Director of Public Prosecutions v Country Cart Pty Ltd
[2022] VCC 2183
•5 December 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-02469
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| COUNTRY CART PTY LTD |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 November 2022 | |
DATE OF SENTENCE: | 5 December 2022 | |
CASE MAY BE CITED AS: | DPP v Country Cart Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2183 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Failure of an employer to provide a working environment which was without risks to health – worker crushed by truck when braking system failed – brakes not adequately maintained – company of good character prior to the offending – significant impact on victims – general deterrence primary sentencing factor – first charge significant breach of obligations – second charge below the mid-range of seriousness – high culpability – company sold following event – specific deterrence and protection of the community of lesser significance – principle of totality relevant
Legislation Cited: Occupational Health and Safety Act 2004; Sentencing Act 1991
Cases Cited:DPP v Frewstal Pty Ltd [2015] VSCA 266; DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557; DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676; Worboyes v R [2021] VSCA 169; Orbit Drilling Pty Ltd v R [2013] VSCA 82; Tomlin v Valley Sweep Pty Ltd Unreported. Magistrates' Court of Victoria, 2 October 2020; Read v Heavy Mechanics Pty Ltd [2022] VCC 107; DPP v Peter Stoitse Transport Pty Ltd [2022] VCC 870; Di Tonto v R [2018] VSCA 312
Sentence: Defendant company ordered to pay fines totalling $250,000
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S Flynne K.C Mr D Chisholm | Office of Public Prosecutions |
| For the Accused | Mr G Livermore K.C | Johnson Winter Slattery |
HIS HONOUR:
1
Country Cart Pty Ltd pleaded guilty to two charges
Occupational Health and Safety Act2004 (‘the Act’).Each charge alleges a failure to provide a working environment which was safe and without risks to the health of its employees. With the first charge, in effect, it is the failure to provide and maintain the park brake of a truck in a condition that would hold the stationary truck. With the second, in effect, it is a failure to maintain a safe system of work to ensure the truck was kept in a roadworthy condition without defects.
Circumstances
2The circumstances of each the charges are set out in the document entitled, 'Summary of Prosecution Opening for Plea', which is Exhibit A. Counsel for Country Cart agreed with the factual contents of that exhibit.
3
At the time of the incident, Country Cart conducted a waste disposal business in Gippsland. Brian Rintoule, then aged 55, had been employed by
Country Cart since September 2014.
4On 9 April 2019, at about 6 am, Mr Rintoule arrived at Country Cart's premises in Leongatha. He was scheduled to collect rubbish along the route known as 'Run a Pink Tuesday'. He collected his truck, a 2010 Nissan UD MK 6 rigid truck fitted with a compactor. He completed a daily inspection sheet, noting no issues with the truck. He set out upon his route.
5At about 1.06 pm, Mr Rintoule arrived at the entrance gate to a property in Leongatha South from which he was to collect rubbish bins. The entrance to the property was through a closed gate. Upon arrival, he stopped the truck immediately before the closed gate. He engaged the park brake and walked to the gate. As he walked towards the gate, the truck rolled forward and crushed him against the gate. He was injured and died at the scene.
6By 7.30 am the next day, employees of Country Cart realised Mr Rintoule's truck was missing. His wife also rang, advising her husband had not returned home the previous evening.
7Employees reviewed Mr Rintoule's running sheet. They called each customer along the route to ascertain whether their rubbish had been collected. Based on the answers of the occupiers of the Leongatha South property, they drove there to discover Mr Rintoule's body. The cause of death was traumatic asphyxia.
Servicing of the Truck
8Country Cart required its drivers to check and record the effectiveness of the brakes of the trucks on a Daily Inspection Sheet (‘DIS’); and employed mechanics to do so at period service intervals in the Service Sheets (‘SS’) which accompanied A or B Service Job Sheets.
9An ‘A Service’ was to be carried out every 10,000 kilometres and included checking and adjusting the brakes.
10A ‘B service’ was to be carried out every 20,000 kilometres and included a checking and adjusting the brakes; inspecting the brakes; checking lining thickness and adjustment and conducting a test drive to check the service and park brakes.
11Mr Rintoule completed a daily inspection sheet on the morning of the incident, being 9 April 2019, and did not identify an issue. However, an issue with the handbrake had been identified earlier.
