Director of Public Prosecutions v Hansen Yuncken Pty Ltd
[2013] VCC 1543
•28 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00408
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HANSEN YUNCKEN PTY LTD |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June 2013; 7 June 2013 | |
DATE OF SENTENCE: | 28 June 2013 | |
CASE MAY BE CITED AS: | DPP v Hansen Yuncken Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1543 | |
REASONS FOR SENTENCE
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Catchwords: Section 21 Occupational Health and Safety Act; plea of guilty, death of subcontractor; failure to audit safety system.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Croucher SC Mr T. Wraight | Office of Public Prosecutions |
| For the Accused | Mr C. O’Grady | McKean Park |
HIS HONOUR:
1 On 6 June 2013, Richard Hansen, a Director and officer of Hansen Yuncken Pty Ltd, (“the Corporation”), entered pleas of guilty on behalf of the corporation to two charges of failing to provide a safe working environment for its employees contrary to s21 of the Occupational Health & Safety Act 2004.
2 The particulars of the charges respectively concern failing to provide a safe system of work and failing to provide adequate instructions and information. The maximum penalty for each charge is a fine of 9,000 penalty units, which equates to the sum of $1,075,050.
3 The corporation entered pleas of guilty at committal mention on 5 March 2013 and I have taken that early plea into account in mitigation of sentence. By its plea of guilty, the corporation has saved the community and the court the expense of a criminal trial, and it has also spared witnesses the effects of giving evidence in a criminal trial concerning a death in the workplace. I also accept that the directors and officers of the corporation are deeply remorseful for the offending that caused the death of the deceased.
4 The corporation also admitted a prior court appearance in the Industrial Court of New South Wales on 29 November 2002 in relation to a breach of the Occupational Health & Safety Act, New South Wales, for which the corporation was fined the sum of $84,500.
5 A prosecution opening was read to the court and tendered in evidence and the events giving rise to the charges may be summarised as follows–
6 On 16 September 2010, Darin Johnson suffered fatal injuries when an elevated work platform (EWP) that he was operating tipped over, causing him to fall to the ground. At the time of the incident, the deceased was carrying out glazing work on a school hall being constructed at the Jells Park Primary School. The construction of this school hall was part of the Commonwealth Government’s “Building the Education Revolution” economic stimulus package.
7 The head contractor for the project was the corporation and at the relevant time, Mr Johnson was an employee of Dingley Glass, a sub-contractor on site. It was the corporation’s legal responsibility to maintain a safe system of work on the site and that duty extended to employees of subcontractors.
8 The EWP was being operated by Mr Johnson in an area known as the “northern access way”, adjacent to the school hall. The northern access way had not been properly constructed for use by an EWP. But despite this, the corporation permitted it to be used for that purpose, knowing that it should not be so used.
9 The failure by the corporation to properly construct the northern access way for use by an EWP, and the failure by it to prevent its use in the absence of proper construction, also occurred in the face of two near misses.
10 On 19 May 2010, an employee of a metal work subcontractor was using a boom lift on the northern access way when the boom lift became bogged in unstable ground. A similar incident occurred at another Hansen Yuncken project at the Hughesdale Primary School.
11 It is well-known that an EWP must only be used on stable, compacted ground and the corporation was on notice, by reason of the two near misses that I have referred to, that it was necessary to provide such work conditions, for the safe operation of an EWP at its sites, and in particular on the northern access way.
12 Following the incident giving rise to the death of Mr Johnson, geotechnical investigation was conducted in relation to the northern access way, making it clear that it did not provide a suitable working platform for an EWP. The test disclosed that the northern access way showed low to very low strength, inconsistent with engineered and compacted fill. The maximum bearing capacity of the ground was substantially less than required.
13 Shortly after the deceased commenced his duties on the EWP, it shifted on the unstable ground, causing him to be thrown from the bucket and onto a nearby carpark, where he suffered fatal injuries. It would appear that the deceased was not wearing a safety harness at the time of the incident, or alternatively, was not wearing it properly.
14 In my opinion, it was straightforward for the corporation to provide a safe system of work in respect of the use of an EWP on the northern access way and the risks of allowing such plant to be operated on unstable ground were well known.
15 Accordingly, the offending before the court may properly be described as a serious example of the offence in question, which has in turn, led to the death of an employee in the workplace.
16 During the course of the plea in mitigation, the corporation provided to the court a considerable body of evidence as to its safety systems and auditing processes, and further submitted that at all material times, senior officers were not aware that relevant safety procedures were not being followed. It was further submitted that the incident occurred because the site manager and leading hand permitted the northern access way to be used in contravention of documented safety procedures.
17 In R v Commercial Industrial Construction Group (2006) 14 VR 321, the Court of Appeal stated that the employer’s duty to its employees included ongoing supervision and compliance audits to ensure that its safety systems are being applied in practice. The court further concluded that employee’s compliance with the safe system of work must be constantly monitored by the employer. This did not occur in the case before this court.
18 As I have already observed, in my opinion, these are serious examples of the offence in question and any penalty that I impose must be calculated to deter other employers from offending in this way. In my opinion the corporation must also be deterred from re-offending. The offending conduct must also be denounced by this court and the corporation must be punished for its breaches of the relevant legislation.
19 I have received in evidence a Victim Impact Statement of Mr Johnson’s partner, detailing the deeply traumatic effect his death has had upon her and her daughter. She read the statement in court and it provides clear evidence of the great social cost of preventable deaths that occur in the workplace.
20 I now turn to the factors relied upon by the corporation in mitigation of sentence. It was submitted on behalf of the corporation that in the 95 years that it has been in operation, it has only incurred one conviction in relation to a breach of occupational health and safety legislation. That conviction concerned construction work at the North Sydney Olympic Pool on 25 November 2009, wherein two employees of a subcontractor fell from a height of approximately five metres, whilst removing form work.
21 The sentencing judge found that the corporation had not properly supervised subcontractors on site, and in doing so, had failed to properly implement and audit its own safety system, which failure occurred in this case.
22 Counsel also pointed to the corporation’s detailed safety procedures and its accreditation as an appropriately trained employer in all Australian states. He further submitted that the corporation contributed to the cost of the deceased’s funeral expenses and, immediately after the incident, all work on its construction sites was suspended in order for a complete and detailed safety audit to be carried out.
23 He submitted that in the ten preceding years, approximately 55 million work hours had been performed on Hansen Yuncken sites and in that context, its industrial safety record could properly be described as excellent. I accept that this is so.
24 As I have already observed, I accept that the corporation, through its officers, is remorseful for its breaches of the relevant legislation and this is demonstrated both by its conduct and plea of guilty at an early stage.
25 Counsel for the prosecution and for the corporation each submitted that there is a degree of overlap between the two offences before this court. I also accept this is so and the fines that I will impose will reflect this.
26 In the result, the order of the court is as follows: In relation to Charge 1, the corporation is convicted and fined the sum of $300,000. In relation to Charge 2, the corporation is convicted and fined the sum of $175,000. This makes for a total fine of $475,000.
27 I order a stay of three months in relation to payment of the fine.
28 But for the corporation’s plea of guilty, I would have imposed a fine of $450,000 on Charge 1 and a fine of $260,000 on Charge two, making a total fine of $710,000.
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