Director of Public Prosecutions v Oriana
[2024] VCC 535
•30 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02351
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SERGIO ORIANA |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 March 2024 | |
DATE OF SENTENCE: | 30 April 2024 | |
CASE MAY BE CITED AS: | DPP v Oriana | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 535 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Breach of ss 24(1) of the Occupational Health and Safety Act 2004 (Vic) – Person fell to death from over two metres – High risk construction work – No Safe Work Method Statement – Sentencing principles in OHS prosecutions – Improvement project considered
Legislation Cited: Occupational Health and Safety Act 2004 (Vic); Occupational Health and Safety Regulations 2017 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Seascape Constructions P/L v The Queen [2022] VSCA 29; Glenister v Wayne Horne Earthmoving Pty Ltd [2018] VSC 390; Deal v Father Pius Kodakkathanath (2016) 258 CLR 281; DPP v Frewstal Pty Ltd (2015) 47 VR 660; R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; R v Commercial Industrial Construction Group (2006) 14 VR 321; Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55; DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557
Sentence: Fine - $8,000 with conviction – s 6AAA declaration – Fine of $12,000 with conviction
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N Kaddeche | Office of Public Prosecutions |
| For the Accused | Mr S Oriana | NA |
HIS HONOUR:
Introduction
1Sergio Ricardo Oriana, you have pleaded guilty to one charge in contravention of section 24(1) of the Occupational Health and Safety Act 2004 (Vic) (‘OHSA’), that on or about the 17 August 2018, being a self-employed person, you failed to ensure so far as was reasonably practicable that persons were not exposed to risks to their health or safety arising from the conduct of your undertaking in contravention of regulation 327 of the Occupational Health and Safety Regulations 2017 (Vic) (OHS Regulations).
2According to the indictment, the persons placed at risk by your conduct included but were not limited to James Leo Lacey.
3Regulation 327 of the OHS Regulations required you to have a Safe Work Method Statement (SWMS) for the work you were performing on the day in question. You did not have one.
4As a direct consequence of your breach, James Leo Lacey fell to his death.
5You are to be sentenced on the basis of the Prosecution Opening for Plea Hearing[1] which I note is an agreed document. Before I address the facts, there is a preliminary issue about the indictment which needs to be considered.
[1] P1.
A preliminary question
6Section 24 of the OHSA obliges a self-employed person to ensure, so far as is reasonably practicable, that persons are not exposed to risks to their health and safety arising from the conduct of the undertaking of the self-employed person.
7As noted, the charge brought against you alleges that you contravened regulation 327 of the OHS Regulations. Regulation 327 relevantly provides:
Safe work method statement required for high risk construction work
(1) An employer or self-employed person must not perform high risk construction work if there is a risk to the health or safety of any person arising from the work, unless—
(a) a safe work method statement is prepared for the work before the work commences; and
(b) the work is performed in accordance with the statement.
(2) If there is non-compliance with a safe work method statement prepared under subregulation (1) in relation to particular work, the employer or self-employed person must—
(a) stop that work immediately or as soon as it is safe to do so; and
(b) not resume the work until the statement is complied with or reviewed and, if necessary, revised in accordance with regulation 328.
8“High risk construction work" includes construction work where there is a risk of a person falling more than 2 metres.[2]
[2] Occupational Health and Safety Regulations 2017 (Vic), r 322.
9A note at the foot of regulation 327 reads: ‘Act compliance – sections 21, 23 and 24 (see regulation 7)’.
10Regulation 7 of the OHS Regulations in turn provides:
Act compliance notes
If a note at the foot of a provision of these Regulations states "Act compliance" followed by a reference to a section number, the regulation provision sets out the way in which a person’s duty or obligation under that section of the Act is to be performed in relation to the matters and to the extent set out in the regulation provision.
Note
A failure to comply with a duty or obligation under a section of the Act referred to in an "Act compliance" note is an offence to which a penalty applies.
11As the Court of Appeal has explained, the net effect of these various provisions is that a self-employed person will contravene her or his duty under section 24 of the OHSA if she or he fails to comply with regulation 327. It is sufficient in a case such as the present if the charge identifies the offence as a breach of section 24 and identifies the acts and omissions on the part of Mr Oriana alleged to have constituted his non-compliance with the requirements of regulation 327(1).[3]
[3] Seascape Constructions P/L v The Queen [2022] VSCA 29, [35].
12The charge alleging the breach of section 24 of the OHSA has appended to it 13 numbered particulars.
