Director of Public Prosecutions v Heavy Mechanics Pty Ltd (ACN 137 483 124)
[2022] VCC 107
•9 February 2022; Further revised 25 March 2022
| IN THE COUNTY COURT OF VICTORIA AT WODONGA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-18-02080
Indictment No: H13203582.3
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HEAVY MECHANICS PTY LTD (ACN 137 483 124) |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 October 2021 | |
DATE OF SENTENCE: | 9 February 2022; Further revised 25 March 2022 | |
CASE MAY BE CITED AS: | DPP v Heavy Mechanics Pty Ltd (ACN 137 483 124) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 107 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Occupational health and safety - failure to ensure persons other than employees not exposed to risks to health and safety – plea of not guilty - sentence after trial – trailer decoupled from truck – three persons killed as a result- company found guilty of failing to adopt a system of servicing tow-eye coupling that reduced risk so far as reasonably practicable – general deterrence – delay – no prior or subsequent convictions – financial circumstances of company.
Legislation Cited: Occupational Health and Safety Act 2004; Sentencing Act 1991
Cases Cited:Director of Public Prosecutions (DPP) v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557; Director of Public Prosecutions (DPP) v Vibro-Pile(Aust) Pty Ltd (2016) 49 VR 676; Director of Public Prosecutions (DPP) v Frewstal Pty Ltd (2015) 47 VR 660; Orbit Drilling Pty Ltd v R; Smith v R (2012) 35 VR 399; DPP v AA Auscarts Imports Pty Ltd (Unreported, County Court of Victoria, 12 May 2009, Judge Allen); Tomlin (VWA) v Valley Sweep Pty Ltd (Unreported, Magistrates Court of Victoria, 2 October 2020, Magistrate L Hill); Dotmar EPP Pty Ltd v R [2015] VSCA 241; Di Tonto v The Queen; AM Design and Construction Pty Ltd [2018] VSCA 312.
Sentence: Convicted and fined the sum of $210,000.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A Palmer QC with Mr D Chisholm | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr D Gurvich QC with Mr T Bourbon | Moray & Agnew |
HIS HONOUR:
1On 28 June 2021, Heavy Mechanics Pty Ltd, (“the company”) was found guilty by a jury of an offence contrary to s23(1) Occupational Health and Safety Act 2004. The jury found that between 7 August 2013 and 7 August 2014 the company, being an employer, failed to ensure, so far as was reasonably practicable, that persons other than its employees were not exposed to risks to their health or safety arising from the conduct of its undertaking. The company’s undertaking included the servicing and maintenance of a Kenworth tanker truck and a Tieman tanker trailer, registered to Centrel Pty Ltd.
Circumstances of offending
2By way of background, on 7 August 2014, Patrick Daley was driving that truck and trailer combination along the Wodonga-Yackandandah Road, towards Yackandandah.
3The truck and trailer were coupled by a “Ringfeder” and a “tow‑eye coupling”. The tow‑eye coupling consisted of a number of components, including a tow‑eye pin, a block (mounted on the A frame of the trailer) and a castellated nut which secured the tow‑eye pin within the block. Through this critical coupling, the truck and trailer were connected.
4At approximately 8.45 am, while Mr Daley was driving along the Wodonga‑Yackandandah Road, the trailer decoupled from the truck and travelled onto the opposite side of the road, striking two cars before it came to a stop.
5The sole occupant of the first car, and both occupants of the second car, sustained fatal injuries.
6Police attended the scene and made a number of observations, including:
(a) finding on the side of the road, approximately 100 metres from the final position of the trailer, a castellated nut of the type used in the tow‑eye coupling;
(b) the thread of the nut appeared to be worn;
(c) at the rear of the truck, a tow‑eye pin was hanging from the Ringfeder;
(d) the thread of the tow‑eye pin showed signs of wear and damage; and
(e) the split-pin designed to stop the nut from loosening had been sheared off.
7The trailer decoupled from the truck due to the failure of the tow‑eye coupling. In particular, the castellated nut that had secured the tow‑eye pin to the block on the trailer detached from the tow‑eye pin. As a result, the tow‑eye pin was no longer fastened to the block and trailer, which meant that the truck and trailer were no longer coupled.
8Between 2002 and September 2011, the truck and trailer were serviced by BMR Truck & Trailer Pty Ltd. In September 2011, BMR was taken over by the company. The company continued to provide maintenance and repair services to the truck and trailer. Those services included an “A” service performed approximately every 10,000 kilometres; a “B” service performed approximately every 20,000 kilometres; and an annual “C” service.
9The company employed, among others, Keith Haire as its senior mechanic and workshop supervisor, and Richard Trethowan, a mechanic. Mr Haire was a director of the company.