(a) on 4 April 2019, Gavin Price, another driver, wrote in a daily inspection sheet, 'handbrake [was] not holding correctly on inclines (hill)'.
(b) on 5 April 2019, Mr Price again wrote on a daily inspection sheet: 'handbrake needs adjusting'.
Pausing there, Adam Wylie is a mechanic and a director of Country Cart. On 5 April 2019, he adjusted and tested the handbrake.
(c) on 8 April 2019, someone recorded in a daily inspection sheet that there were no faults with the truck.
12The truck’s service history shows it was not serviced at or about the recommended service intervals:
(a) an ‘A service’ is required every 10,000 kilometres, as I have said. On 9 April 2019, the truck had travelled about 11,447 kilometres since its last recorded A service; and.
(b) a ‘B service’ is required every 20,000 kilometres. At the time of the incident, the truck had travelled about 47,546 kilometres since its last recorded B service.
Vic Roads Inspection
13On 12 April 2019, Andrew Stroud, an automotive technician with VicRoads, inspected the truck. He found these defects: excessive wear to the automatic transmission lever (T bar); the right hand rear body subframe was cracked; the bracket for the load-sensing valve mount was broken; the left hand rear park brake clevis pin was insecure; the park brake itself was not holding; the left hand side of the front bumper bar was damaged; the right hand rear hydraulic ram was leaking fluid; the driver's internal handgrip was insecure; and the steer axle leaf spring was set flat.
14Mr Stroud issued the truck with a major defect notice, requiring it to be taken off the road immediately. It could only be towed.
John Marshall
15John Marshall is a forensic engineer. WorkSafe sought his opinion about the truck's braking system. He found:
(a) there was excessive wear of the brake drums but the brake shoe linings were not unduly worn. Moreover, there was no damaged or dislodged components within the braking assemblies;
(b) the offside and nearside brakes were well out of adjustment and had been so for a long time. There was an adjustment after his inspection and the braking system functioned satisfactorily.
Mr Marshall opined:
(c) the brake failure would not have occurred if there had been adjustment or winding out of the wheel cylinder adjusters to remove any excess clearance between the brake linings and the friction surfaces of the brake drums. This adjustment would have compensation for operational wear. A competent truck mechanic could perform the adjustment easily and at relatively little expense. It would take about 30 minutes and the cost of replacing linings and drums would cost between $100 and $300; and,
(d) it is unlikely the park brakes were adjusted in the week prior to the accident.
Criminal History
16There had been no previous findings of guilt or convictions recorded against Country Cart. It was incorporated in the 1980s. Three of its four present directors purchased the waste disposal business in October 2013. I would treat its previous good character as encompassing the period between 2013 and 2019.
Victim Impact Statements
17There are three victim impact statements.
Mandy Rintoule
18
Mandy Rintoule is the widow of Mr Rintoule. They have two daughters,
Shanna and Ellie. Her statement is brief but eloquent in describing her loss and that of her daughters:[1]
‘What we have gone through in the last two and half years, I would not wish upon anyone.
Some people are human, like Brian; some are simply human beings.’
[1] Victim Impact statement of Mandy Rintoule declared 19 January 2022
19Ms Rintoule attaches photographs of her husband. One does sense his nature from some of the photographs. He has an engaging smile.
20She ends her statement with the question, 'I question, what is a human life worth?'.
Vicki Hankinson
21Vicki Hankinson is Ms Rintoule's sister. She too speaks of the significant impact of the death on her and her family:[2]
Our family's loss is immeasurable and fills me with such sadness. Brian was the love of Mandy's life, I was in awe of their enduring love story, not many of us get to find 'the one' and experience a long and happy marriage. As I grew older looking in from outside it gave me comfort to see their happiness. I looked forward to the making of memories of family time in our older years.
My heart breaks for Brian's two girls Shanna and Ellie.’
[2] Victim Impact Statement of Vicki Hankinson declared 17 January 2022
22Ms Hankenson described the struggling to continue with aspects of life as she did before Mr Rintoule's death.
Stuart Haw
23Mr Rintoule was Stuart Haw’s best mate for more than 40 years. As a volunteer with SES, he attended the scene. As one would expect that was a traumatic event for him to discover the deceased was his best mate.
24Mr Haw misses his friend greatly. He has lost enthusiasm for SES and for his motorcycle riding club.
