Director of Public Prosecutions v Cranbourne Turf Club Inc
[2023] VCC 506
•28 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02521
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CRANBOURNE TURF CLUB INC |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 & 10 February 2023 | |
DATE OF SENTENCE: | 28 February 2023 | |
CASE MAY BE CITED AS: | DPP v Cranbourne Turf Club Inc | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 506 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Occupational Health and Safety – Failure to ensure persons not exposed to risk – ‘Non-causative breach’ – Guilty plea – Admissibility of victim impact statements – Fine with conviction and adverse publicity order appropriate
Legislation Cited: Occupational Health and Safety Act 2004 (Vic); Criminal Procedure Act 2009 (Vic); Open Courts Act 2013 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:DPP V Frewstal Pty Ltd (2015) 47 VR 660; Scott v The Queen [2010] VSCA 290; R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55; Orbit Drilling Pty Ltd v R (2012) 35 VR 399; Director of Public Prosecutions v Dalgleish (a pseudonym) [2017] HCA 41; DPP v Hazelwood Power Corporation Pty Ltd [2020] VSC 278; York v The Queen [2014] VSCA 224; Kaplan v Lee-Archer (2007) 15 VR 405; R v Miller [1995] 2 VR 348; Metricon Homes Pty Ltd v O’Grady [2018] VSC 816; R v Australian Char Pty Ltd [1999] 3 VR 834; DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557; R v Commercial Industrial Construction Group (2006) 14 VR 321; DPP v JCS Fabrications Pty Ltd [2019] VSCA 50; Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; Worboyes v The Queen [2021] VSCA 169; DPP v Russell (2014) 44 VR 471; DPP (Cth) v Brown (2017) 268 A Crim R 309; SafeWork NSW v KD & JT Westbrook Pty Ltd [2018] NSWDC 255 & [2019] NSWDC 1; Bradley & Joanne Finnigan Pty Ltd v WorkSafe ACT (Supreme Court of the ACT, Elkaim J, 6 June 2016)
Reports Cited: Occupational Health and Safety Act Review (2004)
Sentence: $250,000 fine with conviction – Adverse publicity order – s 6AAA declaration – $380,000 fine with conviction and adverse publicity order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr C. Mandy SC and Mr T. Bourbon | Office of Public Prosecutions |
| For the Accused | Mr S. Russell | HWL Ebsworth |
HIS HONOUR:
1.Early in the morning of 30 August 2019, two young jockeys, Mikaela Claridge and Jaimee Hayes, were engaged in trackwork in the dark at a horse training complex operated by Cranbourne Turf Club Inc (CTC). At approximately 4.35 am, the horses became spooked and stopped suddenly. Both Ms Claridge and Ms Hayes were thrown to the ground. Ms Claridge was fatally injured. Ms Hayes was unharmed.
2.This incident precipitated an investigation of CTC’s work practices which resulted in CTC being charged with a number of offences against the Occupational Health and Safety Act 2004 (Vic) (OHSA). CTC was not charged with causing the death of Ms Claridge. It was charged with exposing her and Ms Hayes to the risk of injury or death. The relevance of the tragic death of Ms Claridge to the Court’s task in imposing an appropriate sentence on CTC raises complex factual and legal questions and is discussed later in these reasons.
3.CTC applied on 25 November 2022 pursuant to s 207 of the Criminal Procedure Act 2009 (Vic) for a sentence indication. Prior to hearing that application, the Court received:
i.Submissions on behalf of the Director of Public Prosecutions on Sentencing Indication Application dated 1 December 2022;
ii.CTC Sentencing Indication Submissions dated 25 November 2022; and
iii.CTC Court Book.
4.The parties relied on these documents at the plea hearing held on 9 and 10 February 2023.
5.Another defendant, Saloon Park Pty Ltd (Saloon Park), is facing a jury trial in respect of charges under the OHSA on 14 March 2023 arising from the same facts. I therefore acceded to a request by the prosecutor made on 9 February 2023 to make an interim proceeding suppression order pursuant to s 20 of the Open Courts Act 2013 (Vic) (OCA) on the ground that such an order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means.[1] That risk is that Saloon Park may not receive a fair trial if one or more jurors becomes aware of CTC’s plea of guilty and sentence.
[1] Open Courts Act 2013 (Vic) s 18(1)(a).
6.I made a proceeding suppression order pursuant to s 17 of the OCA on 15 February 2023. That order will remain in place until after the jury’s verdict in the trial of Saloon Park.
A Breach of s 23 of the OHSA
7.After accepting the sentencing indication by the Court, CTC has pleaded guilty to a single charge of contravening s 23 of the OHSA.
8.The charge is as follows:
The Director of Public Prosecutions charges that Cranbourne Turf Club Inc at Cranbourne in the State of Victoria on or about 30 August 2019, being an employer, failed to ensure so far as was reasonably practicable, that persons other than its employees were not exposed to risks to their health or safety arising from the conduct of its undertaking.
9.The particulars of the charge, so far as they are relevant, are as follows:
2. CTC's undertaking including operating a horse training complex at Grant Street, Cranbourne, referred to as 'the workplace'.
3. The workplace included eight horse training tracks… One of the … tracks … was a sand track, known as the Sand Trails … which ran through bushland…
4. There were several features of the Sand Trails, including:
a. rails were not installed along either side of the trails for most of the length of the trail;
b. trees and shrubs grow on either side of the trails for most of the length;
c. water pooled in low-lying areas from time-to-time;
d. wildlife, including kangaroos and wallabies would walk on or near the sand trails from time-to-time which could spook horses that were running on the trails; and
e. there were no floodlights installed along the sand trails to illuminate those trails outside of daylight hours.
