Director of Public Prosecutions v D Buck Roofing Pty Ltd
[2024] VCC 100
•15 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-23-1362
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| D BUCK ROOFING PTY LTD |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 February 2024 | |
DATE OF SENTENCE: | 15 February 2024 | |
CASE MAY BE CITED AS: | DPP v D Buck Roofing Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 100 | |
REASONS FOR SENTENCE
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Subject:APPEAL AGAINST SENTENCE
Catchwords: Director’s appeal against sentence imposed by Magistrates’ Court – Inadequate fine – Director satisfied appeal is in the interests of justice – Breach of the Occupational Health and Safety Act 2004 (Vic) – Rolled-up charge – Sentencing principles in OHS prosecutions – Mid-level breach – Victim impact – Current sentencing practices – Circumstances of the respondent – Quantum of fine inadequate
Legislation Cited: Occupational Health and Safety Act 2004 (Vic); Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; DPP v Frewstal Pty Ltd (2015) 47 VR 660; DPP v Coates Hire Operations Pty Ltd [2012] VSCA 131; R v Samia [2009] VSCA 5; OPP v C & S Plumbing Pty Ltd (County Court of Victoria, Judge Lacava, 13 March 2019); DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; DPP v Vibro-Pile [2016] VSCA 55; Hansford v His Honour Judge Neesham and Ors [1995] 2 VR 233; DPP v Amcor Packaging Australia Pty Ltd [2005] VSCA 219; DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69
Sentence: Fine – $40,000 without conviction – s 6AAA declaration – $100,000 with conviction
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms A. French | Office of Public Prosecutions |
| For the Respondent | Mr P. Barry | Lander & Rogers |
HIS HONOUR:
1This is an appeal brought by the Victorian Director of Public Prosecutions against the sentence imposed on 18 September 2023 by the Broadmeadows Magistrates’ Court on the respondent company, D Buck Roofing Pty Ltd (‘D Buck Roofing’).
2D Buck Roofing pleaded guilty to a single charge under the Occupational Health and Safety Act 2004 (Vic) (‘OHS Act’). The learned Magistrate sentenced D Buck Roofing to pay a fine of $7,500 without conviction.[1]
[1] The respondent was also ordered to pay costs of $3,985.
3The appeal is brought against the quantum of the fine which the Director contends is inadequate.
4No appeal is brought against the non-recording of a conviction.[2]
[2] Appellant’s Sentencing Submissions dated 5 February 2024, [7].
Nature of the Appeal
5The Director may appeal to the County Court against a sentence imposed in the Magistrates’ Court if satisfied that an appeal should be brought in the public interest.[3]
[3] Criminal Procedure Act 2009 (Vic), s 257(1).
6A Director’s Appeal must be conducted as a rehearing and the Respondent is not bound by the plea entered in the Magistrates’ Court.[4] There is no obligation on the Director to demonstrate to the Court on appeal that the sentence imposed by the Magistrates’ Court is affected by specific error.[5]
[4] Ibid, s 259(1).
[5] Cf Ibid, s 289(1)
7On hearing the appeal, the Court must set aside the sentence of the Magistrates’ Court and may impose any sentence which the Court considers appropriate and which the Magistrates’ Court could have imposed.[6]
[6] Ibid, s 259(2).
8The Court in hearing the appeal must also not take into account the element of ‘double jeopardy’ involved in the Respondent being sentenced again, which would result in a less severe sentence than the Court would otherwise consider appropriate.[7]
[7] Criminal Procedure Act 2009 (Vic), s 259(3).
Factual Circumstances
9The respondent is to be sentenced on the basis of the undated Agreed Statement of Facts that was read to this Court and had also been read to the Magistrates’ Court.
10A Edmanson Pty Ltd were engaged to complete extension works at Hume Anglican Grammar School at 40 Eucalyptus Parade, Donnybrook (‘the workplace’). The extension works included building offices, classrooms and a playground. Michael Brooks was the site manager for A Edmanson and responsible for overseeing the extension works. A Edmanson contracted D Buck Roofing to install the roofing and complete associated works as part of extensions at the workplace.
