Director of Public Prosecutions v Kalafatis Packing Pty Ltd

[2018] VCC 638

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

AT SHEPPARTON
CRIMINAL JURISDICTION

AP-18-0279

IN THE MATTER OF an appeal by the Director of Public Prosecutions pursuant to s257 of the Criminal Procedure Act 2009

DIRECTOR OF PUBLIC PROSECUTIONS On behalf of Michael O’Grady (Victorian WorkCover Authority)	Appellant
v
KALAFATIS PACKING PTY LTD (CAN 144 731 733)	Respondent

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JUDGE:	HIS HONOUR JUDGE RYAN
WHERE HELD:	Shepparton
DATE OF HEARING:	9 April 2018
DATE OF SENTENCE:	3 May 2018
CASE MAY BE CITED AS:	DPP v Kalafatis Packing Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VCC 638

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Appeal – Sentence – Failing to provide or maintain plant that was so far as reasonably practicable safe and without risks to health – Failing to provide or maintain systems of work that were so far as is reasonably practicable safe and without risks to health 

Legislation Cited:     Criminal Procedure Act 2009; Occupational Health and Safety Act 2004; Sentencing Act 1991

Cases Cited:Dotmar Epp Pty Ltd v The Queen [2015] VSCA 241; DPP v Frewstal Pty Ltd [2015] VSCA 266

Sentence:Fine of $150,000.00 with conviction; Costs; Section 6AAA declaration: Fine of $250,000.00

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Mahady	Office of Public Prosecutions
For the Accused	Mr D. Schier	Dawes and Vary Riordan

HIS HONOUR:

1By notice pursuant to s.257 of the Criminal Procedure Act 2009 and dated 7 February 2018, the Director of Public Prosecutions appeals against a sentence imposed on the Respondent, Kalafatis Packing Pty Ltd, by the Magistrates' Court sitting at Shepparton on 11 January 2018.

2The Respondent is charged with two offences under s.21(1) of the Occupational Health and Safety Act 2004, being:

·Charge 1, failing to provide or maintain plant that was, so far as is reasonably practicable, safe and without risks to health and;

·Charge 8, failing to provide or maintain systems of work that were, so far as is reasonably practicable, safe and without risks to health. 

3The maximum penalty for each offence is $379,175.

4The charges arise out of an incident that occurred on 7 November 2015, when Anne Dunn suffered a scalping injury whilst cleaning under a conveyer at the Respondent's company's workplace at 455 Old Dookie Road, Shepparton East.  The Respondent company grows, packages and sells pears and other fruit.  In addition, it purchases fruit from other growers and packages and markets that fruit.

5At the time of the incident, Ms Dunn was cleaning under the pear conveyer that was operating, or more accurately put, energised and moving.  Ms Dunn went under the Seconds Pear Line conveyer to clean when her hair became entangled in an unguarded, rotating driveshaft, and Ms Dunn had torn from her head all of her hair and attached skin from above her eyelids to the back of her neck.  She also lost an ear.

6Tendered as Exhibit A on the appeal was a bundle of photographs of the area in question, taken both immediately after the incident and after remedial safety work and construction had taken place on the "Pear Line" in response to WorkSafe safety notices. Additionally, tendered as Exhibit B was closed-circuit TV of the "Pear Line" at the time of the incident, although the incident itself could not be seen.  What could be seen was the inherently dangerous tasks that were being performed by a number of people at the rear of the Pear Line, including Ms Dunn at the time of the incident. Additionally, a view was conducted to more fully inform the court as to the site of the incident the also the remedial action taken by the respondent company. 

7It is to be noted that Charge 1 is a rolled-up charge containing four discrete breaches of s.21(2)(a), being:

a)there were driveshafts and chain and sprocket arrangements underneath the Seconds Pear Line conveyer that created catchpoints and in-running nip point hazards ("danger areas").  The danger areas were not guarded with a physical barrier;

b)there was a conveyer belt tray underneath the Seconds Pear Line conveyer, the danger area, that was covered with moveable pieces.  The pieces were not a fixed or interlocked physical barrier;

c)there were multiple danger areas around the perimeter of the Pear Line conveyer, and the Seconds Pear Line conveyer that created nip sheer and entrapment hazards;

d)there was an area between the Pear Line conveyer and the Seconds Pear Line conveyer to which access was required during operation, maintenance or cleaning of the plant.  When in that area, employees could access the underside of the Pear Line conveyer, and the Seconds Pear Line conveyer (see paragraphs 8-11 of Charge 1).