5. As part of CTC’s undertaking, the workplace was used by various horse trainers including, but not limited to Ken Keys and Mark Webb, to conduct horse-training activities including having horses ridden on the sand trails by track riders.
6. The … trails were open for use by horse trainers, including, but not limited to Ken Keys and Mark Webb, between 4.00 am and 9.30 am each Monday to Saturday inclusive.
7. There was a risk of serious injury or death to persons other than CTC's employees arising from the conduct of CTC's undertaking if such persons were riding a horse on the sand trails in dark conditions as a result of them being dislodged from the horse they were riding and falling to the ground, due to them not being able to see:
(a) Tree branches encroaching into the area above the Sand Trails and colliding with them; or
(b) Water pooled on the Sand Trails and riding through the pooled water causing the horse they were riding to slip and/or fall; or
(c) Other horses running on the Sand Trails and colliding with those horses; or
(d) Wildlife on or near the sand trails, and thus not being able to prepare for the horse they were riding to become spooked by the wildlife and to suddenly stop and/or change direction.
8. It was reasonably practicable for CTC to reduce the risk to the health and safety of persons other than its employees arising from the conduct of its undertaking by
(a) Installing floodlights around the Sand Trails to ensure that the Sand Trails could be properly illuminated outside of daylight hours; and/or
(b) Restricting access to the Sand Trails to daylight hours only.
9. CTC failed to do this.
10. At approximately 4.35 am on 30 August 2019, Mikaela Claridge and Jaimee Hayes were riding horses on the Sand Trails in dark conditions when the horses they were riding became spooked and stopped suddenly, causing both Mikaela Claridge and Jaimee Hayes to be dislodged from the horses they were riding and to fall to the ground, resulting in the death of Mikaela Claridge.
11. Persons who were exposed to a risk to their health and safety arising from the conduct of CTC's undertaking included, but were not limited to, Mikaela Claridge and Jaimee Hayes.
10.CTC is to be sentenced on the basis of the particulars of the charge (set out above) and the Summary of Prosecution Opening dated 10 February 2023 (SOPO) which is an agreed document.[2] The following facts are drawn from the SOPO.
[2] Exhibit P1.
11.The training complex at Cranbourne was opened in 1990 and is the largest thoroughbred training facility in Australia.
12.It is well understood by participants in the horse racing industry that thoroughbreds are generally a flighty and temperamental breed of horse.
13.The Training Complex is used by horse trainers to work, ride, gallop, and trail their horses in preparation for competitive races. As at May 2019, 162 licenced horse trainers used the Training Complex and up to 800 horses were trained at the Training Complex each day.
14.In August 2019, the Training Complex was open six days per week (Monday to Saturday) between 4.00 am and 9.30 am.
15.CTC is responsible for granting permission to trainers to use the Training Complex. Trainers are charged fees by CTC to use the Training Complex. CTC developed training rules and regulations, which users of the Training Complex were required to agree to, and comply with, in order to use the Training Complex.
16.CTC maintains eight separate training tracks at the Training Complex. One of those training tracks is a deep sand track that runs through dense bushland adjacent to seven other tracks. This track is known as the Sand Trails or the Bush Track (the Sand Trails).
17.The Sand Trails is popular with horse trainers who use the Training Complex, as it is good for the fitness levels of the horses that run on it. The Sand Trails is approximately 1,400 metres long, with several undulations and an optional uphill section.
18.There is some lighting at the entrance of the Sand Trails, near where a ‘hut’ is located in which a track supervisor, who is employed by CTC, is stationed. There is no other lighting on the Sand Trails. In August 2019, the Sand Trails was open between 4.00 am and 9.30 am, like the other training tracks at the Training Complex. Track riders would therefore ride on the Sand Trails in dark conditions.
19.Unlike the seven other training tracks at the Training Complex, the Sand Trails is not a circular track with running rails on either side of it. Rather, there are shrubs and trees located along both sides of the Sand Trails for most of the way around it. Tree branches hung over the Sand Trails track, which meant that track riders could collide with the branches while riding horses on the Sand Trails.
20.The Sand Trails is located near the Royal Botanic Gardens Cranbourne. As such, wildlife, including kangaroos, wallabies, rabbits, and foxes, were frequently observed on or near the Sand Trails. Such wildlife would spook horses running on the Sand Trails and cause them to react, including by stopping suddenly. Horses could also collide with wildlife on the Sand Trails.
21.When riding during daylight hours, track riders would be able to see wildlife on the Sand Trails and adjust the way that they were riding – for example, by slowing their horse down to a walk or by anchoring themselves in the saddle – so they could ride past the wildlife in a safe manner. However, when riding in dark conditions, track riders would not be able to see wildlife on the Sand Trails until they had ridden over the wildlife or were very close to it.
22.Track riders who were employed by Saloon Park Pty Ltd were routinely directed to ride horses on the Sand Trails each Friday, commencing shortly after 4.00 am in dark conditions. Saloon Park’s employees were also intermittently directed to ride horses on the Sand Trails on other days.
23.Saloon Park’s track riders would typically ride horses onto the Sand Trails in a trot before picking the speed up to a canter and cantering two laps of the Sand Trails.
24.In May 2019 a safety audit of the complex was commissioned by CTC. The audit was conducted by Kevin Ring who, at that time, was the National Occupational Health and Safety Officer with the Australian Jockey Association and the jockey-representative on CTC’s Occupational Health and Safety committee.
