Director of Public Prosecutions v Andrew Buchanan Engineering Ltd
[2021] VCC 2162
•9 December 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-00885
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW BUCHANAN ENGINEERING LTD |
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JUDGE: | HIS HONOUR JUDGE COISH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 December 2021 |
DATE OF SENTENCE: | 9 December 2021 |
CASE MAY BE CITED AS: | DPP v Andrew Buchanan Engineering Ltd |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2162 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Dearman | Office Of Public Prosecutions |
For the Accused | Mr A. Damodaran | Wotton and Kearney |
HIS HONOUR:
1 Andrew Buchanan Engineering Ltd has pleaded guilty to two charges of failure of a person who has management or control to ensure workplace is safe and without risks to health. These offences carry the maximum penalty of 9,000 penalty units and at the relevant time a penalty unit was $158.57.
2 I proceed to sentence Andrew Buchanan Engineering Ltd on the basis of the facts as opened by the prosecutor which I shall now summarise.
3 Andrew Buchanan Engineering Ltd is based in New Zealand and operates as an engineering firm specialising in mechanical engineering for different food industries as well as specialised project work.
4 The circumstances of the workplace at the relevant time were relatively complex. Murray Goulburn Co-operative Co. Limited operated a cheese factory in Leitchville. It fell into disuse. In early 2017 a New Zealand company, Open Country Dairy Ltd purchased the factory's equipment. It intended to repurpose the equipment and ship it to New Zealand.
5 Andrew Buchanan Engineering Ltd was engaged by Open Country Dairy Ltd to dismantle and transport the equipment from Leitchville to New Zealand. The labour and engineering support was provided by two Victorian companies, A1 Engineering Pty Ltd and Big Hill Cranes Pty Ltd. Amongst the workers provided on site by A1 Engineering Pty Ltd were the deceased, Glenn Parsons and the injured worker, Michael Crea.
6 From May to December 2017 work was conducted at the Leitchville site dismantling equipment and preparing it for transport. As stated in the prosecution opening:
'12. There was some complexity to the health and safety management of the Leitchville workplace as each of the three companies had different roles and different obligations in addition to the fact that Murray Goulburn Co-operative Co. Limited also took on some level of site responsibility.
13. Ultimately the accused's company was responsible to some extent for, amongst other things, providing a safe workplace and ensuring that employees were properly supervised and trained.'
7 In November and early December 2017 the rapid cool room was being dismantled.
8 Dealing with the incident on 6 December 2017 I shall quote from the prosecution opening.
'16. On 6 December 2017 Parsons and Crea attended the Leitchville workplace to continue with their work.
17. A representative of the accused's company was not at the Leitchville workplace on this day and Parsons took it upon himself to continue the removal and packing of the equipment.
18. Parsons and Crea continued their respective tasks before eventually coming to deal with a large piece of equipment which has been variously referred to by witnesses as a condenser, evaporator, heat exchanger and radiator. The prosecution will refer to it as a "condenser".
19. The condenser was not an in significant piece of machinery being about three metres long, 900 millimetres wide and 1800 millimetres tall. It weighed approximately 770 kilograms.
20. Parsons and Crea with the assistance of Hassell operating a crane were working on moving the condenser from the factory into a closed top shipping container.
21. In terms of varieties of shipping container there are a number of them. A closed top shipping container is what might be considered a traditional shipping container in that it has two walls, a roof and doors to enter (these can be at one end or either end). Items must therefore be walked or driven inside the container as the roof makes placing items in with a crane impossible. There are other types of shipping containers such as open top containers which permit items to be lowered, usually by crane, into the container then secured. Both types at been previously utilised at the Leitchville workplace.
22. Parsons, unsupervised, formulated a plan to place the condenser into a closed top shipping container.
23. The plan had significant flaws from its inception. Due to the condenser's size and shape it could not be easily put into the closed top shipping container. The weight of the condenser also meant that it could not be moved by the workers alone. Further, the crane that Hassell was driving was a non-slewing crane with an extendable boom which itself could not fit within the container and therefore could not load the condenser completely into the container.
24. Parsons and Hassell agreed that the condenser would be attached to the crane which would then be used to manoeuvre the condenser into the container as far as it would go.
25. After that the condenser would be lowered onto "skates" which would be placed under the inside legs of the container. The crane would then push the condenser in before it was intended to be lowered onto the concrete floor.'
9 As the work progressed the condenser fell crushing both Parsons and Crea. Parsons died in the accident and Crea was injured.
10 As part of the investigation undertaken by WorkSafe a number of expert reports were obtained. These highlighted the unsafe system of work, the risks to which the workers were exposed in undertaking the work and the risk control measures that ought to have been applied in undertaking the task.
11 As an engineer Roderick McDonald stated,
'(a) The unrestrained condenser is considered a high risk object due to its potential general (high centre of gravity) and low resistance to overturning (geometry of the condenser). The weight of the object significantly amplifies the potential magnitude of harm from contact with the load.
(b) If personnel are inside the shipping container the enclosed space creates an environment of unavoidable proximity to objects and/or hazards inside the container. The exposure to hazards in the enclosed environment directly increases the probability of a potential event doing harm.'
12 Roderick McDonald was also critical of the use of the closed top shipping container. He stated,
'(a) The use of the closed top enclosed shipping container (standard or high cube) limits the available systems of work to being driven by high risk work methods, high exposure to the risk source and inability to adequately apply sufficient risk controls.
