Director of Public Prosecutions v Frewstal Proprietary Limited

[2015] VCC 731

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-00447

DIRECTOR OF PUBLIC PROSECUTIONS

v

FREWSTAL PROPRIETARY LIMITED

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2015
DATE OF SENTENCE:	1 June 2015
CASE MAY BE CITED AS:	DPP v Frewstal Proprietary Limited
MEDIUM NEUTRAL CITATION:	[2015] VCC 731

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Workplace death - Three breaches of the Occupational Health & Safety Act 2004 (”the Act”)  relating to a livestock unloading ramp at abattoir – Poor design and failure to design to suit purpose of requisite task – Failure to conduct major inspections and maintain against corrosion – Failure to instruct delivery drivers – No prior breaches of the Act alleged against Defendant company – Application of relevant standards relating to Cranes, Hoists and Winches Safe Use General Requirements

Legislation Cited:     Occupational Health & Safety Act 2004

Sentence:Fine of $250,000 with a stay of 30 days – s.6AAA Sentencing Act 1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. I. Hill QC (Plea) Ms N. McGregor (Sentence)	Solicitor for Public Prosecutions
For the Accused	Mr J. Hannebery (Plea) Ms J. Potts (Sentence)	Morey & Agnew

HER HONOUR:

1Through its managing director, Robert Frew of Frewstal Proprietary Limited (Vic), (hereafter referred to as “Frewstal), has pleaded guilty to three charges contrary to s.23(1) of the Occupational Health and Safety Act 2004, hereafter referred to as “The Act”, whereby Frewstal, being an employer, failed so far as was reasonably practicable to ensure that persons other than employees were not exposed to risks to their health and safety arising from the conduct of its undertaking.

2The maximum penalty for each offence is 9000 penalty units, equating to a maximum penalty of $1,299,240 for each offence.

3Frewstal, as part of the Frew Group, operated as its principal place of business at an abattoir at 46 Abattoir Road, Stawell, Victoria.

4Trucks delivering livestock to the Stawell abattoir unloaded livestock via two separate unloading ramps known as "Ramp No.1” and “Ramp No.2".

5The three charges on the indictment arose out of a single incident on 14 September 2013, when one of the unloading ramps, Ramp No.1 suddenly collapsed causing ultimately fatal head injuries to Mr Chad Lynch, a driver and the proprietor of Lynch Livestock Carriers, who was unloading livestock at that time.  Both Mr Lynch and some livestock were on the ramp at the time of its collapse.

6I was told that Ramp No.1 consisted of a number of components which were referred to in the prosecution opening and some of these were seen in photographs tendered on the plea hearing.  The components were:

(a) A large metal frame, the mainframe, approximately six metres in height that acts as a guide for the ramp;

(b) A long metal ramp, or gangway, approximately nine metres long that led from the unloading trailer end down to a concrete pad discharging into the holding pens;

(c) At the unloading end of the ramp was a smaller A-frame which connected the ramp to a chain lifting hoist, which enabled the ramp height to be adjusted;

(d) On either side of the A-frame was a non-automated ratchet system, where a safety bar sits underneath the ramp, which served as a “secondary safety system” and also takes some of the load off the electric chain hoist mechanism.  That piece of equipment was referred to as the "ratchet system";

(e) The chain hoist is connected by a hook to a “hoist lug”.  It was variously described as a “metal fabricated bar, eyebolt and metal lug”, which is welded to the mainframe,

(f) The hoist lug; and

(f) A pendulum controller was used to operate the hoist, connected to the ramp via a long head, which allowed the operator to stand on the ramp as it was raised and lowered.

7I was told by Mr Hill of Queens Counsel that a hoist lug was a component that fits within the regulatory framework of a “hoist” as defined in the relevant standards.  It is part of the hoist structure.  A hoist is also included in the definition of “crane” in the relevant standards.  A number of standards which were said to be relevant to the breaches alleged against Frewstal were also set out in the opening.