10On 1 August 2014, Mr Daley delivered the truck and trailer to the company for a “B” service. The service was performed by Mr Haire and Mr Trethowan. The service included what is called a “tug-test” as well as a visual inspection of the tow‑eye coupling.
11To perform the tug-test, Mr Trethowan, got into the driver’s seat of the truck, started the engine, placed the truck in gear, then operating the accelerator and the clutch pedal, caused the truck and trailer to rock backwards and forwards. Meanwhile, Mr Haire stood close by the tow‑eye coupling, watching for movement of the tow‑eye pin within the block. He gave evidence that he did not see any such movement.
12Mr Haire and Mr Trethowan also performed a visual examination of the Ringfeder and the tow‑eye coupling to see whether there were any obvious defects. They concluded that the tow‑eye coupling was in a serviceable condition. They did not consider the externally-visible damage to the block of the tow‑eye coupling was a matter that required further investigation.
13During the service of the truck and trailer, they did not physically check the tow‑eye coupling for movement when it was decoupled from the truck. Specifically, they did not insert a metal bar, or similar tool, into the tow‑eye to check for rotational, lateral or longitudinal movement. They did not perform such checks as part of the inspection and servicing regime.
14The Indictment contained eleven particulars, which are as follows:
1. Between about 7 August 2013 and 7 August 2014, the undertaking of the company included the servicing and maintenance of a Kenworth tanker truck (registration WFU 823) and a Tieman tanker trailer (registration 66759S), including:
(a) A “B” service at intervals of approximately 20,000 kilometres;
(b) An “A” service midway between each “B” service; and
(c) An annual (or “C”) service.
2. The truck and trailer were joined by a bolt‑in tow‑eye coupling, the components of which included:
a.a block with a circular bore welded to the drawbar of the trailer;
b.a tow‑eye pin, the eye of which fitted into a “Ringfeder” on the truck, and the shaft of which was inserted into the bore of the block;
c.a castellated nut which secured the tow‑eye pin within the block and which was tightened, according to the manufacturer’s specifications, to a torque of 500 NM; and
d.a split pin, which was inserted between the castellations of the nut and through a hole in the shaft of the tow‑eye pin;
3. Unless the tow‑eye pin was completely rigid and unable to move within the block, the movement of the truck and trailer would cause progressive wear to the block, to the shaft, and thread of the tow‑eye pin, and to the thread of the nut, and this wear would eventually (unless detected during servicing) result in the failure of the coupling;
4. There was, thus, a risk that if the coupling was not properly serviced, the coupling could fail, thereby causing the trailer to decouple from the truck and exposing road users to the risk of serious injury or death;
5. To reduce this risk, it was reasonably practicable for Heavy Mechanics Pty Ltd to adopt a system of servicing the coupling, which included each of the following steps:
a.visually inspecting the coupling (including the block) for any signs of loosening, movement, damage, or wear; and
b.decoupling the trailer from the truck and then physically checking whether the tow‑eye pin was able to move within the block (including any degree of rotational, lateral, or longitudinal movement); and
c.in the event that any signs of loosening, movement, damage, or wear were detected, disassembling (in full or in part), further inspecting and (depending on the condition of the coupling) either reassembling or replacing the coupling (in full or in part);
6. Heavy Mechanics Pty Ltd failed to adopt this system of servicing the coupling;
7. Heavy Mechanics instead used a system of servicing the coupling (comprising a visual inspection and a “tug” test) which failed to reduce, so far as was reasonably practicable, the risk of decoupling, in that:
a.The externally-visible signs of movement and wear on the face of the block never prompted a more detailed inspection of the coupling (including disassembly); and
b.While a tug test may be suitable for the purpose of checking whether a tow‑eye pin is properly connected to the Ringfeder of a truck, a tug test is not sufficient for the purpose of detecting whether the tow‑eye pin is completely rigid and unable to move within the block.
8. The coupling was disassembled and the tow‑eye pin and nut were replaced on 17 June 2011 (at which time the truck and trailer were being serviced by a different company). Between that date and 1 August 2014 (the final date on which Heavy Mechanics Pty Ltd serviced the truck and trailer), the truck and trailer travelled approximately 354,000 kilometres without the company ever disassembling or replacing the coupling;
9. If on (or prior to) 1 August 2014, the company had serviced the coupling in accordance with the system set out in Particular 5, this would have revealed that there was significant wear to the block, to the shaft and thread of the tow‑eye pin, and to the thread of the castellated nut, and that the coupling needed to be replaced;
10. On 7 August 2014, this undetected wear caused the coupling to fail while the truck and trailer were travelling towards Yackandandah on the Wodonga-Yackandandah Road;
11. The trailer decoupled from the truck and struck two vehicles that were travelling in the opposite direction, killing the sole occupant of the first vehicle and both occupants of the second vehicle.
