Director of Public Prosecutions v Paul Kenneally
[2019] VCC 658
•10 May 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No. CR-18-02552
CR-18-02579
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL KENNEALLY & ENTIRE SHOPFITTING PTY LTD |
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| JUDGE: | HER HONOUR JUDGE HANNAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 10 May 2019 |
| CASE MAY BE CITED AS: | DPP v Paul Kenneally & Anor |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 658 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Kaddeche | |
| For the Accused | Ms A. Upton |
HER HONOUR:
1Paul John Kenneally, you have pleaded guilty to one offence under s.144(1) and 21(1) of the Occupational Health and Safety Act 2004, in that, as an employer you failed so far as reasonably practicable to provide and maintain for your employees a working environment that was safe and without risk to health in that, contrary to s.21(2)(a), you failed to provide or maintain systems of work that were so far as reasonable practicable, safe and without risk to health and such contravention was attributable to a failure to take reasonable care. The maximum penalty for that offence for a natural person was at the relevant time 1800 penalty units which equated to a maximum fine of $279,828.
2Entire Shopfitting Pty Ltd has pleaded guilty to two charges. The first pursuant to s.21(1) of the Act, is that as an employer it failed so far as reasonably practicable to provide and maintain for its employees a working environment that was safe and without risk to health, in that contrary to s.21(2)(a) it failed to provide or maintain systems of work that were so far as reasonably practicable safe and without risk to health.
3In addition, Entire Shopfitting Pty Ltd has pleaded guilty to a further charge contrary to s.21(1) of the Act in that, as an employer, it failed so far as reasonably practicable to provide and maintain for its employees a working environment that was safe and without risk to health in that, contrary to Regulation 5.1.9 of the Occupational Health and Safety Regulations 2007, it was performing high risk construction work and failed to prepare a safe work method statement that complied with Regulation 5.1.5 of the Occupational Health and Safety Regulations 2007. The maximum penalty for both offences committed by the defendant company was 9000 penalty units which equates to $1,399,140.
4The particulars of all three offences are set out in the indictment and I do not propose to recite those details in full now. The facts which found the offending are set out in the prosecution opening dated 23 April 2019.
5Paul Kenneally, you were at all times an officer and the sole director of Entire Shopfitting Pty Ltd. On and prior to 19 May 2017 renovation and fit-out works were being undertaken at a unit in Hampstead Road in Maidstone. A number of contractors were engaged in the project. Entire Shopfitting quoted and was awarded the contract to do internal structural works and it had employees at the workplace for a number of weeks renovating the toilet area.
6On 19 May two employees, Gavin McMahon and Peter Heads were at the workplace for the first time. Mr Kenneally, on this date work was being carried out under your sole direction and you directed both employees to access a mezzanine level and commence framing works. At this time another contractor was engaged in raising the roof in that area and in the process had removed balustrades from the edge of the mezzanine. No temporary perimeter or guard rail had been erected. Mr Kenneally, you were at all relevant times aware of this hazard and you took no steps to ameliorate risks which were or should have been apparent. On this date Mr Heads was on the mezzanine level using a laser line on the frame under the assembly. He placed a step ladder near the edge of the mezzanine where there was no balustrading or perimeter guard rail. One leg of the ladder was placed in or near or a small cut-out area in the floor. When Mr Heads climbed onto the ladder the leg of the ladder went through the cut-out and tipped, causing Mr Heads to fall over the unguarded edge of the mezzanine and onto the floor below. Tragically he suffered serious head injuries and was transported to hospital. His injuries proved to be fatal.
7Subsequent WorkCover investigations revealed that the unprotected edge with no balustrading or perimeter guard had a 3.4 metre drop to the floor below. Both you, Mr Kenneally, and the defendant company have pleaded guilty on the basis that it was reasonably practicable to reduce the risk of death or serious injury from a fall of more than two metres by installing a passive floor protection device, or creating an exclusion zone, or prohibiting employees from accessing the mezzanine level.