25.The audit report made no reference to the risk of riding on the sand trails in the dark, a matter that was relied upon by Mr Russell on CTC’s behalf to counter the submission by the prosecution that the risk associated with riding in the dark was an obvious risk.
26.Mr Ring explained that the absence of any reference to this risk in his report was because those risks were documented in a WorkSafe publication entitled, 'Horse Stables and Track-riding Safety Guide Book' dated August 2018 (the Guidebook) and, in his words, were, 'already a given.'
27.I will return to the relevance of the Guidebook for sentencing later in these reasons.
28.On 30 August 2019, Ms Claridge and Ms Hayes commenced working at the Training Complex shortly before 4:00am. Other Saloon Park employees were also working at the Training Complex that morning, including Kasey Keys, who is the daughter of Ken Keys and who was the supervisor of Ms Claridge and Ms Hayes.
29.Ms Claridge and Ms Hayes assisted in the unloading of horses that were to complete track work that day from a truck and in putting riding gear onto those horses. In accordance with their usual work practices, Ms Claridge and Ms Hayes were directed by Kasey Keys about which horses to ride and on which track to ride them. As 30 August 2019 was a Friday, Ms Claridge and Ms Hayes were directed to ride horses on the Sand Trails.
30.Ms Claridge and Ms Hayes completed one ride out to, and around, the Sand Trails together on different horses. During this ride, Claridge said ‘Oh my God it is so dark out here this morning.
31.After returning from their first ride, Ms Claridge and Ms Hayes mounted different horses and rode back out to the Sand Trails. On this occasion, Ms Claridge was riding a horse named ‘Dharma’. ‘Dharma’ was known to be a quiet horse with a very good temperament. Ms Claridge had previously ridden ‘Dharma’ on multiple occasions.
32.At approximately 4:35am, Ms Claridge and Ms Hayes rode their respective horses onto the Sand Trails and turned left to commence another circuit together. Both riders picked their horses up to a canter. Both horses stopped suddenly and then moved to the left.
33.As a result of this, Ms Claridge and Ms Hayes were thrown forwards over the front shoulders of their respective horses. Ms Hayes landed on her knees and was able to keep hold of her horse. Ms Hayes then heard rustling and saw that ‘Dharma’ was running through the bushes. Ms Hayes also saw that Ms Claridge was lying on her left side on the ground. Ms Hayes ran over to Ms Claridge, who was not conscious.
34.Ms Claridge was provided with emergency medical treatment by an on-track Ambulance Transport Attendant and then by ambulance officers; however, she died at the scene a short time later.
35.The relevance of the accident is discussed later in these reasons.
36.At approximately 6:45am on 30 August 2019, WorkSafe inspectors Noel Lewis, David Steer, and Shane Taylor attended the Training Complex.
37.Inspector Lewis and Inspector Steer observed that there were several low-hanging tree branches that encroached into the area above the Sand Trails, including one branch that was approximately two metres high and which encroached into that area by two metres from the edge of the track.
38.Inspector Lewis also observed several areas of the Sand Trails track where water had pooled, including one area in which the pool of water was approximately five metres wide.
39.Inspector Lewis issued a Prohibition Notice to CTC in relation to the Sand Trails. The Prohibition Notice required CTC to remove all tree branches that encroach into or above the operating area of the horse trail and to develop and implement a water drainage system to ensure that water does not pool on the track surface in low-lying areas of the track.
40.On 3 September 2019, Inspector Lewis returned to the Training Complex and observed that all overhanging trees on the Sand Trails had been trimmed back to the edge of the track.
41.Inspector Lewis also observed that additional sand had been placed where water had been pooling on 30 August 2019, which raised the height of the track to support the run-off of water from the track. He also observed that the drains on the side of the track had been cleaned to allow water to run-off the track. Inspector Lewis did not observe any water pooling on any part of the track surface.
42.On 10 September 2019, CTC determined, as a temporary measure, that the Sand Trails would only be open for use during daylight hours. On 26 November 2019, CTC determined that, commencing from 1 December 2019, the Sand Trails would only be open from 6:30am each morning.
43.Charge 1 relates to the risk of serious injury or death to track riders who were riding a horse on the Sand Trails in dark conditions.
44.The prosecution alleges that it was reasonably practicable for CTC to have reduced this risk by installing floodlights around the Sand Trails or by restricting access to the Sand Trails to daylight hours only. The prosecution alleges that CTC failed to implement either of these measures.
Objective Gravity of the Offence
45.The primary factor in determining the sentence to be imposed in occupational health and safety matters is the objective seriousness of the offending. In DPP v Frewstal Pty Ltd,[3] the Court of Appeal outlined the principles by which a sentencing court should be guided when assessing the objective seriousness of offending against the OHSA.
[3] (2015) 47 VR 660.
46.Priest and Kaye JJA explained that first, unlike cases of unlawful homicide, the occurrence of death or serious injury is not an element of the offences charged. An offender is punished according to the gravity of the breach of duty owed under the Act, not according to the result or consequences of the breach.
47.Secondly, the gravity of the breach is measured by two factors: (1) the seriousness of the breach itself; that is, the extent to which the offender has departed from its statutory duty and (2) the extent of the risk of death or serious injury which might result from the breach.
48.Thirdly, an assessment of the extent of the risk itself involves consideration of two factors:
(1) The likelihood of the occurrence of an event as a result of the breach such as the event that occurred in the particular case endangering the safety of employees or others; and
(2) The potential gravity of the consequence of such an event, particularly whether there is a risk of death or serious injury.