15In relation to Particular 5(b), the system proposed by the prosecution to check whether the tow‑eye pin was able to move within the block involved inserting a bar into the eye of the tow‑eye pin, and using it as a lever to check for movement. This was the system recommended by the prosecution expert witnesses called during the trial.
16The jury’s verdict means that each of particulars were accepted beyond reasonable doubt.
17The jury’s verdict means that the system utilised by the company, in particular the tug-test and visual inspection of the tow‑eye coupling, failed to ensure, so far as was reasonably practicable, that persons other than its employees were not exposed to risks to their health or safety arising from the conduct of its undertaking.
Objects of the Occupational Health and Safety Act (2004) (“the Act”)
18Section 2 of the Occupational Health and Safety Act (2004) relevantly provides:
(1) The objects of this Act are — …
(c) to ensure that the health and safety of members of the public is not placed at risk by the conduct of undertakings by employers and self-employed persons;
… having regard to the principles of health and safety set out in section 4.
19Section 4 of the Act relevantly provides:
(1) The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.
(2) Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.
(3) Employers … should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.
(4) Employers and employees should exchange information and ideas about risks to health and safety and measures that can be taken to eliminate or reduce those risks.
20Section 20 of the Act states:
(1) To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person—
(a) to eliminate risks to health and safety so far as is reasonably practicable; and
(b) if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.
(2)To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—
(a) the likelihood of the hazard or risk concerned eventuating;
(b) the degree of harm that would result if the hazard or risk eventuated;
(c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk, and any ways of eliminating or reducing the hazard or risk;
(d) the availability and suitability of ways to eliminate or reduce the hazard or risk;
(e) the cost of eliminating or reducing the hazard or risk.
21Section 23(1) of the Act imposes a duty on an employer to ensure that persons other than its employees are not exposed to risk to their health or safety arising from the conduct of the undertaking of the employer.
22The maximum penalty prescribed by s23 of the Act for a body corporate is 9,000 penalty units. At the time the offence was committed, a penalty unit was $147.61. Accordingly, the maximum penalty that may be imposed on the company is $1,328,490.
Submissions on behalf of the Director of Public Prosecutions
23Mr Palmer, of senior counsel, who appeared with Mr D Chisholm, on behalf of the Director of Public Prosecutions, submitted the company’s offending is to be regarded as ‘very serious’. He submitted that the objective seriousness – or gravity of the offence – is the primary factor in determining the appropriate penalty, and that subjective factors should play a subsidiary role. Furthermore, the objective seriousness is not determined by its consequences, but by the extent of the employer’s failure to meet its duties under the Act.
24Mr Palmer elaborated on this stating that the extent of the company’s failure to meet its obligations under the Act is determined by three factors:
(a) First, the extent of the departure from the duty owed, in particular, ‘the measure of evidenced disregard concerning … safety’;
(b) Secondly, the extent of the risk to health and safety thereby created, in particular, ‘the foreseeable potential consequences’ of the breach; and
(c) Thirdly, the likelihood or risk of potential harm occurring.
25Mr Palmer submitted that the conduct of the company involved a very significant departure from acceptable safety standards. He said that the company’s core undertaking was the maintenance of heavy vehicles and it should have been alert to the risks posed by improperly serviced or maintained components on heavy vehicles. It was put that the integrity of the tow‑eye coupling was critical to the safety of road users, and that the company should have been proactive in identifying and responding to the risk that the tow‑eye coupling might fail. The company, it was submitted, failed to identify wear, looseness, and movement in the coupling which the experts’ opined was readily apparent.
26The offending, according to the prosecution, suggested an almost complete disregard for an apparent, known, and readily-identified risk. The failure in this instance, it was said, was not the result of a failure to adhere to systems put in place by management, but was the result of a failure by the company to establish adequate safety systems and procedures in the first place. In other words, the company failed to service the vehicle in such a way as to ensure that road users were not exposed to risk. Mr Palmer pointed to the fact that this was not an isolated failure. The company serviced the truck and trailer on 27 occasions during the charged period.
27Mr Palmer submitted that the foreseeable potential consequences of the company’s conduct included multiple deaths and that the likelihood of the incident occurring was very high. The risk existed for a protracted period of time, in a truck and trailer combination that covered a large geographical area, and it was inevitable, it was argued, that the coupling would fail at some point if not properly maintained.
28At paragraph 23 of its written submissions, Exhibit P5 on the plea, the prosecution addressed the factors in s20(2) of the Act that go to what was reasonably practicable at the time, and hence relevant to an assessment of the gravity of the contravention, including:
(i) The company failed to maintain the tow‑eye coupling over an extended period of time and hence the likelihood of the risk eventuating was very high.
