Director of Public Prosecutions v Precast Civil Industries Pty Ltd
[2022] VCC 110
•10 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01180
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PRECAST CIVIL INDUSTRIES PTY LTD |
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JUDGE: | His Honour Judge Hannebery | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 January 2022 | |
DATE OF SENTENCE: | 10 February 2022 | |
CASE MAY BE CITED AS: | DPP v Precast Civil Industries Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 110 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Occupational health and safety – failure to provide and maintain a safe plant or systems of work
Legislation Cited: Occupational Health and Safety Act 2004; Sentencing Act 1991
Cases Cited:DPP v Frewstal Pty Ltd (2015) 47 VR 660.
Sentence: Convicted and fined $275,000.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Bourbon | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr S. Stafford | Norton Rose Fulbright |
HIS HONOUR:
Introduction
1On 21 September 2018 Nathan Lewis died at work. His loss has had a profound effect on those close to him. This was eloquently expressed in the victim impact statements of Lissette Jeffs, Melissa Eaton, Mark Lewis and Taryn Irwin.[1]
[1]Prosecution Exhibit 2.
2WorkSafe investigated the incident and found that Mr Lewis' employer, Precast Civil Industries Pty Ltd ('Precast'), had in numerous ways failed in the duty it owed Mr Lewis.
3Precast has pleaded guilty to one charge of failing to provide and maintain a safe system of work pursuant to ss 21(1) and 21(2)(a) of the Occupational Health and Safety Act 2004 ('OHSA').
4The maximum penalty for this offence is 9,000 penalty units which equated to $1,450,710 at the time of the offence.
5Precast has no prior criminal history.
Circumstances of Offending
6The prosecution opening was tendered[2] and read on the plea and may be summarised as follows:
[2]Prosecution Exhibit 1.
7Precast is a company that manufactures concrete pipes at 16 Provincial Crescent, Shepparton. Nathan Lewis had worked for Precast for two and a half years prior to the incident on 21 September 2018.
8There were two pieces of equipment known as radial presses at the workplace, known respectively as the red radial press and the blue radial press. The radial presses were used to manufacture pipes. Each radial press had a control panel on the second level and a second control panel on the ground floor.[3]
[3]Prosecution Exhibit 4.
9On 21 September 2018 Nathan Lewis was the leading hand for the red radial press.
10Each press was cleaned daily at the end of production. Whilst the methods of operating both presses were largely the same, the cleaning process for each press differed slightly.
11The blue radial press had self-cleaning rollers affixed to the conveyor. The red radial press did not. This meant that the operators of the red radial press had to hammer hardened concrete residue off the concrete feed conveyor. This was not required for the blue radial press.
12At the time of the incident there were a number of measures in place to address the risk of injury or death resulting from contact between employees and the moving parts of the plant. The red radial press had a captive key system to control access to the gates and lockout panels for the latter to stop so when the captive key was removed the red radial press would stop operating.
13A set of light curtains located at the entrance to the red radial press and a further set was located next to the metal platform. Interrupting the beams of the first set of light curtains would stop the operation of the turntable, whereas interrupting the second set would stop the operation of other areas of the press.
14Unfortunately, the risk control measures in place at the time of the incident were inadequate. There were gaps that allowed workers to step through and access the red radial press without interrupting the beams.
15On 21 September 2018, Mr Lewis was cleaning the red radial press. The cleaning task was one he undertook daily as part of his role as leading hand.
16Whilst the cleaning of the radial press was a daily task, the cleaning of the rollers was not. That task was only routinely done every three months, unless required earlier. There was no documented procedure for the cleaning of the rollers. Investigations revealed that the usual procedure to clean the rollers of the red radial press, which was not fitted with self-cleaning rollers, was by use of a man cage on a forklift. An employee would be lifted under the conveyor and then hit the rollers with a hammer. It was not usual to have the conveyor operational whilst the cleaning process was taking place.
17On 21 September 2018, it would seem that Mr Lewis did not undertake the roller cleaning task in the usual manner. Mr Lewis climbed over the guard rail next to the control desk and stood on the workbench. The workbench had ceased operation, but the concrete feed conveyor was still operating. Another employee was undertaking cleaning tasks on the ground level. No one was standing at or near the control desk.