49.The fact that the breach in a particular case resulted in death is relevant only in the sense that it might manifest or demonstrate the degree of seriousness of the relevant threat to health or safety resulting from the breach.
50.Applying these principles to the present case, I accept the prosecution submission that CTC's departure from its statutory duty was ‘relatively high'.[4]
[4] Submissions on Behalf of the Director of Public Prosecutions on Sentencing Indication Application dated 1 December 2022, [12](b).
51.In this regard I note that there were readily available measures to eliminate or reduce the relevant risk. These included installing lighting around the sand trails or restricting access to the sand trails to daylight hours. This latter measure was implemented following the incident.
52.Counsel for the offender, Mr Russell, described the rule that the sand trails would only be used in daylight hours as implemented a few days after the incident that gives rise to these charges as 'an easy fix'.
53.Other than the suggestion that some trainers who used the facility considered the change to be unnecessary, there is no evidence before the court that it has had any negative consequences, either for the CTC or for anyone else. CTC lost no business as a result of implementing the change.
54.The change to operating procedures was consistent with the guidance in the WorkSafe Guidebook.
55.The Guidebook is a detailed WorkSafe document and was produced with the cooperation and involvement of the racing industry.[5] Its purpose is set out at page 3:
‘This guide provides information for employers, employees, Health and Safety representatives and contractors working within a stable and horse-training facility management environment to ensure that hazards and risks are identified and risk-control measures are put in place.’
[5] There is a list of the organisations involved in the development of the Guidebook at p 72. The list includes Racing Victoria Ltd and the AJA.
56.The Guidebook provides the following guidance in Part 4: ‘Track riding safety (training venues)’:
'There are hazards involved in track-riding. These include unruly horses, loose horses, riders being dislodged and/or horse falling, too many horses on the track and a horse going through a rail. These hazards increase significantly when riding in the dark, cold or heat.'[6]
[6] Guidebook, 47 (emphasis added).
57.This is followed by a list of 'Work Practices to avoid' which includes:
'Lighting not being maintained, having no procedure in place to follow if lights fail pre-sunrise, and float parks not being lit.'
58.I consider this to be a clear recognition by the racing industry and the State’s work safety regulator of the particular hazards associated with riding horses in the dark.
59.Mr Russell submitted that this guidance needs to be understood in its proper context. He referred to the heading of the relevant part of the document, Part 4 being, 'Track-riding safety (Training venues).' As I understood the submission, I should confine the guidance to horse riding ‘tracks’ and should not apply it to ‘trails’ such as the Sand Trails operated by CTC.
60.I reject this submission. There is a broad definition of the expression 'track-work' in the document. ‘Track work’ means 'any training activity excluding an official track, undertaken by a racehorse in the care of a trainer on a racecourse, recognised training track, private training establishment or elsewhere.'[7] This would include training work such as that engaged in by Ms Hayes and Ms Claridge on the sand trails.
[7] Guidebook, 47.
61.Mr Russell also relied on CTC having engaged Mr Ring of the AJA to advise in respect of an extension to the sand trails completed in 2019.
62.I was referred to an email exchange involving senior officers of CTC and Mr Ring. On 8 July 2019, Cameron Gallagher of Racing Victoria wrote to Mr Ring, copying in Mr Bainbridge of CTC, concerning the extension to the sand trails.
63.Until that time, the recently-commissioned extension had only been used during daylight hours.
64.In the email Mr Gallagher wrote:
'Also Nathan Rose […] trialled riding on the extension section of the sand trails on Saturday morning, outside of daylight hours and advised that it is perfectly safe for it to be open from 4 am when the other section of the sand trails opens. Due to less bushland down in that section of the track, its more open and lighter than other sections of the sand trail, so this section will now be open from 4 am in coming days.'[8]
[8] Depositions filed 4 March 2022, 976 (emphasis added).
65.Later that day, Mr Ring responded to both Mr Gallagher and Mr Bainbridge and included the following: 'Excellent news, the sand trails extension.'
66.It is not easy to reconcile this apparent endorsement of riding in the dark by Mr Ring with the warnings in the Guidebook (which was produced with the endorsement of the AJA, an organisation represented by Mr Ring). However, I note that Mr Ring did not give evidence on the plea and, in those circumstances, it is inappropriate to attach too much weight to his apparent endorsement of the use of the sand trails in the dark.
A Non-causative Breach?
67.This matter has proceeded as what was described by both counsel as a ‘non-causative breach’. I understand this to mean that it is not alleged by the prosecution that the failures by CTC caused the death of Ms Claridge. Rather, the case is put on the more general basis that by allowing track work to proceed in the dark CTC exposed all riders who used the track in the dark on 30 August 2019 to the risk of injury or death. On the evidence before the Court that included Ms Claridge and Jaimee Hayes.
68.The Court is not bound by such an agreement between the parties.[9] It can reach its own view of the facts for the purposes of sentencing provided it does so fairly. In this case, I raised the question of causation at the hearing and the parties made submissions which I have taken into account.
[9] Scott v The Queen [2010] VSCA 290 at [48].
69.Whether or not a person is killed or injured as a result of a breach of s 23 of the OHSA is ‘irrelevant to the gravity of the breach’.[10]
[10] R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181 at [61]; Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55 at [190]. The position may well be different in relation to an offence against s 32 of OHSA (reckless endangerment) – see, e.g., Orbit Drilling Pty Ltd v R (2012) 35 VR 399 at [63]. It would also be different in relation to the offences created by Part 5A (industrial manslaughter).
