Director of Public Prosecutions v G.B Galvanizing Service Pty Ltd
[2025] VCC 328
•21 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01617
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| G.B. GALVANIZING SERVICE PTY LTD (ACN 005 720 356) |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 March 2025 | |
DATE OF SENTENCE: | 21 March 2025 | |
CASE MAY BE CITED AS: | DPP v G.B Galvanizing Service Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 328 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Failing to provide or maintain a system of work that was safe and without risks to health; Adverse Publicity Order (APO).
Legislation Cited: Occupational Health and Safety Act 2004 (Vic) ss 21(1), 21(2)(a), 135; Sentencing Act 1991 (Vic) s 6AAA.
Cases Cited:DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557; WorkCover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700; Dotmar Epp Pty Ltd v The Queen [2015] VSCA 241; The Queen v Commercial Industrial Construction Group, (2006) 14 VR 321; DPP v Precast Civil Industries Pty Ltd [2022] VCC 210; DPP v Rapid Perforating Pty Ltd [2023] VCC 1167; DPP v Australian Rong Hua Fu Pty Ltd [2022] VCC 2220; DPP v Ace Metal Treatment Services Pty Ltd [2021] VCC 1420; DPP v L Arthur Pty Ltd [2013] VCC 1051; DPP v Best Benchtops and Stone Pty Ltd [2022] VCC 2296, Saferoads Pty Ltd (Melbourne Magistrates’ Court, 24 May 2024); SafeWork NSW v Investa Asset Management Pty Ltd [2019] NSWDC 472; DPP v Yarra Valley Park Lane Holiday Park Pty Ltd [2024] VCC 1863; DPP v Cranbourne Turf Club Inc [2023] VCC 506.
Sentence: Fine in the sum of $340,000 imposed; Adverse Publicity Order made.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Matthews SC with Mr N. Mutton | Office of Public Prosecutions |
| For the Accused | Mr S. Stafford | Minter Ellison |
HER HONOUR:
1On 18 March 2022, Scott Beattie died at work. He was crushed when a crane load of fabricated steel fell on him.
2As a result of that incident, Mr Beattie’s employer’s safety procedures were investigated. That investigation revealed a breach of his employer’s obligations under the Occupational Health and Safety Act ('the Act').[1]
[1]2004 (Vic) (‘OHS Act’).
3GB Galvanizing Service Pty Ltd[2] ('the company') - has now pleaded guilty to one charge of failing to provide or maintain a system of work that was safe and without risks to health, contrary to ss 21(1) and 21(2)(a) of the Act.[3]
[2]ACN 005 720 356
[3]OHS Act (n 1).
4The maximum penalty for a breach of s 21(1) is 9,000 penalty units for a body corporate.[4] The maximum fine that can be imposed then taking the current penalty value into account is $1,635,660.
[4]Ibid.
5The gravamen of the company’s offending in this case resides in the creation of risk to the health and safety of a person who was beneath, or in the fall shadow of, a suspended load falling from a crane.
6It was reasonably practicable for the company to provide and, more pertinently, maintain, a system of work that would have eliminated or reduced this risk by requiring that the loads be placed on standing supports when employees were working on or near the loads, and by actively prohibiting the practice of employees working underneath suspended loads.
Facts
7The following facts are derived from the prosecution plea summary dated 25 February 2025.
8The company operates a galvanizing service for industry. Galvanizing is the process where a protective coating of zinc is applied to iron or steel to prevent rust.
9This process involves a number of steps. Steel ready for galvanizing is secured to a frame, called a jig, using wires or chains. The jig, with the steel attached, is lifted using an overhead crane and moved along a travelator to the 'pickling' area.
10The pickling process involves lowering the steel into a series of tanks: caustic, acid, and then a rinse water bath.
11The final step in the process is where the steel is dipped into the ‘flux tank’ where it is galvanized.
12However, between the rinse water step and the final flux tank, the steel has to be checked for impurities: paint, or stickers, or open holes that are not drained properly.
