Director of Public Prosecutions v Crowley Excavation Pty Ltd

[2021] VCC 1332

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

AT MELBOURNE

CRIMINAL DIVISION

CR-21-01459

DIRECTOR OF PUBLIC PROSECUTIONS

v

CROWLEY EXCAVATION PTY LTD
(A.C.N. 103 845 889)

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2021
DATE OF SENTENCE:	9 September 2021
CASE MAY BE CITED AS:	DPP v Crowley Excavation Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VCC 1332

REASONS FOR SENTENCE

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Catchwords: CRIMINAL LAW - Occupational Health and Safety Act 2004 – Early plea of guilty – WorkCover – Failure to ensure safe workplace - Fall from height – Fatality – Victim Impact Statement – Serious – Culpability - Remorse – Rehabilitation – DPP v Paul Kenneally & Entire Shopfitting Pty Ltd [2019] VCC 658 - DPP v W.F Montague Pty Ltd [2018] VCC 1553 - Worboyes v The Queen [2021] VSCA 169 – Perceptible amelioration – Fine of $360,000

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Chisholm	Office of Public Prosecutions
For the Accused	Mr R. Taylor	HWL Ebsworth

HIS HONOUR:

1The company Crowley Excavation Pty Ltd has pleaded guilty to one count of breaching s26 of the Occupational Health and Safety Act 2004 in that at Wallan on 16 August 2018, it being a person who had management control of a workplace, failed to ensure as far as reasonably practicable that the workplace was safe and without risks to health. 

2The charge and the particulars are set out and the allegation against the company to which it has pleaded guilty involved an event associated with the placing of chains or detaching chains from trench shields at a residential estate in Wallan where the company was involved in digging trenches for civic works and, in particular, sewerage. The circumstances of the offence are set out in the prosecution opening which I have exhibited on the plea.[1]  On that day, as a result of the admitted breach of duty by the company Crowley Excavation Pty Ltd, sadly, one of its employees Mr Wahlert fell from the top of a trench shield into a six-metre trench and was fatally injured and died at the scene.

[1] Exhibit A on the Plea.

3The circumstances of the breach of the duty which the accused company has pleaded to, as an employer, in brief outline, are that it is a well-known, long-standing excavation company and it was engaged in that project and another company had been working on that project, opening up various subdivision stages for a period of some 15 years.  This involved a particular stage 6 and the accused company was engaged by the head contractor for the civic works to undertake the sewer installation component.  The defendant company engaged an associated company or a company with a common director to provide the relevant employees, including the deceased, and its task that it was engaged in at the time involved the digging of a 300-metre-long trench for the sewer main with a depth of around five metres with the deepest point being approximately nine metres. 

4The open trench was about 1.6 metres wide and then, in order to allow the sewer pipes to be laid, before they were laid it was benched, which meant there were sort of steps down to the lower section of the trench, but then, in order to protect employees who were laying the pipes, the system of work required the operator to place what were known as shields into the relevant section of the trench.  These shields were about 4.4 metres high, three metres long and one metre wide, and were rectangular, and their purpose was to prevent the trench walls collapsing while the worker was within the trench connecting and laying the pipes.  They were heavy steel and they were lifted into the open trench using an excavator which was affectively operating as a crane.  Each shield was attached to the excavator arm by a chain which was attached diagonally across the top of the shield. 

5Once the shield was put in place an employee, it is not clear which one, would then enter the trench using a ladder, lay that relevant section of pipe and then the shield would then be removed and the trench would be backfilled and the shields would then be moved to the next section of trench.  It appears from the photographs that it was being done two shield sections at a time.  But in any event, on that particular day, the deceased was working on one excavator loading or placing the shields into the trench.  Another employee was working another excavator and he was digging the trench.  Mr Barnes had turned his excavator away and noticed that Mr Wahlert had positioned the shields in the trench and he then turned his back.  The next thing he heard him cry out, turned around and saw Mr Wahlert fall from the top of the trench or the top of the shield into the trench where, as I say, it was a fatal fall.  He passed away due to positional asphyxia and multiple injuries.

