Director of Public Prosecutions v Concord Group Pty Ltd.

[2019] VCC 1846

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01793

DIRECTOR OF PUBLIC PROSECUTIONS

v

CONCORD GROUP PTY LTD.

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 November 2019
CASE MAY BE CITED AS:	DPP v Concord Group Pty Ltd.
MEDIUM NEUTRAL CITATION:	[2019] VCC 1846

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 J. Gullaci
The Accused was not represented

HIS HONOUR: 

1After a criminal jury trial of four days, Concorp Group Pty Ltd (in liq), ACN 159067160, was found guilty of two charges of failing to provide a working environment that was safe and without risks to health.

2The first charge was that it failed to provide and maintain plant that was, so far as reasonable practicable, safe and without risks to health.  The second charge was that it failed to provide such instruction as was necessary to enable employees to perform their work in a way that was safe and without risks to health.

3Each of these charges carries a maximum penalty of 9000 penalty units, which at the time, equated to approximately $1.36m as a maximum penalty.

4The circumstances at trial were somewhat unusual.  After the charges were laid, the company went into liquidation and the company representatives played no further part in the matter.  The liquidator advised the prosecution and court that he would play no part in the trial process.

5Accordingly, the company was presumed by law to be not guilty of the two charges it faced.  The matter was required by law to be prosecuted before a jury, although there was no defence legal representative or company representative present throughout the entire trial proceedings. 

6The facts upon which the jury verdicts of guilty were based may be briefly stated.  In late 2015, construction work commenced at the Royal Elizabeth Apartments at 690 Elizabeth Street, Carlton.  The building was of a concrete pour construction, to be about 11 stories in height.  The accused company was engaged to undertake tasks associated with the construction and installation of form work on the site, including the installation of an air or a riser shaft. 

7In early 2016, the accused company changed its labour arrangements and arranged an independent contractor, CO Building Services, to provide labour for the site.  By operation of the provisions of the Occupational Health and Safety Act, Robert Hetherington was an employee of Concorp under the labour hire agreement.

8For some days before and up to 13 February 2015, carpenters constructed platforms at each floor level in the void of the air shaft.  These platforms were supported underneath by two fixed beams.  At Level 4, there was a first fixed beam of 35mm wide by 90mm deep nailed into the wall of the riser shaft; that is the point of entry from the floor level.  The second support beam was a beam installed into pockets in the walls of the riser shaft, about halfway along the platform.  At the end of the platform, a hand rail was installed.

9The essential characteristic of the platform and each of the platforms from Levels 2 to 4 was that they cantilevered from the supporting beam over and into the void.  The Level 4 platform was measured to be 12 metres above the ground.

10When the fourth level platform was completed, the constructing carpenter expressed concern that work tools could easily fall over the edge and into the void from Level 4, or from any of the levels below, causing a risk to workers working in the void but on ground level, as there was no check to the fall of these items.

11The constructing carpenter brought this to the attention of the site foreman. 
The site foreman considered the platforms dangerous to workers as there was a risk of a fall, and he ordered that the entrance to the platforms - which, as
I have said, was gained from a floor level as it was constructed in the building - was to be boarded off.

12As the matter was only brought to his attention at the end of the working day on Saturday 13 February 2016, the site foreman stated to the constructing carpenter that the matter would be taken up, and the safety issue addressed, on Monday
on 16 February 2016, when work recommenced.

13On Monday 16 February, work recommenced on the fourth level.  Orders were given to labourers to clean the level in preparation for a concrete pour on that level and in the riser shaft.

14A labourer, Anthony Stevens, was ordered to undertake some work on the platform in the riser shaft.  His work colleague, Robert Hetherington, suggested to Mr Stevens that he, Stevens, continue the task he was undertaking and that he, Hetherington, would undertake the work necessary on the platform.

15None of the workers who were called to give evidence could say who gave the order to perform the work inside the riser shaft on the platform.  None of the workers called to give evidence could say whether the board was in place, or had been removed when they were working on the fourth level on 16 February.

16In any event, Mr Hetherington stepped onto the platform and put his weight on the edge of the platform, past the second supporting beam.  As the edge of the platform was not supported, but in fact, cantilevered over the void, the platform did not hold Mr Hetherington's weight.  The cantilevered aspect to the platform tipped, and Mr Hetherington fell to his death below.