Country Cart
25As I said, Country Cart was incorporated in the 1980s. Alex Aeschlimann, Andrew Holman and Jason Henry purchased the waste disposal business in October 2013. At that time, Aadam Wylie was hired as a mechanic, he later become a director. Each of the directors lent sizeable amounts to the corporation.
26Country Cart employed about 10 people and operated eight to 10 trucks. Over the busier summer period, it added casual employees. It serviced about 3,000 customers, providing waste disposal services to rural properties, businesses, councils, Parks Victoria and recycling businesses. On a revenue of about $2 million, Country Cart was profitable, with most of the profits reinvested in the business.
27In March 2020, the directors contracted to sell the waste disposal business although completion of the sale did not occur until February 2021 due to the pandemic. The sale occurred before any charges were laid. The directors were sorely affected by Mr Rintoule's death and could not continue with the business. After paying Country Cart's debts, the balance of the purchase are held on trust pending the determination of this proceeding. The directors will forego their loans to the corporation.
Legal Considerations
28Both parties referred to a number of authorities, including DPP v Frewstal Pty Ltd[3] and DPP v Amcor Packaging Australia Pty Ltd[4], from which these propositions are relevant:
[3] [2015] VSCA 266
[4] (2005) 11 VR 557 at [35]
(a) the purpose of the Act is to require employers to examine their workplaces, identify risks to the safety of employees and relevant other persons and their potential consequences and take steps to reduce or eliminate those risks[5];
(b) the objective seriousness of the employer's contravention of its duty is the primary factor in sentencing for these offences. Other relevant considerations are secondary[6];
(c) in assessing the objective seriousness or gravity of the offence, one examines the extent of the employer's failure to comply with its statutory duties or 'the measure of evidenced disregard concerning the safety of employees in the circumstances'[7] which involves the foreseeability of a risk, the likelihood of it occurring, the consequences if it eventuates an what should have been done by the employer within the parameters of reasonableness. The objective seriousness of the failure is not directly determined by its consequence: a very serious failure may yield a minor injury while a minor failure may yield a serious injury or death. It is a subtle distinction but the purpose of the Act is to force employers to examine their workplace and practices and take steps to eliminate or reduce the risk of injury. The Act is dealing with a category of persons who are capable of, at least, increasing the safety of their workplaces. The Act seeks to ensure proper regard is paid to the issue of safety;
(d)
accordingly, general deterrence is particularly important as a sentencing purpose.[8] It assumes an even greater importance where the likely consequence of a risk eventuating is the infliction of serious injury or death. I have avoided quoting from the cases but the court in
DPP v Vibro-Pile Australia Pty Ltd[9]stressed the importance of general deterrence for these offences:[10]
‘The sentences imposed need to draw attention to the importance of workplace safety, and to send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment.’
(e) a relevant aspect of contravention is the distinction between an employer without a system to protect its employees and others and an employer who has such a system but does not adhere to it. From the perspective of foreseeability, a failure to set up a safe system of work in the first place may be more serious than a failure to comply with an established one because the Act requires employers to look for potential risks and take steps to overcome them. In this case, Country Cart had a system but did not adhere to it. To a limited extent, this reduces the objective seriousness of the offences.
[10] At [233]
[5] See ss2 and 4 of the Act
[6]DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557 at 565
[7]DPP v Frewstal [2015] VSCA 266 at [127]
[8]DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
29As can be seen, in this type of case, with the emphasis on the objective seriousness of the offending and the sentencing purpose of general deterrence, the focus in sentencing is upon the punitive aspects of sentencing, subject always to the need to impose a just punishment and a fair sentence.
[9] (2016) 49 VR 676
Discussion
30Section 5(1) of the Sentencing Act 1991 (‘the Sentencing Act’) sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender has engaged in; and,
(e) to protect the community from the offender.
31Section 5(2) of the Sentencing Act sets out matters to which regard must be paid where they are relevant to a particular proceeding.
Nature and Gravity of the Offence
32The proper functioning of any motor vehicle's braking system is critical. The risk of injury to Mr Rintoule or others was foreseeable if the brakes failed in some way. Recognising this, Country Cart required daily and periodic inspections of its truck, which ought to have included the braking system. As I have said, in relation to the first charge, it would have been easy and relatively inexpensive to ensure the truck's braking system was functioning properly.