13Particular 12 reads as follows:
It was reasonably practicable for Sergio Oriana to ensure that a SWMS specific to the work at the workplace had been prepared prior to commencement of the work at the workplace.
14This particular unnecessarily and undesirably imports the requirement of ‘reasonable practicability’ into the charge for contravening regulation 327. For the reason explained by the Court of Appeal in Seascape Constructions P/L v The Queen,[4] this is inappropriate as it proceeds on a misconception of the relationship between regulation 327, regulation 7 and the duty imposed by section 24 of the OHSA.
[4] [2022] VSCA 29; see also Glenister v Wayne Horne Earthmoving Pty Ltd [2018] VSC 390, [16]; Deal v Father Pius Kodakkathanath (2016) 258 CLR 281, [65], [68] (Gageler J).
15In a case such as the present, no question arises about whether the prescribed measure is reasonably practicable. All that the prosecution needs to prove is that the self-employed person is performing high risk construction work without first having prepared a SWMS and/or ensuring that the work was performed in accordance with the SWMS.[5]
[5] [2022] VSCA 29, [34]-[35].
16After I raised this with counsel for the prosecution, Ms Kaddeche sought leave to amend the charge by deleting particular 12. Leave was granted and the indictment duly amended.
The offending
Background
17You are a plasterer and sole trader, trading as Smooth Interiors (ABN 84 447 739 587). At all relevant times, you were a self-employed person as defined by section 5 of the OHSA in that you were a ‘person, other than an employer, who works for gain or reward otherwise than under a contract of employment or training’.
18LNX Construction Pty Ltd (ACN 612008778) was the principal contractor for the construction of two double storey townhouses at 143 Jetty Road, Rosebud (‘the workplace’). LNX entered a major domestic building contract with the owners of the property, Aaron Blencowe and his wife, Narelle.
19The Blencowes engaged you to undertake plastering works at the workplace and you undertook the work with the assistance of labourers you sourced on Gumtree.
20On 16 August 2018, James Leo Lacey responded to a Gumtree advertisement you posted, to assist with plastering activities at the workplace. You advised Mr Lacey that the job involved site cleaning, putting tools away and assisting with odd jobs at the site. Mr Lacey commenced at the workplace the following day, on 17 August 2018.
The Incident
21On 17 August 2018 at approximately 9:30am, Mr Lacey fell approximately 3.2 metres through the first-floor stair void of the rear townhouse at the workplace. Mr Lacey had been working for approximately two hours at the time of the incident. The stair void did not have any guard railing or fall protection at the time of the incident.
22Mr Lacey sustained life-threatening head injuries. He was transported to the Alfred Hospital by air ambulance and tragically his life support was turned off the following day.
23At the time of the incident, you did not have a Safe Work Method Statement for undertaking plastering works at heights of greater than two metres.
24You were present at the time of the incident and at all relevant times in the lead up.
Worksafe Attendance and Investigation
25On 17 August 2018 at approximately 11.10am, WorkSafe Inspectors Allan Mulvena and Rachel Baker together with a number of Investigators attended the workplace. During their inspection, Inspectors Mulvena and Baker observed the following:
(a) The rear townhouse had no stairs installed and no stair void protection in place;
(b) There were no perimeter edge protection measures in place on the first floor and adjacent to the stair void in the rear townhouse;
(c) The ladder in the stair void of the rear townhouse was not properly tied in place; and
(d) There was a large pool of blood on the concrete floor below the stair void of the rear townhouse.
26Inspector Baker issued you with an improvement notice requiring you to prepare a Safe Work Method Statement for plastering at heights of more than two metres.[6] The improvement notice also stated that work on the first floor of the rear townhouse could only recommence once the Safe Work Method Statement had been prepared.
[6] See Occupational Health and Safety Act 2004 (Vic), s 111.
27On 27 August 2018, Inspector Baker reattended the workplace. You were not present at the workplace and therefore Inspector Baker was unable to follow up on your compliance with the improvement notice she had issued on 17 August 2018.
28Inspector Baker subsequently made numerous unsuccessful attempts to contact you. The Court was informed that you have not returned to the workplace. The improvement notice issued to you remains outstanding.
Objective gravity
29The assessment of the objective gravity of a given breach of the employers’ duty in section 21 of the OHSA is assessed by reference to what are commonly referred to as the Frewstal[7] factors. While you have been charged as a self-employed person under section 24, and the case of Frewstal concerned the duties of an employer, similar considerations apply.