8Both you and the company plead guilty on the basis that you failed to implement what was reasonably practicable. Further, the defendant company pleads guilty on the basis that it was reasonably practicable for it to reduce the risk of death or serious injury from a fall of more than 2 metres by preparing a SWMS statement, which would have identified the risk of a person falling more than
2 metres from the edge of the mezzanine level in circumstances where there was no balustrading or perimeter guard rail. The SWMS statement would also have identified measures to reduce that risk and set out how those measures were to be implemented.9I take into account that both you, Mr Kenneally and the defendant company entered your pleas at the earliest available opportunity at a committal mention on 13 December 2018. Neither you nor the company have any prior convictions. I accept that your pleas are evidence of remorse which in my view was further demonstrated by actions subsequent to these tragic events.
10The serious nature of the offences to which you, Mr Kenneally and the defendant company have pleaded guilty is reflected in the maximum penalties imposed by parliament. In coming to a view as to offence gravity I have had regard to the Court of Appeal decisions in DPP v Frewstal Pty Ltd, Dotmar EPP Pty Ltd v The Queen and DPP v Vibro-Pile (Australia) Pty Ltd. What is clear is that an accused is to be punished according to the gravity of the breach of the duty owed under the Occupational Health and Safety Act, not according to the result or consequences of that breach. The gravity of the breach is to be measured by firstly, the seriousness of the breach itself and secondly, the extent to which the risk of death or serious injury which might result from that breach.
11The extent of the risk is to be assessed by looking to 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 consequences of such an event. I have acted on the basis that the tragic death of Mr Heads is relevant in that it is a manifestation of the potential consequences of the breach. That is, it informs the assessment of the existence of the risk and the nature and seriousness of that risk.
12In my view this is a serious breach. It was an obvious known risk and no measures were taken to ameliorate such risk. The potential for death or serious injury was high in the event that the risk eventuated, that is, that a worker fell from the mezzanine floor onto a concrete surface 3.4 metres below.
13In my view this is a serious departure from the duty of any employer. The potential consequences of a fall from a height of 3.4 metres informs the assessment of the gravity of the offence, as does the known nature of the risk, that is, knowledge in relation to there being an unguarded live edge. As regards the SWMS statement not being completed for this site, this too in my view is a serious omission. It matters not that there was to be a changeover in terms of responsibility. These regulations are designed for workers safety. Adherence is both mandatory and necessary.
14I accept that the company did have an OHS system dated October 2016. I accept that this was not a situation of putting profit above workers safety. It was however a known and obvious risk and a decision was made to proceed regardless. It was put upon both pleas that this should not be viewed as flagrant disregard and that Mr Kenneally relied, albeit inappropriately, on the experience of two employees, the deceased having 12 years' experience and Mr McMahon having 15. With respect, that is not to the point. It is accepted that insufficient was done to discharge either defendant’s duty under the Occupational Health and Safety Act, a proposition with which I concur.
15It was further put that it was not necessary for the purposes of the work being undertaken for the deceased to be in the area of the live edge. It is however accepted that it would not have been possible to perform all work away from the live edge and it was inevitable that part of the work would need to be performed close enough to the edge such it would require protection. In my view it matters not whether workers would be exposed for a short time or a long period of time, as is clearly demonstrated by the incident that eventually unfolded. The nature of the risk is such that it can be realised in moments.
16At the end of the day both the prosecution and your counsel concede that this can be categorised as mid-range offending. As I said in discussion during the course of the plea, I think identification of the so called range is less important than identification of the factors which contribute to such assessment to which I have already referred.
17I have received a victim impact statement from the deceased man's father. What is clear is that the deceased man was a loved son and sibling. Grief and loss are ongoing and it is to be hoped that time will heal what should not have been endured. I note that the victim's father, uncle and a number of his siblings and others attended court upon the plea. It is to be hoped that these proceedings will allow them to find some closure.
18As I have said, neither you, Mr Kenneally nor the accused company have any prior convictions. In addition, I have not been taken to any previous OHS violations or notices.
19Mr Kenneally, you are the middle child of a sib ship of 7 boys. You had one sister who passed away in her 20s from a heart condition. Your mother passed away 20 years ago and your father some 10 years ago. You have four children, two from a previous marriage and two children of your current partner. The children are all in their late 20s and 30s and you are reported to be a close family.