33As to both charges, these measures would have ensured the truck's brakes were functioning properly and, more generally, the truck was roadworthy and without defects:
(a) daily pre-trip inspections of each vehicle to detect and report and serious fault or safety defect;
(b)
‘A’ service checks conducted at about
10,000 kilometres and ‘B’ service checks conducted at about 20,000 kilometres, each by a suitably qualified person who is acting carefully;
(c) the identification and rectification of any defect by that suitably qualified person.
34In relation to the first charge, I agree with the Director's submission that this is a significant breach of Country Cart's obligations. It is not towards the lower end of seriousness objectively as submitted by Country Cart's counsel.
35In relation to the second charge, apart from the overlap between the charges of the ability of the park brake to hold the truck, the other defects place the offence below the mid-range of seriousness.
Culpability
36
With the first charge, apart from the A and B services being overdue, whatever Mr Wylie did to the braking system on
5 April 2019 was woefully inadequate. The material does not identify what he did by way of adjustment, but whatever he did was careless where, in the circumstances of the braking system of a large motor vehicle, there is no room for carelessness. For both charges, the blameworthiness of Country Cart is high.
General Deterrence
37When one is dealing with a motor vehicle, as I have already said, the proper functioning of its braking system is obvious and critical. This is especially so when dealing with a large motor vehicle like a truck. One can gauge the size of the truck in this case from five of the photographs in Exhibit B. It is such an obvious area of risk to the occupants of the truck and other road users.
38This is an unusual accident. Country Cart had systems in place. Primarily, the failure was the mechanic to adjust the wheel cylinder adjusters to remove any excess clearance between the brake linings and the friction surfaces of the brake drums. Despite the mechanic's ‘adjustment’ on 5 April 2019, this was not done. It could have been done easily and at a relatively little expense. Country Cart is at a loss to explain how the accident happened. The answer is simply carelessness. No one attributes any blame to Mr Rintoule for the accident.
39Country Cart foresaw the risk posed by inadequate braking systems. It could hardly do otherwise. It established a system to deal with the risk but did not ensure its system was adhered to or properly adhered to. I agree with the Director's submission that there was a significant departure from acceptable safety standards.
40Given the prominence of general deterrence, there is a considerable overlap of the sentencing purpose of denunciation.
Specific Deterrence and Protection of the Community
41Country Cart still exists as a corporation. However, it has sold its waste disposal business. Country Cart does not conduct any business at present. At least, while the present directors form its board, Country Cart will not return to waste disposal in the future given the actions of its directors. The sentencing purposes of specific deterrence and the protection of the community from Country Cart assume a far lesser significance.
Rehabilitation
42Corporations are legal fictions. Where they operate businesses, corporations do so through natural persons and, in the case of Country Cart, primarily through its directors. Owing to the fact and circumstances of Mr Rintoule's death, the directors have sold Country Cart's business. To the extent a corporation can be said to be remorseful, Country Cart is. To the extent a corporation can be rehabilitated, then Country Cart's prospects of rehabilitation are excellent.
Maximum Penalties
43For Country Cart as a corporation, the maximum penalty for these offences is 9,000 penalty units. The dollar value of a penalty unit is usually increased annually. When these offences occurred, the maximum penalty was $1,450,710.
Guilty Pleas
44Country Cart indicated an intention to plead guilty or pleaded guilty to these offences at the fourth committal mention hearing in the Magistrates Court. At that hearing, it was committed for trial, using the brief of evidence and without the need to lead any oral evidence. In the course of a criminal process in the court system, starting with the filing of charges and ending in a trial, the indication or plea came at an early opportunity.
45In almost every case, guilty pleas deserve a mitigation of sentence which would be otherwise imposed. At the very least, it avoids the need for a trial which saves time and expense. It allows other trials to be heard earlier than would otherwise be the case. It avoids the need for witnesses to give evidence at a trial. Generally, this is an onerous task for witnesses and would be particularly so for the widow. These reasons for mitigation of penalty are well known in legal circles but I doubt they are well known outside of legal circles or the additional mitigatory effect of a guilty plea made at this particular time.
46
Due to the restrictions caused by the pandemic, the criminal courts have struggled to deal with criminal cases efficiently. This has prompted our Court of Appeal in the case of
Worboyes v R[11]to explain that pleas of guilty are worthy of a greater discount of sentence if made at this time. It is worth quoting a passage for the court's judgment which shows the emphasis it places on pleas of guilty at this time of restriction:[12]
‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.’
