Director of Public Prosecutions v City Circle Recycling Pty Ltd

[2015] VCC 480

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

AT MELBOURNE
CRIMINAL JURISDICTION

AP-14-2259

DIRECTOR OF PUBLIC PROSECUTIONS

v

CITY CIRCLE RECYCLING PTY LTD

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	30 March 2015 and 31 March 2015
DATE OF SENTENCE:	9 April 2015
CASE MAY BE CITED AS:	DPP v City Circle Recycling Pty Ltd
MEDIUM NEUTRAL CITATION:	[2015] VCC 480

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Kissane QC	O.P.P.
For City Circle Recycling Pty Ltd	Mr A.F. Lindeman	Dent Consulting & Legal

1HIS HONOUR: This is an appeal by the Director of Public Prosecutions pursuant to s.257 of the Criminal Procedure Act 2009 against a sentence imposed in the Magistrates Court at Melbourne on 4 September 2014.

2The respondent to the appeal, City Circle Recycling Pty Ltd, pleaded guilty to one charge of Failing to provide a safe system of work contrary to s.21(1) (2a) of the Occupational Health and Safety Act 2004 (the Act) and one charge of Failing to provide instruction and supervision to enable employees to perform work in a safe way contrary to s.21(1) (2e) of the Act.

3The Magistrate, after deciding to hear the matter summarily in the face of strenuous opposition by the prosecution, convicted the respondent and imposed an aggregate fine of $225,000 with costs of $14,233. 

4This appeal is in the nature of a hearing de novo and the respondent pleaded guilty to the charges before the Court. 

5A summary of prosecution opening was read to the court and tendered in evidence.  The circumstances of the offending in question may be summarised as follows -

6The respondent operates a recycling facility in Brooklyn.  The facility extends over several hectares.  Brick, concrete, bitumen and other like demolition materials are dumped at the site by truck and crushed and reprocessed for resupply to the building and construction industry. 

7James Bourke, the deceased, had been employed at the facility for 7 ½ years when, on 12 December 2012, he was killed after a large front‑end loader was reversed over him resulting in catastrophic crushing injuries which caused his death. 

8At the time of his death Mr Bourke was working as the load inspector responsible for the visual inspection of incoming loads and traffic management in an area known as the tipping area where trucks unloaded. 

9The incident that caused Mr Bourke's death occurred at approximately midday.  Prior to this, approximately 80 trucks had unloaded at the site.  Plainly the facility was very busy with large full loaded tip trucks and semitrailer tip trucks coming and going with great frequency.  In the tipping area the unloaded materials were moved by front‑end loader. 

10In my opinion this was a very hazardous site and all safety procedures ought to have been written and rigorously enforced by the respondent in order to comply with its duties pursuant to the Act. 

11In my opinion the respondent failed to do so to a significant degree. 

12At the time of Mr Bourke's death it was known to the site manager, Mr Tony Salvo, that Mr Bourke carried out his duties on foot in close proximity to trucks and working heavy machinery and vehicles, such as the front‑end loader that ran over him.  It was also well‑known that Mr Bourke did not use a radio to communicate with truck drivers or operators of the heavy vehicles. 

13Mr Bourke should not have been permitted to do this and it was necessary for the respondent to train him to perform his duties in a safe manner.  Exclusion zones and safety barriers were necessary in the tipping area in order to ensure a safe system of work.  They were introduced after Mr Bourke's death. 

14This was not a single departure from a well implemented safety plan.  Mr Bourke had been performing his duties in this manner and context for at least three months.  It was almost inevitable that death or serious injury would occur in these circumstances. 

15As I observed during the hearing of the Appeal, it appeared that these were serious breaches of the Act.  Having considered all of the evidence and the submissions before me I remain firmly of that opinion. 

