Director of Public Prosecutions v Energy Australia (Yallourn)
[2025] VCC 329
•27 March 2025
thr
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01331
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ENERGY AUSTRALIA YALLOURN PTY LTD (ACN 065 325 224) |
---
JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 March 2025 | |
DATE OF SENTENCE: | 27 March 2025 | |
CASE MAY BE CITED AS: | DPP v Energy Australia (Yallourn) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 329 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL
Catchwords: Sentence - Breach of ss 21(1) of the Occupational Health and Safety Act 2004 (Vic) – Fire – Objective gravity-low-medium – Risk of death or serious injury – systems of work and procedures inadequate - Likelihood of risk eventuating – Countenance of unsafe practice – Sentencing principles in OHS prosecutions – Current sentencing practices – s 6AAA declaration.
Legislation Cited: Occupational Health and Safety Act 2004 (Vic); Crimes Act 1958 (Vic); Occupational Health and Safety Act 1985 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:DPP v Hazelwood Pacific Pty Ltd & Ors [2020] VSC 279; DPP v Frewstal Pty Ltd (2015) 47 VR 660; DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 565; Dotmar EPP Pty Ltd v The Queen [2015] VSCA 241; DPP v Coates Hire Operations Pty Ltd (2012) 36 VR 361; DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69; Chugg v Pacific Dunlop Ltd (No. 2) [1999] 3 VR 934; DPP v Energy Australia Yallourn Pty Ltd [2023] VCC 185; DPP v Dalgleish (a pseudonym) [2017] HCA 41; R v Australian Char Pty Ltd[1999] 3 VR 834; R v Commercial Industrial Construction Group[2006] VSCA 181; DPP v JCS Fabrications Pty Ltd[2019] VSCA 50; Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55.
Reports Cited: Hazelwood Mine Fire Inquiry, Final Report Vols 1-4 (2015/16);
Sentencing Advisory Council, Sentencing Occupational Health and Safety Offences in Victoria, (February 2025).
Sentence: Fine $170,000 with Conviction – s 6AAA - Fine $250,000 with Conviction.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Matthews SC Mr Joseph | Office of Public Prosecutions |
| For the Accused | Mr Mandy SC Ms Richardson | Lander & Rogers |
HIS HONOUR:
Introduction
1The accused company, Energy Australia Yallourn Pty Ltd (‘EA’), pleads guilty to one charge of failing to provide and maintain a safe working environment for employees by failing to provide or maintain systems of work that were safe and without risks to health, contrary to ss 21(1) of the Occupational Health and Safety Act 2004 (Vic) (‘OHSA’).
2The offence carries a maximum penalty of a fine of 9,000 penalty units which, at the time of the offending, the value of a penalty unit was $181.74. The maximum fine which can therefore be imposed is $1,635,660.
3The company is to be sentenced on the basis of the Summary of Prosecution Opening dated 6 March 2025,[1] which is an agreed document. The following summary draws on that document.
[1] Exhibit P2.
Factual Circumstances
The Workplace
4EA has owned and operated the Yallourn Power Station in the Latrobe Valley since its privatisation in 1996.
5The Yallourn Power Station generates a significant portion of Victoria’s electricity, and operates 24 hours a day, 365 days a year. Over a 24 hour period, up to 350 people work at Yallourn on weekdays and up to 120 people work there on weekends and public holidays.
6Under an agreement between EA and Ventia Utility Services Pty Ltd (VUS), EA and VUS employees work to deliver certain services subject to the direction of EA and in accordance with EA’s safety management systems of work and procedures.
Safety Rules
7The following aspects of those systems of work and procedures are relevant:
(a) The EA ‘Safety Health & Environmental Management System Instruction SHEMS11 – Hot Works (March 2017) provides:
(i)The expression ‘Hot Works’ refers to any process that involves welding, arc or flame cutting, grinding, exposure to hot surfaces in flammable surroundings, or any other processes producing sparks or fire.
(ii)Before Hot Works are carried out, a Hot Work Permit must be issued by EA.
