Director of Public Prosecutions v Calleja

[2015] VCC 583

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-00271

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALBERT CALLEJA

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May 2015
DATE OF SENTENCE:	8 May 2015
CASE MAY BE CITED AS:	DPP v Calleja
MEDIUM NEUTRAL CITATION:	[2015] VCC 583

REASONS FOR SENTENCE
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Subject:   Attempt to pervert the course of justice.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:  $20,000 fine

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ballek	Office of Public Prosecutions
For the Offender	Mr P. Morrissey SC

HIS HONOUR:

1Albert Calleja, you have pleaded guilty to one charge of attempting to pervert the course of justice. The offending occurred on 18 June 2011 at Ascot Vale.  The maximum penalty for this offence is 25 years' imprisonment. 

2The circumstances of your offending are set out in a prosecution summary which was tendered by Mr Ballek and which I marked as Exhibit A.  That document was read to the court and it is not necessary that I here repeat what is there set out except in a summary way.

3You, at the time of this offending, were a director of a company called Dechi Pty Ltd.  That company was a builder on a work site where, unfortunately, a window cleaner who was working at the site cleaning windows, was injured on 17 June 2011.  He was not injured as a result of any of the factual circumstances which have arisen in this particular charge.

4

On 3 February 2014 I heard a plea by your former company, Dechi Pty Ltd, to two charges arising under s.21(1) and s.21(2)(a) of the Occupational Health and Safety Act. The circumstances giving rise to those charges are set out in my revised reasons for sentence in the neutral citation [2014] VCC 149.

I incorporate those reasons into these reasons for sentence.

5Your offending in relation to this matter involved the alteration of the circumstances at the work site the day after the unfortunate death of the window cleaner.  Observations had been made by you and others at the site that it was not safe.  It was not safe because there were steel pickets exposed above ground level or above the level of concrete surrounding it.  You hammered down those steel pickets and the steel pickets did not have plastic covers on them to prevent injury. 

6The window cleaner had, apparently, before he met his demise been using an extension ladder.  You lowered the height at which that extension ladder was extended.  You also removed some other steel pickets from the area and you dismantled scaffolding at another unit.  You did not advise the Worksafe inspector, who arrived at the scene the next day, that you had altered the site.

7The penalty for this offence reflects, I think, the seriousness with which parliament regards it.  Mr Morrissey QC, who appears on your behalf asked me, in the circumstances, to regard this offending by you in what he described as "a mild" example of a very serious offence.  I agree with that submission.  Your offending did not have some of the aggravating features which one often finds in offences of this kind.  In particular at the time that you offended there were no charges pending in relation to the matter.  Your offending occurred right at the outset of the investigation. 

8When I dealt with your company I set out in my reasons in passing sentence there, why occupational health and safety issues are important and they are regarded very seriously by the courts and by parliament.  By your conduct you attempted to avoid what were possibly the consequences of an investigation into a very serious matter. 

9

However I have been convinced by the plea on your behalf that this is not a case where I should entertain a term of imprisonment.  In the disposition that

I will shortly impose, will not go down that path. 

10You are now living in the Philippines and apparently supervising some development work there but your main work is in the area of operating taxis.  You come from a good family background and you have the support of a good family.  You are married with two children.  Your wife and children are, understandably, currently in the Philippines. 

11In sentencing for offences of this kind, general deterrence will always be the guiding principle.  Those that might seek to offend as you have need to be deterred less they proceed to do so.  That must be reflected in the penalty imposed.  The penalty must also reflect just punishment and must denounce your offending.

12However here, because you have pleaded guilty, I think you have saved the time and cost of what would have been a trial of approximately four or five days.  You have, by your pleas of guilty at a very early time, I think, properly demonstrated adequate remorse for your offending. 

13This matter has been pending and doubtless, hanging over your head now for some time.  The matters with the company went before me in February 2014.  I note that you were not charged until 30 September 2014 but these matters must have been known to investigators well prior to that time.  Indeed they were matters that were mentioned in the summary before me on 3 February.

14The law says that I must take into account any undue delay and here I think there has been undue delay in bringing these matters before the court.  This could have been resolved well prior to now and you could have been able to get on with your life in a more meaningful way.  To your credit you have done so and you have come back to Australia, as it were, to face the music.

15For all these reasons I think that the sentence, or the penalty, that I will impose adequately addresses the principles of general deterrence and denunciation.  I think it is highly unlikely that you will re-offend again in this way and I do not expect to see you back in courts again.

16On the charge of attempting to pervert the course of justice, you are convicted and fined the sum of $20,000. 

17Are there any matters arising out of that?

18MR MORRISSEY:  Your Honour, might Mr Peter just approach ‑ ‑ ‑ 

19HIS HONOUR:  yes.

20MR MORRISSEY:  ‑ ‑ ‑ Mr Calleja and just - so that I can make a submission about the stay.  About that ‑ ‑ ‑ 

21HIS HONOUR:  Yes.

22MR MORRISSEY:  Your Honour, may we seek a stay of three months in relation to that matter?

23HIS HONOUR:  Yes.  Do you oppose that, Mr Ballek?

24MR BALLEK:  No, Your Honour.

25HIS HONOUR:  There will be a stay of three months for payment of the fine.  Mr Calleja, on the rising of the court you are free to leave.  Adjourn the court.

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