Director of Public Prosecutions v E. and O. Lagondar Nominees and Lagondar
[2021] VCC 1024
•29 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00194
CR-21-00195
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| E. & O. LAGONDAR NOMINEES PTY. LTD. AND EMIL LAGONDAR |
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JUDGE: | His Honour Judge Trapnell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 June 2021, 23 June 2021 | |
DATE OF SENTENCE: | 29 July 2021 | |
CASE MAY BE CITED AS: | DPP v E. & O. Lagondar Nominees and Lagondar | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1024 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Failure of a person who has management or control to ensure
workplace is safe and without risks to health – Being an officer of a body corporate who has management or control failed to take reasonable care that the workplace is safe and without risks to health – Risk of catastrophic injury or death high and readily foreseeable – Fall from height resulting in fatal head injury – Serious example of offending – General deterrence particularly relevant – Offender aged 79 at time of offence – Early guilty plea – Contrition and remorse demonstrated – Cooperation with WorkSafe investigation – No prior convictions
Legislation Cited: Occupational Health and Safety Act 2004 ss 26(1), 144(1)
Cases Cited:DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557 – Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119 – Di Tonto & Anor v The Queen [2018] VSCA 312 – Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399 – DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 – DPP v Frewstal (2015) 47 VR 660
Sentence: E & O Lagonda Nominees Pty Ltd convicted and fined $250,000 – Emil Lagondar convicted and fined $125,000
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N D Kaddeche | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr S T Russell | K & L Gates |
HIS HONOUR:
1E. & O. Lagondar Nominees Pty. Ltd. (A.C.N 005 157 782) (‘the Company’), by its authorised representative Emil Lagondar, has pleaded guilty to an indictment containing one charge of failure of a person who has management or control to ensure workplace is safe and without risks to health (Charge 1).[1]
[1] Contrary to Occupational Health and Safety Act 2004 (‘OH&SA’) s 26(1).
2Emil Lagondar, you have pleaded guilty to an indictment containing one charge of being an officer of a body corporate who has management or control, failed to take reasonable care that the workplace is safe and without risks to health (Charge 2).[2]
[2] Contrary to OHSA s 144(1).
3The maximum penalty for failure of a person who has management or control to ensure workplace is safe and without risks to health is 9000 penalty units when committed by a body corporate, and 1800 penalty units when committed by a natural person.
4Pursuant to s 144(1) of the Occupational Health and Safety Act 2004 (‘OHSA’), a person who commits an offence against that provision is liable to a fine not exceeding the maximum fine for an offence constituted by a contravention by a natural person of the provision contravened by the body corporate. Accordingly, in this case Mr Lagondar is liable to a maximum fine of 1800 penalty units.
5At the time these offences were committed, the value of a penalty unit was $161.19.[3] Accordingly, the maximum penalty applicable to the Company is $1,450,710 and to Mr Lagondar is $290,142.
[3] See Sentencing Act 1991 (‘SA’) s 110; Monetary Units Act 2004 s 5(2); Victoria, Victoria Government Gazette Special Gazette, No S145, 29 March 2018, 1.
The Facts
6The prosecution filed a summary of prosecution opening dated 8 June 2021,[4] which your counsel told me I can treat as a statement of agreed facts. I have supplemented this by adding non-controversial facts provided by your counsel during the plea hearing.
[4] Exhibit P1.
7The Company is an Australian registered proprietary limited company, with you and your wife, Olga, as its only directors. The Company owned a factory/warehouse at 1-11 McNaughton Road, Clayton (‘the workplace’). The workplace was used by Frontier Industries Pty Ltd (‘Frontier’) to manufacture polystyrene packaging. Frontier’s director, Greg Lagondar, is your son.
8The Company sold the workplace to CDJD Pty Ltd on 4 March 2019. Pursuant to the contract of sale, the Company was required to carry out works to the building prior to settlement, including removing everything below the roof truss line (approximately 6.5 metres in height) (‘the works’).
9The deceased, Roger Dalta, was previously employed by Frontier as a maintenance worker. He was a qualified boilermaker and you and he had developed a friendship over the years. He offered to help you close down the company’s operations, so your son engaged him on behalf of the Company to assist in performing the works. According to your counsel, it was an ‘informal arrangement’.
10Your counsel explained the circumstances as follows:
Emil Lagondar and Roger Dalta (Roger) were friends. Roger had worked for Frontier Industries (Frontier) (the business operating at the premises) for a number of years before retiring. When Roger heard Frontier was closing down and the factory was being sold, he offered to assist in the decommissioning of the factory. Emil Lagondar attended to help out his son, who is the owner of Frontier.