(ii) between 7 August 2013 and 7 August 2014, the truck and trailer were serviced on numerous occasions by the company who failed to:
a.identify the significant wear to the block, shaft, and thread of the tow‑eye pin, and to the thread of the castellated nut;
b.replace the coupling, which had travelled approximately 100,000 kilometres during that period;
(iii)The degree of harm that would result if the hazard or risk eventuated could not have been more serious, namely death; and
(iv)The company ought to have known about the availability of measures to reduce the risk, such as the use of the maintenance systems set out in the particulars to the indictment.
29Mr Palmer further submitted the jury would have taken into account, in arriving at its verdict, the damage or wear to the tow‑eye coupling that was visible when the coupling was assembled, and the experts’ agreement that the coupling should be rigid, with no movement.
30Mr Palmer submitted that the safety measures set out in the particulars could easily have been adopted to eliminate or reduce the hazard or risk. Moreover, the cost of replacing the components was not in issue, and in any event would have been paid by BP.
31Mr Palmer also relied on Mr Hodges’ concession that unless a mechanic placed their hand on the coupling to feel for movement during the tug-test, such a test could only detect movement if the coupling was ‘significantly loose’.
32Mr Palmer relied on the Court of Appeal decision in Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd[1] that in cases where the potential risks of a breach include the possibility that someone could be killed or seriously injured, general deterrence will normally assume considerable significance. Reliance was also placed on the following passage from Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd:[2]
“… general deterrence is of particular importance in offending of this kind. The sentences imposed need to draw attention to the importance of workplace safety, and to send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment.”[3]
[1](2005) 11 VR 557
[2](2016) 49 VR 676
[3]Ibid [233]
Victim Impact Statements
33It is well accepted that the offence created by the Act is risk based and not outcome based.[4] As Mr Palmer submitted, an offence is not made more serious by the fact that a risk eventuated, in this case the tragic death of three persons. I am nevertheless required by the Sentencing Act 1991, s5(2)(daa), to take into account the impact of the offence on victims.
[4]See Director of Public Prosecutions (DPP) v Frewstal Pty Ltd (2015) 47 VR 660, [127]
34As a result of the incident, Peta Cox, Lisa Turner, and Jack Wallace died when their cars were struck by the trailer. Tendered at the plea hearing were Victim Impact Statements from Damian Wallace, Elizabeth Wallace, Irma Turner and Gerald Turner. I have had regard to each of the impact statements, which eloquently speak of the impact the offence has had on each of those victims.
35Damian Wallace was the partner of Lisa Turner and the father of Jack Wallace. On hearing about a crash on Staghorn Flat, Mr Wallace frantically called his partner, and then others, to see if she and Jack were okay. It was not until approximately 2.00pm on 7 August that he learned of the death of his partner and son. On being told of the tragic news, he went into a state of shock. He has not worked since the incident and has been diagnosed with post-traumatic stress disorder, depression, and anxiety, directly relating to the incident. He has struggled to cope over the years. He moved out of the house and town in which they all lived. The loss of his partner and child has also impacted on his relationships with others, including his parents, current partner and children. He does not think he will ever be okay, or the same person he was before the incident.
36Irma Turner was at work when she received the news. Understandably, she too was in a complete state of shock.
37Ms Turner worked as a renal nurse, was unable to work for a month, and could only return to work because of the support offered to her by others, including her manager and colleagues. She stated that ‘there is absolutely nothing that can ever compare to the grief of losing a child and a grandchild.’ Ms Turner received counselling provided by the Transport Accident Commission, and then psychological treatment. She has been diagnosed with a complex bereavement disorder and was placed on antidepressant medication.
38Gerald Turner is the father of Lisa Turner and the grandfather of Jack Wallace. He stated that losing a daughter and grandson remains with you for the rest of your life. What makes it hard, he said, is the knowledge that what occurred was simply not an accident.
39Elizabeth Wallace is the mother-in-law of Lisa Turner and grandmother of Jack Wallace. She speaks of her closeness to both Lisa and Jack and states that she did not just lose Lisa and Jack that day, but also her son, Damian.
40On the day of the incident, and on learning of what occurred, she too went into a state of shock. She consulted with her doctor as she was having panic attacks and lost a considerable amount of weight and could not sleep. Ms Wallace found it difficult to remain living where she and her husband were because of the constant reminders of what occurred, so they sold their house and moved to another town.
41My summary of the Victim Impact Statements is just that, a summary, and does not do full justice to the deep and profound impact the incident had on each of the victims.
