Director of Public Prosecutions v Cutri Fruit P/L
[2024] VCC 2022
•12 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01391
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CUTRI FRUIT PTY LTD (ACN 120 463 416) |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 12 December 2024 | |
DATE OF SENTENCE: | 12 December 2024 | |
CASE MAY BE CITED AS: | DPP v Cutri Fruit P/L | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2022 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Fail to ensure persons not exposed to risk to health or safety
Legislation Cited:
Cases Cited:DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676; DPP v Melbourne Water Corporation [2014] VCC 184; DPP v Handcock [2019] VCC 444
Sentence: $750,000 fine
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Chisolm | Office of Public Prosecutions |
| For the Accused | Ms P. Smith | Wotton Kearney |
HER HONOUR:
1Cutri Fruit Pty Ltd has pleaded guilty to a charge of failing to ensure so far as was reasonably practicable that persons other than employees were not exposed to risks to their health and safety arising from the conduct of its undertaking, a charge pursuant to s23 of the Occupational Health and Safety Act.
2Cutri Fruit is a business specialising in fruit growing. One of its sites is near Byrnes Road in Woorinen South. Tractors with attached trailers were used to transport fruit bins, which would be taken to and from the area to be picked. Each tractor had one or two trailers attached, and each trailer could carry up to four fruit bins. These were called picking trailers.
3Some of these picking trailers consisted of a single axle, with no suspension or brakes. Each had a steel vertical edge to hold the fruit bins in place. There was no other mechanism to hold the bins in place. At the front of each trailer was a small platform, and in the middle of each trailer, over the axle, was another platform, in between the front and back fruit bins. The platforms were in place to assist pickers tipping their bags of fruit in the bins, but not for standing on whilst the tractor and trailers were in motion.
4Cutri Fruit was aware that workers would ride on the picking trailers. On 23 December 2022 the Orchard Manger sent a WhatsApp message to all staff reading:
Hi Everyone, No workers should be riding on picking trailers, especially on a public road. There is over 1.5 ton of fruit which could potentially crush someone if there was an accident. Please stop this practice across all farms immediately.
5He sent a follow-up message to all staff on 15 January 2023, reading:
Hi guys. I received a report yesterday of workers riding in bins, on trailers and on trailer draw bars while going down the road. This is extremely dangerous and must stop immediately. Please make sure all tractor drivers, supervisors and workers receive this message. It is too late once someone is hurt or worse.
6The manager’s message was followed by a message from the Director of the company, to all staff:
I want to reiterate [that] message. This is incredibly dangerous and completely avoidable. Staff can drive to the blocks in their cars. We don’t want any accidents.
7The Accused company's Health & Safety Guide included the following directions:
Under the heading of Harvesting Fruit:
- When emptying bins workers are to use a step positioned around the bin trailer
- DO NOT RIDE ON THE TRACTOR OR TRAILER
And then, under the heading Tractor Operations:
Ensure people are not riding on the trailer.
8Cutri Fruit used two labour hire services, AH Vision and JL29, for the provision of fruit pickers. According to the contracts Cutri Fruit had with those providers the contractors were responsible for informing workers about Cutri Fruits safety policies and procedures, including that workers should not ride on the picking trailers. Workers attending at the site were supposed to be trained in operational and safety procedures to undertake their work, including to not stand on the trailers, by a Cutri Fruit manager, and supervisors reporting to him.
31 January 2022
9Jafar Bunyad was staying with a friend, Dod Mohammad, in Swan Hill. Mr Mohammad had been working as a fruit picker at Cutri Fruit, and Mr Bunyad wanted to do so as well, as he was bored and a bit lonely. He had only worked at Cutri Fruit for a day or so before this incident. Mr Singh, the manager, had never met him.
10On 31 January 2022 four workers employed by AH Vision attended the workplace. Ms Taphi and Ms Fatafehi started that morning at around 7 am. In the mid-morning Dod Mohammad and Jafar Bunyad were dropped at the site by a friend.
11They worked with Ms Taphi and Ms Fatafehi. Another person, Ali Ahmadi, was the driver of the tractor. When it reached around 12.30 Ms Taphi and Ms Fatafehi were done working for the day. All four of them got onto the trailers. Ms Fatafehi was on the front platform of the first trailer, Ms Taphi on the central platform of that trailer, and the two men on the central platform of the second trailer.
12
Ahmadi began to drive the tractor back to where Ms Taphi and others had parked their cars. He got to an intersection on the road and stopped, and then started driving again. For reasons unknown Mr Bunyad and Mr Mohammed both fell from the trailer they were standing on, as did the empty fruit bins on that trailer.
Mr Mohammed was unhurt, but Mr Bunyad had hit his head, and whilst he was apparently conscious, he was effectively non-responsive.
13Drivers passing stopped to render assistance, and the police and ambulance were called. One of these people rendering assistance noted that Mr Bunyad had blood coming from his ear and nose. He was later found to have a large gravel rash on his left shoulder. Mr Bunyad was taken to hospital where scans showed a fracture to the right side of his skull, a large right-subdural haematoma, and intracerebral haemorrhage. Mr Bunyad died later that evening after life support had been withdrawn.