6Following an investigation by the WorkCover Authority, the Director of Public Prosecutions has brought proceedings against the company, alleging that it has failed to have a reasonably practicable safe system of work and the particulars against the company were that it was reasonably practicable for the company to reduce the risk of fall in these circumstances by using a walkway to allow anyone who was accessing the top of the shields a safe walkway so that they would not fall into the open trench or, not even approaching the shields to remove the chains by having permanent chains so that when the shields were put in or out of the trench, the crane or the excavator could just lift the shields out and place them in without the operator needing to access the shields himself and then be exposed to falling into the open trench or even falling down the void between the wall of the shield and the wall of the trench. 

7Following the event, the WorkCover Authority placed an improvement notice on the company and they then took action to provide a safe system of work for the placing and removal of the shields and that involved using permanent short chains so that the chains did not have to be attached and de-attached from the actual shields and then they could then be lifted in and out and the work progressed that way. 

8The allegation against the company is it failed to take, in a sense, proper measures to assess the risk and then ameliorate the risk associated with any of its employees working from a height and falling into the open trench.  So, the gist of the allegation which is admitted is that they exposed Mr Wahlert to a risk of injury.  Not only him, but anyone else working and it was easily able to ameliorate that risk of injury and the company has pleaded guilty to that offence and admits that. 

9So on the plea, the real gravamen of the dispute between the prosecution and defence counsel and the plea put on its behalf by Mr Taylor was to assess the culpability of the accused company.[2]  It is important to note in this matter that the fact that there has been a fatality, that unfortunately, tragically, Mr Wahlert passed away as a result of this fall, it is not an element of the offence itself.  Rather, it demonstrates or manifests the seriousness of the relevant threat to health and safety by a failure of the operator here, namely Crowley Excavation, to have a safe system of work.  So the gravity of the offence must be measured by the extent of the departure of the defendant company from the duty that it holds to provide a safe workplace and a safe working environment. 

[2] Exhibit 1 on the Plea.

10Here, I am satisfied it was a serious departure.  The risk of a fall is ever present in excavation works and thus it is fundamental that measures to ameliorate the risk to employees must be addressed, ameliorated and monitored.  An industry practice or code for accessing shields had been promulgated in April 2018 which referred to a walkway to walk onto the top of the shield and then go down into the trench to do whatever work was required.  The specific risk associated with placing and removing the chains on the shields was not addressed by the company in any safe working system that was in operation before this event.  Rather, as submitted by the prosecution, the employee was left to improvise due to a system of work which required the manual removal of the chain attachments to the shields and because of their location, the chains were attached to inside the shield itself, which required the employee, in this case Mr Wahlert, to lean over to access the holding slot in the shield and it was in those circumstances, one infers, that somehow or other he lost his balance on the end closest to the open trench and unfortunately fell to his death.

11The specific risk of a fall to the employee in attaching and de-attaching the chains to the shield was not addressed in any safe working system promulgated by the company prior to this event. The safe working system of the company did not descend to detail to the specific work process involved in the placement of the shields, although, it did make reference to the risk of falling into an open trench. Significantly, in considering the culpability of the company, it has been clear, in events subsequent to this, there was an inexpensive means available, as set out in the report of the expert engineer that is in the prosecution depositions and is referred to in the prosecution opening,[3] to obviate the risk, which of course was to use permanent chains on the shields or longer chains so that the employee, the operator of the crane/excavator, did not need to go anywhere near the trench itself in the course of moving the shields in and out of the trench. This was the process that was later adopted by the company, together with bunting to indicate that there was a hazardous workplace, namely, the trench.

[3] Exhibit A on the Plea, at paragraph 25.

