Director of Public Prosecutions v Gate Automation Systems Pty Ltd
[2024] VCC 2085
•19 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-02173
Indictment No. P10832966
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GATE AUTOMATION SYSTEMS PTY LTD (ACN 084 528 049) |
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JUDGE: | His Honour Judge Trapnell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 June 2024 | |
DATE OF SENTENCE: | 19 December 2024 | |
CASE MAY BE CITED AS: | DPP v Gate Automation Systems Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2085 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing
Catchwords: Failure to ensure, as an employer, that persons other than employees are not exposed to risks to their health or safety arising from the conduct of its undertaking – Death caused by removal of motor from automatic gate and failure to apply ‘lock out and tag out’ system and restraining chain – Risk of serious injury or death high and readily foreseeable – Mid-range example of offending – General deterrence, denunciation and just punishment given substantial weight – Early plea of guilty – Remorse – Cooperation with WorkSafe investigation – Significant effort put into remedial procedures
Legislation Cited: Occupational Health and Safety Act2004 (Vic) ss 2(1), 4, 23
Cases Cited:Dotmar Epp Pty Ltd v The Queen [2015] VSCA 24 – DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557 – DPP v Frewstal Pty Ltd (2015) 47 VR 660 – DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
Sentence: Gate Automation Systems Pty Ltd convicted and fined $350,000
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Gullaci SC | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms P Smith Mr C Spain | Wotton Kearney |
HIS HONOUR:
1Gate Automation Systems Pty Ltd (ACN 084 528 049) (‘the Company’), by its authorised representative, Mr David Stott, has pleaded guilty to an indictment alleging one charge of failure to ensure, as an employer, that persons other than employees are not exposed to risks to their health or safety arising from the conduct of its undertaking, contrary to s 23 of the Occupational Health and Safety Act 2004 (OHSA).[1]
[1] Contrary to s 23 of the Occupational Health and Safety Act2004.
2The maximum penalty for this offence is 9000 penalty units where the accused is a corporation. This equates to a maximum penalty of $1,635,660 at the relevant time.[2]
[2] At the time of the commission of the offence in April 2023 a penalty unit was fixed at $181.74 (see Victoria Government Gazette, No S 233, 20 May 2021).
The facts
3The prosecution filed a summary of prosecution opening dated 12 June 2024,[3] which the Company’s counsel told me I can treat as a statement of agreed facts.
[3] Exhibit (‘Ex’) P.
4The Company was the trustee of the D & S Stott Family Trust (ABN 91 386 500 784). During the relevant period the Company was an employer and employed staff, including Allen Rofet who was employed as a service technician.
5The Company conducted an undertaking that included repairing automatic gates at other business premises, including the premises of Membrey’s Transport (‘Membrey’s) at 80 South Gippsland Highway, Dandenong.
6On 21 April 2022, Mr Rofet conducted repairs to a double automated front gate system at Membrey’s. There had been issues with the operation of the gate system for a lengthy period of time and the Company was engaged to undertake repairs and maintenance. The Company’s employees had attended the site to repair the gates on many occasions, with Mr Rofet repairing the gates on 11 occasions prior to the present incident.
7Mr Rofet diagnosed issues with the drive motor on the northern side gate and removed the motor to take it away for repairs that could not be done on site. He was instructed by the manufacturer of the motor, Came Australia Pty Ltd, to do this and return it to them for inspection and repair.
8The removal of the motor permitted the gate, if operated manually, to run on its rail past a stop point. There are two sets of opposing steel upright posts that house rollers which guide the gate on its rail and maintain it in its upright operational position. When the drive motor is removed from the gate, the gate is allowed to run on its rollers past what would be the stop/close limit and fall out of the two sets of opposing steel upright posts.
9Before Mr Rofet left the site, he specifically advised Membrey’s general manager how to make the gate safe. He advised it had to be ‘locked closed’. He recommended only the other gate be used to enter and exit the site. Mr Rofet further advised the general manager to chain the gate to the posts and bars, and pointed them out, so it could not move past the support posts and fall. Unfortunately, this did not occur.
10Mr Rofet had locked and secured gates for clients on previous occasions. It was common practice to lock a gate closed so as to render it safe. Despite this, on this occasion Mr Rofet made a fatal mistake.
11In the early hours of 23 April 2022, Stuart Baker along with other Membrey’s workers arrived at the depot to collect their trucks and equipment and leave for work. The southern gate was opened approximately 1.5 metres and the northern gate opened all the way to approximately 12 metres allowing trucks and equipment to pass through.