70.However, that does not mean that the consequences of a breach are irrelevant to the sentencing task. The objective seriousness of an offence is merely one of a number of considerations, albeit a very important one. All of the matters in s 5(2) of the Sentencing Act 1991 (Vic) (Sentencing Act) must be considered.[11]
[11] Director of Public Prosecutions v Dalgleish (a pseudonym) [2017] HCA 41 at [82].
71.As the Court of Appeal recognised in the case of Vibro-Pile, sentencing for offences against the OHSA is complex. While the occurrence of death or injury has no bearing on the assessment of the objective gravity of the offending, it is a matter which must be taken into account in assessing victim impact.[12]
[12] Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55 at [200].
72.Under the Sentencing Act, among the matters that this court ‘must have regard to’ in sentencing an offender for an offence are:
· The impact of the offence on any victim of the offence;[13]
· The personal circumstances of any victim of the offence;[14] and
· Any injury, loss or damage resulting directly from the offence.[15]
[13] Sentencing Act 1991 (Vic) s 5(2)(daa).
[14] Sentencing Act 1991 (Vic) s 5(2)(da).
[15] Sentencing Act 1991 (Vic) s 5(2)(db).
73.The application of these provisions to the facts of this case was the subject of dispute at the sentencing hearing.
Victim Impact Statements – Admissibility
74.The prosecution filed five victim impact statements in advance of the hearing of CTC’s plea. The statements were made by:
a. Colleen Claridge, Mikaela’s mother;
b. Bernie Claridge, Mikaela’s father;
c. Jack Claridge, Mikaela’s brother;
d. Karl Claridge, Mikaela’s brother; and
e. Chelsea Hall, Mikaela’s former partner.75.Mr Russell submitted that there is no ‘victim’ in this case in the sense in which that word is defined in the Sentencing Act. He contended that this follows from the plea of guilty being entered to a ‘non-causative’ breach. The case was, he submitted, analogous to that of DPP v Hazelwood Power Corporation Pty Ltd.[16] He argued that these Victim Impact Statements are therefore inadmissible.
[16] [2020] VSC 278.
76.The Court is obliged to rule on this question. It is not permissible to take into account any part of a victim impact statement that is inadmissible.[17]
[17] York v The Queen [2014] VSCA 224 at [26].
77.In light of this objection and with the agreement of the parties, I marked each of the statements for identification.[18] The question now is whether they should be tendered absolutely. That requires an examination of the relevant provisions of the Sentencing Act.
[18] This course was adopted by Keogh J in similar circumstances in the case of DPP v Hazelwood Power Corporation Pty Ltd [2020] VSC 278 at [141].
78.Victim impact statements are provided to ‘assist the court in determining sentence’.[19] The primary function of a victim impact statement has been described as ‘informational’ in the sense of ‘bringing to the sentencer’s attention details of any injury, loss or damage suffered by a victim as a consequence of the crime’.[20]
[19] Sentencing Act 1991 (Vic) s 8K(1).
[20] Arie Freiberg, Fox and Freiberg's Sentencing: State and Federal Law in Victoria (3rd ed, 2014) 182.
79.‘Victim’ is relevantly defined in s 3(1) of the Sentencing Act as follows:
‘Victim in relation to an offence, means a person who… has suffered injury, loss or damage … as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender’
80.The phrase ‘as a direct result of’ in this definition is clearly concerned with causation. It will be sufficient if the offence is a significant cause of the injury loss or damage.[21] It need not be the only cause. The adjective ‘direct’ is intended to ‘exclude those results which are but tenuously related to crimes in that their contribution is a minor factor in the production of the injury’.[22]
[21] Kaplan v Lee-Archer (2007) 15 VR 405 at [22]-[28].
[22] Kaplan v Lee-Archer (2007) 15 VR 405 at [25].
81.Mr Mandy SC, who appeared with Mr Bourbon for the prosecution, submitted that the victim impact statements are admissible. He argued that Ms Claridge was a ‘victim’ of the offence in the limited sense that she, along with Ms Hayes, was exposed to the risk of serious injury or death as a result of being dislodged from the horses they were riding and falling to the ground.[23]
[23] This is the risk particularised in paragraph 7 of the particulars of the charge.
82.Mr Mandy further submitted that Ms Claridge’s family members and former partner are secondary victims. However, according to the prosecution, it is only the loss and damage Mikaela’s family and former partner have suffered due to the exposure of Mikaela to the risk that is relevant for the purposes of sentencing. Injury, loss and damage caused by Mikaela’s death are, according to the prosecution, not to be taken into account by the court.
83.As I said to Mr Mandy during the hearing of the plea, this is an unattractive submission to say the least. Any reading of the victim impact statements filed in this case by the prosecution makes it abundantly clear that the makers of those statements have suffered untold heartbreak, not just because Mikaela was exposed to risk on the day in question, but because that exposure took her life. In the words, of Mikaela’s mother Colleen, ‘… we all know that racing is dangerous’.[24] The distinction for which the prosecution contends is both unrealistic and inconsistent with what I consider to be the clear intent of the statutory provisions.
[24] Victim Impact Statement of Colleen Claridge dated 23 January 2023, 3.
84.It is well established that a court should strive not to interpret the meaning of the words ‘victim’ and ‘injury’ in the Sentencing Act narrowly having regard to the statutory purpose of what is now Division 1C of Part 3 of the Act.[25] The Court of Criminal Appeal has stated that it is unlikely that Parliament had in mind that the preparation of victim impact statements would be bedevilled by difficulties associated with drawing fine distinctions such as those contended for by the prosecution in this case.[26]
[25] R v Miller [1995] 2 VR 348.
