Director of Public Prosecutions v AirRoad Pty Ltd
[2012] VCC 1960
•19 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01465
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| AIRROAD PROPRIETARY LIMITED |
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JUDGE: | Her Honour Judge Millane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 December 2012 | |
DATE OF SENTENCE: | 19 December 2012 | |
CASE MAY BE CITED AS: | DPP v AirRoad Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1960 | |
REASONS FOR SENTENCE
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Catchwords: Criminal Law – Plea – Sentence – Failing to provide or maintain safe systems of work contrary to s. 21(1) and (2) (a) of Occupational Health and Safety Act 2004 – Death of employee.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Croucher S.C. with Ms E. Holt (Mr P. Rose S.C. at sentence) | Office of Public Prosecutions |
| For the Accused | Dr G. Lyon S.C. with Mr P. Doyle (Ms L. Peterson at sentence) | Lander + Rogers |
HER HONOUR:
Introduction
1 AirRoad Pty Ltd is an express freight road transport company. It was incorporated in 1989. The Victorian company is one of a group of companies operating five divisions, employing 349 employees and 108 contractors nationally.
2 AirRoad has pleaded guilty to one charge of failing to provide or maintain safe systems of work contrary to s.21 (1) and (2)(a) of the Occupational Health and Safety Act [2004], the maximum penalty for which is 9000 penalty units. At the date of the commission of the offence, a penalty unit was worth $116.82 and the maximum penalty for the offence therefore is $1,051,380.
3 Section 21(1) and (2)(a) of the Act provides, and I will not read that out. I am sure that is known to everybody here.
4 The Act seeks to secure the safety of workers and members of the community alike. It requires employers to adopt a proactive approach to safety in the workplace.
5 Section 21 of the Act imposes absolute liability on an employer, so far as is reasonably practicable to provide and maintain a safe working environment.
6 The contravention of s.21(2)(a) of the Act, AirRoad admitted, was particularised in the indictment as follows:
“AirRoad failed adequately to provide a system of work with respect to the unloading of freight, that mitigated the risk of falling objects causing serious injury or death, by failing adequately to enforce the maintenance of an exclusion zone between moving plant and employees, during unloading.”
The materials tendered
7 The prosecution's opening was read into transcript and tendered as an agreed statement of fact. The prosecution also tendered a booklet of photographs taken shortly after the incident.[1] A copy of the report dated 21 December 2010 prepared for WorkSafe Victoria by Engineer and Ergonomist, Geoff Waddell,[2] and an extract from AirRoad's policy on unloading and loading vehicles.[3]
[1] Exhibit B
[2] Exhibit C
[3] Exhibit D
8 AirRoad tendered a folder containing pleas, admissions and supporting material which included a report dated 26 November 2012, containing the results of an audit with AirRoad's current loading safety systems and practices, written by Civil Engineer, Mike Robertson, and finally, it tendered a copy of a “New Process Procedure” flow chart, the latter referrable to paragraph 11 of the written plea submission also tendered.[4]
[4] Exhibits 1 and 2 respectively
9 AirRoad was represented at the plea hearing, by the group's managing director, Mr Thorpe, the group's Human Resources and Work Health and Safety Manager, Ms Westbrook, the National Work Health and Safety Coordinator, Ms Smith, and AirRoad's State Manager, Mr Gorovic.
10 No witnesses were required for cross-examination.
The circumstances of the offending
11 A copy of the summary of facts contained in the prosecution's opening is marked Attachment “A” to my reasons for sentence. I do not propose to repeat this verbatim.
12 On 12 January, 2010, John Silao, a freight handler employed at AirRoad's former depot at Laverton North, died from injuries sustained after a computer server fell on him during an unloading operation.
13 The freight containing the computer server had been supplied by another company. Its content was not discernible due to black wrapping; no external indication of the weight or centre of gravity of the item was displayed, and unlike most of the items, AirRoad said it received for transport, this freight was on castors and could not be palletised.
