Director of Public Prosecutions v Multiworks Australia Pty Ltd (ACN 163 646 016)

[2021] VCC 1553

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-19-01366

Indictment no. K10612328.2

DIRECTOR OF PUBLIC PROSECUTIONS

v

MULTIWORKS AUSTRALIA PTY LTD (A.C.N 163 646 016)

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JUDGE:

HER HONOUR JUDGE CARLIN

WHERE HELD:

Mildura and Melbourne

DATE OF HEARING:

Mildura Trial dates: 30 June 2021, 1 July 2021, 2 July 2021, 5 July 2021, 7 July 2021

Melbourne Plea date: 24 August 2021

DATE OF SENTENCE:

23 September 2021

CASE MAY BE CITED AS:

DPP v Multiworks Australia PTY LTD (ACN 163 646 016)

MEDIUM NEUTRAL CITATION:

[2021] VCC 1553

REASONS FOR SENTENCE

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Subject: Criminal

Catchwords: workplace death in construction industry; company defendant; Section 21 of the Occupational Health and Safety Act 2004 (Vic); Regulation 327 of the Occupational Health and Safety Regulations 2017 (Vic); complying with Regulation would not have prevented death; whether to record a conviction.

Legislation Cited: Occupational Health and Safety Act2004 (Vic); Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic).

Cases Cited: Glenister v Wayne Horne Earthmoving Pty Ltd [2018] VSC 390; DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557; R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321; DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676; DPP v Frewstal (2015) 47 VR 660; Worboyes v The Queen [2021] VSCA 169.

Sentence: a fine of $50,000.00 imposed without conviction.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Bourbon	Office of Public Prosecutions
For the Accused	Ms A. Dickens	Seyfarth

HER HONOUR:

Introduction

1On 24 October 2017, 58-year-old Graham Tranter, an employee of Multiworks Australia Pty Ltd, died in a workplace incident in Mildura.  At the time Multiworks was engaged as a subcontractor on the McConnell Dowell/Martinus Joint Venture (MMJV) Murray Basin Rail Project and was working on replacing a rail crossing in Eleventh Street, Mildura.  It had hired a storage yard in Walnut Avenue, Mildura, to store all necessary plant and equipment for the works in and around Mildura. 

2Mr Tranter was an experienced truck driver with a number of technical qualifications who had been inducted into the health and safety policies of the company and the project.  When he died he was overseeing the loading of an Octopus Concrete Sleeper Handler and a Bomag Single Drum Roller onto a drop deck trailer at the storage yard so that he could drive them, atop the trailer, to Eleventh Street.  After a co-worker loaded the Octopus onto the upper deck of the trailer with a loader, Mr Tranter climbed onto the trailer with his back to the Octopus and proceeded to give hand signals to another co-worker who was reversing the Drum Roller onto the lower deck.  Unexpectedly the wheels of the Drum Roller jumped onto the upper deck crushing Mr Tranter between the Drum Roller and the Octopus.  He sustained fatal injuries and died at the scene.

3WorkSafe investigators attended the storage yard later in the day and commenced an investigation which ultimately led to Multiworks being charged on indictment with three offences of failing so far as was reasonably practicable to provide a safe working environment to its employees contrary to section 21 of the Occupational Health and Safety Act2004 (Vic). Each charge alleged a different breach of Multiworks' obligations in relation to the loading and unloading of plant onto and off trailers on 24 October 2017.

4Charge 1 alleged that Multiworks was obliged to prepare a document called a Safe Work Method Statement (SWMS for short) specific to the task and had failed to do so;

5Charge 2, which was an alternative to Charge 1, albeit a more serious charge, essentially alleged that Multiworks failed to provide a reasonably practicable system of work by ensuring the establishment of an exclusion zone around the trailer being loaded or unloaded; and

6Charge 3 essentially alleged that Multiworks failed to provide necessary information, instruction and training as to procedures to be followed for the task. 