42Mr Palmer relied on three cases as relevant comparators. Those cases are: Orbit Drilling Pty Ltd v Smith; Smith v R (2012) 35 VR 399; DPP v AA Auscarts Imports Pty Ltd (unreported, 12 May 2009, County Court of Victoria, Judge Allen); and Tomlin (VWA) v Valley Sweep Pty Ltd (unreported, 2 October 2020, Magistrates Court of Victoria, Magistrate L Hill). I have had regard to each of those cases.
Submissions on behalf of the company
43Mr Gurvich, of senior counsel, who appeared with Mr T Bourbon, on behalf of the company accepted that an offence pursuant to s23 of the Act is an inherently serious offence.
44Mr Gurvich referred to the decision of Dotmar EPP Pty Ltd v R[5] in which Priest JA, with whom the other members of the Court agreed, referred to the fallacy of equating the gravity of the consequences of a breach, with the gravity or seriousness of the breach.[6] He also referred to the guiding principles set out in Director of Public Prosecutions (DPP) v Frewstal Pty Ltd[7] in the joint judgment of Priest and Kaye JJA. At paragraph 127 of that decision, their Honours stated:
“In our opinion, sentencing judges should be guided by the following principles:
·First, unlike cases of unlawful homicide, the occurrence of death or serious injury is not an element of the offences charged. An accused is punished according to the gravity of the breach of duty owed under the Occupation Health and Safety Act, not according to the result or consequences of the breach.
· Secondly, the gravity of the breach is measured by two factors — the seriousness of the breach itself (that is, the extent to which the defendant has departed from its statutory duty); and, the extent of the risk of death or serious injury which might result from the breach.
· Thirdly, an 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 … 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).
· Fourthly, the fact that the breach in the particular case resulted in death is relevant only in the sense that it might manifest or demonstrate the degree of seriousness of the relevant threat to health or safety resulting from the breach.”
(Citations omitted.)
[5][2015] VSCA 241
[6] Ibid [22]-[23]
[7]Supra
45Mr Gurvich took issue with the prosecution submission that the offending involved ‘an almost complete disregard for an apparent, known and readily-identifiable risk’.
46He submitted that the correct approach to measuring the extent of the company’s departure from the reasonably practicable system is to have regard to particulars 5 and 7 on the indictment. Consistent with the jury’s verdict, he submitted the examination of the tow‑eye coupling carried out by the company did not prompt the steps set out in particular 5; and that the performance of the tug-test was not a measure that reduced the risk of decoupling as far as was reasonably practicable, as set out in particular 7.
47Mr Gurvich submitted, however, that the tow‑eye coupling was regularly inspected by the company in recognition of the risk that the tow‑eye coupling might fail. He referred to the evidence of Mr Haire that a tug-test was performed each time the truck and trailer were brought in for service, looking for movement in the coupling. He said that Mr Haire gave evidence that he did not see any movement of the tow‑eye coupling at any time during the offending period and that the castellated nut was tight when last inspected on 1 August 2014. Mr Haire further stated that if movement was seen, the tow‑eye coupling would have been disassembled.
48Mr Gurvich pointed to the fact that the criticism levelled by the prosecution was that the tug-test was inappropriate to detect microscopic movements within the tow‑eye coupling. He stated that the company’s departure from the statutory duty lay in its adoption of a system for inspecting and testing the tow‑eye coupling which failed to reduce the risk of the coupling failing as far as was reasonably practicable.
49Mr Gurvich submitted this was not a case in which there was a widely-known and understood safe system of performing the particular inspection that was known to and disregarded by the company. He pointed to the lack of publicly available material giving guidance to the use of the ‘bar test’, the method proposed by the prosecution. He also submitted that the tug-test was commonly performed by mechanics in the industry to inspect bolt‑in tow‑eye couplings. He relied on the evidence of Keith Haire, Richard Trethowan, and Phillip Hodges.
50Mr Gurvich submitted that the company faithfully adopted a particular system of inspecting and testing the relevant tow‑eye coupling, albeit a system that failed to reduce the relevant risk so far as was reasonably practicable. He submitted that the company genuinely held the belief that it was an appropriate way to perform such work. As such, Mr Gurvich submitted that the company’s departure from its statutory duty was better described as ‘moderate’ and not, as was submitted by the prosecution, ‘very significant’. Each of those matters to which I have just referred were also relevant, it was submitted, to the issue of the company’s moral culpability.
51With regard to the extent of risk, Mr Gurvich accepted that the likelihood of an event occurring as a result of the breach was high. He also accepted that the potential gravity of an event occurring was high, as demonstrated by what in fact occurred on 7 August 2014.
52In answer to Mr Palmer’s reliance on Mr Hodge’s expert opinion that it would be grossly negligent not to change the block if it was in the condition that it is now in, Mr Gurvich submitted that Mr Hodges was referring to what could be seen of the block once disassembled. So much was clear, he submitted, from Mr Hodges’ evidence at trial.