14 At the time a forklift was being used to unload the computer server from a truck. Mr Silao and the driver of the truck were assisting the forklift driver. Mr Silao stood near the truck to assist the forklift driver in manoeuvring the tines of the forklift under the computer server, preparatory to lifting it from the truck. The truck driver was positioned on the other side of the freight to ensure that the tines came all the way through the load.
15 Mr Silao was standing next to the computer server. As the forklift reversed, with the computer server on the tines, the load unbalanced. The computer server fell on Mr Silao has he lunged forward in an attempt to stabilise the load. Unfortunately, he suffered crushing injuries and died at the scene of the accident.
16 According to AirRoad, at the time Mr Silao was a qualified forklift operator who was working as a forklift operations supervisor. Prior to his death and as recently as September 2009, Mr Silao had completed forklift refresher training. He had also attended ‘tool box’ meetings in May and December 2009 at which forklift safety was discussed.
The investigation
17 It was later ascertained that the computer server weighed approximately 635 kilograms and that the paged load contained a number of unevenly distributed components, creating a weight imbalance. The latter, Mr Waddell opined, was likely the primary cause of the freight unbalancing. Additional factors which Mr Waddell believed would have affected the stability of the computer server were:
· he wind blowing against the computer server which he concluded could have been a significant contributory factor; next,
· the site slope on which the forklift had been sitting; and lastly,
· any turning manoeuvre of the forklift as it reversed away from the truck.
18 In his report, Mr Waddell summarised the relevant aspects of the standards and guidance materials, namely the provisions of the occupational health and safety legislation and regulations, the Victorian Code of Practice for Plant and various Australian Standards applying at the time. In addition, Mr Waddell identified guideline documents and kits published or issued by Victorian WorkCover Authority or WorkSafe Victoria between 2001 and 2009. These were, he reported, intended to prevent fatalities and injury to pedestrians during loading and unloading operations by forklifts, and as Mr Waddell observed, they emphasised the need for employers to develop and implement traffic management plans and pedestrian exclusion zones, particularly around areas in which forklifts operated.[5]
[5] Exhibit C, para 6.81 to 6.102
19 Notably, Mr Waddell concluded that prior to the accident, attention to occupational health and safety procedures at the Laverton North Depot appeared to have been "non-existent for some time".[6] In reaching this conclusion, he took into account a statement made by Ms Smith, the current National Work Health and Safety Co-ordinator, in which she explained AirRoad's occupational health and safety history and the statements made by the drivers of the forklift and the truck. In their statements, among other things, each of the drivers made observations about their training and knowledge of relevant safety policies and practices when this incident occurred.
[6]
20 Ms Smith stated that in about July 2009 she had been appointed the National AirRoad's Safety Action Plan, that is the ‘ASAP’ officer. Ms Smith had previously only completed a five day occupational health and safety course to qualify as a health and safety representative. In other words, when she took on this role in the latter part of 2009, as Ms Smith said, she needed training herself in occupational health and safety issues, particularly on how they affected a transport company.
21 Initially, her role was advisory, because Ms Smith said she had no budget authority to implement changes in occupational health and safety.
22 The establishment of the ASAP officer position, Ms Smith's appointment, and the occupational health and safety changes she subsequently implemented, largely reflect a reactive and very limited response to firstly an incident in Perth, the details of which were not available to Mr Waddell, and secondly, to an accident in November 2009 at the Laverton North depot, where a driver suffered minor injury after he was caught between two trucks.
23 Tellingly, in her statement, Ms Smith described what she had found in the yard and freight handling area, as lacking in structural direction and "chaotic".
24 Without indicating when this had occurred, at some stage, a WorkSafe inspector attended and issued improvement notices. According to Ms Smith, the establishment of a traffic management plan and the need for refresher training for forklift operators were two of the main occupational health and safety concerns to which the Inspector drew her attention.
