Director of Public Prosecutions v Handcock

[2019] VCC 444

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01001

DIRECTOR OF PUBLIC PROSECUTIONS

v

NEVILLE HANDCOCK

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	12 March 2019
DATE OF SENTENCE:	3 April 2019
CASE MAY BE CITED AS:	DPP v Handcock
MEDIUM NEUTRAL CITATION:	[2019] VCC 444

REASONS FOR SENTENCE
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Subject:   CRIMINAL LAW - SENTENCE

Catchwords:  Failing to provide and maintain systems of work that are safe and without risks to health   

Legislation Cited: Occupational Health and Safety Act 2004; Sentencing Act 1991

Cases Cited: Di Tonto v The Queen [2018] VSCA 312; Orbit Drilling v The Queen [2012] VSCA 82; DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55; DPP v Fergusson [2017] VCC 1276

Sentence:   Convicted and fined the sum of $130,000.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Andrew Palmer QC With Hugo Moodie	Solicitor for the Office of Public Prosecutions
For the Accused	Hayley Bate	Nancy Battiato

HIS HONOUR: 

1Neville Handcock, you have pleaded guilty to one count of failing to provide and maintain systems of work that are safe and without risks to health, contrary to s.21(1) and 21(2A) of the Occupational Health And Safety Act 2004. The maximum penalty for this sentence for an individual was, at the time of your offending, a fine of 1800 penalty units which was then equal to just under $280,000.

2The details of your offending was set out in some detail in the summary of prosecution opening which was tendered at your plea hearing as Exhibit A.  In summary, the circumstances were as follows. 

3You and your wife operated a partnership which grows hops on a farm comprising 32 acres of land in Myrrhee in northeast Victoria.  You have an operational role and your wife completes bookwork and various tasks as required.  The farm is owned by your parents. 

4At the farm, hops are grown and harvested by hand around March each year.  Seasonal workers are employed by the partnership to complete the harvest.  Workers would travel between the main shed on the farm to the hop paddocks, riding on hop trailers towed by a tractor.  Employees of the partnership at the relevant time included 47-year-old Kraithep Kraithong and his brother, who was known as Aek, together with four others.

5On 21 March 2017 at around 11 am, a tractor was towing two trailers loaded with freshly cut hops from where they had been harvested along an unsealed section of a road which led to the main shed on the farm.  It had been raining intermittently during the morning and the road and the loaded hops were wet. 

6The regular driver of the tractor was not working that morning.  The tractor was being driven by Aek.  Two other employees were riding on the first trailer.  Mr Kraithong was riding on the second trailer. 

7Approaching an entrance leading to the shed, there was a steep descent.  As the tractor travelled down the descent, it picked up speed and Aek lost control of it for a time.  The tractor was in third gear which provided little assistance in controlling or restricting the speed of the tractor. 

8The two employees riding on the first trailer managed to jump clear and were uninjured.  The tractor continued down the track.  Aek managed to bring it to a halt approximately 20 m past the entrance leading to the shed, into which he had intended to turn.  No one saw Mr Kraithong fall from the second trailer.  He was found on the track approximately opposite the entrance unconscious and with serious head injuries. 

9Paramedics and police attended the scene and Mr Kraithong was airlifted to The Royal Melbourne Hospital.  It was later deemed that he had suffered a non-survivable brain injury.  Testing confirmed this and on 23 March his life support was turned off.  An autopsy identified the cause of death as a head injury.  At about 2 pm on the day of the incident, a WorkSafe inspector and senior investigator attended the workplace. 

10The investigation established that:

·At the time of the accident the front trailer weighed 1.1 tonne and the rear trailer weighed 1.2 tonne. 

·The gradient of the descent where the accident occurred was significant and the surveyors assessed it as being 11.14 per cent or 40.10 degrees. 

11Since the plea hearing, I have been provided with a short further submission by the prosecution including survey plans which in turn included a plan entitled "Long section of survey area".  This was tendered this morning by consent as Exhibit D.  This long section plan shows, as I interpret it and as counsel appear to agree, to show a vertical descent of just under 7 m over a distance of about 7 m.  On any view, this would amount to an extremely steep descent, one of just under 45 degrees. 

12The WorkSafe inspector formed the belief and provided an opinion that:

·Carrying passengers on hop trailers involves an immediate risk to the health or safety of persons other than when the tractor is engaged in the picking process and travelling at a speed of less than walking pace. 

·Further, that the tractor-trailer combination could be safely conveyed along the steep descent as long as the tractor was in a suitable gear to provide sufficient engine braking, the speed was low, the driver was experienced and there was no sudden or excessive steering or breaking.

13On 17 July 2017, you were interviewed by police in relation to potential offences under the Occupational Health And Safety Act.  You made a number of admissions,  in effect:

·That you had directed Aek to drive the tractor back to the shed when the load was full and instructed employees in the paddock to come down to the shed at that time.