8In order to lower the ramp, the operator was required to manually disengage the safety bar from the ratchet system.  When the ramp was lowered or raised, the operator had to manually re-engage the safety bar into the ratchet system.  There was a sign with operator instructions relating to the use of the ratchet system.

9WorkSafe Inspector, Leslie Ferguson and WorkSafe Investigator, Ivor McGibbon, attended at the abattoir on the day of the incident.  Mr Ferguson was handed a piece of metal by Darryl Holloway, who was the Human Resources Manager for Frewstal, and advised that it was the anchor point on the supporting structure that had broken. Mr McGibbon noted that both ends of the piece of metal appeared rusted. 

10On 20 September 2013, Mr Greg Nichols, an employee of Frewstal, provided Mr McGibbon with two additional pieces of metal, being the remaining parts of the hoist lug that were cut from the A-frame of Ramp No.1.

11Frewstal’s internal investigation revealed that the “lug that holds the winch let go from its position”.  WorkSafe engaged Wayne Baker, mechanical engineer, to provide an expert opinion in relation to the failure of the hoist lug.  Mr Baker examined the pieces of the hoist lug and reached the following conclusions:

(a) “The high stress concentration due to the beam shape led to the fatigue damage to the lug, which precipitated its catastrophic failure during a routine loading event”;

(b) “The hoist lug failed catastrophically, that is suddenly, as a result of having been significantly weakened by fatigue crack growth and a previous partial failure”;

(c) “The two sides of the lug failed almost simultaneously”; and

(d) “The ratchet based secondary system was not taking the load at this time”.

12Ramp No.1 collapsed because the hoist lug failed. 

13Although the breaches of the Act arose out of a single event and collectively contributed to the fatal accident on 14 September 2013, each breaching offence differs from the other breaching offences in their particularity.

14In relation to the basis for Charge 1, this relates to the poor design and failure to design to suit the purpose of the requisite task.

15The particular breaching offence related to a failure by Frewstal to identify a hazard present in the workplace, in that the hoist lug had been designed in a manner that concentrated stress at the points where the 20 millimetre round bar was bent, rather than acting as a tensile component that transferred the load to the mainframe, that is, the parent structure, which created a risk of serious injury or death if the hoist lug failed whilst the operator was on the ramp.

16Frewstal also failed to ensure that Ramp No.1 was safe and without risks to health, by failing to comply with the structural integrity requirements contained in the relevant standard for the maximum rated capacity so that the hoist lug was able to take the weight of the ramp, the operator and any livestock being unloaded, estimated as up to 2,000 kilograms for its design life.

17Ramp No.1 was built in about 1991.  It was designed and built by Frewstal employees and was specifically hand-built for this abattoir, including the lug and the hoist mechanism that raised and lowered the ramp. See Transcript at page 13 and 35 respectively.

18In December 2009, Frewstal decided to replace the ramp and the safety mechanism due to wear.  The new parts were fitted in April/May 2010.  The maintenance work included moving the hoist lug a distance of 300 millimetres. No professional oversight or expert opinion as to the suitability of the design of the hoist lug for its designed purpose was sought when the hoist lug was moved in 2010.  When improvement works were performed, the original hoist lug was not replaced by a new hoist lug but was simply moved along some 300 millimetres.

19The design of the hoist lug meant that it was not able to perform the requisite task for the design life of the component.  Mr Baker stated that “The hoist lug predominantly failed due to poor design”.  He said that, “Instead of acting as a tensile component in transferring load to the parent structure, the hoist lug was bent in a way that created stress concentration at the two points where it failed."  He also said, “The high stress concentration due to the beam shape led to the fatigue damage to the lug, which precipitated its catastrophic failure during a routine loading event”.  And further that, "The shape of the hoist lug made it more susceptible to stress-corrosion cracking and the use of a round bar led to problems with "corrosion and weldability."