[7] DPP v Frewstal Pty Ltd (2015) 47 VR 660.
30As the Court of Appeal explained:
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 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.
31I assess the objective gravity of your breach by reference to the following considerations:
(a) The risk of a fall when working from height has been recognised by the Court of Appeal as ‘self-evident’, ‘notorious and grave’;[8] and
(b) Industry Guidance, in the form of a Compliance Code promulgated under section 149 of the OHSA, records that guardrails, safety mesh and harnesses are reasonably practicable ways to control any risk of falling more than twp metres.[9]
[8] R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; (2006) 14 VR 321 (‘CICG’) [39], [61].
[9] Compliance Code – Prevention of Falls in General Construction (ed 2, 2019). That Code replaced the Code of Practice (No 10) – Safe Work on Roofs (1989) – see generally CICG (n8) [39].
32I note that SWMSs have been used in the building industry to control risk for many years.
33You have been engaged in the building industry for many years. You ought to have been well aware of the need for a SWMS for the work you required Mr Lacey to perform.
34The OHSA is designed to protect all workers against risks to their health and safety. A self-employed person is required to take a proactive approach to protecting those people working for her or him.
35I assess the objective gravity of the breach as significant. Your lengthy experience in the building industry means that your moral culpability for the offending is high.
Victim Impact
36Although the Court was not provided with a Victim Impact Statement, I accept that the sudden and entirely preventable death of Mr Lacey has had a devastating effect on his family and friends.
37I have taken this impact into account as I am required to by the Sentencing Act.[10]
[10] 1991 (Vic), s 5(2)(daa).
Current Sentencing Practices
38The Court was not referred to any cases that were said to be similar to the present one.
39I note that, in a case such as the present, the Court must impose a fine at a level that deters other self-employed people from risking the safety of those affected by the risks that arise from their undertakings. The Court must send a clear message to self-employed people that a failure to eliminate or mitigate safety risks will attract significant punishment.
Personal Circumstances
40You are 39 years of age, and were 33 at the time of the offending.
41You were born in Argentina and came to Australia in 1992 with your family, when you were eight years old. Your father was a barber and your mother worked in a factory.
42You have a nine year old son. You are separated from his mother, with whom he resides in Queensland. You report contributing $500 per month for his care.
43You took up plastering, learning on-site for around five years until you decided to go out on your own to work in a self-employed capacity.
44You report that at the time you were learning your trade, safety procedures and standards were not given the emphasis and importance they are now.
45You continue to work as a self-employed plasterer and report earning around $800-1000 per week on average.
46You have a number of unrelated prior convictions. There is nothing alleged against you subsequent to this offending. This is despite continuing to work in the building industry.
47Delay is a significant consideration in your case for two reasons.
48First, the charges have hung over you for a very long time through no fault of yours.
49Secondly, your lack of any further offending enables me to assess your prospects of rehabilitation as positive. This reduces the need for the sentence I impose to achieve specific deterrence or community protection.
Sentencing considerations
50The OHSA is designed to protect all workers against risks to their health and safety. As noted, a self-employed person is required to take a proactive approach to protecting those people working for her or him.
51The seriousness with which such breaches are to be treated is reflected in the maximum penalty for an individual offender of 1,800 penalty units or $290,142.
52The principal sentencing purpose is general deterrence. The sentence imposed by a court in a case involving a breach by a self-employed person of this important duty needs ‘to draw attention to the importance of workplace safety, and to send a message to [self employed people] that failure to eliminate or mitigate safety risks will attract significant punishment’.[11]
[11] Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55, [234]. Although the case concerned the duties of employers, it is equally applicable to the duties of the self employed.
53Factors personal to an offender such as a plea of guilty and a good record are of subsidiary importance in sentencing in such cases.[12]
[12] DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557, [35].
54The sentence I impose must also express the Court’s denunciation of your offending.
Consideration: an Improvement Project?
55Section 136 of the OHSA relevantly provides:
(1)If a court convicts a person or finds a person guilty of an offence against this Act or the regulations the court may make an order requiring the offender to undertake a specified project for the general improvement of occupational health, safety and welfare within the period specified in the order.
(2) The order may specify conditions that must be complied with in undertaking the specified project.
56During the hearing of your plea in which you represented yourself, I explored with both you and counsel for the prosecution whether the Court should exercise this power and order you to attend at one or more TAFE colleges and address one or more classes of apprentice tradespeople. What I had in mind is that you could share your experience of the terrible events that led to this prosecution and its legal aftermath for you. It seemed to me that hearing that message from you as a fellow ‘tradie’ would have a resonance that may not be present when such a message is conveyed by an OHS professional.