(iii)A ‘Fire Watch’ is a process of observing, either continuously or as often as the risk of fire requires, apparatus and surrounding areas during or subsequent to Hot Works.
(iv)When undertaking Hot Works, any person involved with Hot Works shall watch for any fire that may occur.
(v)If a person is assigned to a dedicated and continuous Fire Watch, that person shall not leave the work area unless they hand over the duty of fire watch to another person.
(vi)A person assigned to a periodic Fire Watch shall attend the Fire Watch in accordance with the requirements of the ‘Hot Works Fire Watch Authority Form’ (or Hot Works Permit).
(b) The ‘Hot Works – Power Station Safety Rules’ require a Fire Watch to be maintained, where necessary, as well as all personal involved in Hot Works to comply with SHEMS11.
(c) The systems of work and procedures, as at 11 November 2021, did not include a requirement that, where Hot Works were being performed, a thermal imaging camera was to be used to check for hot spots before leaving for a break or at the end of the day’s work.
The Hot Work
8On 3 June 2021, a work order was created for some maintenance works in the fuel distribution house. The described work was that ‘W45 transfer chutes from D11-14 are rusted away allowing large amount of coal spill, this is causing a health and safety matter and rusting plant prematurely’.
9The scheduled start date for the work was 1 November 2021. The work order contained planning details including the requirement for a hot work permit and job safety and environmental analysis (JSEA). Further, it provided that the work area was to be hosed down making sure that there were no hot spots.
10The instructions accompanying the work order included a direction that Hot Works were to be included on the Hot Work Permit with a Fire Watch in attendance at all times.
11The JSEA attached to the order included a direction that the area be hosed down prior to work commencing, during and at the end of the day.
12A further JSEA was created on 3 November 2021 which contained a direction for a Fire Watch, and to hose the area. There was no further direction.
13The work commenced on or around 1 November 2021. An ‘Authority to Work’ was issued on 10 November 2021, concerning work on a section of the W45 conveyor and the D12 conveyor. The Hot Work Permit accompanying that authority provided that a Fire Watch was required.
14The maintenance work included oxy cutting, welding and angle grinding.
The Fire
15On 11 November 2021, Richard Tatnell and a five-person crew were working on the conveyors. Mr Tatnell and another worker were assigned the trade assistant and Fire Watch duties. According to Mr Tatnell, the Fire Watch was a dedicated task, for which ‘you need to be there at the work area keeping an eye on things, but you can help out as well’.
16At 12:10pm, before leaving for their lunch break, the crew hosed down the work area. Mr Tatnell made sure that he could not smell anything burning and performed a visual inspection. He then left the area, along with the rest of the crew.
17Mr Tatnell states that no one was required to stay at the work area during the lunch break. This was how the Fire Watch was performed for the previous 11 days of work and despite the apparent requirement in the SHEMS11 that ‘persons assigned to a dedicated and continuous Fire Watch shall not leave the work area unless they hand over the duty of Fire Watch to another person’. According to Mr Tatnell, if anyone saw or smelled anything burning, the crew would not leave until it was safe to do so. Mr Tatnell assumed that someone else in the crew had inspected the area and ensured it was safe to leave.
18At 12:22 pm the fire alarm was set off at the Estate Services Watch Room. Estate Services has an agreement with EA to provide emergency services including fire protection and suppression. The alarm was for the fuel distribution house.
19Paul Gridley, the Estate Services Leader who oversees the agreement, was notified of the fire. Mr Gridley was told that Fire Rescue Victoria had been called.
20The fire suppression deluge systems were then activated. Mr Gridley said one deluge valve activated automatically due to the heat, and the rest were activated manually (which is standard practice when a fire breaks out).
21At 1.15 pm, the fire was still burning and firefighting efforts continued until a time between 1.52 pm and 2.52 pm (at which point, the fire had been contained and Fire Rescue Victoria left the workplace). The fire caused internal damage to the D11 conveyor, the surrounding chutes and the roof above it.