[26] R v Miller [1995] 2 VR 348 at 354; see also R v Swift (2007) 15 VR 497 at [7] per Nettle JA (with whom Vincent JA and Habersberger AJA agreed).
85.Mr Mandy’s submission that the breach caused Ms Claridge to be exposed to the risk of falling off her horse must be accepted. Exposure to risk is an element of the offence against s 23 of OHSA.
86.What is less clear is why the death of Ms Claridge does not constitute the manifestation of that very risk. By its plea of guilty, CTC has accepted that the horse Ms Claridge was riding in the dark stopped suddenly causing her to be dislodged from the horse ‘and fall to the ground resulting in the death of Mikaela Claridge’.[27] There is no suggestion in this case that there was some intervening act such as poor medical treatment which broke the chain of causation between the manifestation of the risk and Ms Claridge’s death.
[27] As particularised in paragraph 10 of the particulars of the charge.
87.The case of DPP v Hazelwood Power Corporation Pty Ltd[28] is distinguishable. The offender operated a large coal mine in the Latrobe Valley and was sentenced for a number of breaches of sections 21 and 23 of the OHSA due to its failure to take certain steps to eliminate or reduce the risk of fire. The charges were filed after an investigation into a large fire which was ignited some distance from the mine but spread into the mine. The fire burned for 45 days and exposed the residents of the nearby town of Morwell to smoke. The question was whether victim impact statements made by a number of those residents were admissible.
[28] [2020] VSC 278.
88.Keogh J held that it was not an element of the offence that the fire which took hold in the mine resulted from the failure of the operator to take a step on which the offence was based. It was therefore for his Honour, as the sentencing Judge to determine the issue.[29] His Honour determined that he was not satisfied that the fire resulted from any of the breaches of which the offender had been found guilty.[30] It therefore followed that evidence as to the actual harm suffered from exposure to smoke from the mine fire was not relevant to the sentencing task and the victim impact statements were inadmissible.[31]
[29] [2020] VSC 278 at [19].
[30] [2020] VSC 278 at [88].
[31] [2020] VSC 278 at [141].
89.The present case is different. The failure to either provide lighting for the sand trails or to allow track work only during daylight hours exposed the riders, including Ms Claridge, to the risk of being thrown off their horses. While the precise reason why her and Ms Hall’s horses ‘stopped suddenly and moved to the left’[32] on 30 August 2019 is unclear, Ms Claridge was thrown off her horse while riding in the dark and died as a result of the injuries she suffered in the fall.
[32] Summary of Prosecution Opening dated 10 February 2023 at [26].
90.For completeness I note that the other case upon which Mr Russell relied is Metricon Homes Pty Ltd v O’Grady.[33] The facts of that case were that a worker who was performing tiling work (Mr Altair) was injured when the roof on which he was working collapsed. The offender’s failure to brace the roof was a cause of the collapse. Not surprisingly, the Supreme Court found that Mr Altair was a victim for the purposes of the Sentencing Act.[34]
[33] [2018] VSC 816.
[34] [2018] VSC 816 at [15].
91.I therefore conclude that the breach of s 23 of the OHSA by CTC contributed in a significant way to the death of Mikaela Claridge. It follows that the members of her family and her former partner Ms Hall have suffered injury loss or damage as a direct result of the offence. Their victim impact statements are admissible and are tendered absolutely. The court is required to have regard to the impact of the offending on those victims.
Victim Impact Statements – Contents
92.The victim impact statements filed by the prosecution eloquently describe in great and moving detail how important Mikaela was to her family and former partner. They were each read to the Court by the prosecutors.
93.In his statement, Mikaela’s father Bernie described the ‘indescribable joy’ he experienced watching his three children grow up. He described their close sibling bond. His daughter’s funeral felt like his heart was slowly being ripped out of his body. Mr Claridge has been diagnosed with depression.
94.Mikaela’s brother Jack describes his ‘overwhelming grief, emotion and distress’ and explains that he has ‘lost the most beautiful friend and sister in the world’. Her other brother Karl feels that a part of him isn’t there anymore. He also explains the effect of the death on the family saying ‘the bond we had as a family has gone’. He describes the professional psychological support that he has needed to help him cope.
95.Mikaela’s mother Colleen describes the impact of her youngest child’s death in the following words:
No words can even begin to explain the feeling I have. It’s like an empty hole inside of me. Mikaela was my world. She was my family’s world. Everyone still says to me ‘she’s here with you’. But the reality is, she isn’t. She’s gone, and simple family events like birthdays and Christmas are just so difficult to deal with. As a mum, not to have my daughter as a living part of my life is something I’m never going to get over. We all know racing is dangerous, Mikaela knew that too, but what makes the grief worse (if that is possible) is that it feels like her death was avoidable. It is so terribly hard not to think ‘if only proper processes were followed’ my daughter would be alive.
96.Mikaela’s former partner Chelsea Hall was also a jockey. She has found it impossible to continue in the career she had chosen as a result of Mikaela’s death. She concludes her statement as follows:
I feel so depressed when I think about how I’ll never get to wake up next to her again, never get to touch her, smell her or hold her again. I miss the way she used to look at me. I miss laughing together. I miss my life with Mik in it.
97.It is clear that Mikaela was a much-loved young woman who, in her short life, touched the lives of the people around her. It is not possible for me to do justice to the pain that Mikaela’s death has caused to those who were closest to her.