8In respect to Charge 8, the particulars of the breach alleged are:

a)Employees were required to clean the Pear Line conveyer, and the Seconds Pear Line conveyer, including underneath these conveyers;

b)When energised, there were several danger areas on the Pear Line conveyer and the Seconds Pear Line conveyer, including underneath those conveyers;

c)The Pear Line conveyer and the Seconds Pear Line conveyer were energised and moving during the cleaning process;

d)There was no requirement to isolate the Pear Line conveyer and the Seconds Pear Line conveyer from energy sources during the cleaning process, and as a result;

e)Employees could access the danger areas of the Pear Line conveyer and Seconds Pear Line conveyer, including underneath those conveyers during the cleaning process.  (See paragraph 5 of Charge 8).

9In the case of each charge, a number of employees were exposed to the risk. 

10The personnel working at the site were employed by T&R Contracting Shepparton Pty Ltd, a labour hire company.  T&R Contracting were charged with a failure to train, oblique, instruct employees in isolation of the conveyer.  The company was dealt with in the Magistrates' Court, and was convicted and fined $60,000, and costs were awarded.

11The Respondent company was charged in August 2016, and the matter resolved in 2017, some weeks prior to committal proceedings.  The matter was heard as a summary plea after a successful but opposed application by the Respondent company for the matter to be dealt with in the Magistrates' Court. Accordingly, while the Respondent company's plea can be regarded as an early one, it was not entered at the earliest opportunity.  The Respondent company's plea demonstrates the company's desire to facilitate the course of justice, and accordingly the Respondent company is entitled to the utilitarian benefit that flows to it from that plea.

12During the course of the plea, a number of witnesses were called by the Respondent company, including Jimmy Kalafatis, a director of the Respondent company.  It was plain from the evidence given by Mr Kalafatis that the Respondent company is a family business, and that he has been involved in the business since childhood. The business has operated for 60 years, and has no prior convictions. Mr Kalafatis swore that in his lifetime, there had never been a major incident at the factory site. Further, Mr Kalafatis swore that there had been regular inspections by officers at WorkSafe, and his attention was never drawn to any deficiencies in the Pear Line.  The Pear Line machinery had been manufactured in New Zealand and operated by the Respondent company since 2006. 

13Immediately after the incident, the Pear Line ceased operation, and a consultant was employed to oversee and advise on the implementation of the safety notices issued by WorkSafe, and to generally advise the Respondent company on occupational health and safety issues within the Respondent company and a root and branch level. From the time of the incident, occupational health and safety issues have been at the forefront of the Respondent company's managerial activities, at every level of operation of its business.  The Respondent company employs an overseer, whose sole function is the oversight of occupational health and safety in the Respondent company's operations.

14It was plain from Mr Kalafatis' evidence that he, as well as all of the staff for the Respondent company, were deeply shocked and moved by the incident.  The Respondent company flew Ms Dunn's parents to Australia from Ireland, as they could not afford the airfare.  It is manifest that the guiding mind of the Respondent company, namely Mr Kalafatis, is remorseful for the Respondent company's failure.

15Ms Sarah Mackin of the Respondent company was called on the plea, whose role involved the oversight of quality assurance and exports.  She explained the induction process that each new employee must now undergo prior to being permitted to being employed by the Respondent company. 

16What became apparent during the plea was that the Respondent company, in years past, had a stable workforce, fully conversant with the dangers of the factory floor, but that over time, with the use of a labour hire company and the increase in oversees backpackers seeking work, the Respondent company's workforce became transient, and the lurking dangers of the Pear Line became a reality.

17Having viewed Exhibit B repeatedly, and conducted a view, I am astounded as to how an employer could have left the Pear Line unguarded, the power driveshaft unguarded, or allowed employees to perform the tasks of cleaning as depicted in Exhibit B when the Pear Line was operating.  The risks were obvious to an untrained observer, and the breach was acknowledged by counsel for the Respondent company as serious.

18In respect to the driveshaft, Mr Kalafatis swore that the shaft had originally been guarded, but a portion of the guard had been removed by a maintenance fitter employed by the Respondent company, and not replaced.  Mr Kalafatis was unable to say when the guard had been removed prior to the incident, and was unaware of its removal. 