57The intent of such a project would be to contribute to general deterrence by spreading the message about the importance of workplace safety and following the rules. The real life experience that you could share with a group of young people who will themselves shortly be able to influence work safety in this industry would be invaluable in my view.
58To your credit, and without knowing precisely what it would involve for you, you expressed a willingness to participate in such a project.
59I discussed with counsel for the prosecution that such a presentation could be jointly conducted by you and an inspector appointed under the OHSA.[13]
[13] The Victorian WorkCover Authority has statutory functions which include engaging in, promoting and co-ordinating the sharing of information to achieve the objects of the OHSA and promoting public awareness and discussion of occupational health, safety and acceptance of the principles of health and safety protection set out in section 4 – see Occupational Health and Safety Act 2004 (Vic), s 7(1)((i) and (j).
60Ms Kaddeche, who appeared for the Director, sought some time to obtain instructions. I acceded to that request and asked her for a specific proposal setting out dates and locations for the proposed presentations by you.
61On 25 March 2024, the prosecution filed further submissions.[14] In those submissions the original submission (that the appropriate disposition was ‘a CCO or substantial fine with conviction’) was maintained. In response to the Court’s proposal, the prosecution submitted that:
… an improvement project is not appropriate, having considered the NSW guide for non-monetary orders (see attached), the one Victorian order of Skilled Group Limited (see attached), matters put forward by the accused and his ability to undertake and complete an improvement project and … finally the sentencing principles relevant to this case previously outlined in previous sentencing submissions.[15]
[14] Further Sentencing Submissions on Behalf of the Director of Public Prosecutions (undated).
[15] Ibid, [4].
62I have read the documents attached to the prosecution submissions. It is not clear to me how they support the prosecution submission that the proposed improvement project is ‘not appropriate’. In any event, I have decided that, in the absence of support from the Victorian WorkCover Authority as the OHS regulator, an improvement project such as the one I envisaged would not be feasible.
63As noted, you had no hesitation in indicating your willingness to participate. This is to your credit. I take it as a tangible indication of your remorse and your desire to see something good come out of this tragedy. I have taken this into account in mitigation of the penalty that I have imposed.
64At the hearing on 27 March 2024, Ms Kaddeche submitted that a Community Correction Order (CCO) would be appropriate.
65I ordered a pre-sentence report pursuant to s 8B of the Sentencing Act to assess your suitability for a CCO under which you would be required to perform unpaid community work and engage in a program to address risks of re-offending.
66On 28 March 2024, the Court was informed that you were considered unsuitable for a CCO.[16] The stated reason in the Report is that you did not consent to the Order being made. You explained that you were engaged in full-time employment and had family responsibilities for your son. You stated that you would prefer to pay a financial penalty and you could pay this on a payment plan.
[16] Community Corrections Order Assessment Outcome Report of Sergio Ricardo ORIANA dated 28 March 2024.
67I am unable to impose a CCO if you do not consent to the Court doing so.[17]
[17] Sentencing Act 1991 (Vic) s 37(c).
68In these somewhat unsatisfactory circumstances, the Court only has one realistic option. That is to impose a fine.
69In determining the amount of the fine, I am required, so far as practicable, to take into account your financial circumstances.[18]
[18] Ibid, s 52.
70On 27 March 2024, you were asked by me in open court to provide your tax return or other evidence of your income in order to inform the Court of your capacity to pay a fine. You were requested to provide any such documents by 3 April 2024.
71On 4 April 2024 my chambers contacted you to follow up regarding the documents and you advised that your accountant was away and that you would ‘try to have it sorted’ by the following week.
72The Court has not received any documents to date.
73I note that s 52(2) of the Sentencing Act provides that I am not prevented from imposing a fine in these circumstances. I am satisfied that you can pay a fine taking into account what you told Corrections Victoria and that you are presently earning approximately $800 - $1,000 per week.
74The maximum fine that can be imposed is $290,142.
75Taking into account the objective gravity of your offending, your moral culpability, the impact on the family of Mr Lacey and the various matters of mitigation discussed earlier in these reasons including your willingness to participate in the proposed improvement project, you are convicted and fined $8,000. A stay of 6 months is ordered.
76Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that, had you pleaded not guilty and had you been found guilty by a jury, the fine would have been $12,000 with conviction.
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