7On 30 June 2021 Multiworks pleaded not guilty to all three charges on the indictment and a jury trial in Mildura commenced.  On 7 July 2021, which was the fifth day of the trial,[1] proceedings were brought to an end when Multiworks pleaded guilty to Charge 1 and the prosecutor announced that no evidence would be led on Charge 3.  The jury was then discharged without verdict and entries of guilty and not guilty respectively were made in the records of the court in respect of those charges.[2]  The matter was then adjourned to 24 August 2021 at Melbourne for the plea hearing to occur.

[1] The Court did not sit on 6 July 2021. 

[2] Pursuant to section 241 of the Criminal Procedure Act2009 (Vic). Charge 2 was noted as an alternative to Charge 1.

8At this point it is important to acknowledge that Mr Tranter’s death was a tragedy.  He left behind a loving partner of almost 13 years, a number of siblings, two daughters and a son.  At the same time, it is also important to acknowledge that Multiworks was never charged with causing Mr Tranter’s death.  His death was the event that prompted WorkSafe to investigate, but none of the original three charges required proof that the alleged safety breaches caused or contributed to Mr Tranter’s death, nor that his death would have been prevented if the alleged safety breaches had not occurred. 

9Moreover, the charge that has proceeded, Charge 1, does not even require proof of how a SWMS would have reduced or eliminated risk to health and safety as far as reasonably practicable.[3]  In effect, once it is proved that a SWMS was required, that is deemed to be the case. In other words, an employer who does not have a SWMS when required to do so is deemed to have failed to maintain a working environment that was safe and without risks to health so far as was reasonably practicable.  In this case, for reasons which will become obvious, I do not believe Multiworks' failure to have the required SWMS contributed to Mr Tranter’s death or, to put it another way, that compliance would have made any difference. 

[3] Glenister v Wayne Horne Earthmoving Pty Ltd [2018] VSC 390, [16], [20] (McDonald J).

10The plea hearing having occurred it now falls to me to sentence Multiworks on Charge 1.  In arriving at an appropriate sentence, which in this case really amounts to the magnitude of the fine and whether it is with or without conviction, I am required by law to have regard to a variety of, sometimes countervailing, factors.[4]   Some tend towards leniency and some point the other way.  No one factor automatically prevails over any other.  Rather, I must have regard to them all and give each one the weight it deserves to arrive at a just sentence.

[4] Sentencing Act 1991 (Vic) s 5(2) (‘Sentencing Act’).

Objective gravity of your offending and moral culpability

11Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender.  Indeed, in the case of occupational health and safety offences objective gravity is said to be the most important sentencing factor.[5]  

[5] DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557, [35].

12To understand the objective gravity of Charge 1 it is necessary to understand the occupational health and safety legislative scheme and the rationale behind it.  The Occupational Health and Safety Act2004 (Vic) places the responsibility for eliminating or reducing risks to health and safety of employees, as well as others who might be exposed, on those who control or manage the matters giving rise to the risks. Employers are obliged to be proactive; they must take all reasonably practicable steps to provide and maintain a safe working environment including, where appropriate, taking an active, imaginative, and flexible approach to potential dangers in the workplace.[6] 

[6] See R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321, 332 [49] (Maxwell P, Buchanan & Redlich JJA).

13Whilst the burden on employers is evidently heavy, this is because the consequences of them failing to discharge their obligations can be dire.   It is trite to say that a civilised society demands that the health, safety and welfare of its employees be vigorously defended.

14An employer who fails to provide and maintain a safe working environment, even inadvertently, is liable, if a body corporate, to a maximum penalty of 9000 penalty units.[7]   At the time of the instant offending, this equated to a fine of $1,427,130.00 – unambiguously demonstrating the seriousness with which parliament regards the offence.[8] 

[7] Occupational Health and Safety Act 2004 (Vic) s 21(1).

[8] DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676, 731, [233] (Maxwell P, Redlich and Whelan JJA).