11On 15 April 2019 at 12:15pm, Mr Dalta was inside a steel stillage that had been elevated by a forklift in order to oxy-cut steel beams running across the inside roof line of the warehouse. You were operating the forklift. The work being carried out was under your sole direction. The stillage was elevated to a height of approximately 4.5 metres. A wooden pallet had been used as the base of the stillage. There were fork tunnels underneath the pallet, however the tunnels did not completely wrap around the forklift tines.
12The stillage became detached from the forklift and Mr Dalta and the stillage fell onto the concrete floor below. Mr Dalta suffered fatal head injuries.
13Mr Dalta had fabricated the stillage and it had not been used for many years. It was only used on this occasion as the new purchaser of the property required some material to be removed. The use of the stillage was a result of a discussion between you and Mr Dalta.
14WorkSafe inspectors Hemachandra Dissanayake and Michael Tyrrell attended the workplace on the day of the incident. Inspector Dissanayake was informed that the deceased had been cutting metallic trusses from a stillage cage elevated on the tines of a Caterpillar counterbalanced gas-powered forklift. Based on his observations and the information provided, Inspector Dissanayake issued a prohibition notice to Frontier pursuant to OHSA s 112 which prohibited the use of the Caterpillar forklift other than for inspection or repairs by a competent person.
15On 25 July 2019, Inspector Dissanayake returned to the workplace and met with your son. Inspector Dissanayake informed him he had conducted an inspection of the forklift at AP Fuel Merchant’s workplace and believed that the actions that had been taken justified the lifting of the prohibition notice.
16In response to a notice under OHSA s 100, issued by the informant Thinh Tran on 8 May 2019, Frontier confirmed:
a) The Company was the entity responsible for the decommissioning works at the workplace on 15 April 2019.
b) Frontier was the entity responsible for the Caterpillar forklift.
c) Frontier occupied the workplace from 1 January 2018 to 15 April 2019, however no formal lease was in place.
d) Mr Dalta was not formally engaged to perform the work and there were no employment contracts, payslips or the like.
17In response to a further notice under OHSA s 100, issued by the informant on 10 May 2019, the Company confirmed:
a) The Caterpillar forklift was registered to Frontier.
b) Mr Dalta was paid cash by the Company for performing the works.
c) Mr Dalta built the stillage approximately 15-20 years prior, when he was employed by Frontier.
18Additionally, WorkSafe’s investigation revealed neither you nor Mr Dalta held a licence to operate a forklift.
19Mr Geoff Ooi, a WorkSafe engineer, prepared a report in relation to the incident. He identified a number of deficiencies in the work platform being used in conjunction with the forklift and in the manner the works were being carried out, which would have rendered the stillage unsafe. These deficiencies included:
a) Lack of a dual and independent locking device to secure the stillage to the forklift.
b) The fork tunnels were open which presented the possibility, if the work platform was disturbed or struck, it could slip from the fork arm it was raised on.
c) The floor of the work platform appeared to be a timber pallet which was not secured to the work platform itself. There was a risk this could slip or break during use.
20In his report, Mr Ooi concluded the stillage was unstable and unable to be secured to the forklift and, accordingly, there was high risk of a person falling from height and suffering serious injuries or death.
21According to Mr Ooi, there were several control measures that were reasonably practicable at the time of the incident, including the use of an elevated work platform, such as a scissor lift, two of which were present at the workplace. Your counsel told me the scissor lifts were not owned by Frontier, but by another company which used them for other purposes. Apparently, the owner of the scissor lifts said you could use one of them, but neither you nor Mr Dalta knew how to operate it.
22Your counsel told me that after the incident an external contractor was engaged to complete the works.
23Neither you nor the Company participated in a record of interview.
Victim Impact
24Two victim impact statements (‘VIS’) were tendered at the plea hearing, one prepared by Mr Dalta’s daughter, Stephanie Chrisanthakopoulos,[5] and the other by Mr Dalta’s son, Stephan Dalta.[6] While these offences are risk-based and not outcome-based, I must consider the impact of your and the Company’s offending on the victim.[7]
[5] Exhibit P2.
[6] Exhibit P3.
[7] DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676, 722 [198] (Maxwell P, Redlich and Whelan JJA) (‘Vibro-Pile’).
