Director of Public Prosecutions v Australian Box Recycling Proprietary Limited

[2016] VCC 1056

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-02011

DIRECTOR OF PUBLIC PROSECUTIONS

v

AUSTRALIAN BOX RECYCLING PROPRIETARY LIMITED

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JUDGE:	HIS HONOUR JUDGE WISCHUSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	21 and 22 July 2016
DATE OF SENTENCE:	22 July 2016
CASE MAY BE CITED AS:	DPP v Australian Box Recycling Proprietary Limited
MEDIUM NEUTRAL CITATION:	[2016] VCC 1056

REASONS FOR SENTENCE
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Subject:Sentence – Criminal Law – failing to provide or maintain plant that was as far as was reasonably practicable safe and without risks to health

Legislation Cited:            Sentencing Act 1991 (Vic);
Cases Cited:  DPP v Vibro-Pile [2016] VSCA 55
Sentence:  Convicted and fined $800,000.00

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Lyon	Office of Public Prosecutions
The Accused was not represented by Counsel

HIS HONOUR:

1After a trial, the jury returned a verdict of guilty on the single charge of failing to maintain so far as was reasonably practicable, a working environment that was safe and without risks to health in that the accused company, Australian Box Recycling Proprietary Limited in liquidation, failed to provide or maintain plant that was, so far as was reasonably practicable, safe and without risks to health (charge 1).

2The maximum penalty for the offence of which the company has been found guilty is 9,000 penalty unit or in money terms, $1.32849 million.

3The company has no prior convictions. 

4I should, at the outset, recognise the great trauma and prolonged grief that the loss of Mr Bower's life has caused to his partner and his children.  The moving, dignified and emotional victim impact statements made on the plea and those read to the court by counsel for the Director, serve also to remind us all of why it is that the duty to keep workers safe is so carefully prescribed in the legislation under which this charge was brought.

5It is very clear to me that he was a decent, hardworking, loving father, partner and friend.  I should also say to those members of Mr Bower's family present, that any sentence imposed here today should not be understood by them as in any way placing a value on the life that has been lost, or upon the grief, loss and emotional trauma that Mr Bower’s death has caused. 

6The company has shown no remorse and in evidence on the plea, were

[1] Exhibit 4.

a number of documents, demonstrating the positive steps those responsible for its administration have taken to avoid the financial consequences of this offending.  In short, the company was placed in liquidation for reasons which are recorded as including a contingent WorkCover debt (whatever that might mean), there was an attempt to deregister the company despite the existence of these charges, and it seems likely that the business has been sold to another related entity and has already risen from the ashes and is trading.[1] 

7I was informed by the learned prosecutor that this form of rearrangement of companies charged with offences under this Act occurs so often that it is now almost “standard practice”.  It does seem to me that some form of legislative intervention is required to give penalties imposed for breaches of this important legislation some real force. 

8So in those circumstances, the accused company did not appear and took no part in the trial which proceeded in its absence and in the absence of any representation from it. 

9Consistent with the jury's verdict and the evidence given in the trial, I am satisfied beyond reasonable doubt that on 22 August 2014, Mr Steven Bower met his death at the company's workplace when a suspended cage loaded with flattened cardboard boxes fell upon him.  He was apparently alone in the factory at the time of his death, and the horrifying circumstances in which it occurred are plain to be seen, because they were clearly recorded on CCTV footage, which I have viewed.[2] 

[2] Exhibit 1 on the sentencing hearing.

10As the authorities show - and I have set those out in a footnote[3] - the company is not to be sentenced for causing his death, but rather for allowing the risk of it to exist. 

[3]DPP v Vibro-Pile [2016] VSCA 55 and the cases there referred to.

Circumstances of the Offending

11The risk here arose in this way.  The company operated a cardboard box recycling business at factory premises of approximately 650m2 in area. The photographs tendered in the trial show that nearly all of the cardboard material in its various forms in the factory was stored on wooden pallets which were handled by means of a forklift, which was also shown in the photographs.  Many of the pallets were stored individually and others were stacked on top of each other to some height. 

12The suspension of the load that the case was concerned with occurred, as far as one can tell from the record of interview, (which is the only input as to this inquiry), because the manager of the business, Leandro Guisasola, decided to save some floor space by designing and constructing a lift shaft with an electric hoist on top of it, and a cage that ran within it.  The design and method of construction of the lift is plain to be seen in the tendered photographs and was explained in the expert evidence in the depositions and in the reports. 

13Mr Guisasola built the device with some help, using welding and mechanical skills he had acquired whilst working with mechanics and fitters in a business that his family had operated earlier, which involved recycling trucks.  In fact, he had no formal qualifications of any sort, and as far as one can tell from what is, in many respects, a frank record of interview, he was wholly ignorant of any safety or construction regulation that might apply to the construction, design and use of goods lifts. 

14In his own estimation, the device that resulted from his efforts and that resulted in the risk, was "bloody brilliant".  Nothing could be further from the truth. 

15In operation, the lift achieved the result that a stack of cardboard boxes, in total of nearly 4 metres in height, could be stored on a single footprint.  The top half of the stack was in the suspended cage - much like an open sided elevator car.  The bottom half of the stack rested on the factory floor in the bottom half of what was in effect, the lift shaft. 