25 Having read the various paragraphs extracted from Ms Smith's statement, the impression I gained was that, at the time, the most significant obstacle to the development and implementation of appropriate safety policy was from local managers whom, she said, were intolerant of any measure that delayed loading and unloading of freight, or affected the running of the depot. To a lesser extent, there was also opposition from drivers, who expressed concern that new procedures not delay their money-making activities.
26 Nevertheless, Ms Smith said that refresher training was achievable, and as already noted in September 2009, Mr Silao completed this training, although Ms Smith had expressed her misgivings about the standard of this, because the training given had not involved practical assessment.
27 Ms Smith said that the establishment and implementation of the traffic management plan presented a greater challenge, because none existed, and without indicating whether this had been obtained, Ms Smith also said that she required an extension to comply with the improvement notice.
28 However, it seems that following the incident in late 2009, in which a driver was crushed between two trucks, a partial traffic management plan had been developed for the area near the freight conveyers belt, consisting of line markings. Without explaining what this entailed, Ms Smith stated that she had also drafted a written policy on how work should be conducted in that area. The latter, she added, was addressed at ‘tool box’ meetings, and with every driver.
29 During the course of the plea hearing, AirRoad submitted that the safety policies and procedures in place when Mr Silao died, particularly relevant to this incident, were the awkward special freight procedure, a two metre exclusion zone policy, a procedure for holding ‘tool box’ meetings, and the forklift operation policy and refresher training, received by Mr Silao in September 2009.
30 I was told that when Mr Silao died, the two metre exclusion zone policy on loading and unloading vehicles, was contained in a ‘Safe Working Procedure’ document. As the undated extract tendered demonstrates, among other things, this policy required a driver to move at least two metres away from the vehicle during forklift unloading or loading of a vehicle.
31 Whilst not specifically stated in the policy, it appears to have been accepted at the hearing that this policy required all pedestrians, including employees in Mr Silao's position, to leave the exclusion zone during this activity, and as Mr Waddell observed in his report, this policy requirement should have formed part of Mr Silao's training.
32 Self-evidently, adoption of the two metre exclusion zone policy, without appropriate training and enforcement, was insufficient to discharge AirRoad's duty.[7]
[7]R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 [48] - [49]
33 AirRoad has conceded that it cannot prove, on the balance of probabilities, that Mr Silao's instruction had involved training with regard to the pedestrian exclusion zone to which the policy document referred.
34 The extracts from the statements made by the driver's of the forklift and the truck are instructive in this regard, because they evidence a much wider and likely systemic failure to implement ongoing training and instruction in, or enforcement of existing safety policy and procedures.[8] These statements reveal that following Mr Silao's death:
[8] Exhibit C, paras 4.5 to 4.11 inclusive
· the forklift driver denied knowledge of any policy or procedure to deal with the situation of moving awkward freight;
· the truck driver, a licensed forklift driver who reported nine and a half years working at AirRoad (about seven of which he recalls spending at the Laverton North depot), among other things stated that:
o in the past he had seen computer servers fall over;
o the only instruction given AirRoad was "to be careful when handling them";
o he had not received training from AirRoad on loading and unloading or using forklifts, and he was "simply following the way" AirRoad always did this.
35 To summarise, in the months preceding Mr Silao's death, in an environment where managers still did not prioritise safety, and ASAP officer had been appointed and she was attempting I suggest, in a piecemeal fashion, to improve a woefully inadequate approach and overcome, on any view, a deplorable attitude to occupational health and safety standards at the company's Laverton North depot.
36 That AirRoad had no prior conviction was, on any assessment of the company's conduct, more due to chance than to any adequate attention to occupational health and safety issues. Nevertheless, AirRoad submitted that, when understood in its proper context, the absence of any prior conviction was a significant sentencing consideration, as on any given day at the Melbourne depot, the company:
· employed 81 employees, 36 sub-contractors and a number of consultants;
· utilised 40 transport vehicles;
· distributed over 8000 items weighing 30,000 kilograms and occupying 1016 cubic square metres;
· employed specialised fleet movements of 41 items with three vehicles weighing over 1600 kilograms and occupying 74 cubic metres;
· operated 14 forklifts; and
· lifted, on average, 1800 pallets.