[12] At [35]
47Despite guilty pleas assuming a lesser importance for these kinds of offences, they nonetheless lead to a significant discount on the sentence I would have imposed if it had not pleaded guilty to these charges but had been found guilty after a trial. The extent of the discount can be seen in my s6AAA statement at the end of this sentence.
Current Sentencing Practices
48Regarding current sentencing practices, the Director's counsel drew my attention to the sentencing remarks in four cases: Orbit Drilling Pty Ltd v R[13]; Tomlin v Valley Sweep Pty Ltd[14]; Read v Heavy Mechanics Pty Ltd[15]; and DPP v Peter Stoitse Transport Pty Ltd[16]. The last case was a sentence of mine.
[13] [2013] VSCA 82
[14] Unreported. Magistrates' Court of Victoria, 2 October 2020
[15] [2022] VCC 107
[16] [2022] VCC 870
49
In Orbit Drilling, the charge involved an offence under s32 of the Act. That offence requires the reckless engagement in conduct placing another in dangerous of serious injury. For a body corporate, the maximum penalty is 20,000 penalty units: that is, a maximum fine more than twice the maximum fine for an offence under s21 of the Act. No doubt, the important factor in the higher maximum penalty is the state of mind of the offender being reckless. Although the actions of
Country Cart's mechanic were negligent, there is nothing to establish that they were reckless.
50Heavy Mechanics was convicted of an offence under s23 of the Act after a trial. For a body corporate, the maximum penalty for an offence under s21 and s23 is 9,000 penalty units. The sentencing judge paid attention to the financial position of the corporation, noting it was modestly sized and modestly profitable and a significant fine would create financial hardship for it but added:[17]
‘However, this consideration is one of many to which I must have regard, including the primary consideration of general deterrence.’
[17] [2022] VCC 107 at [89]
51The sentencing judge in that case noted the case of Di Tonto v R[18], a successful appeal against the manifest excess of fines. The offenders were a corporation and its director. The business was small. Unlike some of these cases, the corporation and the director intended to pay the fines and continue its business.
[18] [2018] VSCA 312
52With Country Cart, the remorse of the directors has been seen through the sale of the business and the willingness of its directors to forego their loans to it, totalling about $460,000. At least, three of the directors borrowed the monies which they lent to the corporation. Through Country Cart's counsel, the directors extended their sincere condolences to the widow, other family and friends. To me, these were genuine expressions rather than a formula of words meaning little.
53The sale of the business occurred in March 2020 but, owing to the uncertainty created by the pandemic, settlement did not occur until February 2021. The proceeds of the sale were used to repay its debts with the balance held pending the conclusion of this proceeding. At present, Country Cart has two significant bank accounts, totalling $266,014.08. Instead of using the monies to repay their loans, for example, the directors have retained them to pay the anticipated fines imposed on Country Cart in this proceeding. Not only did their remorse cause the sale of the business but they have retained the net proceeds of the sale to pay fines.
54One of the cases cited by the Director was my sentence is Peter Stoitse. That was also a case of directors altering its business following a fatal accident. There, the corporation sold its tanker business and changed its focus. The business continued in a dramatically altered and reduced fashion. Here, the directors have gone a step further and have sold the entire undertaking of Country Cart.
55In this case, the purposes of sentencing, especially general deterrence, must be seen in the overall context. I will impose fines, which will be paid or I expect will be paid. It is likely the directors will lose the monies owed by the corporation to them. The business of Country Cart was modest. On about 9 April 2019, its annual revenue was about 2 million. Owing to its borrowing to buy trucks, profit was meagre and largely reinvested in the corporation. Accordingly, the directors will receive little or nothing out of the end of Country Cart.
56Finally, there is a partial overlap between the charges and that brings in the principle of totality. I must look at what I am doing, take a step back from what I am doing and look at the overall effect of the sentences.
[11] [2021] VSCA 169
Sentence
57On Charge 1, Country Cart is convicted and fined $250,000.
58On Charge 2, Country Cart is convicted and fined $50,000.
59I will refer to the fines to Fines Victoria for collection.
S 6AAA
60I mentioned earlier the s6AAA statement. In the absence of these pleas of guilty and in Country Cart being found guilty of these charges after a trial, I would have fined it a total of $400,000.
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