16It was submitted on behalf of counsel for the respondent that I could not be satisfied beyond reasonable doubt that the breaches of the Act were a substantial cause of Mr Bourke's death.  In my opinion it is not necessary for me to decide that question in the circumstances of this case.  As I have already observed, these are serious breaches of the Act with the consequence of Mr Bourke's death. 

17During the hearing of the appeal the respondent endeavoured to cast some blame on Mr Bourke for his own death.  But as I have already observed, in my opinion the respondent breached the statutory duties it owed to Mr Bourke to a significant degree. 

18I have received in evidence a victim impact statement of Sandra Bourke, Mr Bourke's sister.  She attended court during the hearing of the appeal.  I accept that her brother's death in such circumstances has had a profound impact upon her. 

19The sentencing principles applicable to this matter are well established.  Clearly general deterrence is a significant consideration.  Workplace deaths are a preventable and all too common tragic occurrence.  The sentence that I impose must be calculated to deter other employers from permitting employees to perform their duties in an unsafe system of work and without proper training and instruction. 

20The respondent must also be punished for its breach of the Act and its conduct in these circumstances denounced. 

21The respondent has been engaged in the construction recycling industry for 15 years.  It is a family owned private company.  It has no prior convictions.  I accept that it has learnt important lessons regarding industrial safety as a result of Mr Bourke's death. 

22It has a gross annual turnover of approximately $9 million and employs 30 people.  Accordingly it is able to pay a significant fine. 

23It pleaded guilty to the charges before the court and I have taken that early plea into account in its favour in mitigation of sentence. 

24It cooperated with investigators and I accept that the senior officers of the respondent are sorry for Mr Bourke's death, although, as I have already observed, some blame was sought to be attributed to him. 

25Furthermore, I accept that the company is unlikely to re‑offend. 

26I also that there is a degree of overlap between the two charges between the court and this will result in a significant moderation of the fine that is appropriate and proportionate to be imposed in respect of charge 2. 

27In the result the sentence of the court is as follows:

28On charge 1 the respondent is convicted and fined the sum of $300,000. 

29On charge 2 the respondent is convicted and fined the sum of $125,000. 

30That makes for a total effective fine of $425,000.  I order a stay of one month for the payment of the fine.  But for the plea of guilty I would have imposed a total effective fine of $600,000. 

31What's the position regarding costs?  This is a Director's appeal. 

32MR KISSANE:  The Director doesn't seek costs of the appeal, Your Honour. 

33HIS HONOUR:  No, but when I set aside a sentence I also set aside the costs order made in the Magistrates' Court so I'll need to remake that order.

34MR KISSANE:  Your Honour can do that, Your Honour.

35HIS HONOUR:  That's the way it should be done.  There is an anomaly in the Criminal Procedure Act regarding ancillary orders and what constitutes a sentence and, as I say, if I set aside a sentence it may or may not have the effect of setting aside an order for costs.  There's some debate about that.  The safest course is for me to remake the costs order that was made in the Magistrates' Court but you don't seek cost for this appeal? 

36MR KISSANE:  No, the Director doesn't seek costs of the appeal.

37HIS HONOUR:  Thank you.  I will remake the order. 

38I order that the respondent pay costs in the sum of $14,233.  Who is that payable to, Mr Kissane, to WorkCover? 

39MR KISSANE:  I think it is the Victorian WorkCover Authority I think it's now called.

40HIS HONOUR:  Yes, to the Victorian WorkCover Authority within one month. 

41Are there any further orders required? 

42MR DENT:  If Your Honour pleases, just a query whether the stay might be extended to three months? 

43HIS HONOUR:  No, that's too long.  I'll give you two months for both.

44MR DENT:  If Your Honour pleases. 

45HIS HONOUR:  The stay will be two months in relation to the payment of the fines.  What about the costs? 

46MR DENT:  The same, Your Honour.  All in together, yes. 

47HIS HONOUR:  All right.  I'll order a stay of two months in relation to the costs and the fine. 

48COUNSEL:  If the court pleases. 

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