Director of Public Prosecutions v Prestige Truck Bodies (Aust) Pty Ltd
[2023] VCC 747
•24 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01224
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PRESTIGE TRUCK BODIES (AUST) PTY LTD |
‑‑‑
| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 March 2023 |
| DATE OF SENTENCE: | 24 April 2023 |
| CASE MAY BE CITED AS: | DPP v PRESTIGE TRUCK BODIES (AUST) PTY LTD |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 747 |
REASONS FOR SENTENCE
‑‑‑
Subject: CRIMINAL LAW
Catchwords: Charge of failing to ensure a safe workplace – panels fell on employees whilst unloading container – failure to realise no reasonably practicable way to safely remove contents from container – importance of general deterrence – moderate degree of departure of duty owed – early plea of guilty – remorse – rehabilitation achieved
Legislation Cited: Occupational Health and Safety Act 2004; Sentencing Act 1991
Cases Cited:Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55; Director of Public Prosecutions v Frewstal Pty Ltd [2015] VSCA 266; Director of Public Prosecutions vAmcor Packaging Pty Ltd [2005] VSCA 219; Director of Public Prosecutions v Best Benchtop and Stone Pty Ltd [2022] VCC 2296; Dotmar Epp Pty Ltd v The Queen [2015] VSCA 241; Worboyes v The Queen [2021] VSCA 169
Sentence: Fine of $225,000
‑‑‑
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr I. Hill K.C with Ms N. Kaddeche | Office of Public Prosecutions |
| For the Accused | Mr S. Tovey | Loupe Legal |
Introduction
1Prestige Truck Bodies (Aust) Pty Ltd, which I will refer to Prestige, pleaded guilty to a charge of failing to ensure a safe workplace. The offence contained in the charge is created by s21(1) and s21(2)(a) of the Occupational Health and Safety Act 2004, which I shall refer to as 'the Act'.
2The maximum penalty for this offence for a corporation is 9,000 penalty units. Given the value of a penalty unit at the time of the offending, this translates into an amount of $1,486,980.
3Among other things, Prestige's guilty plea accepts Particular 11 of the charge, namely, it was reasonably practicable for it to eliminate or reduce the risk by implementing a system of work requiring:
(a) any panels supplied to its business to be packed by the supplier in such a manner that would allow the panels to be unpacked using a powered mechanical aid such as a forklift, including the use of stillages, skids and crates; and
(b) any container that arrived containing panels that were not packed in a manner that allowed the panels to be unpacked using powered mechanical aids to be returned to the supplier to be repacked in a manner that allowed the use of such aids.
4Subject to amendments, the circumstances of the charge are set out in the document entitled 'Prosecution opening' or 'Plea hearing' which is Exhibit A.
Circumstances
5Prestige designs, makes and installs truck bodies to rigid trucks. It does so in premises in Carrum Downs. At the relevant time it employed between about 60 and 70 persons. One of those persons was Kevin Smith who was a floor manager.
6At the relevant time, Prestige did not make the entirety of the truck bodies. About almost every six months it imported panels from overseas. These panels arrived at its premises in shipping containers and were unloaded by its employees. There was no special group of employees organised for this task. Mr Smith would arrange for employees to do the unloading. These persons, including Mr Smith, were not trained to do this unloading. There was no established system for unloading these panels.
7Within the containers, the panels were laid horizontally and vertically. They were secured with straps or ropes but were not loaded using crates, skids or stillages. They were not packed in a way which allowed unloading by mechanical means alone. For example, by a forklift truck.
8On 15 January 2020, an employee of Prestige sent an email to the supplier.[1] It read:
“Just wondering if you have any photos of the container being loaded so we know how we will unpack it.
Are the panels on stillage’s or pallets? How are they strapped? Are they stacked vertically or horizontally? Do they have cardboard protecting the edges?”
[1] Exhibit A.
9There was a reply the same day:
“The size for the following panels are fit to be packed with pallets, and they use two pallets to pack them in container.”
10After giving a list of what appears to be the dimensions and number of pallets, the email continued:
“The others are not fit for pallet package, so they are fixed with strap on one pallet, and some foam strip as infill.
When you unpack the container, tilt the container at one angle, and then unpack them...”
11A photograph accompanied the email showing the interior of the container with the panels. Looking into the container, there are several groups of vertical panels on the left‑hand side, and to their right, appear horizontally placed panels.
The accident
12On 21 January 2020, Mr Smith and four other employees were given the job of emptying such a shipping container of these panels. The panels had been strapped and roped to limit their movement during transport. They were not in crates or adequately secured. Mr Smith and the other employees discussed how to unload the panels. They decided the vertical panels would be supported by a forklift, using a long metal pole clamped to its tines. The pole would hold up the panels.