19In Dotmar Epp Pty Ltd v The Queen [2015] VSCA 241 Priest JA, delivering the judgment of the Court, opined at paragraph 22 and 23 of the judgment that:

"…The OHSA is concerned generally with risks to health and safety, and under Part 3, concerned specifically with the duties owed with respect to health and safety.  It is the extent of the failure to ensure that employees are not exposed to risks to their health and safety, which determines the objective gravity of the offence.  The consequences of the failure generally do not.  That is not to say that the fact of death or injury occurring is necessarily irrelevant.  The occurrence of the accident resulting in death or injury of a particular kind may inform an assessment of first, the existence of the risk, and secondly, the nature and seriousness of that risk. 

Hence in determining the gravity or seriousness of the offence, the sentencing court must assess first the extent of the departure from the duty owed, secondly the extent of the risk to health and safety thereby created, and thirdly the likelihood or risk of particular harm resulting. Put another way, in a case such as the present, the gravity or seriousness of a breach is to be measured by reference to the potential consequences of the breach, the extent of the disregard for the safety of employees, and the risk of the potential consequences of the breach materialising." 

20In DPP v Frewstal Pty Ltd [2015] VSCA 266 at 127, Priest and Kaye JJA opined:

"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 OHSA, 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, such as the event that occurred in the particular case, 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 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."

21Counsel were in agreement in respect to the primacy of general deterrence in the exercise of the sentencing discretion.  The Director emphasised the seriousness of the breach itself, which was described as objectively very serious, in that the work being performed at the Respondent company's factory site gave rise to a daily risk of entangling, crushing or entrapping workers at the site. Further, it was noted that Charge 1 encompassed four separate contraventions of occupational health and safety regulations, whilst Charge 8 addressed the daily risk of serious injury due to failure to isolate the energy source during cleaning. 

22The Director emphasised the extent of the risk of death or serious injury which might result from the breach, and that in this case the Respondent company's breaches clearly had the potential to result in serious injury to those employees working at the plant. Further, the Director emphasised the likelihood of the occurrence of an event as a result of a breach (such as the event that occurred here) endangering the safety of employees or others. This of course encompassed the potential gravity of the consequences of such an event, and the fact that the breach in this case resulted in serious injuries to Anne Dunn, which is relevant in that it demonstrates the degree of seriousness of the relevant threat to health or safety resulting from the breaches.

23Counsel for the Respondent company replied upon the company's plea of guilty, and the utilitarian value that flowed from that plea.  Further, the Respondent company had operated as a family business for over sixty years, and it had no criminal history and had not had any previous safety incidents or accidents.

24Counsel for the Respondent company emphasised that the evidence given by Mr Kalafatis as to the cost of the business as a result of the incident, in that the Pear Line had to be closed down and remedial work to the value of $200,000 was performed over approximately a month before the Pear Line could be operated safely. Further the Respondent company spent an additional $200,000 in order to pack fruit elsewhere whilst the changes and upgrades were undertaken.  Counsel emphasised the importance of the new position of the overseers, as I have described that person who supervises and oversees other supervisors within the business, his sole brief being that of occupational health and safety in that arena.

25In my opinion, the extent of the departure from the duty owed by the Respondent company to its employees was gross, and the extent of risk to the health and safety thereby created was manifest.  I regard the likelihood of risk of the particular harm resulting as high.

26As against that, the Respondent company has pleaded guilty.  Mr Kalafatis, as a Director of the company, was genuine in his description of his attitude and that of all concerned with the Respondent company to the incident.  Likewise, the Respondent company's attitude to occupational health and safety since the incident has evolved to where occupational health and safety is a primary driver in all of its activities.  The Respondent company has been in operation for 60 years, and without prior convictions.

27No submissions were made or evidence called in respect to the Respondent company's ability to pay an appropriate fee.

28In all the circumstances I convict the Respondent company and impose an aggregate fine of $150,000. I order that the Respondent company pay the costs of the Magistrates' Court proceeding, which were fixed at $22,000, which I understand have already been fully paid by the Respondent company.

29Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for the Respondent company's plea of guilty, I would have imposed a fine of $250,000.

30Once my reasons have been revised, I will provide the Respondent company and the Crown with copies of my reasons.  Are there any other matters to be attended to?

31MS MAHADY:  No Your Honour.

32MR SCHIER:  No Your Honour.

33HIS HONOUR:  Thank you.  I will stand down until the next matter is ready.

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