13The person, or 'checker' moves the jig and steel using an overhead gantry crane. This crane has two cables which descend and fix onto a 'spreader bar' which in turn is attached to the jig. This attachment is made by hooks on the jig inserted into 'eyelets' on the spreader bar.
That mechanism looks like this:[5]
With a load, the arrangement looks like this:[6]
[5]Photo 2 of Exhibit D.
[6]Photo 1 of Exhibit D.
14On 18 March 2022, Mr Beattie moved steel products from the rinse water tank to the checking area to prepare them for the flux tank.
15Between 10:18am and 10:55am Mr Beattie was underneath the suspended jig within the fall shadow of the steel suspended from it.
16Standing nearby, and clearly visible in the ultimate CCTV footage of these events, are two large jig stands:[7]
[7]Photo 3 of Exhibit D.
17At approximately 11:14am, Mr Beattie walked under one end of the jig. At that moment the jig detached from the spreader bar. The jig, and the steel suspended from it, fell. Everything landed on Mr Beattie who immediately collapsed.
18I pause here to note that the jig weighed 2.4 tonnes. The load of steel suspended from it weighed about five tonnes.
19Mr Beattie, sadly, did not survive.
20An investigation commenced. On 21 March 2022, an improvement notice was issued to the company, directing it to provide a safe system of work for inspecting metal components before galvanization. This was accompanied by an interim direction which prohibited employees from being underneath the suspended load or within the fall shadow of the suspended load unless the jig was supported by the available stands, or the whole structure was lowered onto the ground.
21Inspection of the crane did not identify any faults that might have contributed to the incident.
22On 3 August 2022 a WorkSafe inspector went to the workplace again. They saw that three jig stands were in use during the checking process. The crane operators were putting the jigs and the steel products attached to them onto the stands before any checking took place.
23The company also kept records of employees having revised their crane training. That training included instructions not to work under suspended loads. Safe places for employees to stand while working had been identified so that the employees were always outside any fall shadow. The company had provided a safe system of work and had complied with the improvement notice.
24WorkSafe investigators were, as I have said, in the course of their investigation unable to determine how it was that that the jig became detached from the spreader bar on the day of the incident.
25I have already noted the presence of the jig stands at the scene. If used properly these stands would have allowed employees to work without being under, or in the fall shadow of a suspended load.
26The company’s training materials did instruct employees not to stand or work beneath suspended loads, however, they did not expressly mandate the use of jig stands.
27Records of 'safety toolbox' meetings conducted on 18 November 2021, 3 March 2022 and 17 March 2022, the day before this incident, include a supervisor’s notes of their awareness that employees had been working underneath suspended loads and/or were not using jig stands. I return to those records later in these reasons.
28The use of jig stands was reasonably practicable. Their use in the process commenced after the incident.
29In the end, it was not necessary for anyone to be underneath or within the fall shadow of a suspended load during this process. It was therefore reasonably practicable to prohibit this.
30As part of the investigative process, WorkSafe obtained CCTV footage from the workplace showing work on the days between 15 and 18 March 2022. The footage depicts 69 separate occasions where loads were suspended from a crane and employees were, to various extents, under or within the full shadow of the suspended loads. These events are set out in Appendix A of the prosecution opening. They are advanced, in this case, not as giving rise to separate liability but as aggravating of the offence that arose on 18 March 2022.
31The company has no prior criminal record.
32The charges in this case were filed on 29 February 2024 and after the adjournment of one committal mention the matter resolved to this plea of guilty on 9 September 2024.
Victim impact
33In imposing sentence in this case, I will take into account the impact of this offending on the victims, including those who have suffered grief, distress, and trauma as a direct result of the offending.
34Mr Beattie had his life cut short. He had worked for the company for some 17 years. He was a much-loved father, friend, co-worker, uncle, partner, brother and son.
35At the hearing I read, and listened to, several victim impact statements. As the result of an issue that arose at the initial hearing, a further two statements were provided prior to sentence. Mr Beattie’s sister, Samantha Beattie, read her statement to the court. She described the circumstances of the dreadful phone call she got from her mother the day of the incident. She described her terrible suffering, which is compounded by the suffering of her mother.