15Of course, whilst the crime of failing to maintain a safe system of work is inherently serious, it does cover a range of conduct.  In this case Multiworks' breach arose from its failure to have a relevant SWMS as required by the Occupational Health and Safety Regulations 2017 (Vic) (‘The Regulations’). Specifically, Regulation 327 prohibits an employer from undertaking ‘high risk construction work’ where there is a risk to the health and safety of any person from the work unless a SWMS has previously been prepared for the work and the work is performed in accordance with that SWMS.

16The loading and unloading of plant onto and off trailers at the storage yard constituted ‘high risk construction work’ as defined in the Regulations because it was performed ‘in connection with’ the construction and demolition of the railway line at Eleventh Street and involved movement of powered mobile plant.[9]   Further, as the death of Mr Tranter illustrated, the work carried a risk of serious injury or death from the plant coming into contact with a person during the process. 

[9] Occupational Health and Safety Regulations 2017 (Vic) reg 321, 322 and 323.

17As I have already mentioned, not having a SWMS when required constitutes an automatic breach of an employer’s obligation to provide a safe working environment without proof of anything more.[10] 

[10] Ibid reg 7; note to reg 327.

18In this case the prosecution and defence both submitted that Multiworks' breach was at the low end of the spectrum of seriousness for the offence. Whilst I do not agree, as defence submitted, that every breach of section 21 based on a breach of Regulation 327 is necessarily at the low end of seriousness, I do agree that in the particular circumstances of this case, it was.

19Moreover, having regard to the authorities, particularly the principles set out DPP v Frewstal,[11] I consider both the objective gravity of the offending and Multiworks' culpability to be at the low end.  The reasons are as follows. 

[11](2015) 47 VR 660 (Maxwell P, Priest and Kaye JJA).

20Although Multiworks did not have a specific SWMS for the loading and unloading of plant onto and off trailers, it did have four other relevant SWMS.  Those SWMS were prepared for other tasks on the rail project involving the movement of mobile plant (Tabs 22 to 25 of the Jury Book).  Although in a different context, these SWMS mandated the establishment of exclusion zones and, in two instances, the use of a spotter, as well as other safety measures.  The prosecution agreed that these other SWMS meant that Multiworks came close to complying with Regulation 327.  

21Further, in other ways Multiworks had a clearly communicated and reinforced system for working around mobile plant which included the use of no-go zones and spotters. In particular, it had a written procedure ‘Working Around Mobile Plant’, which mandated observation of no-go zones and the use of spotters.  It utilised a poster ‘Safety Golden Rules’, which set out precautions for working near or operating mobile plant; and it ensured all workers on the project, whether employees or contractors and including Mr Tranter, were experienced and competent in the operation and transporting of mobile plant and had received all relevant inductions.[12]  Finally, the importance of observing no-go zones and using spotters when loading and unloading was reinforced daily at pre-start meetings and through the daily START card procedure and through supervision by the Site Supervisor.     

[12] The details of which are summarised in the Amended Defence Submissions dated 20 August 2021 at [33].

22In view of the various safety measures Multiworks had in place in relation to movement of mobile plant in other contexts, I consider its failure to have a specific SWMS for the loading and unloading of plant onto and off trailers to be a low-level departure from its statutory obligations.  Moreover, albeit the risk from the activity, being death or serious injury, was grave, I consider it unlikely that the absence of a specific SWMS would have significantly increased the chance of that risk eventuating given the workers were armed with the information necessary to complete the task safely from other sources.   As I have already said, I do not believe a SWMS would have prevented Mr Tranter’s death.  

23Further, I am satisfied that Multiworks did not intentionally disregard its safety obligations.  To the contrary, it engaged a well-qualified and experienced Health, Safety, Environment and Quality (HSEQ) Manager to develop works documentation for the rail project, including SWMS, risk registers and procedures.  It also followed an agreed procedure whereby it submitted all SWMS for the rail project to MMJV for review and approval before commencement of work.  Neither the HSEQ manager, the Site Supervisor, the MMJV, nor even, it appears, WorkSafe inspectors at first instance,[13] identified the absence of a SWMS for the specific task of loading and unloading of plant onto and off trailers as a problem.