37 I accept that the absence of any prior conviction is especially relevant to determining the role specific deterrence has in the formulation of the sentence. However, in my view, the nature and scale of the report of loading and unloading operations undertaken on a daily basis by AirRoad and the number of pedestrians likely exposed to risk by these operations, are equally, if not more important considerations, in the assessment of the seriousness of the offending, which I will discuss next.
Gravity
38 Through its plea of guilty, AirRoad has accepted the thrust of the prosecution's submission that it was reasonably practicable for AirRoad to enforce an exclusion zone between the loading and unloading activities and pedestrians.
39 AirRoad has also accepted that its contravention of the Act was causally linked to its employee's death.
40 Determination of penalty requires consideration of the foreseeable potential consequences of the breach, and an assessment of the objective seriousness of the breach by reference to those consequences, and to quote Amcor Packing Australia Pty Ltd:
"To a substantial extent, the seriousness of the breach must be assessed by reference to those potential consequences and the measure of evident disregard concerning the safety of employees in the circumstances." [9]
[9]DPP v Amcor Packaging Australia Pty Ltd (2005) 11 BR 557 [35]
41 Loading and unloading of freight of varying sizes is central to the daily activities of AirRoad. As I have already noted, in this case, on any given day, a large number of pedestrians were likely exposed to a risk of injury or death as a result of contravention of the Act, in failing to enforce the maintenance of the exclusion zone between the loading and unloading activities and pedestrians, in particular, between moving plant and employees during unloading.
42 Objectively speaking, the exposure of pedestrians to this risk, much less the forklift operations supervisor Mr Silao, whose job it was to assist the forklift driver unloading freight, was a very serious matter.
43 Adopting the reasoning of the Court of Appeal in the DPP v Coates Hire Operations Pty Ltd,[10] a decision I will discuss in more detail shortly, the fact that Mr Silao died as a result of the danger the exclusion zone was intended to eliminate, makes AirRoad's disregard of the employee's safety, a matter of very high culpability.
[10] [2012] VSCA 131
44 However, in this case, allowing for the various matters summarised, I have assessed the contravention of AirRoad's obligations as falling within the mid range for offences of this kind.
Additional sentencing factors
45 The impact of the offence on any victim is one of a number of additional factors to which I am required by the Sentencing Act 1991 to have regard in formulating the sentence.[11] Whilst no formal victim impact statement was tendered, I infer that the tragic death of a man who was a longstanding employee of AirRoad and the circumstances in which he died, have likely had a profound impact on his family, especially his widow.
[11] Section 5(2)(daa) and (da) of the Sentencing Act 1991
46 However, I was told that AirRoad has acted to ameliorate the impact of this employee's death through supportive gestures which include covering the funeral expenses, maintaining contact with his widow, providing assistance to immediate and extended family members, some of whom are employed by AirRoad, and by remembering special occasions such as Christmas and birthdays.
47 Any injury, loss or damage resulting directly from this offence is another factor to which I must have regard in formulating the sentence,[12] and as I have already said, in this case, Mr Silao paid the ultimate price when the potential risk was realised.
[12] Ibid, s.5(2)(db)
48 Based on the oral and written submissions made, I have accepted that since Mr Silao's tragic death, AirRoad has taken significant and very necessary steps to improve safety, particularly with respect to loading and unloading operations. Among other things, AirRoad has:
· established a “Pedestrian and Forklift Safety – VIC & WA” policy in both Victoria and Western Australia in which, among other things, the exclusion zone has been extended to three metres;[13]
[13] Exhibit 1, Tab 7
· improved the “Special Deliveries Packing Procedure by combining written instructions with photographs and safe working procedure matrix which promotes a risk assessment during loading and unloading operations;[14]
[14] Ibid, Tab 4
· moved to larger premises at Derrimut which has helped with enforcement procedures, and I was told that through its design of and introduction of a “safety island”, namely a protection zone for the pedestrian bar code reader, the new site has helped minimise the number of interactions between forklifts and trucks and pedestrians;
· stepped up its nation-wide safety policy, called AirRoad Safety Action program, which apparently commenced in 2009. However, since Mr Silao's death, the company representatives who attended court, including the company's Managing Director, now personally deliver the safety message as part of the “AirRoad Safety Road Show”;[15]
[15] Ibid, Tab 2
· through its lawyers, the company commissioned Mr Robertson to audit loading safety systems and practices at the Melbourne Depot.[16] I note that regular audits of the workplace to identify potential problems was just one of the many requirements to which Mr Waddell referred in his report;[17]
· established a “Safety Culture” report process to management;[18]
· taken steps to ensure that the safety message is received. The flow chart, the “New Process Procedure Developed”[19] document, tendered, explains how this message is delivered.
