Director of Public Prosecutions v D&A Martin Transport Pty Ltd

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00886

DIRECTOR OF PUBLIC PROSECUTIONS

D&A MARTIN TRANSPORT PTY LTD

JUDGE:	HIS HONOUR JUDGE PALMER
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	20 August 2024
DATE OF SENTENCE:	4 September 2024
CASE MAY BE CITED AS:	DPP v D&A Martin Transport Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VCC 1355

REASONS FOR SENTENCE
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Subject:Criminal Law - Sentence
Catchwords: Failing to provide and maintain safe plant or systems of work – plea of guilty – high likelihood of the risk eventuating – high gravity of consequence if risk eventuates – substantial departure from statutory duty - general deterrence principal sentencing factor – capacity to pay not a dominant sentencing consideration – no prior convictions.

Legislation cited: Occupational Health and Safety Act 2004;

Cases Cited: DPP v Frewstal Pty Ltd (2015) 47 VR 660; DPP v Vibro-Pile (Aust) Pty Ltd( 2016) 49 VR 676; DPP v W.F. Montague Pty Ltd [2018] VCC 1553; DPP v Paul Kenneally & Entire Shopfitting Pty Ltd [2019] VCC 658; DPP v Ourarchi Pty Ltd [2023] VCC 884; DPP v Seascape Constructions Pty Ltd [2023] VCC 751; Di Tonto v The Queen; AM Design and Construction Pty Ltd v The Queen [2018] VSCA 312; DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69.

Sentence: $350,000 fine with conviction

6AAA:$500,000 fine with conviction

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms Karen Argiropoulos SC	Office of Public Prosecutions Victoria
For the Accused	Ms Peta Smith	Wotton Kearney

On 20 January 2022, Greg Butcher fell from the top of a trailer while loading it with grain. The fall resulted from a failure of the guardrail on the top of the trailer. Mr Butcher suffered fatal injuries and died the following day.
Mr Butcher’s employer, D&A Martin Transport Pty Ltd, has pleaded guilty to a single charge under ss 21(1) and 21(2)(a) of the Occupational Health and Safety Act 2004 (the OHS Act), of failing to provide or maintain plant that was, so far as was reasonably practicable, safe and without risks to health. By its plea, D&A Martin has acknowledged that:
a.The task of loading a trailer required employees to climb on top of it;
b.There was a risk that while undertaking this task an employee could fall from a height of 3.9 metres, causing serious injury or death;
c.It was reasonably practicable for D&A Martin to reduce that risk by implementing the following measures:
i.Implementing a qualified inspection and maintenance regime for the guard rails; and
ii.Ensuring any faults on the guard rails were competently repaired; or, where repairs would not result in the guard rail being in a safe and operational condition, replacing the guard rail in accordance with the relevant Australian Standard; and
d.D&A Martin failed to implement those measures.

Circumstances of the offending[1]

[1] The offending is set out in more detail in the Summary of Prosecution Opening for Plea (4 July 2024), which was supplemented by still images from CCTV footage, two bundles of photographs, and CCTV footage (Exhibits P1, P2, P3 and P4). I have also read and taken into consideration Revised Prosecution Sentencing Submissions (19 August 2024); Plea Submissions (16 August 2024); and bundle of documents relied on by the accused (Exhibit D1).