12

In assessing the degree of culpability, the assessment of the risk requires an analysis of the likelihood of the occurrence of an event as a result of a breach and the potential gravity of the consequences.  Here there was an appreciable likelihood that an operator may slip due to the need to access the inside of the shield to detach the chains and where there was a void between the shield and the side of the trench and the unshielded open trench which could be up to

six metres deep, there was clearly an appreciable risk that, in the event that an operator did lose his balance or somehow or other slip, there would be a risk of serious injury, including death, as eventuated here. 

13Further, as submitted by the prosecution, the company had previously been sanctioned for a fall into a trench in a prior conviction that was admitted, so it was put that it must be taken to be on notice of the likelihood of an event involving a fall into a trench endangering an employee or, in the previous case, a passer-by.  The fact that it had previously been sanctioned in a prior proceeding, has some relevance but it is, in a sense, blatantly obvious that there is always a risk of someone falling into a six-metre deep trench and, indeed, the whole system of protection really operates where any trench deeper than 1.5 metres has got to be treated as a hazard.  And so this was a trench that was around five or six metres deep at that point.

14Further, as submitted by the prosecutor and discussed with defence counsel, as Justice Harper had said a long time ago in the case of Holmes v RE Spence & Co Pty Ltd,[4] employers are required to be ever vigilant in establishing and maintaining a safe workplace and addressing systems of work which discharge their duties to their employees and that includes responding to industry codes that may be promulgated from time to time, and constantly training and retraining the employees to ensure that their awareness of their relevant obligations in the system of work is all reinforced.  It follows from that discussion that I accept the submission of the prosecution in paragraph 17 of its sentencing submissions - in particular paragraph 17(iii) - where it sets out what the company was on notice about at the time of this event in terms of the safe working system identified that there could be a slip or fall, it reads:[5]

“iii. What the Accused knew, or ought reasonably to have known, about the hazard or risk and any ways of eliminating or reducing the hazard or risk. The Accused was aware of the risk and ought to have known about the ways of eliminating or reducing that risk.

a. The Accused’s Safe Work Method Statement for Excavation and Trenching (SWMS) Operations identified that “workers could slip or fall while entering or working in close proximity to an excavation causing serious injury or death”;

b. The risk of falling into a trench was well known within the industry and identified in industry literature: Code of Practice – Safety Precautions in Trenching Operations and the Compliance Code Excavation.

c. The means of ameliorating the risk are also well know and identified in industry literature: Compliance Code identifies one means of controlling that as the use of a walkway.

d. Despite being aware of the risk, the Accused’s SWMS did not prescribe a safe system for adequately controlling the risk during the installation of trench shields. It ought to have been aware of the available control measures as these were contained in the industry standards. For example, the Compliance Code expressly identifies the risk of falling into an excavation or trench and a means of controlling that as the use of a walkway.”

[4]Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119.

[5] Exhibit B on the Plea, at paragraph 17(iii).

15There was the Code of Practice which set out safety precautions which the compliance code for excavation could address.  The means of ameliorating the risk were available in the literature and the Code itself referred to one particular means, which is a walkway. 

16So, notwithstanding that they ought to be taken to be aware of the risk, the safe working practice that they were operating under did not prescribe a system for controlling the risk during installation of the shields.  And so as submitted at paragraph 17(iii)(d), it ought to have been aware of the available control measures as they were contained in the industry standards, and they refer to the use of a walkway. So, as I indicated, it is significant that the company was able to easily introduce a system which ameliorated the risk by adopting what is set out in the engineers report and, in particular, the use of short chains or permanent chains on the shields.  So the risk was there, an easy means of ameliorating the risk was there and the risk was such that there was a significant risk and, in the event the risk materialised, there would be a significant injury. 

17I turn to the prior conviction, which was that on 11 April 2012 at the Sunshine Magistrates’ Court, without conviction, the company was fined $22,500 for a breach of s23 of the Occupational Health and Safety Act 2004. The company has admitted the prior conviction, which has some relevance but not major relevance. As discussed during the plea, the circumstances of the prior conviction involved a fall by a passer-by into a trench that the company had dug in the course of some works, and the company had retained a sub-contractor to engage in traffic management and just at the end of the day when they were about to place a cover over the hole, an individual member of the public, despite a verbal warning, fell into the trench.  I do not give it as much weight as the prosecutor asked me to give it, but it does indicate that the company has at least been sanctioned by a court for a fall and thus it means it should have been even more vigilant.