(b) There were no safe systems of work available to undertake the task of moving the condenser from the yard and into the shipping container.'
13 I state to Andrew Buchanan Engineering Ltd that I have taken into account the following matters in mitigation of sentence.
14 The company pleaded guilty. It is entitled to have that fact taken into account in its favour and I do so. The community has, by the plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon the trial. The plea has greater utilitarian value as a result of the COVID-19 pandemic.
15 The company pleaded guilty at an early stage having regard to negotiations between the parties. The company cooperated with authorities. I accept on all the material before me that the company through its representatives is genuinely remorseful. The company has no prior convictions. I sentence it as a person of previously good character.
16 I have been told something of the company's background and these matters are set out in the accused's outline of submissions of sentencing.
'4. ABE is a small family owned New Zealand company. Andrew Buchanan is the managing director and his partner, Phillipa Burns assists in the management of the business. ABE employs two full time trades people and two part time contractors.
5. Andrew Buchanan started the business as a sole trader in 1992. The company was formed in May 1997.
6. ABE provides services to the food production industry. There are two aspects to the services that ABE provides. (a) Firstly, ABE provides factory maintenance services in New Zealand. This work is primarily covered by the two full time employees. The work includes maintenance and upgrade machines, shift cover for maintenance engineers and "on call" assistance when required for breakdown of plant. (b) Secondly, ABE conducts project supervision work such as the setting up, dismantling or refurbishment of food production facilities. These services are provided by Andrew Buchanan and at times another project supervisor contracted by ABE.
7. ABE's primary customer is Talleys Group a large New Zealand company involved in seafood, vegetable and dairy products. Open Country Diary, purchaser of the equipment and plant in this matter, is owned by Talleys Group.'
17 The financial circumstances of the company are as follows.
'35. ABE is a small company. The annexed forecast for the current year shows an estimated profit of NZ$22,700 profit. It contains similar figures to the annexed statement of financial performance for ABE for the years ending 31 March 2021 and 31 March 2020. Wages paid to Mr Buchanan of NZ$150,000 and to Ms Burns of NZ$95,000. ABE rents a workshop and office and does not hold any major assets.'
18 I accept that after the incident the company cooperated fully with WorkSafe and police. A gratuitous payment was made towards the deceased's funeral expenses. Mr Buchanan spoke at the deceased's funeral.
19 I accept the company has a good safety record and places a strong value on safety in the workplace.
20 I accept that there were a number of unusual and unique circumstances surrounding the incident.
21 Andrew Buchanan had returned to New Zealand and he was detained in New Zealand at the time of the incident as a result of an unforeseen issue involving the health of a family member. He would ordinarily have been present supervising but there was no supervision by Andrew Buchanan Engineering Ltd at the relevant time. He frankly admitted the work should have stopped when he was not in attendance supervising although he believed Parsons and Crea, as experienced capable workers, could continue in his absence.
22 There was a complicated employment structure on site with various companies and workers involved in the work.
23 The first charge concerns the system of work. This was devised by the deceased and the co-worker. Whilst their endeavours were well intentioned the system of work was not safe. The workers were acting outside their field of expertise.
24 The second charge concerns the lack of supervision. I accept the explanation provided for the lack of supervision. It does not, however, excuse the company's actions.
25 It is agreed the relevant sentencing principals in occupational health and safety matters are enunciated in DPP v Frewstal Pty Ltd 47 VR 660. In accordance with authority I have had regard to the gravity of the breach of duty owed under the Act 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.'
26 It is not in issue the extent of risk of death or serious injury which might result from the breach was high.
27 Whilst each breach was an isolated event occurring in unusual and unique circumstances they were nonetheless, in my opinion, serious departures.
28 I have, however, taken into account all relevant circumstances particularly the unusual circumstances of this case in fixing an appropriate financial penalty.
29 The actions of the company were very serious indeed because the workers were unsupervised and an unsafe system of work was implemented.
30 There are two victim impact statements. The sister of the deceased describes feeling shattered at the loss of her brother. She misses him every day. As she stated,
'Glenn should never had died that day. He had years of life to look forward to. He worked hard, was kind, funny, loved to travel and enjoyed people. I keep asking why this has happened and not getting any answers. Glenn was my brother and I loved him so much.'
31 The partner of the deceased has provided a victim impact statement in which she describes her partner's death as the most devastating experience she has ever encountered. All aspects of her life have been adversely affected. She states and I quote, 'Finally, it is really your worst nightmare when the man you adore and love does not come home from work'.
32 As well as the matters to which I have referred I must also take into account the need for general and specific deterrence. Specific deterrence is less relevant as the company has no relevant prior history. General deterrence is of considerable importance in a case such as this. This type of conduct must be discouraged. The principles of the Occupational Health and Safety Act must be upheld.
33 I am called upon by the Sentencing Act to manifest the community's denunciation of the company's conduct and generally to impose a just punishment. Having regard to all relevant facts and appropriate sentencing principles I sentence the company as follows.
34 On Charges 1 and 2 there is an aggregate fine of $300,000. I grant a stay on payment of three months. Pursuant to s6AAA of the Sentencing Act I state that the sentence I would have imposed but for the plea of guilty is an aggregate fine of $500,000.
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