·That it was standard practice on the farm for workers to travel back on the last trailer, sitting on the hops in the trailer.

·That during induction of employees, you had pointed out to them the crush points on the trailers and you told them not to sit on the front of the trailers and to be aware of the crush points with reference to the drawbar area only.

·That since the accident, employees have been conveyed to and from the paddock in a motor vehicle.

·That you understood that people riding on trailers could potentially fall from them.

·That you accepted the proposition that if the tractor was in top gear travelling down the hill, the tractor would - using your words - "just naturally want to go to speed".

·That you had stated "I didn't do anything different on the day than I normally do.  Obviously with what's happened, I can't say it was safe".

·You stated, "I am the boss.  So I take full responsibility for what's occurred."

14I accept that since the accident you have provided to all employees written instructions concerning safety matters including the following - and again, I quote from those written instructions:  "No riding on the tractors to and from the shed.  This is a sackable offence.  You will be picked up and taken to the shed or paddock by a designated driver."

15You have no prior or relevant prior convictions and there is no suggestion here of any illegal, reckless or careless conduct on your part since the accident.  In short, you appear to have conducted yourself as a responsible person, of good character at all times save for the conduct for which you are currently before this court. 

16By way of background, you are currently aged 59.  You were aged 57 at the time of the accident.  You were raised and educated locally.  You left school after Year 8, apparently determined to follow a career as a farmer.  You commenced working on the family hop farm, following in the footsteps of your great grandfather, grandfather, father and uncle.  I was informed by your counsel that you were practically illiterate when you left school but that you had taught yourself to read and write and now manage those comfortably. 

17It was submitted - and I accept - that you have and have had a very strong work ethic for many years.  You have worked hard and long hours since the time that you left school.  In addition, you have made a significant contribution to your community.  You have taken in some 15 exchange students from various places in the world and have kept contact with many of them to the present time. 

18You are married.  You and your wife had two sons, one of whom tragically drowned when he was aged three.  You have experienced a number of tragedies involving family and friends which has significantly impacted on you. 

19Since the accident, I accept that you have experienced some suicidal ideation. 

20A report from Michael Crewdson, a clinical and forensic psychologist, dated 17 November 2018 was tendered on your behalf at the plea hearing.  Mr Crewdson reported that in his opinion:

·Your mental state examination was unremarkable and there were no indications of any major psychological illnesses.

·That you were an intelligent man with a very strong sense of morality.  

·That you appreciated that your lack of intelligent action in maintaining high standards of safety on the farm was reckless.  

·That you had made no attempt to excuse yourself, to shift the blame or deny responsibility in respect of the accident. 

·Since the accident, you had reported some problems with concentration, loss of attention, impaired appetite and feelings of general hopelessness and depression.

21Some 19 character references were tendered on your behalf.  The majority of them were written by persons who have known you for many, many years.  They all speak highly of you in terms of your character, your work ethic, your honesty and integrity, your fine reputation in your community, your generosity and unpretentiousness, your involvement in local clubs and committees including the local Lions club and other volunteer organisations which have served the community. 

22Some of the references were from persons associated with the student exchange program with which you were successfully involved.  They were overseas students who had stayed with your family.  A number of them maintained contact with you up to the present time.  It is clear from those references that you are a very well-regarded member of your community and it would seem deservedly so. 

23Your recent taxation returns and a letter from your accountant were tendered.  I accept that although you were widely regarded as a capable hop farmer, you are of a person of limited financial means. 

24Your plea and your statements to Mr Crewdson demonstrate that you acknowledge, in hindsight, that the system of work in place at the time of the accident was indeed unsafe.

25The general practice of directing or even allowing workers to ride on hop trailers was, in my view, unsafe unless the trailer was moving very slowly.  The trip back to the shed involved travelling along a gravel track and down a very steep gradient for a period.  The trailers were loaded and heavy.  Plainly, some considerable skill was involved in negotiating the journey on the part of the tractor driver. 

26The usual driver who presumably had some experience in making that steep descent was unavailable on the day.  The replacement driver apparently had little or no experience in driving that tractor on that route.  Importantly, he had not received training or instruction as to how to manage the tractor.  Crucial to a safe descent on the track was the selection of the appropriate gear.  The driver, I accept, had elected to descend with the tractor in third gear which was a significant contributor to his speed and loss of control of the tractor, factors which I am satisfied led to Mr Kraithong being dislodged from the trailer upon which he had been riding.

27In regard to the sentence that I am about to impose, I have had regard to the sentencing principles set out in s.5 of the Sentencing Act of 1991. 

28In particular, in your case I have taken into account:

·The maximum penalty imposed by Parliament, which on any view is substantial, reflects how seriously Parliament views the offence. 

·The impact of the offence is likely to have had a severe effect on Mr Kraithong’s family and friends.  His death was undoubtedly a terrible thing.  He was aged only 47. 