12Mr Baker was last to leave the depot, parking the prime mover he was driving just outside the gates of the driveway. He made his way to the northern side gate and began to manually drag it toward the closed position. CCTV camera footage shows the gate falling from its two sets of opposing steel upright posts as it passed where the stop/close limit would normally be. The gate can be seen to fall and crush Mr Baker, tragically, causing his death.
Expert evidence
13Examination of the southern and northern gates revealed there were no stops secured to the gates that would prevent a gate from passing the two sets of opposing steel upright posts allowing it to fall, in the absence of the drive motor. When a drive motor is fitted there are strike plates on each gate that trigger a switch on the drive motor when the gates come to the closed position. This automatically locks each gate in place.
14The risk of the gate falling from its rails when being manually operated could have been controlled by securing a lock and chain, known as a ‘lock out tag out’ system, to the posts and bars of the gate to make it safe until the drive motor was repaired and reinstalled.
15John Hambridge, an independent consulting engineer supplied a report addressing the practicability of ways in which the risk of the gate falling could be reduced or eliminated.
16Mr Hambridge also provided an addendum report directed specifically to the issue of whether it was reasonably practicable for a gate repairer to make a gate unsafe during repair work and leave the gate in an unsafe condition and provide only verbal advice to the owner. Mr Hambridge confirmed that it was reasonably practicable for the Company to have controlled the risk it created by utilising a ‘lock out and tag out’ system and restraining chain on the gate before Mr Rofet left the scene, and that such a practice would be expected to have been the ‘standard response’ by industry participants.
Victim impact statements
17Victim impact statements (‘VIS’) prepared by Lisa Baker, Mr Baker’s widow, and Emma Baker, his daughter, were tendered and read aloud by the prosecutor at the plea hearing.
18In DPP v Vibro-Pile (Aust) Pty Ltd,[4] the Victorian Court of Appeal held a sentencing court is obliged to consider the impact of the offending on secondary victims where death has occurred as a direct result of the accused’s contravention of the OHSA, as is the case here.[5]
[4] (2019) 49 VR 676 (‘Vibro-Pile’).
[5] Vibro-Pile 681 [224] (Maxwell P, Redlich and Whelan JJA).
19In her VIS, Lisa Baker writes that in the early morning of 23 April 2022, her life changed forever when she received a phone call from her son telling her that Mr Baker had been hurt at work and to get there as fast as she could.
20Mrs Baker describes the excruciating 10 minute drive, which felt like hours. When she arrived she saw her husband lying on the ground and CPR being performed on him. She writes that after 45 minutes of paramedics trying to bring Mr Baker back, she was told they could do no more for him. She describes that moment as when her life as she knew it was over.
21Mrs Baker writes that everything has changed since her husband’s death. She has trouble finding joy in life. She does not like going to social events. She has nightmares and trouble sleeping. She suffers from depression, for which she is prescribed antidepressants. She describes trying to be strong for her children and grandson while they mourn the loss of their dad and poppy. It has broken her heart.
22Mr Baker was the main bread winner, so financially it has been stressful and has had a significant impact on the way she lives. Some days she is filled with so much anger and sadness. She misses him every second of the day and she misses the future they should have had together.
23In her VIS, Emma Baker writes that prior to the 23 April 2022, she was a happy 23 year old paediatric nurse who had a genuine enjoyment of life. She says she enjoyed going to work and making a difference in children’s lives.
24Being woken up by her mother around 5:30am that morning with the terrible news, the drive to Membrey’s and the awful scene she witnessed on her arrival have had a serious and lasting impact on her mental wellbeing. She describes the pain she felt upon being told her father had died as ‘unfathomable’.
25She has suffered constant feelings of anxiety and dread; often worrying about her family and how they are coping with losing Mr Baker. Every day she worries about her mother.
26Ms Baker has recurring dreams of the confronting scene she witnessed. Her sleep has been seriously affected. Most nights she only sleeps three to four hours and she avoids going to bed as she is terrified of having nightmares.
27Ms Baker has completely lost her enjoyment of life. She has become socially isolated and lost her passion for nursing. Her relationship with her partner of 10 years has suffered. Some days she cannot get out of bed. Her physical health has declined and she has been diagnosed with severe depression and anxiety and the number of sick days she has taken has significantly increased. She describes Mr Bakers death as having affected every aspect of her life, and of turning her into a person she no longer recognises, nor likes.
28There has also been a significant adverse financial impact on her through loss of wages and increased medical expenses.
29She misses her father more than she ever could have imagined and his loss has ‘broken her heart’.