18But in mitigation it was put by Mr Taylor the company has a good record, it is a member of various industry organisations and in the plea folder there are a number of accreditations that the company has achieved, and those accreditations, ISO 9001 etc, they require audits to get the original accreditation and then continual audits and maintenance of the practices that achieved the accreditation in the first place.[6]  So the company has a good record and in the period subsequent to the event, it undertook significant remedial action which, again, is set out in the defence submission involving a new safe working practice which that was ticked off by the WorkCover Authority and then further awareness training for all the employees, training days, information days, that all set out in basically items 6-14 of the plea book which I have considered.[7] So in terms of specific deterrence and rehabilitation, the company has taken major steps to address what was uncovered by the event in this case and so that leads me to conclude that considerations of specific deterrence, while they are not completely washed away, are of less significance than they might otherwise be, had these actions not been taken. 

[6] Exhibit 2 on the Plea.

[7] Ibid.

19Now, I want to say something about the Victim Impact Statement.[8] Ms Andrew, the partner of the deceased was on the line during the plea. The death of Mr Wahlert shows the gravity of the consequences of the breach of the duty that the employer owed and the court heard a moving statement from Ms Andrew who indicates that she is now a widow.  He was 32.  She has now two young children.  They were seven and four at the time and, of course, that has had a significant impact on them, losing their father at that age, and it has had a major impact on her, leaving aside the fact that she is now, in a sense, a single mother.  She misses a whole lot of family milestones that would have occurred with her partner Mr Wahlert.  All those joys of family occasions with the children and her husband on their family property. She has problems in engaging with his family, trying to protect her own children now that are also suffering as a result of these events, dealing with the children when she has got no-one to assist her as in the past, suffering anxiety herself requiring medication.  And so she concludes by saying, 'My worry for the future is that the milestones my children reach, my partner will not be here for them, for significant birthdays, driving a car, engagement, marriage, and grandchildren.  The sadness of all three of us is that these things we'll miss having Andrew here for and, in turn, he will also miss.'  So it has had a continuing impact on her and the two children and I take that into account. 

[8] Exhibit C on the Plea.

20The VIS shows that the failures to meet the obligations that employers are required to have, have major consequences on individuals affected.  In this case, we have continuing loss and grief for the partner of Mr Wahlert but I must note that no sentence of the Court will bring him back but the Court recognises the loss and hopes that the sentencing process will bring some closure for Ms Andrew and for her family.

21I want to turn now to subjective matters that were set out in the plea submission by Mr Taylor.  The defendant company is a successful family-owned, small to medium sized business.  The principals of it have got something like 60 years' experience, the father and son, in this contracting industry.  They are of Irish extraction.  The company itself has been incorporated for some 18 years and employs around 50 employees and long-term contractors in this sector.  As I indicated, otherwise than the prior appearance, it has a good record, nothing outstanding and has various memberships and accreditations.  It employs a large number of locals in the Kilmore area where its registered office is.  I infer that a company in this sector would not be able to survive on various large civil construction sites unless it has a good safety culture and it is fair to say that this event has let down the rest of the industry which is always emphasising the need for safety for people who are involved in this type of construction activity. 

22Turning to other factors in mitigation put by Mr Taylor.  There is a plea of guilty.  The plea was entered during the course of the committal proceeding.  Originally, there was charges against the labour hire company or the associated company that employed the employees, so there were two defendants at that point but that was resolved and then there was a plea by the defendant company.  So the company receives full credit for an early plea, for facilitating the course of justice and for taking responsibility for its actions. It has obviated the need for a trial.  The plea is also evidence of remorse.  Mr Taylor, on behalf of the authorised representative of the company, Mr Rory Crowley, at the commencement of his submissions expressed sadness and appreciation to Ms Andrew for what has occurred and there is continuing contact between Mr Crowley's wife and Ms Andrew, the partner of the deceased.  So I take those matters into account, that this is a case of where there is remorse on behalf of the company.  As I indicated, the company has facilitated the course of justice. 