[13] The Improvement Notice issued after the death of Mr Tranter did not include a failure to have a SWMS specific to loading/unloading of plant.  The failure was not alleged until 15 May 2019, when it was added as an additional charge on a continuation to the original two charges filed on 1 March 2019.

Circumstance of Multiworks

24Multiworks is a family-run privately owned construction and engineering company, based in Brooklyn, Victoria with about 70 employees.  

25It has been operating for 18 years and in that time has undertaken a number of complex, high-risk infrastructure and construction projects for some of Australia’s largest asset owners, operators and businesses.  It holds a number of industry accreditations and is authorised to carry out certified civil construction and engineering works for major electricity supply networks.  In fact, much of its work involves constructing, managing or working around high-voltage and high-risk electricity and rail network infrastructure. 

26Despite operating in a high-risk industry, to its credit Multiworks has no prior safety breaches or other convictions and no pending matters.  Its safety history and various accreditations has enabled Multiworks to tender successfully for a number of federally funded projects.  It spends $50,000.00 on training each year and employs three safety professionals at the cost of $492,000.00 per annum.

27The MMJV Murray Basin Rail Project, on which Multiworks was engaged at the time of Mr Tranter’s death, broadly involved the upgrading of rail tracks and replacement of rail crossings between Ararat and Mildura.

28Following Mr Tranter’s death and in response to an Improvement Notice issued the next day, Multiworks developed a SWMS for the loading and unloading of plant and developed a separate written procedure to cover the task.  It is notable that it prepared a SWMS even though the Improvement Notice did not explicitly require it as a safety measure.  It also developed a training video and other educational information for loading and unloading mobile plant and implemented a range of more general safety measures and training.

Plea of Guilty, co-operation and remorse

29I take into account in Multiworks' favour the fact it co-operated with WorkSafe’s investigation by providing documents and access to information and that it took immediate remedial action in response to Mr Tranter’s death.

30I also take into account the fact that Multiworks pleaded guilty.  Although the plea occurred on what was to be the fifth day of the trial, defence counsel submitted that it should be regarded as an early plea of guilty given that up until then Multiworks was facing two additional and more serious charges.  Whilst this is true, it is also true that Multiworks did not make a prior offer to settle the matter on that basis nor indeed plead guilty to that single charge, as it might have done.  Nevertheless, I accept that the plea of guilty did have utilitarian benefit in saving the time and resources of the court and the community and Multiworks is entitled to a discount in sentence because of that.  Further, our Court of Appeal has recently said that pleas of guilty should attract greater discounts during the pandemic than at other times.[14] 

[14] See, eg, Worboyes v The Queen [2021] VSCA 169, [39].

31Defence counsel also submitted that Multiworks' plea of guilty was evidence of genuine remorse and contrition.  I am not persuaded that this is the case since it was evident throughout the trial that Multiworks did not consider that it had breached its health and safety obligations in the manner alleged in Charge 1.  This was so even though I consider it obvious, at least in retrospect, that it should have had a SWMS for the task in issue.  That said, there is no doubt that in pleading guilty Multiworks facilitated the course of justice and took legal responsibility for its crime and deserves full credit for that, especially, it might be said, in circumstances where it believed it had a reasonable defence. 

Current Sentencing Practices

32One of the matters to which I must have regard in arriving at an appropriate sentence is current sentencing practices, which may be gleaned from statistics or sentences imposed in other cases or both.[15] 

[15] The rationale for doing this is to promote consistency of approach in sentencing, particularly, the application of relevant sentencing principles. 

33Whilst no two cases are ever truly the same, and other sentences are not precedents to be applied or distinguished, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case. 