WorkSafe Investigation and Expert Evidence
22WorkSafe inspector Darren Watson attended the workplace in response to the fire on 15 and 23 November 2021.
23Mr Watson issued EA with an improvement notice which identified a risk associated with inadequate Fire Watch protocols in EA’s existing Hot Works procedures. The notice required EA to review, revise and implement updated procedures.
24Following the fire, EA amended its hot works procedure, including by inserting a requirement that, before any meal breaks, the Fire Watch will use a thermal imaging camera to assess the work area for hot spots. EA had previously used a thermal imaging camera (kept on site) to assess for hotspots where there had been fires on the premises. What had been a purely responsive use of the equipment was to become preventative as well.
The Risk and the Reasonably Practicable Measure
25There was a risk that either during breaks, or at the conclusion of the Hot Works for the day, an undetected fire could erupt, exposing people at the workplace to the risk of injury or death.
26Employees exposed to those potential consequences ‘included, but were not limited to, persons who were working at the workplace’.
27It was reasonably practicable for EA to have had a system of work in place on 11 November 2021 that provided:
(a) Before leaving the area for a break, in which Hot Works were being performed, and following the area being wetted down, the area should have been assessed using a thermal imaging camera; and
(b) At the end of each day on which hot works were performed, and following the area being wetted down, the area should have been assessed using a thermal imaging camera.
28It is the admitted failure of EA to have such a system of work that constitutes its contravention of the OHSA.
Objective Seriousness of the Contravention
29It is trite that the objective seriousness of a contravention of the OHSA is the primary factor in determining the appropriate sentence. Correspondingly, subjective mitigating factors such as a plea of guilty, previous good character, etc will play a subsidiary role.[2]
[2] DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 565, 12-3 [35] (‘Amcor’).
30Colin Mandy, Senior Counsel for EA, who appeared with Ms Richardson, submitted that the failure to make use of a thermal imaging camera to assist with the prevention of fires at the plant ‘was not a significant departure from the discharge of EA’s statutory duty’.[3] This is because EA ‘had taken significant steps to reduce the subject risk to its employees in relation to Hot Works at Yallourn Power Station’.[4] The submissions go on to list the ‘significant steps’, before conceding that ‘the use of a thermal imaging camera was an additional measure that increased the effectiveness of the system’.[5]
[3] Lander & Rogers, ‘Outline of Submissions on Plea’, Submissions in DPP v Energy Australia Yallourn, CR-24-01331, 11 March 2025, 3 [12] (‘Defence Submissions’).
[4] Ibid 3-4 [13].
[5] Ibid 4 [15].
31I don’t accept this submission. Before explaining why, it is necessary to outline the applicable legal principles which are not in dispute.
32In DPP v Frewstal Pty Ltd,[6] the Court of Appeal outlined the principles by which a sentencing court should be guided when assessing the objective seriousness of offending against the OHSA.
[6] (2015) 47 VR 660.
33Priest and Kaye JJA explained that first, unlike cases of unlawful homicide, the occurrence of death or serious injury is not an element of the offences charged. An offender is punished according to the gravity of the breach of duty owed under the Act, not according to the result or consequences of the breach. This is an important but not necessarily well understood feature of this area of the law.
34OHSA offences are to be contrasted with offences under the Crimes Act 1958 (Vic) which are aimed at punishing conduct that results in death or serious injury.[7]
[7] Such as dangerous driving causing death (Crimes Act 1958 (Vic) s 319(1)) and dangerous driving causing serious injury (Crimes Act 1958 (Vic) s 319(1A)).
35Secondly, the gravity of the breach is measured by two factors:
(1) The seriousness of the breach itself; that is, the extent to which the offender has departed from its statutory duty; and
(2) The extent of the risk of death or serious injury which might result from the breach.
36Thirdly, an assessment of the extent of the risk itself involves consideration of two factors:
(1) 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
(2) The potential gravity of the consequence of such an event, particularly whether there is a risk of death or serious injury.