36Candan Beattie also described her loss. She lost her dad who was also her best friend. Her grief has manifest in self-blame. In her nightmares, she is rushing to answer a phone but cannot pick it up in time. In others she is screaming at her father to stay home, but he cannot hear her.
37Ms (Audrey) Tourneur, Mr Beattie’s partner, writes about how her two youngest children lost their father in their teenage years, and of the awesome and lonely task of continuing to look after her family without her partner.
38I also received statements from Mr Beattie’s other children (Chloe Tourneur who was four when Mr Beattie took on the role of her father) and Jacob Beattie. Both wrote eloquently of the sadness of life without their father and how much they loved him and miss him, and of the extra responsibility that has fallen on their young shoulders.
39The impact of the offending on Mr Beattie and on his family is indescribably tragic, and I take it into account.
Nature and Gravity
40Turning now to my assessment of the nature and gravity of the offending.
41Any breach of the Occupational Health & Safety Act is a grave matter,[8] and this is indicated by the scope of the available maximum penalty.
[8]OHS Act (n 1).
42The primary factor in arriving at this sentence is my assessment of the objective seriousness of the breach. Subjective factors such as the plea and how the company conducted itself after the incident are still relevant but occupy what is being described as a subsidiary role.[9]
[9]DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557, [35]; WorkCover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700, 714.
43Two factors inform the assessment of the gravity of the offending in this case. First, the extent to which the company departed from its duties under the Act, and second, the extent of the risk to health and safety which might result from that departure.
44I pause here to observe that, importantly, the gravity of an offence under the Occupational Health and Safety Act requires me to assess the extent of the company’s failure to comply with their obligations under the Act,[10] rather than the consequences of that failure. That this particular failure resulted in Mr Beattie losing his life is a terribly tragic fact but one that must only inform my assessment of the existence and the nature and seriousness of the relevant risk.[11]
[10]OHS Act (n 1).
[11]Dotmar Epp Pty Ltd v The Queen [2015] VSCA 241 [22].
45I deal with my assessment of the extent of the company’s departure from its obligation first.
46The company submitted that the company’s awareness of the risk of falling loads, and the measures the company had adopted to address the risk, reduces the gravity of the degree of the departure from the obligations under the Act. It was submitted that the company’s attempts to maintain a safe system of work, as set out, for example, in the training manuals, were to be applied in reduction of the company’s culpability.
47The risk, frankly, is obvious even to a lay observer.
48Measures to reduce risk were certainly known, were understood and incorporated into the company’s training manuals: 'Never stand under a loaded crane'.[12] Supervisors at the company were aware of the risk.
[12]See Prosecution Submissions dated 14 March 2025 at 12(a).
49Supervisors were, however, also aware that the instructions not to stand under loads were not being followed. In the days before the accident, company toolbox and consultation meetings notes record the following:
(a) On 3 March 2022:
'Jigs not in jig stand. Could of being [sic] nasty incident.'
(b) On 17 March 2022, the day before the incident:
'People still going under jigs when the jig is moving. …Do not go under jigs.'
50Moreover, the risk which manifest on 18 March 2022 was also observable over four days, arising on 69 separate occasions. The risk manifest in the incident on 18 March 2022 was not a 'one off' risk.
51
Further, there were available simple, inexpensive and known measures to reduce or eliminate that risk. Jig stands were sitting impotently within meters of the incident scene. It is of course no answer to say that employees were not doing as they were directed; an employer’s duty extends to a hasty, inadvertent,
non-compliant, even foolish employee who disregards their own personal safety.[13]
[13]The Queen v Commercial Industrial Construction Group, (2006) 14 VR 321 at [49] (references omitted).
52Having regard to these matters, I conclude that the company’s departure from its obligations under the Act was a major one.
53I turn now to my assessment of the extent of the risk created.
54This assessment involves me considering, first, the likelihood of the occurrence of an event, such as the one in which Mr Beattie lost his life, and secondly, the potential gravity of the consequence of such an event.