·Your genuine remorse for the offending. I am satisfied that it is most unlikely that you would ever come before a court again for a similar type of offence. 

·Sentences imposed by this court and the Court of Appeal in a number of other matters involved in a breach of this Act I have taken into account. 

·Your personal circumstances, including that you are of modest financial means. 

·The fact that you pleaded guilty at the earliest opportunity is a matter of importance and a matter which I shall take into account.  Having pleaded guilty, you are entitled to a discount on your sentence. 

·The fact that you have no relevant prior or subsequent convictions - you are to be sentenced as a person of good character and unblemished behaviour save for the subject offence.

29I accept the submissions made on behalf of the prosecution. Firstly, that in occupational health and safety prosecutions, the objective seriousness of the breach by the offender constitutes the primary factor in determining the appropriate penalty and that factors subjective to the offender such as an early plea of guilty or evidence of genuine remorse should play a subsidiary role.  However, that is not to say that such objective matters are to be ignored completely.  I do accept that general deterrence will normally assume considerable significance in such cases. 

30The second part that I accept of the submissions made are that the gravity of the contravention is not to be determined by its consequences but by the extent of the employer's failure to meet his duties under the Act.  That is, the extent of the departure from the duty owed.  The foreseeable potential consequences of the breach and the likelihood or risk of potential harm occurring.

31I consider that, on any view, the practice of having workers ride on the heavily laden trailers at anything but the slowest of speeds was unsafe and involved a significant risk of injury to them should they slip from the trailer or be jolted or become unbalanced.  Photographs of the laden trailers tendered and taken soon after the accident showed the very limited space for workers to stand or sit on them.

32Further, the driver did not receive adequate instructions as to how to safely manoeuvre the tractor or trailers especially given the weather conditions and the steep descent. 

33There was no suggestion by the prosecution that previous injuries or incidents had occurred on your farm or that employees had complained about the system in any way before the accident. 

34Nevertheless, it is trite to say that it is the duty of the employer to provide, maintain and enforce a safe system of work for his or its employees.  It is not the responsibility of the employees to design the system or bring complaints to the employer about it.

35I consider that the fact that no similar prior incidents had occurred was likely the product of good luck rather than good management. 

36Notwithstanding, I am of the view that these deficiencies in the system of work in place involve no deliberate disregard for the safety of employees on your part.  I consider the system was likely to have been one that had been in place for many decades and generation of your family, one that had not involved accidents or perceived risk before.

37I note that alterations have now been made to the system of work which make it far less likely that similar accidents will occur in the future.  I consider that the cost of eliminating or reducing the risks involved were relatively minor. 

38In determining an appropriate fine to be imposed, I was referred by counsel to a number of decisions of the County Court and the Court of Appeal including the matters of Di Tonto in 2018, Orbit Drilling in 2012, Vibro-Pile in 2016 and Ferguson in 2017.  I take those decisions into account whilst noting as is virtually always the case that the facts of these cases differ in several respects from the facts of your own. 

39I am conscious that a very large fine is likely to be simply beyond you to pay in the foreseeable future.  The hop farm in question is not owned by you but by your parents.  It would not be a proposition to simply sell the farm in order to pay the fine.  Nevertheless, it is likely to be open to you to apply to pay a fine by way of instalments. 

40Taking all of the circumstances into account, I have determined to impose the following sentence. On the charge of failing to provide and maintain systems of work that are safe and without risks to health contrary to s.21(1) of the Occupational Health And Safety Act 2004, you are convicted and fined the sum of $130,000.

41For the sake of completeness, I should say that notwithstanding the wording on the indictment, on my reading, the duty of an employer to provide and maintain a system of work arises from s.21(1) and an offence against that sub-section is an indictable offence by reason of sub-s.(4) of that section. Section 21(2) and specifically sub-s.2(a) merely sets out a number of matters which without limiting sub-s.(1) amount to a contravention of that sub-section. In my view, the reference to the indictment - to sub-s.2(a) is merely a particular of the breach of sub-s.(1) and which, if there was any doubt, does not constitute an additional defence.

42Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty to this offence but had been convicted by a court of it, I would have sentenced you to a fine of $180,000. 

43Now, are there any other ancillary orders sought?

44COUNSEL:  No, Your Honour.   

45HIS HONOUR:  No other applications to be made?

46MS BATE:  No, as I understand it, Fines Victoria will now manage the financial penalty in that regard ‑ ‑ ‑ 

47HIS HONOUR:  Yes.

48MS BATES:  ‑ ‑ ‑ and instalment plans and payment management can be handled in that way.

49HIS HONOUR:  I will leave that to them to sort out.

50MS BATES:  Thank you, Your Honour. 

51HIS HONOUR:  Yes.  We will stand down temporarily.  Thank you.

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