53Mr Gurvich also relied on the following matters in mitigation of sentence:
(a) the delay between the happening of the incident and sentencing;
(b) the absence of any prior or subsequent convictions;
(c) the otherwise good reputation of the company;
(d) measures implemented following the offending;
(e) loss of work as a result of the offending;
(f) the financial position of the company; and
(g) the impact of the COVID-19 pandemic.
54Mr Gurvich described the delay in this case as ‘extraordinary’. The event that gave rise to the investigation occurred on 7 August 2014. It was in approximately May 2016 that WorkSafe Victoria’s investigation was authorised, and the charge against the company was not authorised until 3 November 2017, by the then acting Director of Public Prosecutions.
55Mr Gurvich pointed to the fact that the jury returned its verdict in the second trial on 28 June 2021 and that the plea hearing was listed in October 2021, some seven years and two months following the offence. He stated, that delay is relevant because there had been a lengthy process of rehabilitation since the offending occurred and that the matter had been ‘hanging over the offender’s head for some time.’[8] Mr Gurvich noted that since the offence, the company has not committed any other criminal offence and that the delay had a significant impact on Keith Haire and Michelle Haire.
[8]Outline of Submissions on behalf of the Offender, Exhibit D1 on the Plea, at paragraph [37]
56The company has no prior or subsequent convictions, nor has it ever been issued with an improvement notice or prohibition notice by WorkSafe Victoria. This is significant, it was submitted, because the company has, for over ten years, undertaken the servicing and repair of countless heavy vehicles.
57The company has, Mr Gurvich informed me, since the incident, stopped servicing vehicles fitted with bolt‑in tow‑eye couplings. He submitted that when a client brings in a trailer with a damaged coupling it is replaced with a weld-in tow‑eye coupling. Further, that if a client brings in an undamaged bolt‑in tow‑eye coupling, Mr Haire convinces the client to replace it with a weld-in coupling.
58Exhibits D3 and D4 on the plea relate to loss of work directly as a result of the charge. The letter from Bill Maxwell, dated 25 August 2021, refers directly to the jury’s verdict and that, as a result, AAP Logistics cannot be associated with a vehicle maintenance provider found guilty of the charge. The company performed work for AAP in excess of two years.
59On 20 February 2020, VicRoads wrote to Mr Haire advising it was seeking additional information in response to the company seeking a new license for Heavy Mechanics Wodonga Pty Ltd to be a Licensed Vehicle Tester. The email states that VicRoads has ‘recently become aware of matters that may adversely impact upon the application.’ I was informed that in fact, in January 2018, the company’s roadworthy books were confiscated by VicRoads and its license to grant roadworthy certificates was suspended. In November 2018 its license was cancelled. The email dated 20 February 2020 was in response to an application for a new license. Mr Gurvich submitted that the loss in sales each year was between $60,000 and $90,000. According to the company’s accountant, Mr Peter Hart, on the assumption that sales are $100,000, this translates to a loss of net profit of about $18,000. He said, however, it was difficult to estimate because there was also the loss of associated or flow on work.
60Twenty-seven references were tendered testifying to the good reputation of the company, and I have also had regard to letters from Wodonga Secondary College and Certificates of Appreciation from Tallangatta Secondary College and Rutherglen High School. Mr Gurvich submitted that I should be satisfied that the company is a good corporate citizen and that the offending was entirely out of character for the company.
61As to the impact of the pandemic on the company, Mr Gurvich submitted its relevance is that the company experienced a downturn in work between March 2020 and January 2021 as a result. During the relevant period it relied on government grants and subsidies to continue operating.
Sentencing considerations and conclusion
62It is clear that an offence pursuant to s23 of the Act is a serious offence. As stated, the maximum penalty for an offence against s23 is 9000 penalty units which, at the time of the offence, amounted to $1,328,490.
63It is not in issue that the primary sentencing purpose in this case is general deterrence. That is, the sentence to be imposed must send a message to other employers that they have an active and ongoing duty to ensure, so far as is reasonably practicable, the health and safety of persons other than their employees. A failure to eliminate or reduce safety risks so far as is reasonably practicable will attract significant punishment. Denunciation of such conduct and just punishment are also important sentencing considerations.
64The integrity of the tow‑eye coupling was critical to the safety of persons other than employees of the company, such as other road users.
65In this case, the tow‑eye coupling failed as a result of wear occurring over time to various parts of the coupling, particularly the thread of the tow‑eye pin and the thread of the castellated nut. That wear was caused by movement of the tow‑eye pin within the block.