D&A Martin transported grain from depots to farms throughout eastern Victoria. Since 2005 D&A Martin had exclusively transported grain for Ridley Agriproducts Pty Ltd.
Mr Butcher worked for D&A Martin for about 20 years. At the time of his death, he worked out of Ridley’s Maffra mill. Since 2021 he had been driving a Kenworth truck with an attached Convair trailer.
At the mill, grain was loaded through a series of hatches on the top of the trailer. This required the driver to climb up a ladder to the top of the trailer and check the hatches. The top of the trailer was equipped with guardrails, which were pneumatically raised and lowered by a switch at the rear of the trailer. When bending down to check each hatch, Mr Butcher would lean forward and put his weight on the driver side guardrail.
At around 2 pm on the afternoon of 19 January 2022, Mr Butcher went to the mill and collected a load of grain. CCTV footage shows Mr Butcher checking the hatches. At around 2.13 pm, the top rail of the driver side guardrail appears intact. Shortly after, however, a break in the top rail, near the rear of the trailer, can be seen. Although MrButcher is using the rail, there is nothing to suggest that he noticed the break.
At around 7 am on 20 January 2022, Mr Butcher returned to the mill to collect another load of grain. CCTV footage shows a clear break in the top rail of the driver side guardrail. Again, there is nothing to suggest that Mr Butcher noticed the break.
Mr Butcher came back to the mill for another load at around 9 am. CCTV footage shows the guard rail raising, except that with the driver side rail, only a small section at the rear raises. Mr Butcher leans forward to check the hatch closest to the rear of the trailer, placing his weight on that raised section of the guardrail. He then moves to the next hatch. He leans forward to place his weight on the guardrail, but there is no guardrail there. Mr Butcher tumbles forward, falling 3.9 metres down to the concrete below.
Mr Butcher was found some ten minutes later. He was non-responsive and lying face down in a pool of blood. An ambulance was called and he was taken to hospital. Unfortunately, he was unable to survive his injuries, and the following day his life support was turned off.
The guardrails were examined by an engineer and a steel fabricator. They found that the guardrail was in very poor condition, including:[2]
a.Being too short;
b.Being flimsy with loose bolts; and
c.Having poor quality welding and repairs.
[2] See photographs in figures 7 to 19, Exhibit P1; and Horvat, Depositions pp 52-53 [10]-[11].

Seriousness of the offending

The principles that apply to sentencing for OHS offences are well-established.[3] The first is that offences under the OHS Act are risk-based rather than outcome-based. In this case, I am sentencing D&A Martin for the gravity of their failure to adequately address the risk of one of their employees falling from the top of a trailer, not for the gravity of the consequences of that failure, namely that Mr Butcher fell and died.
[3] See DPP v Frewstal Pty Ltd (2015) 47 VR 660; and DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676.
This can seem counter-intuitive for someone not familiar with this area of the law. A minor failure that has terrible consequences – such as a death – may merit a lower sentence than a serious failure that has little or no consequences.
Nevertheless, I am to take into account the impact of D&A Martin’s offending on those who were directly affected by it. In this case, that includes Mr Butcher’s family. Mr Butcher’s older brother Geoff made a statement describing the ongoing emptiness, heartache and sadness that his death has caused to his family.[4] Mr Butcher’s brother-in-law, Colin McGrath, also represented the family at the plea hearing.
[4] Victim Impact statement (22 July 2024).
The primary sentencing purpose for OHS offences is general deterrence, particularly in cases where the offending involved a risk of death or serious injury. The primary sentencing factor is the objective seriousness of the offending (with subjective matters playing a subsidiary role):
a.The gravity of a contravention is determined by two factors: the seriousness of the breach (that is, the degree of departure from the duty); and the extent of the risk resulting from the breach;
b.The second of these factors – the extent of the risk – is a product of two further factors: the likelihood of the occurrence of a safety endangering event as a result of the breach; and the potential gravity of the consequences of that event.
I can have regard to Mr Butcher’s death when considering the extent of the risk that resulted from D&A Martin’s failures.
In this case, the parties agreed that the likelihood of the risk eventuating, and the gravity of the consequences if it did, were both high: an improperly maintained guardrail could easily lead to a fall, and a fall from such a height could easily be fatal. Where the parties differed was in relation to the degree of D&A Martin’s departure from its statutory duty.
There is no suggestion that D&A Martin took a cavalier or cost-cutting approach to safety in general. Rather, the evidence suggests that the company took safety seriously; promptly remedied any identified defects in its trucks or trailers; and had systems in place to address many, if not most, of the risks to which its employees were exposed.
However, by its plea D&A Martin has acknowledged that it did not have adequate systems in place to inspect and maintain the guardrails. The prosecution submitted that D&A Martin failed to implement any system for the inspection and maintenance of the guardrails, and that the degree of departure from its duty was therefore substantial.^[5]
[5] Revised Prosecution Sentencing Submissions (19 August 2024), [10].
D&A Martin, on the other hand, submitted that the degree of departure should be categorised as moderate, on the basis that the company did have (or reasonably believed that it had) some systems in place to inspect and maintain the guardrails, albeit those systems fell short of the particularised measures.[6] During the course of the plea hearing, I explored with counsel the evidence on which this submission was based:
a.The Daily Vehicle Inspection Checklist completed by drivers required them to “note any obvious structure or body work faults”. However, these words do not direct drivers’ attention to the guardrail, and there is no evidence that either D&A Martin or the drivers understood that the checklist required them to check the guardrails.[7]
b.Two of D&A Martin’s drivers said that they checked the guardrails each day before getting on the trailer.[8] However, there is no evidence that in doing so they were following a system of work, applying training they had received, or following D&A Martin’s instructions; nor is it absolutely clear that their statements apply to the practice they followed prior to the fatal incident. As D&A Martin has acknowledged, at the time of the incident “there was no specific directive to inspect and maintain the guardrails”. [9]
c.D&A Martin arranged for its trucks and trailers to be serviced regularly. However, there is no evidence that those who serviced the trailers were required to inspect and maintain the guardrails, or that they did so.[10]
d.D&A Martin arranged for the tanks on the trailers to be regularly inspected by a company with expertise in inspecting and maintaining pressure vessels. When doing so, the company would also inspect the guardrails, including the welds and connecting bolts.[11] However, the company acknowledges that it had no expertise in that area.
[6] Plea Submissions (16 August 2024), [52].
[7] Exhibit P2, photograph 24, Depositions page 187.
[8] Tony Dale, Exhibit D1, page 12[7]; and Brian Enlund, Exhibit D1, page 15[6].
[9] Plea Submissions (16 August 2024), [27].
[10] Matthew Manly, Depositions page 33 [13] and [17]; Jacen Brady, Depositions pages 42-43 [5], [16] and [19].
[11] Rangarajan Ramalingam, Depositions page 48 [9]-[14]; CMIS Inspection Report, Depositions page 508.
To the extent that D&A Martin thought that the procedures outlined above were sufficient to address the risks associated with a faulty guardrail, it was unreasonable for it to do so: as a safety conscious employer, it should have realised that these procedures were inadequate. However, it is more likely in my view that D&A Martin never properly turned its mind to the issue of the guardrails: that they fell into something of a blind spot.
An employer is required by s 21 of the OHS Act to be proactive and imaginative in the identification of hazards in the workplace. In this case, the risks of a fall from height are well known. The risk of falling from the top of a trailer while inspecting the hatches is obvious. The risk that a flimsy and inadequately maintained guardrail might fail should also have been obvious. And yet D&A Martin had no system in place to address this obvious source of risk. For that reason, I agree with the prosecution that the degree of departure by D&A Martin from its statutory duty was substantial, and that the offending was serious.

