut down the transporter when the space between the guards and the columns was obstructed. The safety guards were designed to operate such that electrical plungers would disconnect the signal to the transporter.

8The method used at the workplace for operating the machine relied on the operators setting the machine to its manual setting by pressing the manual override button on the main electrical panel, which would halt the transporters.

9There were two sets of stairs providing unrestricted access to the line. Any employee was able to access the walkway, from either set of stairs, without interrupting the operation of the machine.

10There was no set maintenance schedule for the machine. AMTS would occasionally engage electrician Lenard Simmons to perform repair works on the machine, but Mr Simmons was not asked to perform scheduled maintenance or preventative maintenance.

The incident

11Shortly after 10 am on 29 October 2019, Chris Jones and Brad Jones were performing maintenance in a different part of the workplace to the machine when they heard the major alarm sound. It was not uncommon for the alarm to sound for a number of different reasons. Chris Jones went to the machine, turned the alarm off and then walked along the walkway.

12Mr Allie was trapped between the transporter guard and the frame with his back to the guard and his chest to the frame. Chris Jones realised Mr Allie was stuck in the transporter and pulled the emergency cord. He then tried to manually move the transporter to free Mr Allie.

13Mr Allie’s chest experienced significant compression from being trapped in the machine and he ultimately died from chest injuries sustained from the incident.

14An autopsy revealed that Mr Allie had 13 fractured ribs and a fractured sternum.

Attendance of WorkSafe and remedial measures

15WorkSafe inspectors, including the informant Jeremy O’Brien, attended the workplace on the day of the incident. Mr O’Brien attended the workplace the following day and obtained a number of documents from AMTS.

16WorkSafe inspectors attended the workplace on 8 November 2019 and observed remedial measures had been implemented, including:

·        the bumper interlock system had been repaired and reinstated;

·        the guarding system componentry had been cleaned;

·        covers had been placed over exposed wires and connectors;

·        the moveable sections of the guard had been repaired and reinstated;

·        the guarding activation system had been repaired and reinstated;

·        an access gate at the control panel end of the catwalk had been installed;

·        mesh had been fixed to the loading/unloading section of the line; and

·        handrailing had been installed along the catwalk.

17On 13 December 2019 WorkSafe inspectors attended the workplace and observed further remedial measures including:

·        a tongue-type interlock had replaced the plunger-type interlock;

·        a higher gate had been installed; and

·        mesh had been welded to the handrails leading to the gate.

Subsequent Investigation

18WorkSafe commissioned an expert report from engineer John Hambridge in which any health and safety risks associated with the plant were to be identified. Mr Hambridge examined the machine and found the following;

·        the machine was generally in an unsafe condition with no cohesive or integrated safety protocols in place;

·        the walkway adjacent to the machine was strewn with debris;

·        there was little operational information or instructions available to the operators, and the manual operation processes were inoperative, ambiguous and often confusing;

·        the relevant plunger switches were either corroded and inoperative, or missing, meaning the transporter could not be stopped in the event of an obstruction;

·        one of the two emergency stop buttons on the machine was not operational; and

·        there were only administrative controls in place to prevent access to the line.

19Mr Hambridge noted machinery of this type should be serviced at regular intervals and that daily pre-start checks should be carried out.

20Mr Simmons estimated the cost of repairing the plunger switches on the transporter collision frames would not have exceeded $550. Mr Simmons stated the type of corrosion on the plunger switches would have been ‘easily’ picked up on any inspection of the functionality of the devices.

Nature and gravity of the offending

21In cases where death or serious injury has resulted from a relevant breach of the OHSA, the Court of Appeal in DPP v Frewstal Pty Ltd[1] summarised the guiding principles in sentencing such matters as follows:

·     First, unlike cases of unlawful homicide, the occurrence of death or serious injury is not an element of the offences charged. An accused is punished according to the gravity of the breach of duty owed under the OHSA, not according to the result or consequences of the breach.

·     Secondly, the gravity of the breach is measured by two factors — the seriousness of the breach itself (that is, the extent to which the defendant has departed from its statutory duty); and, the extent of the risk of death or serious injury which might result from the breach.

·     Thirdly, an assessment of the extent of the risk itself involves consideration of two factors — the likelihood of the occurrence of an event as a result of the breach (such as the event that occurred in the particular case) endangering the safety of employees or others; and, the potential gravity of the consequence of such an event (in particular, whether there is a risk of death or serious injury).