20You have been with your current partner for some 20 years. You now live in Sorrento in a property that was owned by your partner before you met. Your family home of some 20 years was sold to pay worker entitlements and contractor debts. You are not currently working and you and your partner are relying upon your self-managed superannuation fund. You report that your relationship has been significantly strained as a result of this matter.
21You are now seeing a psychologist having been personally impacted by the loss of a long term colleague. Dr Papasava reports that you have been attending regularly for treatment and that it is your intention to continue to attend to deal with your sense of loss and grief regarding your part in this offending.
22As regards your physical health, I have received a report from Dr Peter King. He says you suffer from a number of chronic conditions including hypertension, hypercholesterolemia, atrial fibrillation, sleep apnoea, osteoarthritis and hypercalcemia. He also noted that you have attended upon a cardiologist, Dr Better, for regular review.
23As regard to the company, the company has been trading since 1984 and prior to this incident had some 20 employees. The company ceased trading in December 2017, partly as a result of this incident and partly a result of market forces and a downturn in business. You, Mr Kenneally, it seems, lost enthusiasm for the business subsequent to these events and could simply see no way forward. At this time, the sole activity of the company is the lease of equipment owned by it for some $20,000 a year which is used to pay for a company car which had been leased prior to the company ceasing to trade.
24Mr Kenneally, upon the company ceasing to trade the actions you have taken are significantly to your credit. Firstly, you negotiated with another company, not only to take over the premises, but also ensuring that your employees had secure jobs to go to. Whilst you could have simply liquidated the company, there would have been insufficient money in the company to pay all the company's debts. You took the honourable and unfortunately rarely seen path of selling the family home to ensure that all company debts were paid. As a result your staff were paid superannuation, long service leave, holidays and redundancy pay. Contractors were also paid outstanding invoices. The cost was some $1.1m. While this remains a debt in the company payable to you, the reality is that you do not expect to see any of this money. In my view your conduct in this regard demonstrates the good character to which I have already referred and makes clear that you are a responsible employer who does not put profit above people.
25By the time the company ceased trading you had already spent some $40,000 updating an occupational health and safety plan. You provided this to the company that took over the premises, clearly in the hope that it would be of benefit to them and your employees who had joined that company.
26I have received a number of references and testimonials. What is clear is that both you, Mr Kenneally and your company were held in high regard.
27In coming to a view as to the appropriate level of fine I have had regard to s.52 of the Sentencing Act, but as discussed with counsel during the course of the plea specifically as regard to the company, its lack of financial viability is not the primary consideration in determining the level of the fine. General deterrence must necessarily be given weight. For the purposes of sentencing in my view general deterrence must indeed be given significant weight. The message must be clear and consistent that breaches of this legislation placing workers at risk will not be tolerated and significant penalties will result in appropriate circumstances. As regards both accused, specific deterrence can be given less weight in light of their prior and subsequent good conduct and importantly, good record as regards occupational health and safety.
28I accept for the purposes of sentencing that Mr Kenneally has shown significant remorse. Mr Kenneally is of course the company and Mr Kenneally ensured that the company acted as a good corporate citizen as regards employees and others. Mr Kenneally, I regard your prospects of rehabilitation as excellent and to a large extent manifest. Mr Kenneally, your counsel submits that both you and the company should be fined without conviction.
29The prosecution concur as regards you personally in saying that a
non-conviction fine is not outside the range. The prosecution however submit that the conviction should be recorded as regards the company.30Before announcing sentence I wish to make clear to the victim's families that the penalties that I impose are no reflection of the value of a life. My task is to sentence criminality, not to try to value a life.
31Would you stand, please.
32In relation to Charges 1 and 2 the defendant company is convicted and fined $300,000.
33In relation to Charge 3, Mr Kenneally, you are without conviction fined $30,000.
34I grant a stay of three months to make payment of the fines.
35Pursuant to s.6AAA of the Sentencing Act I direct it be entered into the records of the court that but for your pleas of guilty I would have find the company the aggregate of $500,000 and you, Mr Kenneally, $45,000.
36HER HONOUR: Counsel, is there anything further?
37MS KADDECHE: No, Your Honour.
38MS UPTON: If Your Honour pleases, no.
39HER HONOUR: Thank you. Yes, I'll stand down, thank you.
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