66To avoid, or to reduce, wear to the tow‑eye coupling it was necessary for the tow‑eye pin to be rigid and unable to move within the block. Thus a system of servicing the unit that checked for wear and movement was critical. The company failed to adopt a system of servicing the coupling that reduced the risk of the coupling failing as far as was reasonably practicable.
67As to the extent of the company’s departure from the duty it owed, I accept the submission of Mr Gurvich that it could not be said the offending involved ‘an almost complete disregard for an apparent, known, and readily-identifiable risk’. However, I consider the extent of the company’s departure from the duty owed is significant and the objective gravity of this offending is serious.
68In reaching my findings, I have had regard to a number of factors, including Mr Haire’s evidence he was aware that any movement in the coupling is problematic, and had utilised the tug-test over many years to check for such movement. I accept there was no blatant disregard for safety, nor is this a case where there was a deliberate overriding of safety methods. There was no evidence that the company had ever before experienced an event such as the one that occurred on 7 August 2014.
69I also accept that the tug-test was performed by some in the industry to check for movement, and hence whether the coupling was safe or unsafe. It was so used by Mr Haire and Mr Trethowan for that purpose.
70Nevertheless, the tug test was not a system of inspection that reduced the risk of a tow‑eye coupling failing as far as was reasonably practicable. It was, I find, in the manner in which it was performed, a test incapable of picking up small, but nevertheless dangerous, movements in the tow‑eye coupling.
71It is also clear that the company did not, in conducting a visual inspection of the coupling in its assembled state, have sufficient regard to the obvious signs of wear and damage on the block, and thus take the next step and conduct a more detailed inspection, including disassembly of the unit.
72In my opinion, the company ought to have known about the risk of decoupling having regard, in particular, to the external wear plainly visible on the block. That wear was caused by movement. That wear should have alerted the company to the possibility of movement in the tow‑eye coupling, and thus the risk of the coupling failing. It was not sufficient, in my opinion, for Mr Haire to say it was ‘old wear’. It was wear that called for further investigation.
73The company was required to be pro-active and to take all reasonable, practicable measures to ensure health and safety in the conduct of its undertaking. This included, in my opinion, a detailed inspection of the cause of the wear to the block, including the disassembly of the unit, and the use of the bar test.
74A more detailed inspection of a unit showing wear on the block, including its disassembly, and the use of the bar test to check for movement, were both readily available, inexpensive, and suitable ways to reduce the risk.
75I also have regard to the fact that the company’s failure was not isolated, and occurred each time the truck and trailer combination was serviced during the 12‑month offending period.
76It is also clear, and was not disputed, that the likelihood of the relevant risk eventuating as a result of the company’s failure over the period of offending, was high. The degree of harm that would result if the risk eventuated, as was submitted by Mr Palmer, could not have been more serious.
77The law is clear, however, that offences such as the one I am dealing with here, are risk based and not outcome based. The consequences arising from the company’s failure is not an element of the offence created under s23 of the Act. Its relevance, for sentencing purposes, is that I must have regard to the impact of the offence on any victims of the offence. Three persons tragically lost their lives and many others have been impacted, as evidenced by the Victim Impact Statements tendered and read to the Court by Mr Palmer.
78With the exception of this incident, the company has had an otherwise good reputation. This is attested to by the many character references tendered on its behalf. Many of the referees are themselves involved in the transport industry. It is clear from the references, that the referees place a high premium on the reliability and safety of their heavy vehicles and have never had any issues or concerns with the company. In general, they all speak very highly of the company. Many comment on the workmanship of Keith Haire, a number of whom have known him long before Heavy Mechanics commenced its operations.
79The company has no prior or subsequent convictions, nor had it ever been issued with an improvement notice or prohibition notice by WorkSafe Victoria. This is very much to its credit. The company is entitled to call in aid its otherwise good reputation in mitigation of penalty. The need for specific deterrence, in the circumstances, is to be moderated.
80The delay between the happening of the incident and sentence, a period in excess of seven years, is relevant in my opinion, given the company has not been in any further trouble and thus, the process of its rehabilitation is well underway. I accept that the company has changed its practises in no longer servicing bolt‑in tow‑eye couplings.
81The company, through its director, Mr Haire, pleaded not guilty to the charge. This is not a matter that in any way aggravates the penalty to be imposed. However, the company does not derive any benefit by way of reduction in penalty that would otherwise accrue for considerations such as remorse and utilitarian benefits to the court, the community, and witnesses who have had to give evidence in two trials. There is no evidence of remorse.
82Section 52 of the Sentencing Act requires me to have regard to the financial circumstances of the company. Whilst Mr Gurvich conceded that the financial position of the company was not a controlling factor in sentencing, it was nevertheless an important one. Reliance was placed on the decision of Di Tonto v The Queen.[9]
[9] Di Tonto v The Queen; AM Design and Construction Pty Ltd v The Queen [2018] VSCA 312
83Mr Gurvich submitted the evidence shows that the company is one of modest size and profit. It remains in existence, is profitable, and is capable of meeting a financial penalty at some level. He said it is not suggested the company will go into liquidation and it intends to continue to operate if possible.