[16] Ibid, Tab 6
[17] Exhibit C, para 6.72
[18] Ibid, Tab 9
[19] Exhibit 2
49 AirRoad submitted that the tendering of the audit report of the hearing of the plea in mitigation for contravention of the Occupational Health and Safety Act, was unique. I am unable to say whether or not this is so, nevertheless, the report submitted by Mr Robertson following a safety audit conducted on 4 and 5 September, 2012, and a further site visit on 13 November 2012, ostensibly to observe compliance with relevant procedure, generally supports a finding that with leadership from management, the company is now proactive in establishing and implementing adequate safety systems for loading and unloading at its Melbourne depot, and proactive in its attempts to effect long-term behavioural safety.
50 However, as the prosecution was quick to point out, the audit report also identified areas of concern and a need for further work. For instance, Mr Robertson made the following observations:
· as to the three metre rule, that is the exclusion rule, Mr Robertson noted that while the majority of interactions were compliant, there was a small but significant number of non-complying events, and that forklift drivers who could recite the rule, were, nevertheless, seen to allow pedestrians to approach closer than permitted by the rule;[20]
[20] Exhibit 1, Tab 6 [19]
· as to the safety statistics for injuries and incidents, Mr Robertson concluded that the behavioural safety journey at the Melbourne site was still at a fairly early stage because fewer near-miss incidents were recorded than minor injuries;[21]
· as to the number and effectiveness of ‘tool box’ meetings, Mr Robertson noted that these were reported to very widely, between individual supervisors;[22] and
· as to the use of exclusion zones, Mr Robertson concluded that further work was needed to be done, to make: "This procedure more robust and consistent". In this regard, he noted that in one in three cases, the practice of forklift drivers asking a truck driver for assistance with tasks, such as opening the curtains, had led to truck drivers encroaching on loading side exclusion zones, and the three metre rule. He also noted that site staff questioned by him "had inflated opinions of the likely capability of the curtains", a concern AirRoad has agreed to address immediately.[23]
[21] Ibid, [27]
[22] Ibid, [30]
[23] Ibid, [52] and [56]
51 It has been accepted that AirRoad entered an early plea of guilty on 13 August, 2012 prior to the contested committal hearing proceeding in respect of two charges. The early plea of guilty attracts a substantial sentencing discount because AirRoad has facilitated the course of justice. The plea also has a utilitarian value in sparing numerous witnesses and possibly family member's involvement in a contested hearing or hearings, and by sparing the community the not-insignificant cost of any contested hearing or hearings.
52 As submitted, the plea of guilty coupled with the efforts made post-accident, to improve safety and establish a culture of compliance within the company, evidences a real sense of remorse and regret for what occurred.
53 In formulating this sentence, I have also made allowance for the uncontested evidence that AirRoad is a good corporate citizen, in the sense that the company contributes to charity programs and local community activities and is currently committed to becoming carbon neutral.
Sentencing Considerations
54 I now want to turn to sentencing considerations. AirRoad has acknowledge that in this case both conviction and fine are warranted.