98.I have taken the impact of Mikaela’s death on those people into account as I am required to do in determining the appropriate sentence to impose.
Submissions of the Parties
99.CTC, through its counsel, referred to the Sand Trails having been used in the dark for at least 20 years, a matter that does not appear to be in dispute.
100.CTC’s submissions also refer to a number of risk controls that were in place to reduce the risks associated with riding on the sand trails in the dark. These included:
·only licensed trainers were permitted to use the sand trails;
·a set of rules governed the use of the trails and had been provided to Ms Claridge's employer;
·only Racing Victoria-registered jockeys could ride on the sand trails;
·the trails were for slow work only, that is, trotting and cantering;
·riders could only ride in one direction and must ride in pairs;
·riders must wear appropriate personal protective equipment;
·a track-work supervisor employed by CTC was present at all times;
·that supervisor conducted a risk assessment each morning to ensure the track was safe; and
·the trails were checked and groomed daily.
101.Mr Russell submitted that there had been no serious safety incidents at the Sand Trails, despite approximately 150 horses per day using the trails daily for over 20 years.
102.Mr Russell also drew the Court's attention to the Occupational Health and Safety systems in place at CTC which included an Occupational Health and Safety Committee which held regular meetings; the publication of employee bulletins and the requirement to report incidents.
103.I consider that these initiatives are commendable. They demonstrate that CTC takes its onerous safety responsibilities to its employees seriously. This case is about the responsibility of CTC to safeguard non-employees, such as the jockeys who use the track. It is less clear that CTC’s existing OHS systems achieve this, so far as is reasonably practicable. For example, the incident reporting policy, dated 13 January 2022, which is in evidence, only appears to apply to 'Workers.'[35]
[35] CTC Court Book (Exhibit D1), 59.
104.Mr Mandy SC submitted that general deterrence is the primary sentencing consideration. He accepted that specific deterrence need only be given little weight given CTC’s lack of prior convictions and responsible approach to improving safety after the incident.
105.Mr Mandy submitted that a conviction should be imposed having regard to the seriousness of the alleged offending’.[36]
[36] Submissions on Behalf of the Director of Public Prosecutions on Sentencing Indication Application dated 1 December 2022, [24].
Consideration
106.Whilst it is to CTC's credit that it promptly addressed the risk associated with operating the Sand Trails in darkness, the ease with which the risk was eliminated is a matter that the Court takes into account in assessing the seriousness of the breach. In other words, the risk could have easily been eliminated before the accident that gives rise to this charge.
107.The maximum penalty for an offence against s 23 is a fine of 9,000 penalty units. At the date of this offence, that represented a maximum fine of $1,486,980. This maximum penalty demonstrates the seriousness of this offence and of the responsibility of employers more generally under the Act.
108.It has been stated by the Court of Appeal on more than one occasion that employers are required by the Act to take an active, imaginative and flexible approach to the safety of those who may be affected by their undertakings.[37] An employer must identify risks to health and safety and take steps to obviate those risks.[38]
[37] R v Australian Char Pty Ltd [1999] 3 VR 834 at 847; DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557 at 565; R v Commercial Industrial Construction Group (2006) 14 VR 321 at 332; DPP v JCS Fabrications Pty Ltd [2019] VSCA 50 at [51].
[38] Kirk v Industrial Relations Commission (NSW) [2010] HCA 1 at [11].
109.It is for that reason that employers are not permitted under the law to wait until they receive a complaint about a safety issue before they take action. An employer is expected to be proactive and to inform itself about any WorkSafe regulations, codes or guidance material relevant to the industry in which it operates. OHS Committees such as the one that CTC had should be informing the Board of CTC about such matters.
110.In the present case, CTC was, I consider, required to consider the WorkSafe guide book published in August 2018 to which reference has earlier been made, and to assess its own operations against the standards contained in that guide book. It does not appear that this was done, or at least not done adequately.
111.Having said that, CTC is to be credited for engaging Mr Ring to conduct the safety audit in May of 2019. As Mr Russell submitted on its behalf, this was not a company that sat on its hands and did nothing to address the risks associated with its enterprise. This is a matter that I take into account in mitigation of penalty.
112.I also take into account the utilitarian value of the proposed plea of guilty. Such a plea saves the court time, especially as the courts are encumbered by long delays presently due to the pandemic.[39]
[39] Worboyes v The Queen [2021] VSCA 169.
113.It also saves the witnesses the ordeal of having to give evidence in court.
114.I also note and take into account that the defendant has no prior convictions and there is nothing subsequent since the charges were laid.
115.I further take into account the good corporate character of the offender as explained in its submissions, although I note that such subjective matters should not be accorded undue weight in sentencing under the Act as general deterrence is the primary sentencing consideration.[40]
[40] DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557 at [36].
116.In a case such as the present, the court must impose a fine at a level that deters other employers from risking the safety of those affected by the risks that arise from their undertakings. The Court must send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment.[41]
[41] Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55 at [233].
117.I consider that the cases to which I was referred by the defence at the sentence indication hearing are of little assistance. They are previous fines imposed by this court in circumstances that were not sufficiently comparable to the present case to offer any real guidance. Each case must be sentenced on the basis of its own facts.
118.Taking into account the objective gravity of the offence as discussed above, as well as the efforts that had been made by CTC to address risks, together with the other matters to which I have referred, I impose a fine of $250,000.[42]
[42] This is the fine I indicated that I would impose at a sentence indication hearing on 7 December 2022. CTC accepted the indication on 13 December 2022. In these circumstances, s 207 of the Criminal Procedure Act 2009 (Vic) provides that I cannot impose a more severe sentence.