Current sentencing practice

The parties provided me with four relevant comparator cases. Obviously current sentencing practice is neither determinative, nor a yardstick. Nevertheless, the cases were of some assistance. Each involved the risk of a fall from height, albeit within the context of the construction industry. As far as I can tell, only one of the four accused companies appear to have been larger in size than D&A Martin.[12]
[12] See DPP v W.F. Montague Pty Ltd [2018] VCC 1553 at [37]. The company appears to have been of a comparable size in DPP v Paul Kenneally & Entire Shopfitting Pty Ltd [2019] VCC 658 at [23]-[24]. The company may have been a similar size or even smaller in two of the cases: see DPP v Ourarchi Pty Ltd [2023] VCC 884 at [1]-[4]; and DPP v Seascape Constructions Pty Ltd [2023] VCC 751 at [39] and [46].
Each of the comparator cases can be distinguished to some degree from D&A Martin:
a.In some cases, the accused company may have had less weighty mitigatory factors than D&A Martin (for example, a later plea, prior convictions or a lack of remorse).
b.In other cases, the accused company’s offending might be regarded as slightly more serious than D&A Martin’s (because the company had greater proven knowledge of the hazard or of the inadequacy of its safety measures; or because it had been charged with more than one offence, albeit one capable of being dealt with by an aggregate sentence).
c.On the other hand, none of the cases involved the risk of a fall from a height as great as 3.9 metres.
Despite the differences between the cases, the sentences fell within a reasonably narrow range:
a.DPP v W.F. Montague Pty Ltd [2018] VCC 1553 (Judge Gaynor): a fine of $380,000, or 26% of the then maximum;
b.DPP v Paul Kenneally & Entire Shopfitting Pty Ltd [2019] VCC 658 (Judge Hannan): a fine of $300,000, or 21% of the then maximum;[13]
c.DPP v Seascape Constructions Pty Ltd [2023] VCC 751 (Judge Murphy): a fine of $420,000, or 30% of the then maximum; and
d.DPP v Ourarchi Pty Ltd [2023] VCC 884 (Judge Moglia): a fine of $370,000, or 25% of the then maximum.[14]
[13] The company was charged with two offences under s 21(1) of the OHS Act; the court imposed an aggregate sentence. The company director, Mr Kenneally, was also fined $30,000.
[14] The company was also fined $20,000 for failing to preserve the site of an incident.
The maximum penalty in this case is $1,635,660. When the fines above are adjusted to take account of the current value of a penalty unit, they range from approximately $343,000 (21%) to approximately $491,000 (30%).