20The prosecution alleged that Frewstal should have had regard to the relevant standards, said to be  AS1418.1-2002 Cranes, Hoists and Winches – General Requirements. S4.5 of the standard deals with “principal loads”, which includes the mass of the hoist and highly repetitive loads.

21The hoist lug failed to comply with the structural integrity requirements contained within the standard because the maximum rated capacity- that is, the strength of the hoist lug, was well short of that required to lift the ramp, even in an unladen state for its design life.

22The maximum rated capacity of the hoist lug was 72 kilograms, excluding the hoist mechanism and lifted plant.  The recommended maximum weight of the load was 1,500 kilograms.  The maximum rated capacity according to Frewstal was 2 tonne, that is 2,000 kilograms.

23

As an employer, Frewstal failed as part of the conduct of its undertaking- that is, its business or enterprise, to ensure that Ramp No.1 was safe and without risks to health to persons other than its employees by failing to comply with the structural integrity requirements contained in s.4.5 of the standard:

Section 23(1) of the Act.

24In all the circumstances, it was reasonably practicable to control or eliminate the risk by complying with the structural integrity requirements so that the hoist lug was able to take the weight of the ramp, the operator and any livestock being unloaded for its design life. 

25The basis for Charge 2 relates to the failure to conduct major inspections and maintain against corrosion.  The second breaching offence relates to a failure by Frewstal to identify a hazard present at the workplace, in that the hoist lug had been weakened by fatigue crack growth and a previous partial failure which created a risk of serious injury or death if the hoist lug failed whilst the operator was on the ramp.

26Frewstal also failed to ensure that Ramp No.1 was safe and without risks to health by failing to:

(a) Conduct periodic third party and major inspections of the hoist lug, including failing to conduct non-destructive testing of nominated critical areas of the hoist lug on at least an annual basis as set out in ss.7.3.4 and 7.3.5 of the relevant Australian Standard 3990-1993, which was set out in the prosecution opening; and

(b) To adequately detect corrosion, remove corrosion and protect against corrosion of the hoist lug during its design life, in accordance with s.3.3.7 of the relevant Australian Standard 2550.1-2011, again set out in the prosecution opening.

27The ramps and more recently the hoists were inspected on a daily basis by Frewstal.  There were also two-monthly inspections carried out by Frewstal.  However, there were no major inspections or third-party inspections conducted on the hoist system or the hoist lug by competent persons.

28In March 2009, WorkSafe Inspector Alison Dennis conducted an inspection at the workplace.  The unloading ramps were not specifically inspected.  An Improvement Notice was issued in relation to the failure of the employer to provide evidence of a system of work concerning inspection and testing of lifting equipment.  This was subsequently complied with upon a further site inspection on 24 June 2009.

29Ms Dennis provided Frewstal with a WorkSafe handbook entitled "Working safely with bridge and gantry cranes".  “Crane” is defined in the relevant provision of the relevant Standard, section 1.2 of AS2550.1-2011 to include “hoist”.  The document included information as to when major inspections and third-party inspections were to be conducted.  It also indicated that the inspections had to be carried out by competent persons.  I was told at the plea hearing, a competent person would be a qualified engineer.  

30Despite this, Frewstal had not had a major inspection or third-party inspection carried out by a competent person for Ramp No.1. 

31There have been a number of opportunities to involve competent persons in an inspection of Ramp No.1:

(1) In December 2009 when it was decided to replace the ramp and the safety mechanism due to wear. 

(2) In April/May 2010 when the new parts were fitted and the hoist lug relocated. 

(3) In December 2012 when the chain hoist on Ramp No.1 was replaced. 

32Third party and major inspections are set out in the relevant standard, AS2550.1-2011, in relation to Cranes, Hoists and Winches – Safe Use – General Requirements.  The important annual inspections were never carried out by a competent person, namely:

(1) Periodic third-party inspections; and

(2) Major Inspections, conducting non-destructive testing of nominated critical areas.