25Ms Chrisanthakopoulos’s VIS was read aloud by Alannah Andrews, WorkSafe family liaison support worker.[8] She describes feelings of deep grief and feels ‘cheated’ her father’s life ended unexpectedly in an incident that could have been avoided. She grieves not only for the loss of her father, her sole surviving parent, but also for the loss suffered by her children, whose grandfather died so suddenly. As she so eloquently put it, her world has ‘crumbled’ with the tragic loss of a man who had ‘a deep passion for music’, who was ‘a fabulous cook’ and an ‘extremely devout Catholic’. She said the ‘hardest thing of all was not having an opportunity to say goodbye’. She was present via WebEx at the sentencing hearing.
[8] Pursuant to SA s 8Q(1).
26Mr Dalta attended the plea hearing and the sentencing hearing via WebEx. His VIS was also read aloud by Ms Andrews. Mr Dalta was very close to her father and spoke to him daily by telephone, including the day before his death. He and his sister were brought up by their father after the death of their mother some 20 years ago. Mr Dalta described feelings of shock, ‘extreme sadness’ and feeling ‘crushed’ upon discovering his father had been killed.
27Both children said they will deeply miss spending time with their father chatting, laughing, cooking, playing music and spending time with his grandchildren.
Offence Seriousness
28The seriousness with which the legislature, on behalf of the Victorian community, views these offences is reflected in the maximum penalties.[9] Clearly, these are serious offences.
[9] See Vibro-Pile 730 [233].
29General deterrence is of particular importance in offences of this kind.[10] Securing health and safety and eliminating or reducing risks so far as is reasonably practicable must be a paramount concern of all entities which have the management and control of workplaces. This is particularly the case where the potential risks to health and safety include the risk of death or serious injury, as was the case here.
[10] Ibid.
30I do not accept your counsel’s submission that general deterrence should be moderated in your case on account of your age or for any other reason. You were a director of the Company and you should have been aware of your responsibilities under the OHSA. If you felt you could no longer perform your duties as a director, you should have handed over the reins to someone else.
31In my opinion, a strong message needs to be sent to company directors whose companies place employees and others in highly dangerous situations, such as was the case here, that they must do their utmost to ensure the safety of those persons. If they do not meet their obligations in this regard, then they should know that they will be met with strong punishment.
32The OHSA imposes a number of duties on people involved in work and workplaces. Those duties are to be interpreted in the light of the objects of the OHSA set out in s 2(1) of the Act and the ‘principles of health and safety protection’ set out in s 4 of the Act. Of particular relevance in the present case is the principle that ‘[p]ersons who control or manage matters that give rise or may give rise to risks to health and safety are responsible for eliminating or reducing those risks so far as reasonably practicable’.[11]
[11] OHSA s 4(2).
33In DPP v Frewstal Pty Ltd (‘Frewstal’) the Court of Appeal laid down a number of principles as a source of guidance for sentencing judges regarding the relevant sentencing principles to be applied in prosecutions brought under the OHSA.[12]
[12] (2015) 47 VR 660, 686–7 [127] (Priest and Kaye JJA).
34You and the Company are to be punished according to the gravity of the breach of duty owed under the Act. The gravity of the breach is measured by two factors — the seriousness of the breach itself (that is, the extent to which you and the Company have departed from your statutory duties); and the extent of the risk of death or serious injury which might result from the breach.
35The 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 here) 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). The fact that the present incident resulted in the death of Mr Dalta is relevant 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.
36In Frewstal, Maxwell P succinctly summarised the position when he said: ‘the touchstone for sentencing is the gravity of the breach of the OHSA, not the gravity of the consequence’.[13]
[13] Ibid 671 [48].
37You counsel submitted, at almost 80 years of age, and having not worked for many years, you did not appreciate the risk associated with lifting Mr Dalta in the stillage. He submitted while in hindsight the risk of using the forklift to lift the ‘mancage’ with Mr Dalta in it could have been avoided, you had no intent to put Mr Dalta’s personal safety at risk and there was ‘no deliberate action’ on your part. He submitted in these circumstances your actions did not constitute ‘a high level breach’. I reject this submission.
38Admittedly, the stillage design and fabrication had been undertaken by Mr Dalta many years before the incident, and at no stage did you consider there was a risk the stillage could become detached. However, foresight of the risk is not necessary for liability under the OHSA. It was your duty as a director to ensure the Company did not breach its duty to ensure the workplace was safe and without risk to health. The risk here was not only foreseeable but obvious, and the seriousness of the consequences very high. Moreover, you were actively present and involved in the operation at all relevant times and you participated in relevant decisions.