30To Mr Baker’s family, I want to say on behalf of the Victorian community how tragic the loss of your husband and father is in these circumstances. Your victim impact statements speak eloquently of the trauma and profound grief you continue to struggle with. The sentence I impose on the Company is that which the law, in my assessment, lays down for me to impose. I want to make clear, it is in no way a measure of the worth of Mr Baker’s life.
Offence seriousness
31The seriousness with which the legislature, on behalf of the Victorian community, views this offence is reflected in the maximum penalty of 9000 penalty units equivalent to a maximum fine exceeding $1.635 million.
32General deterrence is of considerable significance in offences of this kind.[6] Securing health and safety and eliminating or reducing risks, so far as is reasonably practicable, must be a paramount concern of all entities which have the management and control of workplaces. It is incumbent on employers to ensure the safety of their employees and others in the workplace. This is particularly the case where the potential risks to health and safety include the risk of death or serious injury, as was the case here.
[6] Ibid; DPP v Amcor Packaging Australia Pty Ltd (2015) 11 VR 557, 565 [36] (Vincent, Eames and Nettle JJA).
33The courts have made clear that a strong message needs to be sent to companies, which place others in highly dangerous situations, that they must do their utmost to ensure the safety of those persons. The failure to eliminate or mitigate safety risks will attract significant punishment.[7]
[7] Vibro-Pile.
34The OHSA imposes a number of duties on people involved in work and workplaces. Those duties are to be interpreted in light of the objects of the OHSA set out in s 2(1) and the ‘principles of health and safety protection’ set out in s 4 of the Act. Of particular relevance in the present case is the principle that ‘[p]ersons who control or manage matters that give rise or may give rise to risks to health and safety are responsible for eliminating or reducing those risks so far as reasonably practicable’.[8]
[8] OHSA s 4(2).
35In DPP v Frewstal Pty Ltd (‘Frewstal’)[9] the Victorian Court of Appeal laid down a number of principles for the guidance of sentencing judges regarding the relevant sentencing principles to be applied in prosecutions brought under the OHSA.[10]
[9] (2015) 47 VR 660.
[10] Ibid 686–87 [127] (Priest and Kaye JJA).
36In determining an appropriate sentence, I must assess the gravity of the breach of duty owed under the OHSA. The gravity of the breach is measured by two factors – the seriousness of the breach itself (that is, the extent to which the Company departed from its statutory duties); and the extent of the risk of death or serious injury which might result from the breach. As the Victorian Court of Appeal observed in Dotmar Epp Pty Ltd v The Queen:[11]
Put another way … the gravity or seriousness of a breach is to be measured by reference to the potential consequences of the breach, the extent of the evidenced disregard for the safety of employees; and the risk of the potential consequences of the breach materialising.[12]
[11] [2015] VSCA 24 (Priest JA, Maxwell P and Kaye JA).
[12] Ibid, [23].
37The assessment of the extent of the risk itself involves consideration of two factors — the likelihood of the occurrence of an event as a result of the breach (such as the event that occurred here) endangering the safety of employees or others; and the potential gravity of the consequence of such an event, in particular, whether there is a risk of death or serious injury.[13] The fact the present incident tragically resulted in Mr Baker’s death is relevant in the sense that it manifests or demonstrates the degree of seriousness of the relevant threat to health or safety resulting from the breach. As was observed by Maxwell P in Frewstal, ‘the touchstone for sentencing is the gravity of the breach of the OHSA, not the gravity of the consequence’.
[13] See OHSA s 20; Dotmar Epp Pty Ltd v The Queen [2015] VSCA 241 [22]–[23].
38In circumstances, as was the case here, where the risk of catastrophic injury or death is high, constant, and readily foreseeable, the term ‘so far as is reasonably practicable’ must involve the creation of strict, robust and comprehensive standards which are then rigorously maintained.
39In DPP v Amcor Packaging Pty Ltd[14] (‘Amcor Packaging’) the Victorian Court of Appeal observed:
When determining the appropriate penalty in a case of the breach of a statutory duty imposed for the purpose of protecting the lives and well being of those who may be affected by the breach, the foreseeable potential consequences must be taken into account as it is the avoidance of those consequences which, when considering the objective seriousness of the offence, constitutes the raison d’être for the establishment of the legislated regime in the first place. To a substantial extent the seriousness of a breach must be assessed by reference to those potential consequences and the measure of evidenced disregard concerning the safety of employees in the circumstances.[15]
[14] (2005) 11 VR 557.
[15] Ibid 565 [35] (Vincent, Eames and Nettle JJA).