33If these inspections had have been conducted, that is, there was oversight of the component by a suitably qualified and experienced engineer,  it was said by the prosecution that the following would have been discovered prior to failure:

(a) The fatigue cracks;

(b) The design flaw relating to the stress concentration and maximum rated capacity; and

(c) The need to address the corrosion on the lug.

34In addition, WorkSafe also issued the following alerts:

(a) "Crane inspection records", dated August 2010.  It reminded crane owners that they “are required by law to undertake a preventative maintenance program, which included regular major inspections of their crane (refer to AS2550) to prevent breakdowns and failures before they occurred”; and

(b) "Personnel and material hoists", dated July 2011.  It stated that “there had been a number of recent near-miss incidents where components have failed or fallen from hoists.  Each incident had the potential to cause death or serious injury”.

35Further Frewstal’s maintenance program of the hoist lug failed to adequately protect against corrosion.  There is no evidence of inspecting the hoist lug specifically for corrosion, removing corrosion and painting the component to protect against further corrosion.

36The prosecution said that Frewstal failed to have regard to the relevant standard AS3990-1993, in respect of Cranes, Hoists and Winches – Safe Use – General Requirements, which require the steelwork to be given “adequate protection against corrosion”.  Whilst the areas of stress were difficult to treat against corrosion by regular cleaning and painting, regular maintenance should include “the detection of corrosion, removal of corrosion and protection against further corrosion”.

37As an employer, Frewstal failed as part of the conduct its undertaking to ensure that Ramp No.1 was safe and without risk to health, to persons other than its employees by failing to:

(a) Conduct periodic third party and major inspections of the hoist lug, including failing to conduct non-destructive testing of nominated critical areas of the hoist lug on at least an annual basis as set out in relevant standard, sections 7.3.4 and 7.3.5 of the standard; and

(b) To detect corrosion, remove corrosion and protect against corrosion of the hoist lug during its design life in accordance with s.3.3.7 of the relevant standard, s.23(1) of the Act.

38In all the circumstances, it was reasonably practicable to control or eliminate the risk by:

(a) Conducting periodic third-party and major inspections of the hoist lug, including conducting non-destructive testing of the nominated critical areas of the hoist lug on at least an annual basis; and

(b) Adequately detecting corrosion, removing corrosion and protecting against corrosion of the hoist lug during its design life.

39The basis for Charge 3 was in relation to failure to instruct delivery drivers. The third breaching offence concerned Frewstal's failure to instruct delivery drivers, including Mr Lynch, on the safe use of Ramp No.1, by engaging the secondary ratchet system before stepping onto the ramp and unloading livestock, as well as ensuring that delivery drivers, including Mr Lynch, were adequately instructed on the safe use of Ramp No.1, by engaging the secondary ratchet system before stepping onto the ramp and unloading livestock.

40There were no systems in place to train, direct or induct drivers to the use of the ramp and hoist.  It was assumed that the drivers knew what to do because the ramps operated at other sites.  Specifically:

(1) O’Sullivan Transport, who sub-contracted to Lynch Livestock Carriers did not receive any documentation from Frewstal in relation to procedures for attending at the abattoir or operating any plant on site.

(2) Also Mr Chad Lynch of Lynch Livestock Carriers had told Scott Rayer, employee driver of Lynch Livestock Carriers what to do when he attended the abattoir.  Mr Lynch told Scott Rayer to use Ramp No.1 because it was more suited to their trailer set up.  Mr Rayer otherwise was not given any direction, induction or information from Frewstal as to how to unload stock at the abattoir.  By comparison, Mr Rayer had been inducted as to the use of unloading ramps at one other abattoir, that is JBS Swift.

(3) Glen Brown, the driver who unloaded livestock at Frewstal’s Stawell abattoir had been told what to do and where to go at the abattoir from other drivers.  However, he had never received any training, induction or direction on how to unload livestock at the abattoir using the unloading ramps.