14As I have mentioned, it appears that this was the second day Mr Bunyad had worked at Cutri Fruit. There is no evidence as to whether he did or did not get any training or direction about standing on the trailer, nor whether any of the people working with him that day had that direction or training.
Investigations
15When WorkSafe investigators spoke to the director of AH Vision seeking documents related to Mr Bunyad’s right to work, he was unable to provide any document other than Mr Bunyad’s learner driver’s permit.
16Cutri Fruit complied with the requests for documents from WorkSafe, providing copies of policies and procedures, which included prohibitions on riding on the trailers.
17
When WorkSafe inspectors attended at the site in March 2022 they noted the other trailers did not have the platform in place, and portable steps were used instead. A recommendation was made for this process to be adopted for all trailers. On
4 July 2022 Cutri Fruit advised WorkSafe that it had engaged contractors to modify all its picking trailers so there were no permanent platforms, that a specific induction package was in development, which included orchard safety procedures. Furthermore, it was reviewing its engagement of labour hire services.
Victim Impact
18The offence to which Cutri Fruit has pleaded guilty does not include an element that the company caused the death of Mr Bunyad. The fact that a person was killed does not increase the gravity of the breach.[1] That does not mean, however, that Mr Bunyad and his family were not victims of the failure by Cutri Fruit to ensure that persons other than employees were not exposed to risks to their health and safety.
[1]Vibro-Pile [200]
19A Victim Impact Statement in the form of an affidavit from Mr Bunyad’s widow was filed. She and Mr Bunyad were refugees from the war in Afghanistan. They had many children together. Mrs Bunyad was in Pakistan at the time of her husband's death, she was attending a wedding. She says that she has been in a constant state of grief and shock since his death, suffering from depression and anxiety. She was reliant on him for income and other supports.
Gravity of Breach
20I will deal now with my assessment of the gravity of the breach. The risk set out in the particulars of the Charge is:[2]
there was a risk to workers riding on the trailers whilst they were being towed by the tractor. That risk exposed workers to a risk of serious injury or death as a result of falling from the trailers and either impacting the ground or being run over by the trailers
[2]Particular 6
21The particulars also list three reasonably practicable steps which Cutri Fruit could have taken to reduce or eliminate the risk and these were:[3]
(i) directions and procedures for how workers were to travel to and from fruit picking locations at the workplace,
(ii) the use of portable steps for workers to access bins on the trailers; and
(iii) a procedure for the operator of the tractor to remove the portable steps from the trailers and ensure there were no riders on the trailers prior to towing them.
[3]Particular 8
22These steps were obvious and by no means onerous.
23The gravity of the offending is assessed by considering the extent of the departure from the duty owed, the extent of the risk to health and safety thus created, including the foreseeable consequences, and the likelihood or risk of potential harm occurring.
24Cutri Fruit was clearly aware of the risk posed by people riding on the picking trailers. This is established by the messages sent by the Orchard Manager and the director in December 2021 and January 2022. It was clear to both men that this behaviour posed a risk of serious injury or death. Despite this knowledge the platforms were left in place on the picking trailers.
25A direction not to engage in a dangerous practice is insufficient. As the prosecutor submitted, an employer must take steps to deal with deliberate non-compliance with directions. In this case that meant that not only did Cutri Fruit need to tell people not to ride on the trailers, they needed to take practical steps to prevent that happening.
26Whilst Cutri Fruit did take steps to address the risk presented by the picking trailers, by directing people not to ride on them, it was well open to the business to do more than it did. The set up of the tractors was an invitation to people to stand on them. In the absence of other forms of transport, the likelihood of people using the trailers as transport between worksites was very high.
27There was a clear risk that people riding on the trailers could fall from them, and be seriously injured or killed.
28As to the likelihood of that risk eventuating, it was more than theoretical. Cutri Fruit had many people engaged in picking, and numerous tractors for that purpose.
29For these reasons, I do not accept the characterisation of the breach, by defence counsel, as moderate, nor that the likelihood of the risk eventuating was moderate. I consider that this was a reasonably serious instance of this offence, having regard to the company’s failure to take reasonably practicable steps to ameliorate a known risk, where the foreseeable consequences were death or serious injury, and that there was a more than remote chance of that harm eventuating.
Circumstances of the Offender
30Cutri Fruit is a third generation family owned business that grows, sells and exports stone fruit. It has been in operation for over 60 years, has more than 300 employees and four working farms in north-western Victoria. It started as a smaller operation, a 12 acre farm in Woorinen, run by Gaetano and Columba Cutri. They worked hard and eventually their son and his wife took over the business and expanded it in the 1980s. They bought more land, and commenced exporting the fruit. D&C Cutri, as it was then known, were the first growers of white nectarines and plums in the district and the first exporter of stone fruit from here to Taiwan.