13Mr Smith stood at the rear of the container, on top of the horizontal panels. As the straps were loosened to move the first vertical panel, several panels fell or toppled over. They struck two employees. Mr Smith was struck on the chest and died from mechanical asphyxia. Another employee suffered a fractured elbow. The remaining employees were uninjured physically but suffered mental health injuries.
14To understand why Mr Smith died and the other worker was injured, the panels require some description. The supplier's photograph depicts the packed interior of the container. After the accident, the photographs taken by or on behalf of the expert, Ryan Cullen, show an interior after removal of the smaller, horizontally packed panels.
15At the front of the container Mr Cullen saw[2]:
(a) 12 sheets of 2.5 metres by 5.55 metres particle board weighing 225 kilograms per sheet;
(b) 12 sheets of 2.5 by 5.55 metres polystyrene/fibreglass weighing 75 kilograms per sheet; and
(c) three smaller particle board sheets and three smaller polystyrene sheets between the larger sheets.
[2] Exhibit B.
16These sheets had a combined weight exceeding three and a half tonnes. The post‑accident photographs show three groups of sheets leaning into the upper right‑hand side of the container.
17A WorkSafe investigator sought the opinion of Mr Cullen. He is the head of occupational health and safety at an organisation called 'Young Guns Container Crew'. This organisation specialises in the packing and unpacking of containers. Mr Cullen concluded[3]:
“Due to the weight and size of the panels, in my opinion the panels were not able to be and should not be manually handled.”
[3] Exhibit B.
18He also concluded the panels should have been removed by:
(a) using a forklift with a rotating clamp attached to rotating clamp attachment, to clamp onto each individual sheet;
(b) to slide the panels out one by one and then lower them onto pallets using another forklift as a guide; and
(c) while ensuring no employees were within the foreshadow of the panels.
19It took Mr Cullen and his team two days to develop and carry out a plan to unpack the contents of the container. The plan involved deliberately damaging the panels, undertaking manual lifting, and being within the foreshadow of the panels. This plan could not have been carried out by Prestige. It may not have been appropriate for Mr Cullen and his team to have attempted the unloading. It appears they experimented to see if it could be done.
20Immediately after the accident, Prestige decided not to import these panels from China. Instead it decided to make its own panels. It bought the equipment to do so. Not only was the equipment expensive but it took up a significant amount of space in its factory. This space would have been used for the existing production. Prestige employed five extra staff. The overall cost, presumably including wages, was placed at over $1 million. The cost of making the panels as opposed to importing them is 30 per cent greater.
Criminal History
21Prestige has no previous convictions or findings of guilt. Since its business has existed since 1996, and is of some size, good character over 24 years weighs in its favour.
Victim impact statements
Rhonda Smith
22In February 2023, Rhonda Smith made her impact statement. She is the widow of Kevin Smith. She first learned of the accident when her distraught son rang her. She drove to the scene but arrived too late. She and Mr Smith had been together for almost 35 years. They have two children. A son and a daughter. She loved her husband. Their family life was ideal.
23Both children have suffered emotionally from the death of their father. Ms Smith wants to help them, but she cannot. As she explained:
“As a mother, it is one of the hardest things to see your children struggle and I can't do anything to help because emotions take over and tears flow, and that only makes things worse.”
24The loss of her husband has left her lacking energy. It interferes with her work. It affects her sleep enormously. It has left her short-tempered and irritable. She cannot control her feelings of hurt, anger and grief. Her family and her friends have been a great support. Nevertheless, it has taken three years for her to realise a need for grief and bereavement counselling, such is the extent of her distress.
25Her loss is captured in the short poem attached at the end of her statement.
Alysha Smith
26Allyshia Smith is the daughter of Kevin Smith. She was 18 at the time of his death. He died shortly before she started her nursing degree. The effect of his death made the degree course much harder for her with a lot of struggling and many mental breakdowns. She is now a psychiatric registered nurse working with those persons who have suffered a similar loss, is difficult, causing many disruptions to her practice, however, it was the pain of her loss which led her to undertake this aspect of nursing. She concludes her statement:
“As a family, we were still dealing with mental health issues and we have to fight every day to keep us from falling apart. We will live with this pain and sorrow for the rest of our lives.”
27From these statements and the reaction of Mr Williams, one gains a picture of a person who was greatly loved and admired.
The company
28The business of Prestige is the creation of Paul Williams. He is its sole director. Although not a director, his wife has had a longstanding involvement with Prestige and its business. Owing to the profound psychological effect of Mr Smith's death upon Mr Williams, and the recommendation of his therapist, the guilty plea was entered by his wife.