(4) Peter Warnaar, another driver who unloaded livestock at Frewstal’s Stawell abattoir had never received any training, induction or direction as to how to unload livestock at the abattoir using the unloading ramps.

41In March 2009, WorkSafe’s Ms Dennis provided Frewstal with a WorkSafe handbook entitled "Working safely with bridge and gantry cranes". That document recommended information, instruction and training as to the use of cranes.

42As an employer, Frewstal failed as part of the conduct of its undertaking to ensure that persons other than its employees, namely delivery drivers, including Mr Lynch, were adequately instructed on the safe use of Ramp No.1 by engaging the secondary ratchet system before stepping onto the ramp and unloading livestock.

43In all the circumstances it was reasonably practicable to control or eliminate the risk by instructing delivery drivers, including Mr Lynch, on the safe use of Ramp No.1 by engaging the secondary ratchet system before stepping onto the ramp and unloading livestock.

44That completes the factual basis for each of the charges as opened by the prosecution. 

45In sentencing the defendant I have taken into account the impact of this dreadful accident upon the victim’s widow and his mother.  I have also taken into account the impact as described by them on other members of Mr Lynch's family.  Needless to say, the impact has been devastating and the victim impact statements make for heart-wrenching reading.

46Mrs Hinch’s victim impact statement was read aloud by Mr Hill at the plea hearing.  Mrs Hinch said that the loss of her son had been the hardest thing to cope with, that she never believed that such a thing could happen to her.  She described her son as a loving son, husband and father of three beautiful children. She lamented the fact that Mr Lynch would never see his children grow up and spoke of how terribly she missed him and how much she missed his presence at the various special occasions they had shared in the past.  She said that seeing her son lying unconscious and knowing that he was going to die was more than she could bear.  She has taken up smoking again and lost ten kilograms in weight.  She is also taking anti-depressants.  She spoke of the devastation suffered by Dean, Chad Lynch’s brother, as they were so close.  She said that her husband has been very supportive and that they often talk about their son, Chad.  She said, "They say life must go on and I know this, but until you experience this loss and are placed in this situation, you really don’t know how extremely hard it is to lose your child."  Mrs Hinch, if I might say to you, the grief that you have suffered and continue to suffer is unimaginable.  No one would say anything other than this.  It is a parent’s worst nightmare to lose a child.

47Mrs Hinch said that she wanted to know why and how her son was taken from them.  Mrs Hinch, I hope that you have some answers now in respect of what happened and why, insofar as any answer can be given.

48Greta Boyd, the deceased’s widow, says that she and Mr Lynch had been together since 1999 and spoke of not only her grief but that of their children’s, who are now aged 13, 11 and nine.  She said that it is a constant struggle for her to work out how she will "fill this huge gaping hole left by Chad’s absence that is now in our children’s life."  Ms Boyd spoke of the terribly traumatic period that she and the family endured whilst Mr Lynch was in hospital and the painful decision to turn off his life support.  She spoke of the heartbreak she experienced at the sight of her husband after he had died, seeing him in such an emaciated state.  She said that there were days when she is an emotional wreck and she experiences dreadful flashbacks and memories associated with her husband’s death.  She finds it very difficult to visit anyone in a hospital or to go near one and has difficulty sleeping. She said that her days pass in a blur and she finds it hard to concentrate.  She often lacks motivation and feels exhausted.  She is very worried about the children as they are going through their own grief.  She said that she has lost the contact and support of her own large family, as her own father had been killed in a workplace accident and her family had found her husband’s demise as too painful a reminder of what they had already been through.  

49Ms Boyd also spoke of her daily fear that the accident might happen again and spoke of other ramp collapses she has encountered since her husband’s death. She still tries to run her business and says that she is most concerned about the lack of proper standards and procedures in place at various abattoirs in respect of the cattle ramps.  She spoke of her efforts to bring her concerns to the attention of the authorities.  