18Mr Lewis used a hammer on the conveyor rollers to remove hardened concrete that had accumulated during production. During this process, Mr Lewis made contact with the return roller on the underside of the concrete feed operator. He was drawn in, and fatally crushed by the conveyor.
19The charge against Precast is put on the basis that Precast failed to ensure, so far as was reasonably practicable, that there was a system of work at the workplace whereby employees would clean the red radial press in a way that was safe and without risks to health.
20In particular, it is alleged that there were risks to Precast employees health and safety from;
(a) being exposed to the rollers located on the underside of the concrete feed conveyor and becoming entangled by such contact; and
(b) falling from height by climbing the guard rails.
21The charge alleges that Precast failed in its duty to its employees, including
Mr Lewis, by failing to implement the following reasonably practicable measures to either eliminate or minimise those risks;(a) installing self-cleaning rollers on the red radial press to eliminate the need to make contact with the rollers on the underside of the concrete feed conveyor;
(b) preventing employees from bypassing existing safety systems, specifically:
(i)installing ends panels so that employees could not walk behind the light curtains; and
(ii)installing fencing so that employees could not climb over the guard rail to avoid the captive key system;
(c) installing metal plates over the gaps where the conveyor returned over the roller; and
(d) maintaining a system of work whereby the underside of the conveyor belt was reached by alternative means, such as a forklift and cage.
Sentencing Principles
22One of the primary objects of the OHSA is to secure health, safety, and welfare of employees and other persons at work. The objects of the Act emphasise that those who control matters that give or may give rise to risks to health and safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.
23The legislative scheme requires employers to take a proactive approach to workplace safety - that is, to take steps that are reasonably practicable to provide and maintain a safe working environment including, where appropriate, taking an active, imaginative, and flexible approach to potential dangers in the workplace.
Objective Seriousness of the Offending
24A breach of an employer's duty to its employees to provide so far as reasonably practicable a working environment that is safe and without risk to health is an inherently serious offence, as evident from the maximum penalty prescribed by Parliament.
25The primary factor in determining OHSA matters is the objective seriousness of the offending. The applicable principles are set out in DPP v Frewstal Pty Ltd .[4]
[4]DPP v Frewstal Pty Ltd (2015) 47 VR 660.
26The nature of this offence is risk based, not outcome based. An offender is punished according to the gravity of the breach of duty owed, not according to the results or consequences of the breach.
27That said, s 5(2)(daa) of the Sentencing Act 1991 requires the court to take into account 'the impact of the offence on any victim of the offence'. In this case it was conceded that there is a causative connection between the breaches alleged in the offence and the death of Mr Lewis. As such, I have regard for the matters I have already referred to contained within the victim impact statements.
28In this case, the risks posed by entanglement with the conveyor and from fall from height from the plant were self-evident. Indeed, they were known to the employer and addressed, to some extent, by the administrative and engineering controls already in place at the time of the incident.
29What the tragic death of Mr Lewis highlighted was that the measures implemented were inadequate. By its plea of guilty Precast acknowledges that a reasonable employer in its position prior to the incident ought to have recognised the capacity for employees to bypass the safety mechanisms in place on the radial press.
30Whilst the roller cleaning task was undertaken relatively infrequently, Precast ought to have foreseen the significant possibility that an employee might undertake that task in a manner other than the usual forklift and man cage process. That there existed real prospects of an incident of a nature like that which took Mr Lewis' life is evident from the observations of other employees, that employees climbing over the guard rails on the red radial press was a common practice in the workplace.
31Precast had available to it multiple ways in which it could reduce the chances of an incident such as the one that took Mr Lewis' life.
32By its plea Precast accepts that it should have installed self-cleaning rollers on the red radial press. Whilst I accept Precast' s contention that the red radial press was installed in compliance with the manufacturer's instructions, in failing to install the self-cleaning mechanism that it had on the blue radial press, it neglected to take a measure that would by itself have removed the need for employee involvement in the roller cleaning task at all. The capacity for this measure to effectively eliminate the risk of an incident such as the one we are dealing with in this case makes the failure to implement it, in my view, the most serious of the particularised allegations.