29Prestige's business has been conducted from a site in Carrum Downs. Despite the setback caused by the global financial crisis, the business has expanded as has the area it occupies. It now occupies a five‑and‑a‑half‑acre site.
30Prestige makes various kinds of truck bodies. It services the trucks of others, including Australia Post, Coles, FedEx and Toll. Prestige is a significant local employer. It retains many of its employees for years. One such employee was Mr Smith who was extremely well liked and respected. As I said earlier, he was a floor manager for Prestige.
31As with many businesses, Prestige was adversely affected by the pandemic. At its height, it saw the reduction in its workforce for the loss of work and the problems of supply. It has since recovered, with its workforce standing at about 100. This was aided by the acquisition of the equipment and many of its employees of another business.
32The accident led to the cessation of the imports of these panels. After a significant investment, Prestige has replaced the imported panels with ones it makes itself, and this was a reaction to the incident and the issue caused by the importation of panels.
33Prestige donates to the local community. Presumably this reflects the generosity of Mr Williams himself. It is part of a scheme to employee people who are disadvantaged. Presently employs five such people. It provides apprenticeships to secondary school and Tafe students. It even has tertiary students placed with it. With another organisation, it intends to train disadvantaged persons in a Certificate II in Engineering.
34As to the financial capacity of Prestige, I know little except it has the capacity to pay a significant fine.
Discussion
Purposes
35Section 5(1) of the Sentencing Act 1991 describes the purposes of sentencing offenders. They are:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the enunciation of the type of conduct the offender engaged in; and
(e) to protect the community from the offender.
36Of those purposes, the importance of general deterrence was emphasized in the case of the Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd[4]. The sentencing judge also rightly observed[5]:
“The general deterrence is of particular importance in offending of this kind. The sentences imposed need to draw attention to the importance of workplace safety and to send a message to employers that failure to eliminate or mitigate risks will attract significant punishment.”
[4] [2016] VSCA 55.
[5] At [233].
37The Director noted Prestige's lack of previous convictions and submitted specific deterrence should play a minimal role in its sentencing.
38Section 5(2) of the Sentencing Act 1991 sets out factors which I must consider in sentencing where they are relevant.
Nature and gravity of the offence
39Where a death or injury is the result of a workplace accident, its significance was explained by the court in the Director of Public Prosecutions v Frewstal Pty Ltd[6]:
“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 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 consequences of such an event (in particular, where 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.”
[6][2015] VSCA 266 at [127].
40As I said earlier, Prestige sought and received details of the packing and a photograph. There was an awareness of the potential difficulty involved in the unloading of the container. The content of the email and the photograph did not apparently suggest to it the unloading could not be done safely.
41The shipments occurred about twice a year. There was no formal system developed for their unloading.
42The gravity of the offence assumes prime importance in sentencing for offences created by the Act. In the Director of Public Prosecutions vAmcor Packaging Pty Ltd[7], the court said[8]:
“The primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH&S Act, subjective factors, such as a plea of guilty, cooperation with the investigation and subsequent measures taken to improve safety must play a subsidiary role in the determination of the penalty for the gravity of the offence itself. …the presence of the subjective factors referred to should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence.”
[7] [2005] VSCA 219.
[8] At [35].
43Owing to the infrequency of shipments, the problem unloading the panels presented itself infrequently. This contrasts with those cases where the risk is constantly arising, and assessment of Prestige's departure should be seen in that light.
44Nevertheless, Prestige's employees did discuss the unloading of the container and devised their way of doing so. Unfortunately, and with the benefit of hindsight, there was no safe way of unloading, at least, the vertical panels in this shipment.
45An analogous problem has been recognized. The unloading of stone slabs from containers - this was in issue in the Director of Public Prosecutions v Best Benchtop and Stone Pty Ltd[9]. The issue with unloading such slabs was the subject of a WorkSafe pamphlet entitled, 'Unloading stone slabs from containers.'[10] I discuss the pamphlet in the Best Benchtops case. Nevertheless, Mr Cullen considered the guidance material from packing containers is 'shallow'.
[9] [2022] VCC 2296.
[10] Exhibit C.
46The reasonably practicable steps are themselves unusual. They were not the usual steps of creating an adequate system of work or provide proper training. Here the steps required Prestige to require the supplier to pack in a certain way, and if not, return the shipment. There is no evidence of any accepted industry knowledge of dealing with suppliers in those circumstances, but I would be surprised if there was. Returning the shipment would be resolved on a contractual basis. Here, Prestige did not require the supplier to pack these panels in a particular way beforehand. There was no legitimate contractual basis to return the shipment. The only answer was not to unload the vertical panels at all, in the interests of safety.