39Your counsel submitted the degree of departure is ‘at the lower end of the scale of offending’. He relied on the following facts and matters:
a) The offending conduct was not a deliberate act by you which was designed to avoid your responsibilities under the OHSA.
b) You were almost 80 years of age at the time of the accident.
c) The task being undertaken was a one-off task that was not part of the ordinary business of the Company.
d) You had not instructed Mr Dalta to use the stillage. Prior to the accident, you and Mr Dalta discussed how you could best undertake the oxy-cutting task and you both agreed using the stillage was appropriate.
e) You would have performed the works yourself, however Mr Dalta was younger and offered to do it because he was a former boilermaker with oxy-cutting experience.
40While I accept, as your counsel submitted, there is no allegation of recklessness or intentional behaviour on your part, I also accept the Director’s submissions that the gravity of the present breaches and the extent of the departure from your and the Company’s statutory duties was at a high level. The likelihood of the occurrence of the event causing death was self-evidently high and the potential consequences of the breach were grave. Moreover, there was a reasonably practical alternative which would have eliminated or significantly reduced the risk to safety and health, by using a scissor lift instead of the forklift and stillage. If the scissor lift at hand could not be used, one could readily have been hired and instruction in its safe operation received.
41In circumstances, as was the case here, where the risk of catastrophic injury or death is high, constant, and readily foreseeable, the term ‘so far as is reasonably practicable’ must involve the creation of strict, rigorous and comprehensive standards which are then rigorously maintained.
42In DPP v Amcor Packaging Pty Ltd[14] the Court of Appeal said:
When determining the appropriate penalty in a case of the breach of a statutory duty imposed for the purpose of protecting the lives and well being of those who may be affected by the breach, the foreseeable potential consequences must be taken into account as it is the avoidance of those consequences which, when considering the objective seriousness of the offence, constitutes the raison d’être for the establishment of the legislated regime in the first place. To a substantial extent the seriousness of a breach must be assessed by reference to those potential consequences and the measure of evidenced disregard concerning the safety of employees in the circumstances.[15]
[14] (2005) 11 VR 557.
[15] Ibid 565 [35] (Vincent, Eames and Nettle JJA).
43I have viewed a number of photographs of the forklift and the stillage after the incident.[16] This really was a potentially catastrophic incident waiting to happen. The ‘potential consequences and the measure of evidenced disregard concerning the safety’ of persons present, including Mr Dalta, make these serious examples of the offences.
[16] Exhibit P4.
44In assessing the objective gravity of the offence you committed under s 144(1) of the OHSA, I have been greatly assisted by the written submissions provided by your counsel, at my request, following the plea hearing[17] and by the prosecutor’s written submissions in reply.[18]
[17] ‘Further sentencing submissions on behalf of Emil Lagondar’, undated (Ex D6).
[18] ‘Further sentencing submissions on behalf of the Director of Public Prosecutions’, undated (Ex P7).
45For liability to arise under s 144(1), the Crown must prove the Company’s contravention of the Act was attributable to you ‘failing to take reasonable care’. This is not some form of vicarious or accessorial liability for the Company’s wrongdoing, rather, as the Maxwell Report makes clear, s 144(1) creates a positive duty in you as a director to secure the company’s compliance with its duties under the Act.[19] The OHSA requires personal negligence on your part be proved, or in this case, to be admitted by you.
[19] Victoria, Chris Maxwell, Occupational Health and safety Act Review, March 2004, 170 [755].
46In an analogous statutory context,[20] the New South Wales Court of Appeal affirmed the proposition that where a statutory formula includes ‘a standard of skill … the general law of torts may now be called in aid as a source of guiding principles for the context of the statutory standard of care of company directors and officers’. They agreed with Austin J at first instance that: ‘It is therefore of assistance to look to the general law of torts’.[21]
[20] Corporations Law (Cth) s 232(4).
[21] Vines v Australian Securities and Investments Commission (2007) 73 NSWLR 451, 460 [68], 463–4 [84]–[85] (Spigelman CJ, Ipp JA agreeing).
47Accordingly, an objective standard of reasonable care is to be applied in assessing your level of culpability under s 144(1) of the Act. I do not accept your counsel’s submission that subjective factors such as your age, knowledge, experience or resources, should be imported into this test, despite the prosecutor supporting the adoption of this approach. It is not the test of the ordinary 80-year-old male with no knowledge or experience of forklift operations or the risks associated with using an antiquated stillage for above ground operations.