55 It was common ground that in cases where a duty has been imposed to protect the lives and wellbeing of those who may be affected by a breach, deterrence as a sentencing consideration is emphasised.[24] In effect, the penalty imposed today must send a strong deterrent message to employers who place operational considerations ahead of safety or who are simply complacent about implementing and enforcing safety policies and procedures.
[24]Amcor Packaging Australia Pty Ltd [36]
56 AirRoad sought to mitigate the extent of the financial penalty imposed by relying on the absence of any earlier conviction, the substantial improvements made in the delivery of instruction and training and the steps taken to improve safety since this incident.
57 These factors have reduced that role of specific deterrence in the formulation of this sentence. Nevertheless, even when combined with other factors, such are AirRoads' early plea of guilty and its cooperation with the investigation, they cannot produce a sentence which does not adequately reflect the seriousness of this particular accident or incident.[25]
[25] Ibid, [35]
58 In sentencing today, to the extent that these were apparent from the submissions made, I have considered the company's financial circumstances. Among other things, it was explained during the plea hearing that AirRoad anticipated a decline in revenue in 2013, although I was also told that the company had already made allowance in these projections for the payment of a potential fine.
Penalty
59 The prosecution submitted that in this case it was appropriate to both impose a conviction with fine, the range of the latter falling between $350,000 and $425,000. This represents a penalty range at the lower end of the mid range or approximately 33 per cent to 40 per cent of the applicable maximum penalty. AirRoads submitted that a penalty below or at a lower end of the range was in all the circumstances appropriate.
60 I was referred to a number of earlier decisions involving, among other things, breaches of s.21 of the Act. These cases provide some assistance in establishing sentencing practices for breaches of occupational health and safety legislation, although in deciding this case I have necessarily focussed on its facts.
61 The first of the cases I was referred to is DPP v Nationwide Towing and Transport Pty Limited.[26] This case involved the death in June 2007 of an excavator driver who was crushed after the excavator slid off the transport company's trailer. The Director appealed against the adequacy of a $450,000 aggregate fine. Critical to the offending was that Nationwide's trailer was found to have been inappropriate for the excavator.
[26] [2011] VSCA 291
62 Nationwide pleaded guilty to two counts alleged under ss.21 and 23 of the Act respectively, namely failing to maintain a safe work environment and failing to ensure that persons other than employees were not exposed to risk to health and safety. It was acknowledged that the contravention of the duty imposed by s.23 of the Act was the more significant offence and that there was an overlap between the counts.
63 Notably in that case, there had been a similar incident involving an excavator some 16 months before the driver died and when the further incident occurred, Nationwide had not implemented changes to which it had agreed prior to withdrawal of prohibition notices issued in September 2005.
64 Allowing for the focus on the contravention of s.23 of the Act, the Court of Appeal concluded that the sentence fell in the middle of the range of penalties and upheld the sentence and penalty imposed at first instant.
65 Following a plea hearing on 17 October 2011, His Honour Judge Gucciardo sentenced Fonterra Australia Pty Limited[27] on one charge of failing to provide and maintain a system of work that was, so far as reasonably practicable, safe and without risk to health. The failures which seem to have arisen under s.21(2)(a) and (e) of the Act, His Honour treated the single charge as a rolled-up count and with conviction he fined the company $300,000.
[27]DPP v Fonterra Australia Pty Ltd [2-11] VCC 1611
66 Whilst the Court of Appeal has since indicated that "the use of the term rolled-up count is apt to mislead and should be avoided in this context",[28] in assessing the company's culpability, His Honour evidently allowed for the different contraventions incorporated in the single charge. AirRoads sought to rely particularly on this sentence.
[28]DPP v Coates Hire Operations Pty Ltd, [32]
67 In Fonterra's case, the forklift driver died in September 2009 after two salt block bags fell on him during an unloading operation. Investigation revealed that the pallets in the storage area were not designed for storing in stacks and that the practice of storing in stacks was unsafe.
68 The company had complied with earlier prohibition and improvement notices. Some employees had, however, expressed concern about safety due to the instability of stacks and there had been incidents involving other products which the judge found should have sounded the alarm.