84Mr Peter Hart gave evidence at the plea hearing of the structure in which the company trades as trustee for the K & M Family Trust. Mr Hart stated that the company does not operate in its own capacity, and has net assets of $12. All business activities are undertaken through the K & M Family Trust which has net assets of $100.
85I have had regard to Mr Hart’s evidence, his affidavit (Exhibit D7) and its accompanying exhibits and, in particular, the Trading Profit and Loss Summary for the financial years ending 30 June 2011 to 30 June 2021, inclusive. The net profit figure has fluctuated over those years but in the last three years, for example, it was $79,960, $186,355, and $172,206. It is from the net profit figure, by way of distributions from the Trust, that Keith and Michelle Haire are paid for their work. They both work full time for the company and the money distributed to them each year is, in his words, “not a lot”.
86Mr Hart was of the view that any significant fine would create severe problems for the company. This is a small business, he said, and it would take them a while to pay anything of significance.
87Under cross-examination, Mr Hart stated that other beneficiaries of the trust include IMCO Group Pty Ltd (“IMCO”), a company of which Keith and Michelle Haire are directors.
88In 2020, $101,000 was distributed to IMCO and, in 2021, $87,374 was distributed to IMCO. Mr Hart agreed that the Trust did not need to distribute money to those entities in the future and it could, instead, be used to pay a fine.
89I accept that the company is of modest size and profits, and that the imposition of a significant fine will create financial hardship for the company. However, this consideration is one of many to which I must have regard, including the primary consideration of general deterrence.
90Mr Hart estimated that the net profit loss from the roadworthy certificate work was approximately $18,000 to $20,000, and the net profit loss from APP Logistics work was about $18,000 per annum. These are, he said, ballpark estimates. He added that there would also have been associated loss of revenue from ongoing work that, at times, accompanied the roadworthy certificate work. I am prepared to have some regard to this loss as a form of extra curial punishment suffered by the company as a result of its offending.
91I have also had regard to each of the sentencing cases to which I was referred by both the defence and the prosecution.[10] They provide guidance as to sentencing principle and some guidance as to sentencing range. However, as is obvious from those decisions, there are a myriad of objective and subjective factors that make a comparison of this case and those decisions difficult. No case put forward as a relevant comparator can be said to be on all fours with the case before me.
[10] Orbit Drilling Pty Ltd v The Queen [2012] VSCA 82; DPP v AAA Auscarts Imports Pty Ltd, 12 May 2009, County Court (Judge Allen); Tomlin (VWA) v Valley Sweep Pty Ltd, 2 October 2020, Magistrates Court of Victoria (Magistrate L Hill); DPP Thiess Services Pty Ltd [2015] VCC 1954; DPP v New Sector Engineering Pty Ltd [2020] VCC 400; DPP v Grampians Free Range Poultry Pty Ltd, County Court 4 July 2018; DPPv Frewstal (2015) 47 VR 60; DPP v De Kort Enterprises Pty Ltd [2019] VCC 291; Di Tonto v R; AM Design and Construction Pty Ltd v R [2018] VSCA 312.
Sentence
92Having regard to all relevant matters put by both the prosecution and the defence, the company will be convicted and fined the sum of $210,000.
93MR BOURBON: As the court pleases.
94HIS HONOUR: Mr Palmer, are there any other matters?
95MR PALMER: Your Honour, there was a forfeiture order filed at some point, in relation to, I think, the exhibits. I had understood from the communication from the defence was that the informant would take control of them, and ensure they were available for the appeal, and the civil proceedings, which will now be conducted in the Supreme Court at some later point, actually forfeit them. But I wonder whether your Honour might make some order in respect of them now? Sorry, my junior is just saying something to me. I may have made a mistake.
96HIS HONOUR: Yes.
97MR PALMER: No, just my learned junior has just suggested that we don’t do anything until the appeal period is over.
98HIS HONOUR: I’m grateful to your learned junior, Mr Palmer. Mr Bourbon, I can’t see if Mr Gurvich is online, but are you appearing, or Mr Gurvich?
99MR BOURBON: I’m appearing, Your Honour.
100HIS HONOUR: Thank you, Mr Bourbon. Are there any other matters that I need to address?
101MR BOURBON: Not from me, Your Honour. Thank you.
102HIS HONOUR: All right. May I thank each counsel involved in this matter for their assistance, both during the trial and the plea hearing. Unless there are any other matters, I’ll now adjourn the court.
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