55The investigation was unable to determine the cause of this particular incident.[14] The company’s working theory is that at the time of the incident it is likely that the jig was 'point loaded’, that is, the hook attaching the jig to the spreader bar was not fully engaged in the eyelet but rather the point of the hook rested on the edge of the eyelet.
[14]Company has commenced the development of a mechanical control which would only allow the crane to lift once a sensor detects full engagement of the hook with the eyelet on the spreader bar.
56Without certainty as to the cause of the load’s falling, there can be no conclusion as to how likely the risk’s manifestation was. My assessment on the evidence, therefore, must be that the likelihood of risk of the load falling was low.
57I now turn to the assessment of the potential gravity of the risk eventuating. That potential risk was catastrophic, illustrated by the events of 18 March 2022.
58Taking then the degree of departure (major), the likelihood of the risk eventuating (low) and the gravity of the potential risk (catastrophic), I am brought to the conclusion that the objective seriousness of the breach of the obligations under the Act was a grave one.
Character of the company
59Turning now to matters that were submitted on behalf of the company.
60The company was established by five brothers, migrants from Italy in the 1960s. During the 1960s and 70s the company’s largest client was the Victorian Housing Commission. By 1980 the galvanizing part of the business was established and in 2001 five sons of the original brothers bought the business. The four surviving sons, one having passed away at 33, now conduct the business.
61In 1980 the business had 10 to 12 employees. The current number is 203.
62Since 1980 and the current time the company has reviewed and improved its safety systems. This included achieving accreditation under the System of Australian Standards in 1990. During the pandemic the company made a presentation to the federal minister of the relevant department as to how the industry could safely conduct its processes under pandemic conditions. The company was able to continuously employ 210 people during the pandemic years without suffering an outbreak.
63The company employs an Occupational Health and Safety officer and has received awards for safety and innovation.
64The company is also a regular donor to charity in the community and sporting groups.
65Through its counsel the company expressed its public and formal regret, and I take the company’s character and lack of prior offending into account in arriving at this sentence.
66I also remind myself of the subsidiary status of these matters, as I have already noted.
Matters in mitigation
67The company has, through its plea, and in the way it has participated in WorkSafe processes, demonstrated its contrition. It has undertaken innovation in a search for a mechanical control for 'point loading'.
68Moreover, the company has initiated a monthly safety forum in conjunction with the Galvanizers Association of Australia. This is held with all members of the industry Australia wide and allows members to share and review OHS issues they may have encountered, leading, it is hoped, to general improvements throughout the industry.
69The company’s directors immediately participated in the investigation. They made statements.
70I accept that the company has done what it could, and all it could, to prevent another employee from having to absorb the consequences of its breach of obligations under the Act.
71The company’s plea was entered very early in the court process. This has delivered a very real benefit to the administration of justice. Family members with a strong emotional connection to the case have been spared the uncertainty of unduly enduring or contested proceedings.
72The role for specific deterrence in this sentence is reduced by reference to the company’s lack of prior convictions over a 45-year history in an industry attended by a complex risk profile, including traffic management, chemical and metal handling, and delivery to off-site workplaces, all of which are part of the company’s daily activities.
Acknowledgment for family
73Before I go further, I direct the following part of my sentence to Mr Beattie’s family and friends.
74The loss of Mr Beattie is an immeasurable one, for him and for you, his family. It is one that is quite incapable of being expressed in units of money, and the fine that I am about to impose on the company does not, and cannot, attempt to do so. The calculus is, under this legislation, directed at specific purposes of punishment, deterrence and denunciation.
Sentencing principles
75Turning now to the sentencing principles.
76The role this sentence has in raising other employers’ awareness of, and compliance with, their obligations is central. This sentence must send a message to employers: failure to eliminate or mitigate risks will be met with serious financial consequences.
77I have already factored in the fact that this risk was not isolated or ‘one off’, but was observed on four days, and I have incorporated this into my assessment of the gravity of the offending. Having regard to the way the company has conducted itself post incident, the age of the company and the lack of any prior breaches, I regard the need for specific deterrence in this sentence as minor.
78I must keep the fact that the breach in this case resulted in Mr Beattie’s death in perspective, counter-intuitively perhaps, it is only relevant in this sentence as evidence of the seriousness of consequences of the company’s breach.
