Director of Public Prosecutions v D & R Henderson Pty Ltd

[2023] VCC 1768

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00340

DIRECTOR OF PUBLIC PROSECUTIONS

v

D & R HENDERSON PTY LTD

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	21 August 2023
DATE OF SENTENCE:	28 September 2023
CASE MAY BE CITED AS:	DPP v D & R Henderson Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VCC 1768

REASONS FOR SENTENCE
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Subject:Failure to maintain safe systems of work

Catchwords:          Guilty plea

Legislation Cited:         Occupational Health and Safety Act 2004 (Vic)

Cases Cited:DPP v Frewstal (2015) 47 VR 660; DPP v Weybury [2018] VSCA 120; DPP v Vibro-Pile P/L (2016) 49 VR 676; Markarian v The Queen (2005) 228 CLR 357; DPP v Dalgleish (2017) 262 CLR 428; Pham (2015) 256 CLR 550; DPP (Cth) v Thomas [2016] VSCA 237; DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69; Worboyes [2021] VSCA 169; Postiglione (1997) 145 ALR 408

Sentence:Fines totalling $350,000

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms M.Tittensor SC and Mr L. Cameron	Solicitor for Public Prosecutions
For the Accused	Mr R. Taylor	Norton Rose Fulbright Australia

HIS HONOUR:

1D & R Henderson Pty Ltd (DRH) has pleaded guilty to:

(a)   one charge of failing to provide and maintain safe systems of work;[1] and

(b)   one charge of failing to provide proper instruction and training.[2]

[1] Contrary to sections 21 (1) and 21 (2) (a) Occupational Health and Safety Act 2004 (Vic).

[2] Contrary to sections 21 (1) and 21 (2) (e) Occupational Health and Safety Act 2004 (Vic).

2The maximum penalty for each offence is 9,000 penalty units which equates to $1,486,980.

Circumstances of offending [3]

[3] The circumstances set out in the summary of prosecution opening for plea, Exhibit A.

3The company operates a timber processing and particleboard manufacturing plant at Benalla.

4Rasta Kemp started work for the company in February 2018.

5On 30 May 2018, in the dry mill, where dried wood is fed through a moulding machine to grade timber, Mr Kemp was manually pulling and lifting rejected timber from conveyor belts on the waste transfer deck and stacking them into a metal stillage. When he attempted to adjust the belts, his clothing became entangled in pins projecting from the machine's unguarded rotating driveshaft. Despite his efforts to free himself he was pulled into the machine and impaled on an upright of the stillage.

6He suffered traumatic injuries to his chest and liver and died at the scene.

7WorkSafe inspectors attended the workplace in the afternoon following the incident and in subsequent days.

8The company's systems of work were unsafe. To remove the timber pieces from the deck, an employee needed to work in close proximity to the rotating driveshaft. The pins which protruded from the driveshaft were dangerous and the procedure for realigning the belts which conveyed the timber was also hazardous.

9By failing to firstly:

(a)   fit a cover over the rotating driveshaft, or move the drive motor and driveshaft where a worker could not have contact with it; and

(b)   secondly, failing to implement a procedure where the belts were realigned when the machine was powered off,

the company failed to maintain safe systems of work (charge one).

10The company did not have a clear system for belt realignment on the moulding machine. Different workers did the task in different ways.

11By failing to instruct its employees:

(a)   there was a risk of being drawn into the conveyor by clothing entanglement if they came into contact with the protruding pins on the rotating shaft; and

(b)   where to safely position themselves when undertaking the task,

the company failed to provide its employees with the instructions necessary to enable them to perform their work safely (charge two).

12Information about the hazards and relevant control measures associated with conveyor systems is widely available.

13The company ought to have known about the hazards, the risks and the control measures, which were not difficult nor expensive to implement.

14After the accident, WorkSafe issued two improvement notices which required the company to:

(a)   install fixed guarding to restrict access to the points at both ends of the conveyors of the waste transfer deck; and

(b)   to modify an existing metal guard to fully enclosed the chain and sprocket drive of the deck.

15The company completed the remedial work expeditiously.[4]

[4] Exhibit K, photographs of remedial work completed.

16It also implemented a comprehensive written machine guarding safety policy.[5]

[5] Exhibit 2, Standard Operating Procedure of D&R Henderson Pty Ltd for Guarding dated May 2021.

Objective gravity of offending

17In DPP v Frewstal,[6]  the Court of Appeal set out the principles for assessing the objective seriousness of Occupational Health and Safety Act offending in cases of death or serious injuries as follows:

[6] (2015) 47 VR 660, [127] per Priest and Kaye JJA.