11D Buck Roofing is a family business employing brothers Darren Buck (company director) and Glen Buck, amongst others.
12D Buck Roofing had a job specific Safe Work Method Statement (‘SWMS’) in place at the time of the incident and its employees, including Darren and Glen, had both signed onto the SWMS. The SWMS identified the risk of working at heights, requiring the use of safety mesh and guard railing to minimise that risk.
13However, the work on the day of the incident was not being performed in accordance with the SWMS.
14D Buck Roofing commenced by installing safety mesh on the roof of the new building that was at the frame stage.
15The installation of safety mesh on the roof took approximately two days to complete. Ordinarily when the safety mesh was being installed holes would be drilled into the purlins and the wire poked through, then twisted over around 7 to 8 times to secure the safety mesh. There were areas where holes could not be drilled into the solid steel so the safety mesh was wrapped over the purlin and “tied back onto itself”.
16Mr Brooks instructed D Buck Roofing to leave safety mesh off certain areas where parapet walls were to be built, to enable scissor lift access through the gap in the safety mesh. One of the sections that was not safety meshed is referred to as being above “Office 2”.
17Once the mesh was installed (save for the areas where the parapet walls were to be completed) D Buck Roofing loaded the roof with colour bond roofing sheets via a crane. Glen was informed by Darren that Mr Brooks wanted the roofing works to commence on the area with incomplete safety mesh. This is disputed by Mr Brooks.
18The reason D Buck Roofing did not complete the safety mesh after the parapet walls had been completed was because they had run out of safety mesh, advising “Darren was planning on getting some more but it never happened. I believe that Darren felt pressure to at least make a start on roofing works”. A roof sheet was laid over the void created by the incomplete safety mesh. A roof sheet is made of Colourbond trimdeck steel which is used as the outer roof covering.
19Glen and the other three D Buck Roofing employees then installed the guardrail on the roof however there was a stretch of guardrail not installed where the parapet wall was. Glen states they normally wore harnesses where there was no guardrail, however, harnesses were not worn on the day of the incident.
Incident
20On 24 August 2021, Glen was on the roof completing works including rolling out insulation paper which would normally sit on the roof mesh. Once the insulation paper was rolled out, it was difficult to tell where the purlins were. After this, Glen nailed either end with the Ashgrid (a spacer product for metal roofing) which raised the roof sheet above the purlin, creating a space between the safety mesh and the roof sheet for the insulation.
21Glen was standing on the loose laid roof sheet that was covering the gap in the safety mesh, on all fours reaching out to drill the AshGrid into the purlin.
22The screw Glen was drilling was on the edge of the purlin, and it slipped off the edge. Glen’s bodyweight was on the drill when the screw slipped, causing him to fall forward through the insulation and through the gap in the safety mesh approximately 4.2 meters to the ground.
Objective Gravity
23The following features of the offending are relevant to the court’s assessment of its objective gravity:
(a) D Buck Roofing is a specialist roofing company which has been in operation for over 25 years;
(b) The work that D Buck Roofing was engaged in at the site involved the construction of a roof which required its workers to work more than 4 metres above the ground;
(c) The risk of a fall when working from height has been recognised by the Court of Appeal as ‘self-evident’, ‘notorious and grave’;[8]
(d) Industry Guidance, in the form of a Compliance Code promulgated under s 149 of the OHS Act records that guardrails, safety mesh and harnesses are reasonably practicable ways to control any risk of falling;[9]
(e) D Buck Roofing had itself recognised and documented both the risks associated with the work it required its employees to perform and the means of controlling those risks by way of a written SWMS[10];
(f) The work performed on 24 August 2021 was not performed in accordance with the SWMS as the safety mesh had not been completely installed and the guard rails were incomplete;[11]
(g) The reason that the mesh was incomplete was because D Buck Roofing had run out of mesh. According to employee Glen Buck, D Buck Roofing director, Darren Buck planned to get some more mesh but ‘felt pressure to at least make a start on the roofing works’;
(h) The workers normally wore harnesses where there was no guardrail. However, on the day in question they did not; and
(i) Within a week of the incident occurring, the company had completed the installation of the mesh and the guardrail.