40The primary sentencing consideration in this case is the objective seriousness of the offence. In cases involving a serious breach of the OHSA, such as this case, subjective mitigation, such as an early plea of guilty, cooperation with the investigation and subsequent measures taken to improve safety, play a subsidiary role in determining the appropriate penalty.[16]
[16] Ibid quoting WorkCover Authority of New South Wales (inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700, 714 [31] (Wright P, Walton VP and Hungerford J).
41The Company is charged on the basis that it failed, so far as was reasonably practicable, to ensure that persons other than its employees were not exposed to risks to their health and safety arising from the conduct of its undertaking by removing parts from an automatic gate such that it posed a risk that when manually operated it could fall down from its rails and crush a person, causing death or serious injury.
42In assessing the objective seriousness of the instant offence it is necessary to determine the extent of the Company’s departure from its duty to take reasonable steps to ensure the reduction of risk. That is, what the Company did — the extent to which the duty was satisfied — and did not do — the extent of the Company’s departure, to meet the risk of injury or death associated with the removal of automatic gate parts.
43In this case, the Company failed to provide and maintain a system of work that required employees to apply a ‘lock out tag out’ system to the gate along with a restraining chain to ensure it could not be manually opened such that it could fall off its rails and crush a person. The Company had systems in place that contemplated the risk involved with failing to physically restrain a gate and ensure it could not be manually opened. However, they were not sufficiently implemented to prevent the risk materialising in the present case.
44I accept the prosecution submission the extent of the departure was manifest. I also accept the prosecution submission the risk created by the Company was an obvious and foreseeable one of serious injury or death. Moreover, the Company failed to take simple and obvious measures that could, and should, have been taken to eliminate the risk and that would have been a standard response by any reasonable industry participant.
45Nonetheless, I find that the Company did take some steps to mitigate the risk. Mr Rofet’s verbal direction regarding how to safely secure the gate was an attempt to put in place an administrative control to minimise exposure to the hazard. The Company also identified the potential hazard of a gate falling in the Job Safety Analysis Worksheet, albeit there was no specific directive to lock the gate and apply a ‘lock out tag out’ system.
46In contrast to offending of this kind where there it is a serious disregard for safety measures, in the present case I find the Company contemplated the risk involved and had some limited measures in place to reduce that risk. Moreover, as the Company submitted, there are no industry documented guidelines or codes of practice that apply to automatic gate repairs. Accordingly, I accept the Company’s departure from its statutory duty was not as flagrant as is often encountered in other OHS prosecutions.
47I find the extent of the risk of death or serious injury which might result from the breach was very high. At the plea hearing, the Company submitted the likelihood of the manifestation of the risk was reduced by the nature of the design of the gate which meant that it had a ‘cradle’ to keep it upright. I do not accept this submission. Ultimately, the risk was created when the automatic motor was removed and Mr Rofet failed to install a lock out tag out system and restraining chain, thereby enabling the gate to roll past the stop/close limit. I do not find the existence of a cradle reduced the likelihood of that risk eventuating.
48The Company submitted the intervening period between when Mr Rofet removed the gate motor and the incident on 23 April 2022, illustrates that the risk did not materialise from the breach immediately. In the absence of any evidence in relation to how many times the gate was opened during the intervening period, I cannot make a finding on the balance of probabilities whether the risk immediately materialised.
49I accept the prosecution submission that leaving the gate in an unsafe condition meant any attempt to close it manually would likely result in an incident, like the one that occurred here, particularly where the gate weighed in excess of 1100kgs. Moreover, the admission by Mr Rofet that it was common and best practice to lock a gate closed to render it safe, demonstrates, axiomatically, the likelihood of the occurrence of an event as a result of leaving a gate unlocked and the severity of the consequences of that event.
50As I outlined earlier, and as was conceded by the Company, the potential gravity of the consequences of an event occurring as a result of the breach is high. This is demonstrated by the tragic death of Mr Baker.
51In my opinion the breach that occurred in this case is a mid-range example of offending of this kind and involved a moderate degree of moral culpability having regard to:
(a) The accessible and practicable means of eliminating or reducing the risk.
(b) The steps taken by the Company to reduce the risk.
(c) The inherent seriousness of the risk, evidenced by the fatality in this case.
52Clearly, general deterrence, denunciation and just punishment must be given significant weight in my instinctive synthesis. I consider specific deterrence and protection of the community need be given very little, if any, weight in this case.
Company background
53The Company operates a small family-owned business that installs, services and repairs automatic gates. It has been in operation since 1998. Since 2009, David and Sue Stott have been the Company’s managing directors.
54At the plea hearing, I was told the Company’s annual turnover is approximately $1.8 million and the annual profit is about $150,000. However, no documentation was produced to support this.