·     Fourthly, the fact that the breach in the 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 to health or safety resulting from the breach.

[1] (2015) 47 VR 660 at [127] per Priest and Kaye JJA.

22In Dotmar Epp Pty Ltd v The Queen,[2] Priest JA succinctly expressed the general approach in cases where death or serious injury may result, or has resulted from the breach:

The OHSA is concerned generally with risks to health and safety; and, under Part 3, concerned specifically with the duties owed with respect to health and safety. It is the extent of the failure to ensure that employees are not exposed to risk to their health and safety which determines the objective gravity of the offence. The consequences of the failure generally do not. That is not to say that the fact of death or injury occurring is necessarily irrelevant. The occurrence of an accident, resulting in death or injury of a particular kind, may inform an assessment of, first, the existence of the risk, and, secondly, the nature and seriousness of that risk.

[2] [2015] VSCA 241 at [22].

23Mr Russell, who appeared on behalf of AMTS submitted that the breach of the company in this instance should be assessed as being in the ‘mid range’ based on the following reasons: that the incident did not occur as a result of a deliberate act on the part of AMTS; that each of the employees had been trained in the operation of the ZP line including a requirement that the line be stopped prior to entering the walkway; that there was no operational requirement for any employee to enter the area of the ZP line while it was operating; and that the changes made to the walkway post incident  provide an interlock gate preventing the ZP line from operating if access is gained to the walkway.

24Of those four reasons I accept the first proposition that there was no deliberate act on behalf of the company. Further, this is not a case where a step was deliberately not taken in order to avoid cost. That said it is clear that the plant was in a generally poor state which should have been serviced at regular intervals.

25The next two propositions refer to the administrative controls that were in place. It is suggested that the deceased employee has disobeyed or disregarded requirements of the company by not stopping the line before entering the walkaway and that the employee had entered are area of the ZP line while it was operating. I note however that Mr Russell submitted that the company does not seek to blame the employee.

26The fourth proposition does not go to the assessment of the seriousness of the offence but rather to the steps that were taken post offence in order to prevent what occurred in propositions two and three. In my view propositions two and three simply confirm that the system of work that was in place at the time of the incident was not adequate to allow for the circumstance of an employee entering an area that posed a serious risk.

27In The Queen v Commercial Industrial Construction Group,[3] the Court affirmed the established principle that:

An employer should recognize that it is common experience that human error will be encountered in the workplace. Error can range from inadvertence, inattention, or haste through foolish disregard of personal safety to deliberate non compliance with the prescribed safe system of work…an employees responsibility for the safety of its workers will not be discharged unless the employer takes an active imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever present reality.

[3] (2006) 14 VR 321 at [49] (references omitted).

28Ms Tatas who appeared on behalf of the Director of Public Prosecutions, with reference to the Frewstal principles, submitted that the gravity of the breach should be considered to be at the higher end of seriousness and that the accused had ‘significantly and substantially’ departed from their statutory duty. She referred to the expert opinion that the plant was in a generally unsafe condition and that there were effectively only administrative controls in place to prevent access to the line. Those administrative controls, it was submitted, demonstrate that the company was aware of the dangers and risks. Further, that the fatality in the circumstances of this case demonstrates the degree of seriousness of the relevant threat to health and safety resulting from the breach.

29What also must be considered is that following the incident an interlock gate was easily installed preventing the line from operating if an employee seeks to access the walkway. In effect, the dangerous area has now been guarded.

30As to the use of phrases such as ‘mid range’ or ‘higher end’, I note what the Court of Appeal said in DPP v Weybury,[4] that such classifications carry a risk that attract reference to current sentencing practices for offences previously categorised in a particular range, thus bringing the risk of limiting the instinctive synthesis.

[4] [2018] VSCA 120 at [54] (Priest JA).

31Taking into account the Frewstal principles, while this case does not have some the features that may elevate it to a very serious example, such as a blatant repeated disregard for safety or the deliberate overriding of a safety mechanism, it is nonetheless in my view a relatively serious departure from the company’s statutory duty to maintain a safe system of work. As noted, the company was aware of the nature of the risk as it had implemented administrative controls by training its employees not to access the walkway adjacent to the ZP line while in operation.

Victim impact

32While it is acknowledged that the offence is risk based and not outcome based, pursuant to s 5(2)(d) of the Sentencing Act 1991 a sentencing court is required to take into account any injury, loss or damage resulting directly from the offence.[5]

[5] DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [56].