[8] R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181, [39], [61] (‘CICG’).
[9] Compliance Code – Prevention of Falls in General Construction (WorkSafe Victoria, 2019, 2nd ed). That Code replaced the Code of Practice (No 10) – Safe Work on Roofs (1989) – see generally CICG (n 8) [39].
[10] The SWMS is in evidence as Exhibit ‘DB-1’ to the affidavit of Darren Buck affirmed 12 February 2024.
[11] The SWMS identifies the risk of ‘falling from heights due to mesh not being installed correctly’. The ‘risk control measure’ to address that risk is ‘site supervisor to check mesh installation and sign off prior to access to roof being permitted’.
24The assessment of the objective gravity of a given breach of the employers’ duty in s 21 of the OHS Act is assessed by reference to what are commonly referred to as the Frewstal[12] factors. As the Court of Appeal explained:
· First, unlike cases of unlawful homicide, the occurrence of death or serious injury is not an element of the offences charged. An accused is punished according to the gravity of the breach of duty owed under the OHSA, not according to the result or consequences of the breach.
· Secondly, the gravity of the breach is measured by two factors – the seriousness of the breach itself (that is, the extent to which the defendant has departed from its statutory duty); and, the extent of the risk of death or serious injury which might result from the breach.
· Thirdly, an assessment of the extent of the risk itself involves consideration of two factors – 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, the potential gravity of the consequence of such an event (in particular, whether there is a risk of death or serious injury).
· Fourthly, the fact that the breach in the 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.
[12] DPP v Frewstal Pty Ltd (2015) 47 VR 660.
25Applying those factors to the present case, I conclude that the extent to which the respondent departed from its statutory duty to its workers was considerable. It fell well short of what a reasonable employer working in the roofing industry should have done. This is because:
(a) It was reasonably likely that a worker working in the vicinity of one of the parts of the roof without mesh or a complete guardrail would fall to the floor below either through the unguarded penetration or over the edge of the roof; and
(b) The potential gravity of the consequence of such a fall was a serious injury (as in fact occurred) or even death.
26The respondent submits that this is not a case in which it ‘was either blind to the risk, or aware of it but chose to do nothing’. Rather, it is a case in which D Buck Roofing had systems in place but failed to correctly and completely adhere to them on the day of the incident’.[13]
[13] Respondent’s Sentencing Submissions dated 12 February 2024. [30].
27The difficulty I have with this submission is that the employer allowed the work to proceed without complete adherence to the safety system. Mr Barry conceded the company was aware of this. For the reasons explained by the Court of Appeal in CICG, this was an abdication by it of its responsibility to ensure the safety of the workers so far as was reasonably practicable.[14]
[14] CICG (n 8) [38].
28The respondent’s breach of its duty represents a mid level breach of s 21. I don’t accept the characterisation of the breach by the prosecution as ‘towards the higher end of the range of possible instances of such an offence’.[15] As I observed during argument, it is difficult to understand why the case was prosecuted in the Magistrates’ Court if that is in fact the case. The jurisdictional limit of that Court is only slightly more than 25% of the maximum penalty that is available if a matter is prosecuted in this Court.
[15] Appellant’s Sentencing Submissions dated 5 February 2024, [25].
Victim Impact
29Although injury is not an element of the offence created by s 21, it is still necessary for the court to have regard to the impact of the offending on any victim.[16]
[16] Sentencing Act 1991 (Vic), s 5(2)(daa), (db).
30Glen Buck broke his fibula and tibia in his right leg and his left heel bone was ‘smashed’. He has had 15 operations and his recovery had been delayed due to infections. He also almost lost his left foot. As a result of the incident, Glen has suffered tremors and problems with his vision.
31The company, through Darren Buck, paid for modifications to Glen’s home, namely an accessibility ramp, as it was uncertain what the state of Glen’s mobility would be in the future. This is to its credit.
A ‘Rolled up’ Charge
32The charge to which the company pleaded guilty is described by the prosecutor as a ‘rolled up’ charge[17] that combined two discrete contraventions of s 21 of the OHS Act:
(a) Allowing work to proceed in the presence of incomplete safety mesh; and
(b) Allowing work to proceed in the presence of incomplete guard railing.