48Moreover, there are some statutory indicia in s 144(3) that provide some guidance in assessing culpability, albeit they are more relevant to determining guilt. It must not be forgotten that you have pleaded guilty to the present offence based on the particulars contained in the indictment.
49In my opinion, the level of negligence you displayed in the present offending was very high. Moreover, you knew as much as anyone about ‘the matter concerned’ and you had an immediate and closely connected ‘ability to make … decisions that affect the body corporate in relation to the matter concerned’.
50Where, as here, the risk is self-evident, a failure to have any systems in place to prevent or mitigate the risk, especially for no, or little, expenditure, increases moral culpability.[22]
[22] DPP v Australian Box Recycling Pty Ltd [2016] VCC 1056 [22]–[24] (Judge Wischusen).
51The only other person who contributed to the Company’s contravention of the OHSA was the deceased himself. However, the seriousness of these offences is not lessened because Mr Dalta took a foolish risk for his own safety.[23] Companies and directors need to take measures to guard against human error in the workplace and [e]rror can range from inadvertence, inattention or haste through foolish disregard of personal safety’.[24] As Harper J observed in Holmes v R E Spence & Co Pty Ltd, ‘human frailty is an ever-present reality’.[25]
[23] R v Irvine (2009) 25 VR 75, 84 [48] (Neave JA, Nettle JA and Lasry AJA agreeing).
[24] R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321, 329 [35] (Maxwell P, Buchanan and Redlich JJA).
[25] (1992) 5 VIR 119, 123; referred to with approval in R v Australian Char Pty Ltd [1999] 3 VR 834, 847 [55] (Phillips CJ, Smith and Ashley JJ ) and DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557, 564–5 [34]–[35] (Vincent, Eames and Nettle JJA).
Personal Circumstances
52You are 82 years old and were aged 79 years at the time of committing the present offence. You are a retired toolmaker.
53You were born in Serbia and educated in Slovenia until Year 8. You are a qualified turner and fitter. You migrated to Australia in 1957 on the Flotta Lauro liner TN Roma.
54You married your wife Olga in 1960 and have a daughter Sonia and a son Gregory. You have six grandchildren. Your wife and son attended court to support you during the plea hearing.
55Your first job in Australia, after leaving the Bonegilla migrant camp, was grape picking in Mildura. Since then, you have worked as a fitter and turner and toolmaker for various companies. You retired in 1998 and since then have helped your son from time to time when needed. According to your counsel, following the incident you will never work again.
56You have had heart by-pass surgery and, five years ago, you were diagnosed with prostate cancer. You also have had a hip replacement operation.
57Your counsel told me you have the financial capacity to pay a very substantial fine.
58Character references written by Fred Poscic[26] and Ivan Korosa[27] were tendered at the plea. Mr Poscic has known you for 40 years. He says you are diligent, reliable and very hard working. You are very well respected by those who know you. He says you have been very stressed and anxious since the incident and this has adversely affected your health.
[26] Exhibit D4.
[27] Exhibit D5.
59Mr Korosa has known you for some 64 years. He says you are of very good character and a responsible person who cared a lot for everyone who worked at the factory where the incident occurred.
60The Company was established in 1970 and purchased the premises where the incident occurred in 1994. The property, which was sold shortly prior to the incident, was the Company’s only asset. The company retains $20,000, which remains in a bank account following the distribution of the proceeds of sale of the property amongst the beneficiaries of a family discretionary trust. The Company has never had any employees.
61Your son has operated Frontier from the premises where the incident occurred since 1995.
Mitigating Circumstances
62You and the company pleaded guilty at the earliest opportunity.[28] I accept these pleas have significant utilitarian benefit, particularly in the COVID-19 environment. The pleas also indicate your and the company’s acceptance of responsibility for the offending conduct and a willingness to facilitate the course of justice.
[28] The plea offer was made on 6 October 2020, before the first committal mention in the Magistrates’ Court, and was accepted on 8 January 2021.
63I also find you demonstrate personal contrition and remorse. Mr Dalta was your friend. I accept his death in these tragic circumstances weighs heavily upon you. You were visibly upset during your arraignment. Mr Poscic attests to you being ‘extremely upset and very sorry [this] has happened’. He says you have expressed sadness and sorrow for Mr Dalta’s family. Mr Korosa confirms you are very sorry for what has happened, and it has adversely affected your health.