34I was provided with a selection of broadly similar cases by both the prosecution and defence.  It is difficult to discern a relevant sentencing practice from those cases.  They were all quite different to the present and most involved multiple safety breaches rather than a single charge of failing to prepare, or follow, a SWMS.    All except for one were prosecuted summarily.  The fines ranged from $15,000.00 for a natural person (and therefore a lower maximum penalty) to $300,000.00 for the single matter that proceeded on indictment. Several of the fines were imposed without conviction.  The single matter on indictment involved a death and what appeared to be an obvious disregard for safety.  In other words, it was objectively more serious than this case.  Further, the fine was an aggregate fine to cover two charges, only one of which was a failure to prepare a SWMS.   

35I have found the cases useful in a broad sense, but their different circumstances serve to highlight that ultimately my duty is to impose a just and appropriate sentence in the unique circumstances of this case. 

The impact of a conviction

36I have a discretion whether or not to record a conviction for the offence.  In exercising that discretion I must have regard to all the circumstances of the case including the nature of the offence, the character and past history of the offender and the impact of a conviction on the offender’s economic or employment prospects.[16]

[16] Sentencing Act (n 4) s 8.

37Multiworks urged that I not convict, relying on its good record of safety, the relatively minor nature of the breach, its low moral culpability and the potential financial impact of a conviction.   I should note in relation to these current sentencing practices, because I do not think I mentioned it, that a number of the cases to which I was referred had a non-conviction fine imposed.  As to the last matter that Multiworks relied on, that is the potential financial impact of a conviction, Multiworks submitted that its business relies heavily on successful tenders and it is often asked to disclose whether it has any convictions in the tender process.   

38The prosecution did not argue against a non-conviction disposition.   

Purposes of Sentencing

39In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 (Vic) prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community.

40The primary sentencing consideration in this case, as in all occupational health and safety breaches is general deterrence.  That is, there is a need for my sentence to deter other employers from falling short of the standards expected of them.  This is particularly important given that the onus is on employers to be proactive in relation to safety.  They must realise that any breach of safety standards whether through deliberate disregard, complacency or inadvertent oversight, may result in substantial penalty.    

41I do not consider there is a need for my sentence to address the factors of specific deterrence or community protection and rehabilitation is effectively meaningless in this case.  Denunciation does have some, albeit minor, role to play. 

42Notwithstanding the importance of general deterrence my sentence must also be just and the minimum required to achieve all the sentencing purposes.  It is important to recognise the many mitigating factors that apply in this case and further that the recording of a conviction is itself a punishment.  I accept the arguments advanced by Multiworks as to why I should not impose a conviction and will not do so.   

Sentence

43Balancing the competing considerations as best I can on Charge 1, a charge of failing to provide a safe working environment by not preparing a SWMS for high risk construction work, without conviction, I order Multiworks to pay a fine of $50,000.00.  I refer that fine to Fines Victoria for collection and management.

Section 6AAA 

44If Multiworks had not pleaded guilty to that charge and then been found guilty by a jury, I would have convicted and fined it $100,000.00.

45MR BOURBON:  As the court pleases.

46HER HONOUR:  Right.  Any - I do not think there are but are there any other orders that I need to make or any issues parties want to raise?

47MR BOURBON:  No, Your Honour, not from me.

48MS DICKENS:  No, Your Honour.

49HER HONOUR:  Right, I will - I see one member of the family I think did join after I started.

50MR BOURBON:  Yes, Mr Saporita, Your Honour, I was reluctant to interrupt Your Honour's sentencing remarks but - - -

51HER HONOUR:  That is okay.

52MR BOURBON:  - - - it was about a quarter of the way through.

53HER HONOUR:  Right.  Well, Mr Saporita, you will in due course, because you missed some of the sentencing remarks, be provided with those sentencing remarks, I am sure, and you will understand what I said in relation to the death of Mr Tranter.  I will now adjourn the court, thanks.

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