Relevant comparable cases
79Turning now to relevant comparable cases that I have been taken to.
80Mr Stafford, who appeared for the company, took me to four broadly comparable cases, which I set out here in the written reasons.[15]
[15]DPP v Precast Civil Industries Pty Ltd [2022] VCC 210; DPP v Rapid Perforating Pty Ltd [2023] VCC 1167; DPP v Australian Rong Hua Fu Pty Ltd [2022] VCC 2220; DPP v Ace Metal Treatment Services Pty Ltd [2021] VCC 1420.
81Mr Matthews SC, who appeared with Mr Mutton for the Director, referred to the sentences in two cases in this court,[16] and to a summary of a third case heard in the Magistrates’ Court.
[16]DPP v L Arthur Pty Ltd [2013] VCC 1051; DPP v Best Benchtops and Stone Pty Ltd [2022] VCC 2296, Saferoads Pty Ltd (Melbourne Magistrates’ Court, 24 May 2024).
82Each party drew my attention to distinction between the proffered cases and the one before me.
83These cases are helpful in that they sketch part of the sentencing landscape in a selection of cases with some similar axes of comparison to this one. Mr Matthews’ submission also brought my attention to the recent report and recommendations of the Sentencing Advisory Council in its paper 'Sentencing Occupational Health and Safety Offences in Victoria'[17] published in February 2025, and particularly the report’s finding that current sentencing practices 'do not align with community expectations' and are inadequate to the task of punishment and meaningful deterrence.
[17]Sentencing Advisory Council, ‘Sentencing Occupational Health and Safety Offences in Victoria: Report and Recommendations’ (February 2025) xvii.
84While there may be force in those observations, it is not the role of this sentencing court to participate in some kind of incremental uplift without statutory or appellate authority to do so.
85I accept, however, that these matters do serve as a reminder that this sentence must also serve as punishment for the criminal wrongdoing of this company and serve to denounce this conduct publicly.
Financial circumstances
86In imposing a fine, I am obliged to consider the financial circumstances of the company. I have little information before me, other than that the company now employs something over 200 people. Mr Stafford did not submit that the company was facing some dire financial circumstance in which a heavy fine would be ruinous.
Disposition
87Turning now to my disposition in this case.
88The company, GB Galvanizing Services Pty Ltd, is convicted and fined in the sum of $340,000.
Section 6AAA
89Pursuant to s 6AAA of the Sentencing Act,[18] I declare that had the company not pleaded guilty but been found guilty after a trial, I would have imposed a fine of half a million dollars.
[18]Vic 1991.
Ancillary Order – Adverse Publicity Order
90Turning now to the application for an ancillary order.
91Section 135 of the Occupational Health and Safety Act creates a power for the court to make an adverse publicity order.[19]
[19]OHS Act (n 1).
92Relevantly, s 135(1)(a)(i) enables the court to order that the accused 'publicise the offence, its consequences, the penalty imposed and any other related matter'.[20]
[20]Ibid.
93The prosecution in making this application also drew my attention to part of the Maxwell report into the predecessor to this Act which read:
'…if penalties for health and safety offences are to achieve the desired degree of general deterrence, it is essential that they be publicised widely'.[21]
[21]Christoper Maxwell QC, ‘Occupational Health and Safety Act Review (2004)’ [1845].
94Counsel for the prosecution submitted that the court is granted a discretion to make such an order, to be exercised judicially, without needing to be satisfied of any particular matter.
95The application was resisted, at least initially as I understood it, by counsel for the company, who argued initially that the court would need to be satisfied that the order would be necessary, but I think retreated from that position. Moreover, the company submitted that there was just insufficient evidence about how far such publicity would reach and that there had already been publication of these events in the form of WorkSafe press releases and some publication in a local newspaper in Dandenong.
96Counsel for the company also drew my attention to the New South Wales cases decided on a like provision, where affidavit material was produced to the court with regards to the circumstances of any such order, and such evidence was lacking in this case.