55Currently, the Company employs nine people full-time, including two service technicians. At the time of the incident, Mr Rofet, had been employed with the Company as a service technician for 19 years. There are no formal qualifications required for this position.
56The Company quotes for the installation of automatic gates at commercial and domestic premises. CAD drawings are then produced, and their fabricator manufactures the gate, in house. The gate is then sent away to be painted or galvanised and the motor systems are ordered in.
57Once manufacturing is completed, the Company installs the gate at the relevant site. The Company also services automatic gates across domestic and commercial premises, irrespective of whether they installed the gates.
Mitigating circumstances
58The Company pleaded guilty at the earliest opportunity. The plea has significant utilitarian benefit and indicates the Company’s acceptance of responsibility for the offending conduct and a willingness to facilitate the course of justice.
59I accept the Company, through its authorised representatives, deeply regrets the loss of Mr Baker’s life. I have had regard to the letter David and Sue Stott wrote to the Court,[17] which I consider expresses genuine remorse and acknowledges the anguish their company’s conduct has had on the deceased’s family and work colleagues. Moreover, the Company has fully cooperated with the WorkCover investigation into the incident.
[17] Ex D3.
60I also accept the Company has made significant changes to its procedures and processes since the incident to ensure a similar tragedy does reoccur. Following the incident all employees were directed to only proceed with jobs if there were ‘open & close’ stops in place to prevent a gate from falling. This has evolved to the company producing a guideline that all employees must physically lock and chain gates secure and place a ‘tag out’ on any equipment until the repair is completed.
61Every employee is now required to fill out a ‘Take 5’ booklet upon arrival at every jobsite they attend.[18] This requires employees to assess potential hazards and ensure the job is safe for them to continue. An updated ‘Job Safety Analysis Worksheet’ further directs employees to chain and padlock a gate shut and secure ‘tag out’ signage, in the event a gate is not safe and secure. It also directs employees to advise clients it is unsafe to use and that the Company’s employees will remove the chain and padlock only once it is safe to do so.
[18] Ex D4.
62Each employee is also required to fill out a ‘Hazard Report’ if there are any hazards on site. If a hazard is identified, the employee is directed to call the office and obtain further advice. All employees attending a service or installation job are provided with a locking cable, padlock and ‘lock out’ tag. It is mandatory to use these to secure any gate while works are being conducted.
63The Company has no prior convictions or findings of guilt, and no charges or proceedings are pending. The Company has not been the subject of any prior WorkSafe prosecution, nor has it been issued with any improvement notices. I accept the Company’s submission this is reflective of a long history of safe operation in the industry.
64Accordingly, I will give very little, if any weight, to specific deterrence and protection of the community in my instinctive synthesis. I find the Company has very good prospects of rehabilitation as a good corporate citizen.
Application of sentencing principles
65I have had regard to current sentencing practice in relation to these offences as informed by the decisions of the High Court of Australia in R v Kilic[19] and DPP (Vic) v Dalgliesh (a Pseudonym)[20] and the Victorian Court of Appeal decisions in DPP v Zhuang[21] and DPP (Cth) v Thomas.[22] I have had particular regard to the very helpful written analysis of comparable cases provided by the Company’s counsel and the comparable cases provided by the prosecutor.
[19] (2016) 259 CLR 256, 266–268 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[20] (2017) 262 CLR 428, 444–447 [47]–[58] (Kiefel CJ, Bell and Keane JJ), 452–455 [78]–[85] (Gageler and Gordon JJ).
[21] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).
[22] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
66Whilst current sentencing practice is relevant to the sentence I impose on the Company, it is only one of a number of sentencing considerations I must take into account in formulating an appropriate sentence in this case.[23]
[23] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
67Moreover, it is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute this offence and the myriad of general circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain any assistance from comparable cases, I have sought to do so in this case.
68The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing the Company, I must have regard to a range of factors, such as the seriousness of the offence, the Company’s culpability for it and its general circumstances.
69Denunciation, general deterrence and just punishment must be given substantial weight in sentencing the Company for this offence. However, because of the Company’s lack of prior convictions, its previous good safety record and the remedial steps it has taken since this tragic incident occurred, I consider very little, if any, weight need be given to specific deterrence or protection of the community. I consider the Company has very god prospects for rehabilitation.
Mr Stott
On the charge of failing to ensure, as an employer, that persons other than employees are not exposed to risks to their health or safety arising from the conduct of its undertaking, Gate Automation Systems Pty Ltd is convicted and fined $350,000. That fine is referred to the Director, Fines Victoria for management and collection.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for the Company’s plea of guilty, I would have sentenced it to be convicted and fined $450,000.
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