16As I have said, the design, construction and operation of the lift were much canvassed in the trial and the flaws this examination revealed were many and obvious.  To state them shortly - the use of this device required employees to perform operations beneath a suspended load.  Should the means of suspension fail, there were no sensors or braking mechanisms of any description that would slow the descent of the load.  There was no space beneath it that would prevent or ameliorate the risk of crushing those who were underneath. The hoist mechanism was inappropriate and its installation reflected the ignorance of the builder of the lift.  It was rigged in a way that prevented the overwind cut-out switch from being triggered by the means provided by the manufacturer, and the failure to install a similar device on the correct side of the sheave demonstrates how little was known by those who constructed the device. This failure was the immediate cause of the risk eventuating. Because the operator had to raise the lift to remove the supporting bars that kept it up there whilst it was static, it was, at the moment of overwind that the operator was at greatest risk and under the load.  The lift failed because once the cage had reached the uppermost limit of its travel, the hoist motor continued to tighten the wire rope until it broke, allowing the lift and its load of about 250 kilograms of cardboard, to freefall onto those underneath. 

17If you can call it this, the only faint effort made to reduce the risk that this device created, was to instruct those who had to go beneath it when it was raised above them to remove the supporting crossbars in a particular order.  Given the magnitude of the risk, and the glaringly obvious probability, if not certainty that death or serious injury would result from failure, this was, in my view, a pathetic and foolhardy system of work.

18In the end, the prosecution went to the jury on the basis that a single, reasonably practicable means of eliminating or reducing the risk that the lift created was available.  That was to immediately decommission the lift.  There was in place in the factory, as the photos demonstrated, a readily available means of storing cardboard on pallets whether singles or stacked one upon the other.  The space saved by the use of this dangerous device could just as easily have been saved by stacking pallets to a height, on top of each other, or by the provision of a simple racking system for the pallets. It was the Crown case, and the jury by its verdict has accepted, that it should never have been used. 

19Beneath that solution, the experts who gave evidence in the trial identified ways in which, on the assumption that it was necessary to elevate stacks of boxes in this way, the device could have been made safer.  To list just some of them - overwind protection could have been fitted on the correct side of the wire rope, rapid descent sensors, controls and brakes could have been fitted to the lift car itself; and a system of work that enabled the installation and removal of the supporting bars from outside the crushing space could so easily have been devised. 

20In short, the lack of appreciation of the peril the device created for those who had to work underneath the load, the lack of understanding of the means by which the risk might be reduced or eliminated, and the lack of understanding of the operation of the hoisting device, is just breathtaking, especially when one has regard to the very limited benefit to the space available in the factory that the use the device achieved.

Sentencing Considerations

21As the learned prosecutor submitted, the primary factor in determining the appropriate penalty is the objective seriousness of the breach of the duty the Act imposes.  The gravity of the contravention is not to be determined by its consequences, but by the extent of the employer's failure judged by reference to - the extent of the departure from the duty owed, the extent of the risk to health and safety thereby created (and in particular, the foreseeable potential consequences) and the likelihood or risk of the harm occurring. 

22It was submitted and I accept that the disregard here was very high, the risk created was obvious, and equally obvious is the fact that the potential consequences were, as happened here, catastrophic. I accept also that the likelihood of the risk eventuating was higher because the risk was enduring and constant. 

23As to the factors listed in s.20(2) of the Act, I accept counsel's submission that the potential harm could not have been more serious, that the accused company's manager was, in one sense, oblivious to the hazard he had erected whilst at the same time aware that loads should not be suspended above persons, and that, with more than half a moment's thought, the company should have known that the risk was grave. I accept also, that for no expenditure at all, it was reasonably practicable to eliminate the risk. It was submitted, and the authorities support the proposition, that where the risk is of death or serious injury, general deterrence must be given considerable significance in the sentencing consideration. 

24I am satisfied, in all the circumstances that the culpability of the accused company is at the highest end of seriousness in this case. 

25Counsel submitted that the capacity of the company to pay was not an irrelevant consideration - part 3(b) of the Sentencing Act but that here, beyond the bare fact of liquidation the resources that remain available to meet any penalty imposed are not known.  What is known from the record of interview, is that at the time, the company was trading successfully and was experiencing an upturn in its business, which was then turning over something in excess of a $1 million a year and employing and paying 11 people. 

26Having regard to the maximum penalties, the nature and gravity of the offence, the company's culpability and lack of remorse, the impact upon Mr Bower's family, the importance of general deterrence and the need for denunciation of the company's conduct, on charge 1, Australian Box Recycling Proprietary Limited is convicted and fined the sum of $800,000.

27Any other matters? 

28MR LYON:  No, Your Honour.

29HIS HONOUR:  I have one question that floated in and out of my mind throughout this whole case, this machine had been up there for maybe 18 months.

30MR LYON:  Yes.

31HIS HONOUR:  Had any WorkSafe inspector ever been there? 

32MR LYON:  We don't believe so.  No, there hadn't been, Your Honour.

33HIS HONOUR:  Sine die. 

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