33A victim impact statement was prepared by Mr Allie’s brother, Dean Allie, and tendered on the plea. Mr Allie writes of the devastation and anger he has felt as a result of losing his brother in such tragic circumstances. He also speaks of the effect it has had on their whole family. Mr Allie writes of the close relationship he had with his brother and how he admired him for his loyalty, generosity, service to the Australian Armed Forces and work ethic. Mr Allie looks to the future with great sadness as he and his family move on without Greg in their life. I take the contents of the victim impact statement into account.

34I wish to direct some comments to the family of Mr Allie. The sentence I must impose can in no way be a measure of the worth of Mr Allie’s life. Rather, the sentence I must impose is a reflection of a large number of factors which judges are required by law to take into account, only one of which is the impact on victims.

Circumstances of the defendant company

35AMTS is an amalgamation of three of Victoria’s leading heat treatment companies. Metal Treatment Services commenced in 1970 at Clayton. The company then developed over the years with a combining of Metal Treatment Services and Ace Heat Treaters in 2012.

36The current structure of the company is maintained by Colin Sheriff (Production Manager), David Karney (General Manager), and Nick Solocyzinski (General-Manager- Finishing).

37AMTS operates out of premises in Clayton and Ballarat. AMTS has 19 employees with two employees currently being employed at Ballarat.

38The business has experienced substantial financial pressures in recent years. The COVID-19 pandemic has adversely impacted the business. A significant increase in gas price has placed additional financial pressure on the business. In December 2018 Ceramet, the Ballarat operations largest customer, went into receivership owing considerable funds. Another major customer went into administration in August 2019.

39Prior to the incident the company had implemented a number of safety measures. For example PPE equipment was upgraded when the company acquired the Ballarat plant and unsafe equipment was decommissioned. In relation to the ZP line where the incident occurred, there were a number of safety measures installed such as an emergency ‘E-stop’ cord that ran along the length of the line. However, I was told at the plea that it is likely that Mr Allie would have been unable to access this line given the nature of the incident.

40Since the incident further safety measures over and above that which were required by WorkSafe have been implemented. Most significantly, an interlocked gate was installed on the ZP line that has essentially eliminated the risk that gave rise to this incident. Further, additional interlock gates and guarding have been installed on other parts of the plant and generally there has been a move away from administrative controls to engineering controls. To continue to develop safety within the business, AMTS joined the WorkSafe Workplace Essentials Program which provides a workplace safety consultation service. The company is currently being advised by an independent consulting company on all safety matters associated with the business.

41It was also submitted that AMTS provided practical and financial support to Mr Allie, assisting him to move from the Clayton area to Ballarat and paying for short term accommodation in Ballarat and provided financial support to Mr Allie when he was experiencing financial difficulty.

Sentencing considerations

42Mr Russell outlined a number of matters in mitigation.

43First and foremost is the plea of guilty. It was submitted that AMTS has consistently cooperated with the investigation and prosecution and that the plea was entered at the earliest reasonable opportunity. The matter proceeded to this Court by way of straight hand up brief on 6 August 2021 after an application for summary jurisdiction was refused. I accept that the plea is an early plea.

44The plea has considerable utilitarian value as it has spared the resources and time required for a trial. The trial would have had a degree of complexity requiring expert evidence. I therefore take the company’s willingness to facilitate the course of justice into account. The plea carries additional weight which must be reflected in an additional amelioration in sentence, as the plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system.[6]

[6] Worboyes v The Queen [2021] VSCA 169 at [39].

45In cases involving breaches of the OHSA, general deterrence is the predominant sentencing consideration. As noted in DPP v Vibro-Pile (Aust) Pty Ltd:

The 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 risks will attract significant punishment.[7]

[7] DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [233].

46As to specific deterrence, I take into account that the company comes before the court with no prior convictions and has responded appropriately to the incident  by implementing measures over and above that which was required to rectify the breach. As such in my view specific deterrence is able to be given limited weight in this instance.

47Finally, the prosecution and the defendant company provided the court with comparable cases. While only limited assistance can be derived from comparing other cases, where possible to make comparisons, I have taken these cases into account.

Sentence

48Would the representative of Ace Metal Treatment Services Pty Ltd please stand.

49On Charge 1, failing to provide and maintain safe plant or systems of work, Ace Metal Treatment Services Pty Ltd is convicted and fined $300,000.

50Pursuant to s 6AAA of the Sentencing Act 1991, if not for the company’s plea of guilty, I would have convicted and fined the company $425,000.