A Non-Conviction Fine?
119.The defence submitted that any fine should be imposed without conviction. This was opposed by the prosecution. Having regard to the considerations in s 8 of the Sentencing Act and the objective gravity of the offending which I consider to be mid-range, I consider that a conviction should be imposed. There is nothing to suggest a conviction would be harmful to CTC’s economic or social well-being. I do not regard the impact on directors or employees of CTC as relevant. They are not charged. I note the discussion of this matter by the Court of Appeal in the case R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181 at [57] to [59].
An Adverse Publicity Order
120.As noted above, the principal sentencing consideration in a case such as the present is general deterrence. Ordinarily, courts are limited in what they can do to promote the awareness of sentencing decisions in the community that is necessary to promote general deterrence. As the Court of Appeal has stated on more than one occasion, this is a task for government.[43]
[43] DPP v Russell (2014) 44 VR 471 at [5]-[6]; DPP (Cth) v Brown (2017) 268 A Crim R 309 at [9]-[10].
121.Sentencing in workplace safety cases is different. Courts can, and in my view in appropriate cases, should play an active role in ensuring that the results of cases are generally known to promote general deterrence by requiring offenders themselves to publicise the outcomes. They can do this by making adverse publicity orders (APO).
122.The Maxwell report into the predecessor statute to the OHSA concluded that, ‘…if penalties for health and safety offences are to achieve the desired degree of general deterrence, it is essential that they be publicised widely’.[44] Maxwell considered that there was a ‘strong case’ for giving courts the power to order an offender to publicise the offence and the punishment ‘as part of the penalty for the offence’. It therefore recommended that the revised Act contain such a provision. That is the background to the enactment of s 135 of the OHSA.
[44] Christoper Maxwell QC, Occupational Health and Safety Act Review (2004), [1845].
123.For reasons that are unclear, section 135 of the OHSA has been little used over the last 19 years.[45] It confers a broad power on the court to order an offender to publicise, in the way specified, ‘the offence, its consequences, the penalty imposed and any other related matter’.[46] In this case, the prosecutor did not seek an APO; however, I have decided to make such an order on my own initiative having indicated that I would do so in the sentencing indication I gave.[47] At the hearing of the plea, neither party opposed the making of such an order and in fact the parties co-operated by agreeing the wording of the order that the Court makes. Such an approach is to be encouraged in future cases.
[45] This is in contrast to the position under equivalent statutes interstate – see, e.g., SafeWork NSW v KD & JT Westbrook Pty Ltd [2018] NSWDC 255 & [2019] NSWDC 1 at [63]; Bradley & Joanne Finnigan Pty Ltd v WorkSafe ACT (Supreme Court of the ACT, Elkaim J, 6 June 2016).
[46] Occupational Health and Safety Act 2004 (Vic) s 135(1)(a)(i).
[47] Sentencing Act 1991 (Vic) s 135(2).
124.As noted above the practice of riding horses in the dark has been discontinued at the track operated by this offender. However, counsel for the parties were unable to satisfy me that the practice had been discontinued more generally in Victoria. In these circumstances, I consider that the facts of this case should be more widely publicised to maximise the general deterrent component of the sentence.
125.This is not to suggest that APOs should only be made in such cases. As the Maxwell report noted, they are an important sanction in areas of the law, like workplace safety, where sentencing is principally concerned with achieving general deterrence.[48]
[48] Arie Freiberg, Fox and Freiberg's Sentencing: State and Federal Law in Victoria (3rd ed, 2014) [15.100].
Orders
126.On charge 1, convicted and fined $250,000.
127.Order to publicise, in the terms of Schedule to these reasons for sentence, the offence and the penalty imposed by paying for an advertisement in the racing periodical known as ‘Inside Racing Magazine’ This is to be done on or before 1 June 2023.
128.Order pursuant to s 135(1)(b) of the OHSA that CTC give the Authority, by 8 June 2023, evidence of the action it took in accordance with the order.
129.Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), but for the plea of guilty, I would have imposed a fine of $380,000 with conviction and an adverse publicity order.
SCHEDULE:
DPP v Cranbourne Turf Club Inc
Adverse Publicity Order – Agreed wording for the publication notice
On 13 December 2022, Cranbourne Turf Club Inc (CTC) pleaded guilty in the County Court of Victoria to one charge of failing to ensure, so far as is reasonably practicable, that persons other than its employees were not exposed to risks to their health or safety from the conduct of its undertaking, contrary to section 23(1) of the Occupational Health and Safety Act 2004.
CTC operates the Cranbourne Training Complex, which is located in Grant Street, Cranbourne. The Training Complex is used by various licensed horse trainers to conduct horse training activities.
One of the training tracks at the Training Complex is called the Sand Trails, which is a deep sand track that is approximately 1400 metres long. There is no lighting installed around the Sand Trails.
CTC pleaded guilty to offending that occurred on 30 August 2019. At that time, CTC opened the Sand Trails between 4:00am and 9:30am, which meant that track riders were able to ride horses on the Sand Trails in dark conditions. This posed a risk to their health and safety.
CTC admitted that it was reasonably practicable for it to have installed floodlights around the Sand Trails or for it to have restricted access to the Sand Trails to daylight hours only.
In September 2019, CTC changed the opening hours of the Sand Trails, so that it was only open during daylight hours.
On 28 February 2023, CTC was fined $250,000, with conviction.
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