31Following the tradition, the next generation of children also grew up and worked on the farm. Eventually, in 2004, Gaethan Cutri returned to work full time in the business, running it with his wife. They rebranded the enterprise as Cutri Fruit, and expanded again, buying and working more land. Under their care and control the company has won the Royal Agricultural Society Victoria Farm Business of the Year and the Family Business Australia Business Award. In 2010 Gaethan purchased the business from his father, and became its CEO. The company now exports to the USA and Asia, and sells its fruit to Coles, Woolworths and Costco.
32Presently the company operates at four different locations, with over 3,000 acres of land and 600,000 trees. They farm avocadoes, nectarines, peaches, plums and oranges. Despite its size, it remains a family controlled business. In 2023, due to a series of strokes Gaethan Cutri had to step down as the CEO, but he remains the executive director of sales and marketing. His father, Dominic, is still heavily involved in the business.
33By its plea and through the submissions made to the court, the company accepts that it failed to do enough to direct workers and contractors as to how to travel to and from locations, and to prevent them from riding on the picking trailers.
34The company has also acknowledged the grief suffered by Mr Bunyad’s family and other employees.
Remedial Measures
35Cutri Fruit has taken the following remedial measures:
· The trailers have been altered so that people cannot ride on them.
· Signs have been installed on the trailers telling people not to ride on them, and warning of the risk of serious injury and death.
· There is a daily morning briefing to the workers and labour hire workers which includes clear directions to them that no-one is to ride on the trailers or use them as a form of transport between locations.
· The company employed an external safety consultant to overhaul the company’s safety policies and procedures, across all areas of work. That consultancy created and implemented a comprehensive Safety Management System across the workplace, and offers OH&S training to the direct employees of Cutri Fruit.
· The Health and Safety Co-ordinator of Cutri Fruit provides in person training to labour hire workers, in multiple languages, before they commence working. The workers must complete and sign an acknowledgment of completion of this training before being permitted to work;
· All labour hire workers must have their own form of transport to and between the Cutri locations; and
· Weekly meetings are held with employees to address any health and safety incidents which have occurred.
Sentencing Factors
36I take into account the following matters which have been raised in mitigation
(a) The company pleaded guilty at an early stage. This gives rise to mitigation of sentence in light of the practical benefits to the justice system from a plea of guilty.
(b) I accept that the company regrets its breach of the law, and that it has taken multiple steps to address the risks to health and safety not only by reason of this particular breach, but to ensure that better systems and training are in place for its workers and labour hire workers in all areas.
(c) The company was cooperative with the investigation.
(d) The accused company has no prior convictions or findings of guilt, and no pending proceedings;
(e) References have been provided speaking to the good reputation of the company with its employees and the community. Cutri Fruit is a good corporate citizen. Not only does it employ many people, it donates food to those in need through charities such as Food Bank and to schools, it supports immigrant communities by offering employment, other opportunities and other practical assistance. The behaviour of the company and its officers is demonstrated by the many letters in support tendered on the plea.
37In prosecutions such as this general deterrence carries significant weight in the sentencing discretion. I also note the other sentencing factors of punishment, denunciation and protection of the community. I accept that in this case, specific deterrence has a limited role, in view of the response of the company to this incident, and its efforts to improve health and safety in its business.
Current Sentencing Practice
38The parties referred me to two cases. One involved the sentencing of Melbourne Water after a worker had fallen and drowned. Grating had been noted as becoming loose for several years before the incident, but the accused company had not taken a simple and inexpensive step to rectify the issue. It was described by the learned sentencing judge as a clear and substantial failure, with potentially dire consequences.[4] The maximum penalty which applied in that case was $1,099,260. His Honour imposed a fine of $400,000.
[4]DPP v Melbourne Water Corporation [2014] VCC 184,[ 22], [23]
39The other case was DPP v Handcock[5] Mr Handcock and his parents ran a small, a 32 acre, farm, growing hops. It was a normal practice for workers to ride on a trailer, around the farm. In the incident which brought the matter to the court, the trailer had been moving down a steep include, and the driver lost control of it. Most of those riding on the trailer jumped clear but one worker fell from trailer, suffered head injuries and died. The accused was a natural person, with no priors. It appears from the sentencing remarks that the learned sentencing judge took into account his limited capacity to pay a fine. The learned sentence judge imposed a fine of $130,000, in circumstances where the maximum applicable was $280,000.
[5]DPP v Handcock [2019] VCC 444
Disposition
40Sentencing is not a mathematical process. I am required to have regard not only to the gravity of the offending, but also the factors in mitigation and other sentencing purposes. I am not sentencing Cutri Fruit for causing Mr Bunyad’s death. The offence is related to the company’s duty to provide a safe workplace for employees and others working there. The death of Mr Bunyad does not increase the gravity of the offending.
41The applicable maximum penalty is $1,635,660. Having regard to my assessment of the gravity of the offence as a fairly serious breach of the company’s duty, the factors in mitigation and to the other sentencing principles, I impose a fine of $750,000, with conviction.
42I state that if the company had not pleaded guilty, I would have imposed a fine of $900,000. Mr Prosecutor, are there any other orders that I need to make?
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