37In assessing the extent of an employer’s failure to meet its statutory duty a sentencing court will consider the ‘measure of evidenced disregard concerning … safety’.[8]
[8] Amcor (n 2), 12-3 [35]; Dotmar EPP Pty Ltd v The Queen [2015] VSCA 241, 6-7 [22]-[23]; DPP v Coates Hire Operations Pty Ltd (2012) 36 VR 361, 22 [68].
38This in turn requires some understanding of both the content of that duty and the particular setting in which it is to be applied in a given case.
39I will commence with the content of the duty. An employer must take every step that is reasonably practicable to protect its employees from risks to their health and safety. If it is reasonably practicable to eliminate a risk to health and safety, the employer is required to eliminate it.[9] If a risk cannot be eliminated, it must be reduced to the greatest extent that is reasonably practicable.
[9] Occupational Health and Safety Act 2004 (Vic) s 20(1)(a) (‘OHSA’).
40As the Court of Appeal has observed,[10] the nature of the employers’ statutory duty is informed by both the objects of the Act as set out in s 2 and the ‘principles of health and safety protection’ in section 4.
[10]DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69, 19-20 [64]-[66] (‘Heavy Mechanics’).
41Section 4 of the OHSA provides:
(1) The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.
(2) Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.
(3) Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.
(4) Employers and employees should exchange information and ideas about risks to health and safety and measures that can be taken to eliminate or reduce those risks.
(5) Employees are entitled, and should be encouraged, to be represented in relation to health and safety issues.
42The ‘proactive’ nature of the duty under section 21(1) is emphasised by a number of the subsidiary duties imposed on an employer by section 22. These include a duty, so far as reasonably practicable, to:
(a)Monitor conditions at any workplace under the employer’s management and control;[11] and
(b)Employ or engage persons who are suitably qualified in relation to occupational health and safety to provide advice to the employer concerning the health and safety of employees of the employer.[12]
[11] OHSA (n 9) s 22(1)(a).
[12] Ibid s 22(2)(b).
43As Mr Mathews SC, who appeared with Mr Joseph for the prosecution, submitted, it will generally also be helpful in assessing the extent of the departure from the duty in a given case to consider the factors identified in s 20(2) of OHSA.
44I accept that the more ‘reasonably practicable’ an identified risk control measure was, all else being equal, the more egregious will be the failure to have implemented it.
45Section 20(2) provides that regard must be had to the following matters:
(a)The likelihood of the hazard or risk concerned eventuating;
(b)The degree of harm that would result if the hazard or risk eventuated;
(c)What the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d)The availability and suitability of ways to eliminate or reduce the hazard or risk; and
(e)The cost of eliminating or reducing the hazard or risk.
46Section 20(2)(c) and (d) are of particular importance in this case because thermal imaging cameras were already being used at the workplace by one of EA’s contractors for a similar purpose. In other words, EA knew about the risk control measure that it failed to implement. This knowledge is relevant to an assessment of its culpability.
47As Ormiston J observed in the case of Chugg v Pacific Dunlop Ltd (No. 2),[13] in relation to the predecessor provisions to these paragraphs in the OHSA 1985 (Vic),[14] in assessing the subjective knowledge of an employer, regard is to be had ‘not merely [to] the knowledge of its executives or officers, but also of any employee, agent or third party contractor’.[15]
[13] [1999] 3 VR 934 (‘Chugg’).
[14] The appeal concerned the meaning of ‘practicable’ in the Occupational Health and Safety Act 1985 (Vic).
[15] Chugg (n 13) 964-5 [134], emphasis added.
48The identification of what is or was reasonably practicable in a given case ‘will be informed by the nature of the undertaking and the type of risks that might result in a failure to discharge the duty’.[16]
[16] Heavy Mechanics (n 10) 20 [69].
49In this case, the duty arose in the context of the need to avoid fires at a coal fuelled thermal power plant operated by EA. Mr Mandy SC acknowledged during the plea that fires ‘are a regular occurrence’ at the plant. According to the written submissions filed on EA’s behalf, ‘fires occur frequently because of the nature of the workplace’.[17]
[17] Defence Submissions (n 3) 3 [10].