23The recent case in the Court of Appeal, Worboyes v The Queen,[9] indicates that defendants who enter pleas in the COVID environment are to be accorded a perceptible amelioration of sentence in addition to the usual amelioration which is to occur in the case of pleas of guilty.  Although, as I indicated, the company is not to be sent to prison, but the facilitation of the course of justice by entering of pleas is to be taken into account in a perceptible amelioration, to use the term of the Court of Appeal, in this COVID environment where the criminal justice system is under great stress.  So I take that into account.

[9]Worboyes v The Queen [2021] VSCA 169.

Comparable cases

24Possible comparable cases are of assistance to the Court, particularly in a case of the WorkCover Authority and, indeed the Director, who operate in this somewhat specialised field, namely occupational health and safety, and who are obviously aware of cases that the Court may not be aware of or that opposing counsel might not be aware of.  The two cases presented, DPP v W.F Montague Pty Ltd[10] and DPP v Paul Kenneally & Entire Shopfitting Pty Ltd[11] in the prosecution submission are of assistance but cannot be determinative in sentencing. But I accept the submission of the prosecution that they do provide a sort of comparable level of culpability, which is a significant matter, leaving aside any different antecedents.  Comparable culpability is an important factor and consistency of sentencing is an important consideration in these types of cases in my view. 

[10]DPP v W.F Montague Pty Ltd [2018] VCC 1553.

[11]DPP v Paul Kenneally & Entire Shopfitting Pty Ltd [2019] VCC 658.

25In sentencing the maximum penalty is a significant matter in these cases.  The Court of Appeal has also said on numerous occasions in Directors' appeals that general deterrence is the most significant sentencing factor.  The Court must send a signal to all who are involved in the industry that companies must be ever vigilant to protect the safety of their employees and those who are exposed by their operations.  As I have indicated, general deterrence is the principal sentencing consideration.  Specific deterrence is less salient here.  Rehabilitation is to be encouraged and I regard that as achieved in this case by the remedial action that has been taken by the company.  But this case, as indicated by the prosecution, was a case where the company had not addressed the specific risk.  It was able to be addressed relatively easily and they did that straight after the event occurred and as indicated in paragraph 17(iii) of the sentencing submissions, they were on notice as to the risks and to the ability to easily ameliorate the risk, but they did not take any action to address it. 

26So I do see the two comparable cases as being relevant.  Current sentencing practices, as I indicated, are considerations that must be taken into account and also the maximum penalty which is $1,450,710.00 (9000 Penalty Units) which is a very significant penalty but, ultimately, any injuries to employees or fatalities, which is what occurred here, are externalities of people conducting business for profits and so that is why there is a high monetary penalty available and the courts, particularly on appeal in the Court of Appeal, regard cases involving lapses that lead to or that face a risk of a fatality, and then that occurring, are given very significant penalties. 

27So weighing all the competing factors and the submissions made by Mr Taylor, could you please stand, Mr Crowley, as the authorised representative of the company. 

28The company is convicted and is sentenced to a fine of $360,000. I declare that, pursuant to s6AAA of the Sentencing Act, had the company not pleaded guilty, I would have imposed a fine of $600,000. 

29HIS HONOUR:  You can take a seat, Mr Crowley.  Mr Chisholm, is there anything else I need to address?

30MR CHISHOLM:  No, thank you, Your Honour. 

31HIS HONOUR:  I want to thank both counsel for their assistance in this matter. I want to thank all parties who participated in the sentencing process in this COVID environment and wish the company all the best in the future.

32MR TAYLOR:  Thank you, Your Honour.

33HIS HONOUR:  Adjourn the court sine die. 

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