64I accept you and the Company cooperated with the WorkSafe investigation.
65You and the company have no prior convictions. While good character is not given the weight it might be given in a different case, it is not irrelevant. Nonetheless, it is well recognised in cases of this kind your personal circumstances and subjective factors play a lesser role when sentencing you and the Company for these offences.[29]
[29] See DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557, 565 [35] (Vincent, Eames and Nettle JJA) quoting WorkCover Authority New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700, 712–4 [31] (Wright J (President), Walton J (Vice-President) and Hungerford J).
Application of Sentencing Principles
66I have had regard to current sentencing practices in relation to the charges before me as informed by the decisions of the High Court in R v Kilic[30] and DPP (Vic) v Dalgliesh (a Pseudonym).[31] I have had particular regard to the very helpful written analyses of comparable cases provided by the prosecutor[32] and your counsel.[33] I have also had regard to the decision of the Court of Appeal in Di Tonto & Anor v The Queen,[34] which was a case involving a director charged with an offence under s 144(1) of the OHSA, while his small family company was charged with an offence under s 23(1) of the Act.
[30] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[31] (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
[32] ‘Comparable Cases’, undated (Ex P6).
[33] ‘Comparable Cases of the Accuseds’, dated 8 June 2021 (Ex D2).
[34] [2018] VSCA 312 (Priest and Weinberg JJA).
67It is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute these offences and the myriad of personal circumstances pertaining to individual offenders.
68As in the present case, offences under the OHSA may be charged against both a company and an individual, even where the individual is the sole director of the company. In such a case, the liability and culpability of both are considered separately, especially where each is charged with different offences.[35]
[35] Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399, 416 [68]-[69] (Maxwell P, Bongiorno JA and Kyrou AJA) (‘Orbit Drilling’); DPP (Vic) v Fergusson [2017] VCC 1276, [15] (‘Fergusson’).
69As the Court of Appeal explained in Orbit Drilling Pty Ltd v The Queen,[36] there is ‘a fundamental distinction’, between your personal liability and the company’s corporate liability. Your offence and the company’s offence are quite distinct, albeit they are closely related. The company is to be punished for its failure to ensure, so far as was reasonably practicable, the workplace was safe and without risks to health. You, on the other hand, are to be punished for your own lack of reasonable of care in failing to ensure that the company provided a workplace that was safe and without risks to health.
[36] (2012) 35 VR 399.
70Moreover, this is not a case where a company director in some far away boardroom is being held vicariously or accessorily liable for the misdeeds of the company he directs. Rather, you were immediately present and intimately involved, both physically and mentally, in the company’s serious failure to ensure the workplace was safe and that safe procedures were performed in it.
71While your and the Company’s offences are separate and distinct, they are related, and the application of the totality principle dictates that the total fines I impose should properly reflect the overall criminality of you both.[37]
[37] See e.g., DPP v Hazelwood Pacific Pty Ltd & Ors [2020] VSC 279 [138]–[144] (Keogh J).
72The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.
73I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
74General deterrence is the paramount sentencing consideration in this case. I accept specific deterrence and protection of the community, while always relevant, need be given very little, if any, weight in this case. I assess your prospects of rehabilitation as excellent.
75Given you are a person of otherwise good character, I accept imposing a conviction on you at the age of 82 years is a matter which will have a significant impact on you. Nonetheless, your counsel accepted it was appropriate I convict you in all the circumstances.
Mr Lagondar
On the charge of failure of a person who has management or control to ensure the workplace is safe and without risks to health (Charge 1) E & O Lagondar Nominees Pty Ltd (ACN 005 157 782) is convicted and fined $250,000. The fine is referred to the Director, Fines Victoria for management and collection.
On the charge of being an officer of a body corporate who has management or control failed to take reasonable care that the workplace is safe and without risks to health (Charge 2) you, Mr Lagondar, are convicted and fined $125,000. The fine is referred to the Director, Fines Victoria for management and collection.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for the Company’s plea of guilty, I would have sentenced it to be convicted and fined $380,000.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to be convicted and fined $190,000.
To Mr Delta’s daughter and son, Stephanie and Stephan, I want to say on behalf of the Victorian community just how sad the loss of your father is in these circumstances, or any circumstances for that matter. The fines that I have imposed are those for which the law properly, in my view, lays down for me to impose and obviously they cannot do anything to ameliorate your loss, but I do hope that as a result of this proceeding and the sentencing hearing today there may be some closure for you both.
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