50The potentially catastrophic risks to employee and public health and safety of fires at plants such as that operated by EA are unfortunately very well understood in the Latrobe Valley.[18]
[18] See DPP v Hazelwood Pacific Pty Ltd & Ors [2020] VSC 279; Hazelwood Mine Fire Inquiry, Final Report Vols 1-4 (2015/16).
51It will be recalled that after the fire on 11 November 2021, EA amended its applicable safety procedure by inserting a requirement for the Fire Watch to use a thermal imaging camera as part of the pre-break assessment of the work area for hot spots. The evident purpose of this requirement is to supplement, or perhaps replace, the previous system which apparently consisted of the Fire Watch performing a visual and olfactory inspection.
52It goes without saying that identifying a hotspot before workers leave the area of ‘hot work’ for lunch, and especially at the end of a working day, is of the utmost importance in preventing uncontrolled fires. This is especially the case where the system of work apparently allowed the person assigned to the ‘dedicated and continuous Fire Watch’ to leave the area in which Hot Works were taking place without the Fire Watch task being assigned to another person. Further, the nature of EA’s undertaking was such that the prevention of fires must have been a matter of the highest priority.
53Also relevant to the assessment of objective seriousness is that the special camera to perform the task, according to the agreed facts, was ‘apparently kept on site’.[19] During the course of the plea, Mr Mandy confirmed that EA had such a camera on site as at 11 November 2021 and that it cost $12,000. This is a miniscule cost having regard to the size of EA and the nature and degree of the risk.[20] The risk control measure was therefore ‘available’ within the meaning of s 20(2)(d) of OHSA.
[19] Exhibit P2 (n 1) 5 [19].
[20] OHSA (n 9) s 20(2)(e).
54Further, it is an agreed fact that a contractor of EA was using that very thermal imaging camera as part of its fire safety work at this workplace albeit that the camera was used after fires had broken out to ensure that there were no hotspots.
55The present use of the camera demonstrates that it is a ‘suitable’ risk control measure with the meaning of s 20(2)(d). The plea of guilty is an acceptance that it was suitable as at 11 November 2021.
56In these circumstances and contrary to the defence submissions,[21] this was not a low level breach. Although it is correct to state, as counsel for EA did, that there were a number of steps in place to address the risk of fires and to minimise their impact if they broke out, some of the processes in place at EA to address the risk of fires, such as sniffing the air to detect burning, can hardly be said to be particularly sophisticated. Further, the assessment of objective gravity is not a numerical exercise where the number of risk controls in place is tallied up and then compared to the number that should have been in place.
[21] Defence Submissions (n 3) 10 [40] – ‘the objective seriousness of its offending is at the lowest end for offence [sic] of this kind’.
57In any event, as the discussion of EA’s statutory duty above demonstrates, it was required to take every reasonably practicable step to reduce the risk. The use of a thermal imaging camera was, on the evidence before the court, clearly such a step. This was more than a minor failure by EA to meet its duty.
58It was common ground that the foreseeable potential consequences of EA’s conduct included injury or death. As noted earlier, employees exposed to those potential consequences ‘included, but were not limited to, persons who were working at the workplace’. It is common ground that a large number of EA’s workers were potentially exposed to the risk of fire.
59I accept that the absence of any such consequences as a result of this fire was largely due to both EA’s onsite sprinkler systems and the prompt attendance of the fire brigade. Whether the same relatively benign outcome would have occurred had the fire broken out at the end of a work day rather than at the lunchbreak is unclear.
60Taking into account all of the above and applying the Frewstal factors, I conclude this was a breach of s 21 that was objectively low to mid-range. Before determining the appropriate sentence, it is necessary to consider matters subjective to EA.
Matters in Mitigation
61Although there was a contested committal hearing, the prosecution accepted that this was an early guilty plea. That was because the case was re-formulated after the committal hearing and, once that occurred, EA indicated its preparedness to plead guilty to the reformulated charge.