[17] Appellant’s Sentencing Submissions dated 5 February 2024, [3].
33Both contraventions gave rise to a risk of serious injury or death – in the first instance as a result of a fall through a void in the incomplete roof; in the second instance as a result of a fall from the edge of the roof.
34It may be that, strictly speaking, the charge is not correctly described as a ‘rolled up’ charge. It is better described as a single charge for multiple contraventions to which s 33(1) of the OHS Act applies. As was explained in the case of DPP v Coates Hire Operations Pty Ltd, ‘usually, a rolled-up count includes a number of discrete offences committed on different occasions’.[18] Here the offending all occurred on the one day at the one work-site and involving the same workers being exposed to risk.
[18] [2012] VSCA 131; (2015) 36 VR 361, [32].
35Section 33(4) of the OHS Act provides that, in such circumstances, ‘a single penalty only may be imposed in respect of the contraventions’.
Current Sentencing Practices
36The parties have referred to a number of sentences imposed in the Magistrates’ Court in cases involving workers exposed to the risk of falling from roofs upon which they were working. This was to inform the Court of ‘current sentencing practices’ - a matter, among many, to which the court must have regard.[19]
[19] Sentencing Act 1991 (Vic), s 5(2)(b).
37The cases were heard between 2017 and 2023. The fines imposed ranged from $10,000 to $20,000. All involved pleas of guilty and all fines were imposed without conviction. Throughout the relevant period, the maximum fine and the jurisdictional limit of the Magistrates’ Court were similar to those that apply in the present appeal.
38The respondent submitted that the Director’s appeal should be rejected in part because the fine of $7,500 ‘was within the range of current sentencing practices’ as disclosed by the five cases to which the court was referred.[20]
[20] Respondent’s Sentencing Submissions dated 12 February 2024, [2]; see also at [72]-[73] and [76].
39Of the five cases, only one involved the construction of a roof.[21] In that case, an appeal to this court by the prosecution resulted in a six-fold increase of the sentence of $2,000 that had been imposed by the Magistrates’ Court.
[21] OPP v C & S Plumbing Pty Ltd (County Court of Victoria, Judge Lacava, 13 March 2019).
40In the other four cases the workers were performing work on a roof that had already been built. As explained earlier in these reasons, there are particular risks that are associated with the work of constructing roofs and for that reason, I consider the other four cases to be of limited assistance.
41The correct approach by a sentencing court to current sentencing practices was explained by the High Court in DPP (Vic) v Dalgliesh (a pseudonym).[22] As the plurality explained:
Section 5(2)(b) of the Sentencing Act informs the process of instinctive synthesis as a statutory expression of the concern that a reasonable consistency in sentencing should be maintained as an aspect of the rule of law. Reasonable consistency in the application of the relevant legal principles does not, however, require adherence to a range of sentences that is demonstrably contrary to principle[23]
[22] [2017] HCA 41 (‘Dalgleish’).
[23] Ibid, [50].
42In a similar vein, Gageler and Gordon JJ stated that:
Sentences are not binding precedent, but are merely "historical statements of what has happened in the past". As was said in Hili v The Queen, "[t]hat history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits". Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court[24]
[24] Dalgleish (n 22) [83] (citations omitted, emphasis in original).
43Similar observations concerning the ‘limited assistance’ provided to a sentencing court by sentences imposed in other cases have been made in the context of OHS offending by the Court of Appeal.[25]
[25] DPP v Vibro-Pile [2016] VSCA 55, [222] (‘Vibro-Pile’).
44Ultimately, the High Court concluded in Dalgliesh (as had the Court of Appeal) that current sentencing practices in cases involving incest ‘reflected a disregard of the gravity of the offending as indicated by the maximum sentence prescribed for the offence, and the moral culpability of the offender’.[26]
[26] Dalgleish (n 22) [53].
45I note that it was not argued on this appeal that current sentencing practices in the Magistrates Court in OHS cases reveal a range of sentences that is too low having regard to the maximum sentence, the objective gravity of the offending and the sentencing principles to be applied in cases involving breaches of the OHS Act as explained by the Court of Appeal in Vibro-Pile. In those circumstances I will not express a view on the question.