(a) '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 Occupational Health and Safety Act, not according to the results or consequences of the breach;

(b)   secondly, the gravity of the breach is measured by two factors:

(i)the seriousness of the breach itself (that is, the extent to which the defendant has departed from its statutory duty); and

(ii)the extent of the risk of death or serious injury which might result from the breach;

(c)   thirdly, an assessment of the extent of the risk itself involves consideration of two factors:

(i)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

(ii)the potential gravity of the consequence of such an event (in particular, whether there is a risk of death or serious injury);

(d)   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.'

18The prosecution submitted the offences before the court represent a serious breach of the Occupational Health and Safety Act. It submitted the company departed significantly and substantially from its statutory duty to provide a safe working environment and to provide proper instructions.[7]

[7] Prosecution submissions, Exhibit A, [11].

19The company submitted [8] the breaches are at the middle order of seriousness.[9]

[8] Exhibit 1, defence submissions, [33].

[9] Classifications will, such as 'mid-range' or 'high-range' carry risk that attract reference to current sentencing practices for sentences previously categorised in a particular range, thus bringing the risk of limiting the instinctive synthesis. See DPP v Weybury [2018] VSCA 120, [54] per Priest JA.

20I accept there is no evidence the company was aware of the specific safety risk and ignored it. However, it was aware of other guarding issues following WorkSafe inspections between 2000 and 2015.[10]

[10] Exhibit J, prosecution sentencing submissions.

21Considering:

(a)   conveyor hazards are well-known;

(b)   the projections of a rotating shaft were obviously a potential danger; and

(c)   a worker was required to work in proximity to the rotating shaft to remove timber from the deck,

the company ought to have known of the hazards, and considering:

(d)   implementation of an appropriate control measure, that is, the fitting of a guard was neither difficult nor expensive; and

(e)   there was no coherent system for the work of belt realignment and a lack of effective instruction,

I am satisfied the company's failures were a significant and substantial departure from its statutory duty to provide and maintain a safe working environment and to provide proper instructions.

22In my view, the company's offending represents a serious breach of the Occupational Health and Safety Act.

Court proceedings

23Charges were laid against the company on 15 January 2020.

24Charges were also laid against a labour hire company, Recruit Selectment, which employed Mr Kemp and supplied his labour to the company.

25On 10 June 2021, a Magistrate, at Wangaratta, convicted and fined Select Recruitment Select $50,000 for failing to provide Mr Kemp with a safe system of work. 

26Considering, in particular, the company's history of guarding offences and improvement notices, its culpability is significantly higher than Recruit Selectment's.

Victim impact statements

27I received and read victim impact statements of Mr Kemp's partner[11] and her mother[12], and his mother[13] and three sisters[14].

[11] Exhibit F, Victim Impact Statement of Ebony Clark.

[12] Exhibit G, Victim Impact Statement of Michelle Craig.

[13] Exhibit B, Victim Impact Statement of Maryann Ransley.

[14] Exhibit C, Victim Impact Statement of Jessica Ransley-Simpson; Exhibit D, Victim Impact Statement of Chloe Ransley and Exhibit E, Victim Impact Statement of Brittany Ransley.

28Mr Kemp was 'an amazing Dad… nice to everyone and… really funny'.

29He wanted to be a presence in his young son's life that his father never was for him.

30He cared greatly for his family which is very close and they have all suffered greatly with his passing.

Criminal record

31The company admitted a relevant criminal record.

32On 6 July 2001, in the New South Wales Chief Industrial Magistrate's Court, the company was fined $15,000 for breach of the New South Wales Occupational Health and Safety Act.

33On 5 August 2002, in the same court, the company was fined $15,000 for another breach of the same Act. In that case, the worker, who worked at the company's Windsor factory, had his right thumb amputated and suffered lacerations to his finger and neck when adjusting the blade tension of a trimming saw which had its safety switch disconnected.[15]

[15] Exhibit H, information and summons dated 24 October 2001 and statement of facts dated 24 October 2001.

DRH circumstances

34One of the company directors, David Henderson, represented the company at court.

35The company was founded in 1964.

36Its manufacturing plant is located at Benalla. The company has distribution centres in Adelaide, Brisbane, Sydney and Melbourne.

37The Windsor factory in New South Wales has since closed.

38The company has a large presence in the Benalla region.

39It has around 92 local employees.

40Over the past 20 years, the company has employed 60 apprentices. Many are now long-standing employees, some have moved into management roles.

41It arranges annual school visits to promote work opportunities in the community.

42It supports a number of local and statewide charities.

43In 2016, it won two Benalla business awards.