62A plea of guilty in a case such as this has significant utilitarian value. Trials in OHS cases are often lengthy and use up significant court resources. The time of witnesses is spared.
63I accept that EA, through its senior officers, has accepted its responsibility for the offending.
64EA comes before the court as a company with no prior convictions despite its lengthy operation of this large plant.
65However, there is a significant subsequent matter albeit one that relates to an offence committed earlier than the offending before the court.
66In February 2023, EA pleaded guilty to three charges under the OHSA and was fined a total of $1.5 m.[22] The charges arose from an incident on 12 November 2018 in which an employee of EA was fatally electrocuted as a result of EA failing to comply with various aspects of its duty under s 21 of the OHSA.
[22] DPP v Energy Australia Yallourn Pty Ltd [2023] VCC 185.
67I will return to the significance of this later in these reasons.
68I accept that EA responded appropriately to the fire in November 2021 and amended its safety procedures promptly. Of course this demonstrates the ease with which those amendments could have been made prior to November 2021.
69I also give credit to EA for the generous contributions it makes to the local community in the form of its program of community grants and financial sponsorships.
70However, as has been made clear by the Court of Appeal in this area of the law these subjective considerations are to be given less weight than is often the case in sentencing. That is because of the importance of general deterrence as a sentencing consideration.
71Finally, there is the question of delay. More than three years have passed since the incident which was immediately brought to the attention of WorkSafe. It was two years before charges were filed.
72The only explanation provided to the court for this lengthy delay was the impact of the COVID-19 pandemic and the impact it had on work practices.
73I have taken into account the delay in the finalisation of this matter as a mitigatory matter. Officers of EA, as well as its employees, have had the matter hanging over them. EA has not offended since the date of the fire and this is relevant to its prospects of rehabilitation which I assess as very good.
Current Sentencing Practices
74A sentencing court must have regard to ‘current sentencing practices’.[23] This is to promote consistency in sentencing. However, what is required is not numerical consistency but the consistent application of sentencing principle.[24]
[23] Sentencing Act 1991 (Vic) s 5(2)(b).
[24] Wong v R (2001) 207 CLR 584; DPP v Dalgleish (a pseudonym) [2017] HCA 41.
75The prosecution referred to two cases which it submitted ‘offer a limited view of current sentencing practices where there is a … deficiency in the pre-incident system of work … giving rise to a risk of fire or exposure to harm by inhalation’.[25]
[25] Director of Public Prosecutions, ‘Prosecution Submissions on Sentence’, Submissions in DPP v Energy Australia Yallourn, CR-24-01331, 25 March 2025, 8 [36] (‘Prosecution Submissions’).
76The cases referred to are DPP v Celsius Fire Services Pty Ltd[26] and DPP v Secon Freight Logistics Pty Ltd.[27] In the first case, this court imposed a fine of $35,000 without conviction; in the second a fine of $27,500 without conviction was imposed by the Magistrates’ Court.
[26] [2023] VCC 2385.
[27] Magistrates’ Court of Victoria, 6 July 2023.
77In my view these cases provide the court with minimal assistance in determining current sentencing practices. Based on the summaries of the two cases provided to the court,[28] it appears that in each case there was a failure to provide sufficient risk-related information. The first case concerned a nursing home. In the second case the risk arose at a freight storage facility. They are not ‘relevant comparators’ as that term is used in sentencing law.[29] As discussed earlier, the present case concerned a failure by the operator of a very large coal powered energy facility to use a readily available and relatively cheap item to manage the risk of fire.
[28] Prosecution Submissions (n 25) 9 [39]-[44] and 10-1 [46]-[55].
[29] Frewstal (n 6).
78The prosecution also referred the court to a report recently published by the Sentencing Advisory Council (SAC).[30] In the report, the SAC concluded that ‘sentencing practices for OHS offences, in particular, breach of duty offences involving companies (especially larger companies), are inadequate, in that current sentencing practices fail to consider the potential to achieve more positive OHS outcomes with non-fine sentencing orders, fail to appropriately punish offending in a proportionate manner, and are not capable of achieving meaningful deterrence’.[31]
[30] Sentencing Advisory Council, Sentencing Occupational Health and Safety Offences in Victoria, (February 2025).