50Ms Boyd said that she is trying to move forward and to be happy with her life, as she knows her husband would have wanted this.  However, she is constantly battling in this regard.  She said that she has recently embarked on a new relationship and is expecting a child.  However, she says that she feels riddled with guilt and has been subjected to disapproval from others.  She also struggles to cope with this.  She said that she still misses her husband very much and that they would still be happily married if the accident had not occurred.  She said that she would not want another family to go through what she and the children had been through.  

51Might I say to Ms Boyd, that like Mrs Hinch, that the suffering that she has suffered and her children have suffered is unimaginable.  I would hope that her quest to rebuild a life for herself and the children is supported by those around her, rather than criticised, as it is and has been hard enough without people trying to bring her down.

52I now turn to matters concerning the defendant company.  Firstly, in assessing the objective gravity of the offending, I factor in that the risk posed by the crack in the hoist lug was grave, as was conceded by Mr Hannebery on behalf of the defendant.  The most obvious indicator of this is what happened on the occasion of the accident which killed Mr Lynch.  

53The breaches collectively increased a risk to safety and the cracked hoist lug was not identified before the incident.  In order to avoid such a risk or to minimise it, the defendant ought to have had the ramps designed and inspected regularly by engineers.  The construction of the ramps ought to have been overseen by engineers.  This was not done.

54Whilst it may be true that the equipment had worked well for a substantial period and that on the day in question perhaps the safety ratchet system would have prevented this tragedy, although this is not certain, it seems that this was an accident waiting to happen.  This is especially the case in view of the fact that the defendant’s business had skyrocketed since the particular abattoir was taken over, meaning that the hoist lug on this particular ramp would have been used more than ever.

55Mr Hannebery submitted that there was a most unfortunate coincidence of circumstances which led to the realisation of the grave risk, being matters such as the presence of Mr Lynch on the ramp when the ramp collapsed and the fact that the safety ratchet system had not been employed on that occasion.

56I factor these matters in, but I also factor in, as Mr Hannebery conceded, that it was commonplace for a person to be present on the ramp when livestock was being transferred and I would have thought that the increased mass of the livestock on the ramp placed a greater strain on the hoist lug in any event.

57In respect of the implementation of the safety ratchet system, I note that Charge 3 relates to the defendant’s failure to instruct delivery drivers as to the use of this.  It is unclear from the prosecution opening as to whether Mr Lynch knew that this system ought to have been engaged, although I understand that he was familiar with the use of this ramp and he gave some instruction to others in relation to it.  However on any view, Charge 3 is more broadly cast than this.

58I accept that the defendant did not wantonly disregard the need for safety and that they did have certain measures in place.  I also accept that inspection of the hoist lug may not have necessarily revealed any crack or fatigue.  However, it was not a demanding requirement in the least to have an engineer conduct inspections and to maintain the hoist lug against corrosion.  One would have thought that someone who was qualified in that field may well have picked up on the hoist lug design, the fact that it had been shifted and its general condition.

59I take into account that the defendant abided by the requirements of the Worksafe inspector when an improvement notice was issued in 2009.  However the defendant had been placed on notice that inspections were to be carried out by third-party and competent persons.  This was not done.  On the other hand, it was apparent that the Worksafe Inspector did not specifically inspect the ramps themselves and was apparently satisfied that the defendant had complied with the improvement notice.

60I also factor in that the ramps are an unusual species of equipment for which there is no specific set or list of standards, but rather a hotchpotch of standards which must be drawn from information and requirements of other more commonplace pieces of equipment.  

61I take into account that the ramps are not something that are manufactured in factories as such, rather these are apparently constructed by those who run abattoirs.  However all of these matters heighten the need for expert design, construction and periodic inspection.  I hope that these pieces of equipment in all abattoirs in this State, indeed in this country, are now subject to these requirements.  It is also to be hoped that specific standards in the one document can be compiled to better facilitate appropriate design and construction, as well as monitoring of livestock ramps.