'Industry Update' media kit
97After the plea hearing, I received an ‘Industry Update’ media kit. 'Industry Update' is a print and online publication which claims to have a 70,000 per issue readership, a circulation of 17,540 copies, 86 per cent, of its readership, it claims, are key decision-makers. A half page advertisement in that publication which is both in-print and online can be obtained at the cost of $3,980.
98I make the order for an Adverse Publicity publication in this case, having regard to the objects of the Act set out in s 2 and the principles set out in s 4 of the Act. The effectiveness of the whole scheme in reducing the risk, such as that which eventuated in this case, can only be advanced where each case contributes to industry knowledge about risk and about the consequences of a breach of those obligations. This court’s sentencing reasons will of course be publicly available, but they will do little if these events are unknown to industry.
99The costs of making such publication are modest and I will make the order for a publication in the terms agreed by the parties, to which I will return, for a half page advertisement to be taken out in ‘Industry Update’. I have taken into account Mr Stafford's submissions that a more narrowly directed industry focused publication is the more appropriate one in this case, however, I have concluded that the risk of falling loads from cranes is one that would occur in a range of industries, many of which are identified in the industry-wide media kit.
100Before I arrived at the quantum in the fine, I took into account the cost outlay of achieving the adverse publicity order and that this publication does give some expression in the overall scheme of things to general deterrence, specific deterrence, some measure of denunciation, and to a degree punishment, in the form of potential reputational damage to the company. These matters, as I have already said, cause me to make a very modest reduction in the overall fine in this case.
101Counsel, that completes the sentence. The terms of the adverse publicity order, are they a subject of agreement between the parties - - -
102MR MATTHEWS: Yes, Your Honour - - -
103HER HONOUR: I have a version that I will impose on you if there is no agreement.
104MR MATTHEWS: There is a version that we can email to you - - -
105HER HONOUR: Yes - - -
106MR MATTHEWS: That is an agreed version between the parties.
107HER HONOUR: Thank you for doing that. Have I missed any orders, Mr Matthews.
108MR MATTHEWS: No, Your Honour.
109HER HONOUR: I thank counsel for their assistance in this case and I thank the family for their attendance, both in person and online. We will rise.
- - -
DPP v G.B GALVANIZING SERVICE PTY LTD
Schedule 1 – Adverse Publicity Order
On 18 March 2022, Scott Beattie, an employee of G.B. Galvanizing Service Pty Ltd (ACN 005 720 356) (GB). was working at the Dandenong South factory of its galvanizing business. Mr Beattie was inspecting steel products secured to a jig suspended from a crane by a jig hook and spreader-bar ring connection. While undertaking this process, Mr Beattie was walking beneath the moving crane when the load and jig fell onto him. Mr Beattie died as a result of the incident.
WorkSafe investigated the incident and charged GB with failing to provide and maintain for a working environment for its employees that was safe and without risks to health so far as was reasonably practicable, contrary to ss 21(1) and 21(2)(a) of the Occupational Health & Safety Act 2004.
On 17 March 2025, GB pleaded guilty to the charge. In doing so, it acknowledged that there was a risk of serious injury or death if a person was beneath, or in the fall shadow of, a load that was suspended from the crane and the load, or part of the load, fell. It also accepted that it could reasonably have reduced or eliminated that risk by:
a.requiring that jigs be placed on jig stands when employees were ‘checking’ steel products; and
b.prohibiting workers from being beneath, or in the fall shadow of, a load that was suspended from the crane.
The failure to implement these measures caused Mr Beattie’s death.
WorkSafe found that the crane was operating properly and was unable to determine how the jig spontaneously detached from the spreader bar. Following the incident, GB undertook an investigation and study to find an engineering solution to what it believed was the cause of the detachment being that the hook had point-loaded on the ring rather than forming a secure connection. As a result, GB is developing and trialling new sensors that sound an alarm only when the jig hook and spreader bar ring are properly engaged, thus allowing a safer lift to occur.
On 21 March 2025, the County Court of Victoria fined GB $340,000, with conviction and ordered it to publicise the offence and penalty imposed in the form of this notice.
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