[31] Ibid 51 [3.43].
79The SAC recommended that the maximum penalties for offences such as the one presently before the court be significantly increased.[32]
[32] Ibid 91, Recommendation 7.
80The prosecution submitted that, given the SAC report, ‘… the Court need not, and should not, sentence in accordance with past [sentencing] practices to the extent they don’t reflect the objectives of just punishment and specific and general deterrence’.[33]
[33] Director of Public Prosecutions, ‘Prosecution Supplementary Submission on the Relevance of the Sentencing Advisory Council Report to this Case’, Submissions in DPP v Energy Australia Yallourn, CR-24-01331, 11 March 2025, 3 [2][g]. Mr Mathews added the italicised words (during argument).
81I am not assisted by this submission. While the SAC report contains much interesting information, the conclusions in it are very general and, as Mr Mandy submitted, are essentially advice for government.
Consideration
82It has been stated by the Court of Appeal on more than one occasion that employers are required by the Act to take an active, imaginative and flexible approach to the safety of those who may be affected by their undertakings.[34] An employer must actively identify risks to health and safety and take all steps that are reasonably practicable to obviate those risks.[35] Employers are not allowed under the law to take a passive approach to safety only improving safety procedures after an incident.
[34] R v Australian Char Pty Ltd[1999] 3 VR 834 at 847; DPP v Amcor Packaging Australia Pty Ltd[2005] VSCA 219; (2005) 11 VR 557 at 565; R v Commercial Industrial Construction Group[2006] VSCA 181; (2006) 14 VR 321 at 332; DPP v JCS Fabrications Pty Ltd[2019] VSCA 50 at [51].
[35] Kirk v Industrial Relations Commission (NSW) [2010] HCA 1 at [11].
83The Court of Appeal has stated that fines in OHS cases must ‘draw attention to the importance of workplace safety, and send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment’.[36]
[36] Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55, [233].
84As the same court remarked two decades ago:
Section 21 of the Occupational Health and Safety Act is directed to ensuring that employees are not subject to unnecessary risks to health in their working environment. Responsibility to take reasonable measures to prevent such exposure has been placed squarely on their employers. It must not be forgotten in this context that the risk to the employer is essentially economic whilst those to which the worker is exposed directly concern their physical or mental well being…[37]
[37] Amcor (n 2) at 564 [34].
85Too many employers continue to fail to heed this message and are not taking their safety responsibilities seriously enough. Workers continue to be needlessly placed at risk.
86The principal sentencing considerations in this case are general deterrence and denunciation. The need for specific deterrence is moderated by EA’s lack of prior convictions although the subsequent matter means the need to deter it has some role to play in the sentencing synthesis.
87Ultimately, taking into account the maximum penalty, my assessment of the objective gravity of the offence, and all other relevant considerations including matters of mitigation, I consider that a fine of $170,000 is appropriate.
A Non-Conviction Fine?
88The court has a discretion whether to impose a fine with or without a conviction being recorded.
89Mr Mandy submitted that any fine in this case should be imposed without conviction because the breach is a low level example of the offence. No submission was made about the effect of a conviction presumably because EA was convicted by this court in 2023.
90The discretion is controlled by s 8 of the Sentencing Act 1991(Vic) which provides:
In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including—
(a) the nature of the offence; and
(b) the character and past history of the offender; and
(c) the impact of the recording of a conviction on the offender's economic or social well‑being or on his or her employment prospects.
91Having regard to the considerations in s 8 of the Sentencing Act 1991 (Vic) and the court’s assessment of the objective gravity of the offending, I consider that a conviction should be imposed.
92Pursuant to section 6AAA of the Sentencing Act, I indicate that but for the plea of guilty, the fine would have been $250,000 with conviction.
0
14
0