44Soon after his death, Mr Henderson wrote to Mr Kemp's partner:

'The tragic loss of Rasta has left everyone at D&R Henderson with a great sense of shock and sorrow. We cannot begin to imagine what you and your family have gone through since the accident and we would like to extend our deepest condolences to you all.'[16]

[16] Exhibit 3, letter dated 21 August 2018.

45The company paid her a year of Mr Kemp's wages and established a $100,000 fund to assist with his son's medical and education expenses.

46Two local business people, who provide transport services to the company, wrote testimonials praising the company's safe work environment for their employees.[17]

[17] Exhibit 4, reference of Kurt Rouse and Exhibit 5 reference of Ian Extan.

47The company's general manager gave evidence about the company's financial circumstances.

48Mr Taylor who appeared for the company, in comprehensive written[18] and oral submissions, commenced by acknowledging the grief brought upon Mr Kemp's family and those who love him.

[18] Exhibit 1, outline of defence submissions for plea.

Sentencing submissions – defence

49Mr Taylor accepted the company's safety breaches are serious.

50In mitigation of penalty, he relied on:

(a)   the company's guilty plea;

(i)for its utilitarian value; and

(ii)as evidence of remorse;

(b)   its response to the fatal event, by

(i)completing the remedial work directed;

(ii)implementing a comprehensive safety policy; and

(iii)providing financial support to Mr Kemp's partner and son; and

(c)   its standing in, and contributions to, the Benalla regional community.

51He acknowledged the parity principle has application. He accepted there are relevant differences between the offending of Recruitment Select and the company.

52He provided me with a helpful table of County Court sentences for guarding contraventions of the Occupational Health and Safety Act.[19]

[19] Table of guarding cases (Exhibit 7).

Sentencing submissions – prosecution

53Ms Tittensor SC, who appeared with Mr Cameron for the prosecution, submitted the court must send a message to employers that failure to eliminate or mitigate risks will attract significant punishment.[20]

[20] DPP v Vibro-Pile P/L (2016) 49 VR 676, [233].

54She submitted because the company had prior knowledge of guarding issues, specific deterrence is elevated in the instinctive synthesis. 

55She accepted the company's guilty plea has utilitarian value, additionally so, considering the COVID‑19 pandemic impact on the administration of criminal justice

56She provided a table of comparable intermediate appellate authorities and sentences of this court.[21]

[21] exhibit J, prosecution sentencing submissions, appendix B.

Consideration

57The maximum penalty demonstrates the inherent seriousness of an offence under s21(1) of the Occupational Health and Safety Act. It serves as a yardstick and a basis for comparison between this case and the worst case.[22]

[22]Markarian v The Queen (2005) 228 CLR 357.

58While current sentencing practices are but one factor to be considered in the sentencing exercise,[23] I have used the authorities for guidance to identify the relevant sentencing principles, and as a measure to examine the appropriate sentence in this case.[24]

[23] DPP v Dalgleish (2017) 262 CLR 428, [9] per Keifel CJ, Bell and Keane JJ.

[24]Pham (2015) 256 CLR 550, [27]-[29]; DPP (Cth) v Thomas [2016] VSCA 237.

59Because of the importance of workplace safety, general deterrence is a significant sentencing consideration.[25]

[25] DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69, [85].

60And because of the company's criminal record and history of other guarding issues, there is a need for specific deterrence.

61I have taken into account the company's financial circumstances in determining the amounts of fines I will impose.[26]

[26] Sentencing Act, s 52.

62There are mitigating factors which I have taken into account to moderate the fines, namely:

(a)   the company's guilty plea which has high utilitarian value, enhanced by Worboyes[27] considerations; and

(b)   its remorse evidenced by the guilty plea and its response to the fatal accident; and

(c)   its contributions to the Benalla regional community.

[27] [2021] VSCA 169, [39].

63To determine the individual sentences which I will impose, I have taken into account the principles of totality and proportionality.[28]

[28] Postiglione (1997) 145 ALR 408, 416-17, 442-43.

64I have also had regard to the parity principle.

Conclusion

65By the sentence I impose I must denounce the company's conduct, punish it and deter it and others from committing crimes of the same or similar kind.

66Considering the circumstances of the offending and the company's circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in an appropriate manner:

(a)   on the charge of failing to maintain safe systems of work, the company is convicted and fined $275,000; and

(b)   on the charge of failing to provide proper instructions, the company is convicted and fined $75,000.

67While there is some artificiality in the process, I declare but for the company's guilty plea, I would have imposed fines totalling $475,000 with conviction.

68I will grant a stay of payment of six months for payment of the fines.

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