62In the defendant’s favour, it has operated for many years without any prosecution for workplace safety breaches.  This is so, despite some aspects of the nature of the work involved at abattoirs being inherently dangerous.

63I have also factored in that the defendant was fully co-operative with investigators and pleaded guilty at the committal mention stage, which was an early stage to do so.  In pleading guilty at such an early stage, the defendant has saved the witnesses the time and trouble of giving evidence and has saved the community the time and expense of contested proceedings.  This entitles the defendant to a significant discount in the penalty it might otherwise receive and is indicative of corporate remorse and a willingness to take responsibility.

64Since the accident, the defendant has taken significant remedial steps and has done all it can do to ensure this tragedy never happens again.  There has been no subsequent offending.  All of these matters indicate that I need place negligible weight on specific deterrence. I must place appropriate weight on the need for a just punishment- that is, a punishment which is just in all of the circumstances.  However, I must place significant weight on general deterrence in a bid to deter others from offending in the way that the defendant company has; but I do not place such weight on this sentencing principle on the basis that offending of this specific nature is prevalent.

65I have taken into account the background matters in respect of the defendant company relating to its inception and growth, including the fact that this is a family company. It remains in family hands and has gone from strength to strength, providing major stores and associated companies with meat supplies.  Deliveries to its abattoir in Stawell occur constantly around the clock.  This puts its overall safety record in a particularly good light.

66In sentencing the defendant I have also taken into account that it has contributed significantly to the community, being the largest employer in the Stawell region and has expanded its operation and capacity substantially since 1981.  It has a list of meritorious credentials in respect of its work practices, which were set out in Mr Hannebery’s submissions and I have taken these into account.

67It is accepted by the defendant that a conviction and fine is appropriate in all of the circumstances, but it was submitted that in light of matters in mitigation, a fine at the lower end of those imposed for breaches involving a fatality ought be imposed.  

68Although Mr Hill disagreed with the level of moral culpability which Mr Hannebery submitted ought attach to the defendant’s offending, he did not disagree that the defendant had a number of mitigating factors in its favour which ought be taken into account, and of course, this is correct.

69I have considered a table which was provided to me in respect of matters where fines had been imposed for breaches of the relevant legislative provisions where there has been a fatality.  I must also consider the maximum penalty for such offending which reflects the seriousness with which Parliament regards it and I must also factor in the weight I have given to all sentencing matters.

70In the end I have arrived at a penalty which I consider does justice to all relevant sentencing considerations.  I want to ensure that the victim's family understands that the penalty in no way reflects the value of Mr Lynch’s life.  Of course it does not and it never could, and of course no penalty can ever bring him back.

71

As I hope the victim's family members appreciate, there are many things that must be taken into account when sentencing a defendant.  As to whether those family members who are financially dependent upon

Mr Lynch seek compensation for his death from the defendant is not a matter for me, but I trust that they have sought advice in that regard.  

72Having applied appropriate weight in my view to all relevant sentencing principles, I have arrived at a fine which I regard is appropriate in all of the circumstances. 

73Would you please stand up, Mr Frew.

74In respect of each of the offences, the defendant company is convicted.

75The defendant company is fined an aggregate of $250,000.

76If not for the pleas of guilty, I would have convicted and fined the company an aggregate of $450,000.

77Would you provide your counsel with instructions as to how long you would like, in order - or you apply for, in order to pay that fine? 

78OFFENDER:  Thirty days.

79HER HONOUR:  Thirty days, all right. 

80I grant a stay of 30 days for the payment of that fine. 

81Take a seat Mr Frew. 

82Is there anything further?

83COUNSEL:  No, Your Honour. 

84HER HONOUR:  All right, thank you.  We will now adjourn.

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