Circumstances of the Respondent
46The following matters were referred to by the respondent in mitigation:
(a) It has no prior convictions;
(b) It pleaded guilty at an early stage; and
(c) It co-operated with the investigation.
47The plea of guilty is important – it is a recognition of responsibility and spares witnesses the trauma of giving evidence. I am satisfied that it also represents remorse on the part of the company. As Mr Buck, the sole director, deposes in his affidavit, he has ‘profound contrition and remorse’.[27]
[27] Affidavit of Darren Buck affirmed 12 February 2024, [13].
48In addition, an affidavit affirmed on 12 February 2024 by Darren Buck deposes to contributions that the company has made to sporting clubs and charitable associations. I accept that the company is a good corporate citizen.
Consideration
49The OHS Act is designed to protect employees against risks to their health and safety. It is important social legislation. An employer is required to take a proactive approach to protecting its employees.
50The seriousness with which such breaches are to be treated is reflected in the maximum penalty of 9,000 penalty units or $1,635,660. This is the ‘maximum penalty prescribed for the offence’[28] notwithstanding the jurisdictional limit of 2,500 penalty units or $454,350 that applies to the Magistrates’ Court.[29]
[28] Sentencing Act 1991 (Vic), s 5(2)(a).
[29] See Hansford v His Honour Judge Neesham and Ors [1995] 2 VR 233, 236.
51The principal sentencing purpose is to achieve general deterrence. Employers must be dissuaded from cutting corners and jeopardising the safety of their employees. The sentence imposed by a court in a case involving a breach by an employer of this important duty needs ‘to draw attention to the importance of workplace safety, and to send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment’.[30]
[30] Vibro-Pile (n 25) [234].
52Factors personal to an offender such as its plea of guilty and good record are of subsidiary importance in sentencing in such cases.[31]
[31] DPP v AmcorPackaging Australia Pty Ltd [2005] VSCA 219, [35].
53The sentence I impose must also express the court’s denunciation of the company’s offending. I accept that, having regard to the company’s good safety record and prompt rectification work, specific deterrence is less important as a consideration.
Disposition
54I set aside the sentence of the Magistrates’ Court as I am required to do.
55The fine of $7,500 imposed by the learned Magistrate, which was less than 0.5% of the maximum sentence available, and 1.65% of the jurisdictional limit, was quite inadequate in the circumstances.
56In its place, and taking into account the maximum penalty, the nature and gravity of the offending, D Buck Roofing’s culpability, current sentencing practices and the impact of the offending on Mr Glen Buck, D Buck Roofing is fined $40,000 without conviction.
57In setting the level of the fine, I have had regard to the financial circumstances of the respondent.[32] It made a net profit of $41,879 in the seven months to 31 January 2024.[33] This is a considerable improvement on the last few years. I note the evidence of Mr Buck that the company ‘has the capacity to pay a modest fine’.[34]
[32] Sentencing Act 1991 (Vic), s 52. Given the importance of general deterrence in OHS cases, the financial position of an offender has less force in the synthesis than it otherwise might have – see DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69, [85].
[33] Affidavit of Darren Buck affirmed 12 February 2024, Exhibit ‘DB-2’.
[34] Ibid, [11].
58Ms French, on behalf of the Director, informed the Court that when the matter proceeded in the Magistrates’ Court, the prosecutor ultimately conceded that the imposition of a conviction would be inconsistent with current sentencing practices.
59Had the Director of Public Prosecutions also appealed against the non-conviction disposition, and having regard to the considerations in s 8 of the Sentencing Act1991 (Vic) and the objective gravity of the offending, I would have imposed the fine with conviction.[35] However, it is inappropriate to do so in these circumstances.
[35] See CICG (n 8) [57]-[59].
60I will re-impose the costs order.
61I will grant the respondent a certificate pursuant to s 15 of the Appeal Costs Act 1998 (Vic).
62Finally, pursuant to s 6AAA of the Sentencing Act 1991 (Vic), but for the company’s guilty plea, I would have imposed a fine of $100,000 with conviction.
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