Subjective matters

D&A Martin is a family-owned business, run by Dave Martin and his wife Anna. I am told that at the time of the incident, the company had nine employees, and owned 10 prime movers and 15 trailers.
Many of its employees had, like Mr Butcher, worked for the company for a long time. Not surprisingly, therefore, Mr Butcher’s family’s grief at his death was shared by his colleagues and managers (many of whom came to the plea hearing). In so far as it makes sense to speak of an incorporated entity feeling remorse, I accept that D&A Martin is remorseful for its failure to provide Mr Butcher with a safe working environment.
In the aftermath of Mr Butcher’s death, Mr Martin felt unable to continue to operate the company, so ended the contract with Ridley and sold all but one of the company’s trucks and trailers. I am told that Mr Martin is now the company’s sole employee, and that he drives the company’s remaining truck on a part time basis.
Prior to the incident, the company had no convictions, and had not been the subject of any WorkSafe notices. Its positive attitude to safety is confirmed in several of the additional statements filed by the company. This record of safety is to the company’s credit, and means that there is very little need for specific deterrence.
The company co-operated with the WorkSafe investigation, and indicated its intention to plead guilty at the earliest reasonable opportunity. This plea saved the courts, witnesses, prosecuting agencies and the community as a whole time, money, inconvenience and uncertainty, including a possible need to obtain additional expert evidence.
D&A Martin submitted that it is a small family-owned company that has made modest profits throughout its years of operation.[15] I accept the company’s characterisation of itself; and have taken the financial information it provided into account in moderating the size of the fine I might otherwise have imposed. However, in my view the financial information confirms that the company should have the capacity to pay a not insubstantial fine, even if that requires it to use money derived from the sale of assets.
[15] Cf Di Tonto v The Queen; AM Design and Construction Pty Ltd v The Queen [2018] VSCA 312 at [30] (Priest and Weinberg JJA). See Amended Further Submissions Regarding the Accused’s Capacity to Pay a Fine (30 August 2024); Prosecution Submissions Regarding the Accused Company’s Capacity to Pay a Fine (2 September 2024); and Reply Submissions Regarding the Accused’s Capacity to Pay a Fine (3 September 2024). The company also provided the court with some detailed information about its financial circumstances:
·The company filed its financial statements for the year ending 2023, which showed that the company made a net profit of $965,509 and had net assets of the same amount.
·D&A Martin is the trustee for the Martin Family Trust. The company filed the Trust’s financial statements for the tax years ending 2020, 2021, 2022 and 2024. Over the last five years, the Trust has recorded a net profit of $63,865 (2020); a net loss of $258,732 (2021); a net profit of $521,798 (2022); a net profit of $1,766,708 (2023); and a net loss of $68,218 (2024).
·The Trust’s 2022 profit and the company’s 2023 profit included income from the sale of the company’s assets.
Moreover, the company’s capacity to pay is not a dominant sentencing factor, and does not override the need for a fine capable of serving the purpose of general deterrence.[16]
[16] Cf DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69 at [46]-[47], [81] and [85] (Niall and Macauley JJA; Priest JA dissenting). The accused company in that case was also of modest size and profits; on appeal (and after a trial), the Court imposed a fine of $350,000, or 26% of the then maximum.

Orders

Had the company not pleaded guilty, I would have imposed fine of $500,000. Instead, I convict the company and impose a fine of $350,000.

[2024] VCC 1355

4 September 2024