69 It seems to me that one relevant distinction between the present case and Fonterra's case is that, when Mr Solero died, AirRoad was at best only in the very early stages of attempting to implement appropriate levels of compliance and enforcement in a workplace where safety issues had been afforded little or no priority.
70 Earlier incidents of falling freight, such as those to which the truck driver alluded in his statement, should have sounded the alarm, yet, as the then AP safety officer, Ms Smith, who was herself still undergoing training in occupational health and safety issues, found, local managers were obstructive and prioritised operational considerations ahead of health and safety.
71 The Court of Appeal delivered its decision in the case I have previously mentioned, that is the Coates case, on 25 June 2012. In that case, a driver employed by another company died in February 2007 while loading equipment onto a semi trailer at Coates depot. At the time, he was acting in contravention of safety procedures adopted by Coates although the driver had never been given a copy of the procedures or undergone an induction program.
72 Unlike AirRoad, Coates had two prior convictions and the company had been fined for breaches of occupational health and safety laws in 2001 and 2003. This meant that specific deterrence had a greater role in the sentence despite the company's pro safety initiatives.
73 In AirRoad's case, of necessity the company's culpability must be assessed by reference to its admitted failure to adequately enforce the maintenance of exclusion zone policy.
74 Coates' culpability, on the other hand fell to be assessed by reference to each of the ways the company had admitted failing to meet its safety obligations under both ss. 21(2)(a) and (e) of the Act, mainly by failing to provide and maintain a safe system of work and by failing to provide information, instruction, training and supervision necessary to ensure that the work of loading and unloading equipment could be carried out without risk to health. The Court found the latter contravention to be the more serious for two reasons. The first was because Coates had previously been the subject of enforcement action for contravention of these provisions. This, the court said, should have highlighted to Coates the importance of proper training for both employees and contract drivers in the safe loading and unloading of plant machinery. The second was because Coates' occupational health and safety manager had knowingly allowed the safety equipment requirement to be disregarded.
75 As part of its consideration of current sentencing practices, the court also discussed the decision in Nationwide and concluded that the breach to which Coates had pleaded guilty was in a more serious category. The court allowed the Director's appeal against the adequacy of the earlier sentence and increased the fine from $250,000 to $500,000.
76 In accordance with the submission made by the prosecution, when considering the penalty to be imposed in this case, that is the present case, I have also allowed for the fact that the lower maximum penalty of $966,870 was applied in the cases to which I have referred, that is the earlier decisions.
77 Having regard to my earlier assessment of the objective seriousness of AirRoad's contravention and failing to enforce the maintenance of the exclusion zone and the higher maximum penalty involved and allowing for the various mitigatory matters already discussed, I was satisfied that all relevant sentencing considerations would be met by the imposition of a penalty higher than that imposed in Fonterra's case, but less than that imposed in the Nationwide and Coates cases.
Sentence
78 Mr Thorpe, you can stand to accept sentence at this stage on behalf of the company.
79 Turning to sentencing: On one charge of failing to provide or maintain safe systems of work contrary to s.21(1) and (2)(a) of Occupational Health and Safety Act 2004, AirRoad Pty Limited is convicted and fined $375,000 and I will hear shortly from your representative about the length of any stay. Pursuant to s.6AAA of the Sentencing Act, I indicate that but for AirRoad's plea of guilty, I would have imposed a fine of $500,000 with conviction.
80 You may take a seat. Your senior counsel on the last occasion, Ms Peterson, indicated the she proposed to seek a stay. Do you make that application.
81 MS PETERSON: I do, Your Honour, and I will just get some instructions about the length of that. Three months, Your Honour.
82 MR ROSE: We have no difficulty, Your Honour.
83 HER HONOUR: Very well. In relation to the payment of fine, a stay is imposed for three months from today's date. Counsel, are there any other matters I need to cover.
84 MR ROSE: No, Your Honour.
85 MS PETERSON: No, Your Honour.
86 HER HONOUR: I thank you for your attendance today.
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