17The expert evidence of Russell Nesbitt concluded that the construction of the platform was wholly inappropriate for the purpose for which it was used.  However, it is clear from the provisions of the Occupational Health and Safety Act, and the appellate consideration of those provisions, that the liability for contravention of the Act does not flow from a consideration of the failing of the company alone.

18Rather, the contravention is the failing to do what is reasonably practicable -
or in the case of the second charge, what was necessary - to provide a safe working environment against the risks posed in that environment.

19In this case, Mr Nesbitt stated that in relation to Charge 1, it was reasonably practicable to either: 

·    (a) use the site engineers to draft a safe platform with consideration to safe load bearing at all points of the platform, or;

·    (b), construct the platform so that it finished at the point of the second supporting beam with a handrail in place at that point, or;

·    (c), construct the platform out to the second already present support pockets with a third support beam so that the platform covered the entire void of the riser shaft.

20Mr Nisbett stated that in relation to Charge 2, it was necessary to provide instruction not to enter the riser shaft.  He said this could be done by verbal instruction, or a simple notice placed on the boarding over the riser shaft.

21Mr Nisbett considered that at most, engaging the site engineer to perform the calculations required would add something in the order of $200 to $300 to the cost of the construction.  In other words, the cost of undertaking what was reasonably practicable was negligible.  The cost of timber and labour to construct the platform in the second or third manners proposed would be even less.

22The sentencing principles in relation to these matters are clear and settled.  First, notwithstanding the company is now in liquidation, I take account of the decision of Teague J in R v Denbo Pty Ltd.  In that decision, Justice Teague proposed to fix a fine and the amount which would have been appropriate if the company had remained as thriving as it appeared to have been at the time of the contravention of the duty.  But otherwise, the fine must reflect the need to take into account normal sentencing principles.  In other words, I take from Denbo that I am to ignore the fact that the company is in liquidation and the fine will never be paid.

23Thereafter, I have regard to the principles set out by the Court of Appeal in
DPP v Frewstal.  The sentencing principles set out by the Court of Appeal are as follows.  That is, a sentencing judge should be guided by :

·the seriousness of the breach itself.  In this case, the breaches in respect to both charges are objectively very serious.  To construct a platform at height without engineering approval was a significant departure from the standard expected in this industry.  This is especially so when the platform constructed effectively created a lever effect, where the platform would tip in a seesaw motion.

·Second, the extent of the risk of death or serious injury which might result from the breach.  As I have already indicated, the platform on Level 4 was constructed at a height of 11 / 12 metres above the ground in the void.  A fall from this height poses a very significant level of risk. In this case, the accused's breaches clearly had the potential, as they did, to result in serious injury or death of its employees.  The risk eventuated in this case and is evidence of the extent of the risk.

·Third, the likelihood of the occurrence of an event as a result of the breach such as the event that occurred here, endangering the safety of employees or others. I note at this point the expert, Russell Nesbitt, gave evidence that the likelihood of collapse was 'almost inevitable, effectively inevitable.'  The accused was aware or ought reasonably to have been aware of the risks, and I note at this point that through its foreman, it was aware of the risk, because the reason that he ordered that the void be boarded up is because he foresaw that risk.  Given the readily-available means of reducing the risk and the very, very cheap way in which it could have been mitigated, in the face of the likelihood of the occurrence of the event endangering the safety of employees, this is a very serious breach.

·The next consideration is the potential gravity of the consequence of such an event.  This was manifested by the fall that killed Mr Hetherington.

·Finally, I take account of the fact that the breach in this case resulted in a fatality, and this fact is relevant in that it demonstrates the degree of seriousness of the relevant threat to the health or safety resulting from the breaches.

24I must also have regard to the principle of totality in setting an overall penalty in respect of the two charges which is not crushing or disproportionate.  As the sentence I am about to impose may still be used for measuring principles of deterrence and protection of workers, it must remain appropriate and proportionate to the seriousness of the offending.  I am not at large simply because the company has no means to meet its obligation.

25On Charge 1, the charge of failing to provide plant which was, so far as reasonably practicable, safe and without risk to health, the company is convicted and fined the sum of $325,000.

26On Charge 2, the charge of failing to provide instruction which was necessary in order for employees to do their work safely, the company is convicted and fined the sum of $325,000.

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