33The remaining engineering controls particularised as reasonably practicable in the indictment are in some ways lesser alternatives to simply installing the self-cleaning roller. Whilst individually and collectively they had the capacity to substantially reduce the risk that was realised in this incident, they did not have the capacity for the effective elimination of risk that the self-cleaning roller measure offered.
34The company's failure to install the self-cleaning rollers and thus continue to require the intermittent involvement of employees in the cleaning process is made more serious by the fact that the blue radial press, in the same workplace, had this safety measure implemented from the start.
35In the absence of self-cleaning rollers, the company had implemented an alternative procedure to minimise the risk, namely the use of a forklift and cage for the cleaning process. This procedure was not documented and by its plea Precast accepts that such a system was not maintained on the date of the incident.
36The failure to adequately address the risk of entanglement with the conveyor is in my view of more significance to the gravity of the charge then the failure to address the risk of fall from height. The capacity for death or serious injury caused by the conveyor was objectively greater than a fall from height of just over two meters.
37Overall, I consider the breach to be a serious example of the offence, though somewhat short of the top end of the range. The company failed to address risks that arose if an employee undertook an unavoidable and routine task in a manner outside of the usual procedure. As was, however, tragically illustrated by the incident, the risk posed was one of death. There were multiple safety measures available to the employer to either eliminate or significantly reduce that risk.
Circumstances Particular to Precast
38The nature of the offence means that general deterrence must be the primary sentencing consideration, and that factors personal to the offender are of lesser moment than usual when arriving at an appropriate sentence for an offence of this nature.
39There are, however, significant matters in mitigation to be given appropriate consideration in this case.
40The company pleaded guilty to the offence at an early stage in proceedings. Especially in the context of the impact that pandemic restrictions have had on court listings, the plea of guilty has very significant utilitarian value. These prosecutions are by their nature complicated and time-consuming. The plea of guilty has saved the time and resources that would otherwise have been expended on contested proceedings. I acknowledge that the company's plea has brought to a conclusion a matter that may well have remained pending for a very significant time awaiting trial.
41In this case, those proceedings would also have undoubtedly caused significant distress to Mr Lewis' family and friends. The company's plea has mercifully avoided that outcome.
42I accept that the plea of guilty is also indicative of corporate remorse. The plea is consistent with the company's cooperation with the WorkSafe investigation and, most significantly, the timely implementation of remedial measures.[5] I accept that Precast has responded to the incident in a manner consistent with a company that values the safety of its employees. The company has gone to significant expense not simply to fulfil WorkSafe directions but to achieve ongoing safety outcomes.
[5]Defence Exhibit 2.
43Precast has no prior criminal history since its incorporation in 2016. It employs 117 people in Victoria. It is not alleged in this case that the breach has involved any blatant disregard of a known safety hazard. I accept that specific deterrence has only a limited role in the sentencing process. The company's actions subsequent to the incident, specifically the remedial actions and the early plea of guilty, provide a significant basis to conclude that a subsequent breach of safety laws is improbable.
Current Sentencing Practices
44Both parties have helpfully provided the court with details of recent sentences imposed in circumstances, comparable, if not identical, to the current case.[6] An analysis of these cases is useful in order to determine, in a broad sense, current sentencing practices for offences against the Act. The previous cases provide broad guidance, but every case is determined on its own unique facts.
[6]Prosecution Exhibit 3 and Defence Exhibit 3.
45I wish to direct this comment to the family of Mr Lewis. The sentence I will impose is a reflection of a large number of factors which I am required by law to consider and is no measure of the worth of Mr Lewis' life. Imposing a fine is not an assignation of monetary worth to the victim's life, an indication of the 'triviality of the offending', or about compensating the victim. Rather, it is a reflection of the risk-based offences that comprise the OHSA.
Sentence
46Weighing all these matters as best I can, I sentence Precast Civil Industries Pty Ltd as follows;
47On Charge 1, failing to provide and maintain a safe workplace, Precast are convicted and fined $275,000.
48Pursuant to s 6AAA of the Sentencing Act1991, if not for the company's plea of guilty, I would have convicted and fined the company $450,000.
49Are there any further orders required?
50MR BOURBON: No, Your Honour. As the court pleases.
51MR STAFFORD: No, Your Honour. As the court pleases.
52HIS HONOUR: Thank you very much, I will adjourn the court until 10.30.
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