47In his written outline of submissions, Prestige's counsel quoted from the introduction of a pamphlet entitled, 'Guide to preventing injury from packing and unpacking shipping containers and enclosed trailers.' It is issued by WorkSafe and dated April 2017. The quoted introductory remarks encourage businesses to work with their supply chain to identify and deal with manual handling hazards in both workplaces.
48The guide itself describes six categories of items either packed into or unpacked from shipping containers. It devotes a page to each category. Using the colours green, amber and red, it sets out ways of eliminating the risk of incurring what it calls 'Musculo-skeletal disorders', an expression it defines.
49Under 'Green', there are described preferred safe practices. 'Amber' describes interim measures if it is not reasonably practicable to implement any options described in the green section. 'Red' describes the high‑risk practices which should be avoided.
50The first of the six categories involves stone slabs and starts with this sentence:
“Hazards include high force, awkward postures and sustained movement from lifting, lowering and handling stone slabs and being crushed by slabs or mobile plant.”
51I would interpret the opening words of the sentence as aimed at soft tissue injuries, while the inclusion of the words, 'crushed by slabs' points to something more serious.
52For this category, under the 'Green' section, the methods of packing or unpacking are discussed, depending on whether the container is open at the top or not. There is no text within the 'Amber' section, and one can understand why after reading the 'Red' section which says:
Employees enter the foreshadow of the slab within the shipping container to release or attach the load restraints.
Stone slabs are packed/unpacked by hand within the shipping container.
(Packed or unpacked by hand means that items are lifted and carried in or out of the container).”
53As the 'Green' section emphasises, the methods of packing or unpacking do not involve the entry of any employee into the container.
54I have described the first category because it is the nearest to the load which faced Prestige's employees on 21 January 2020. The general focus of the guide is the avoidance of musculo‑skeletal injuries. One can see that in the other categories.
55At p9 the guide lists various WorkSafe publications. There are four dealing with packing and/or unpacking shipping containers. Several of the other publications may have relevance to this issue. I mentioned one of the four publications earlier entitled, 'Unloading stone slabs from containers.' Published in October 2013, it deals with the toppling of stone slabs in containers, trapping and crushing persons. It uses and explains the expression 'foreshadow'. What was written in that publication has some similarities to what happened here.
56Having read the guide to an extent, I disagree with the submission there was a lack of guidance material or demonstrated industry knowledge. The risk posed by a stone slab is more apparent than the risk posed by these panels. However, the situations are somewhat analogous. The stone slabs are heavy, as were most of the panels. To be struck by several of the heavier panels toppling over, would result in injury.
57What Prestige's guilty plea acknowledges is the contents of the container were stacked in such a way there was no reasonably practicable way for it to safely remove the contents from the container. Its breach was the failure to realise that this was so with this shipment and attempted to remove the contents.
58Prestige's counsel drew my attention to a passage from the case of Dotmar Epp Pty Ltd v The Queen[11], regarding the obviousness of the risk in that case[12]:
“Guarding of the dangerous parts of the machinery, so as to eliminate or reduce the risk to workers of being seriously injured or killed is nothing new or novel. To the contrary, the provision of advocate guarding is an elementary safety feature of any machinery with moving parts, having the potential to cause death or injury should a worker come into contact with them. Very little imagination was required to see the need for, and very little initiative was needed to provide for, such a rudimentary - but key - safety feature.”
[11] [2015] VSCA 241.
[12] At [29].
59He, that is, counsel, contrasted the risk in Dotmar's case with the subtler risk in this case. The contrast extended are the measures to overcome the risk. In Dotmar's case, the risk was obvious, as was the remedy. In this case the risk was less immediately obvious, as was the ultimate remedy: return the shipment to the supplier for safe repacking. For the ultimate remedy was to be preceded by Prestige requiring the supplier to pack the panels in a certain way. Since it did not require that, there was no thought given to returning the shipment.
60The guide was aimed at avoiding musculo‑skeletal injuries. That is, injuries to the soft tissues and skeleton of the body. The main thrust of the guide is to avoid such injuries through lifting, whether by single or repetitive instances. To achieve that end there is a strong emphasis on the use of mechanical devices. In any event, the first category hints at the possibility of more serious injuries through the description of the hazards.
61I agree the risk is less obvious than, for example, the blatant risk in Dotmar's case. However, a purpose of the Act is to require employers to examine their workplaces from the perspective of safety. Identifying the risks involved in their workplaces and take reasonably practicable steps to reduce or eliminate those risks. They are to be proactive.
62In seeking advice from the supplier about how the load was packed, Prestige perceived the possibility that unloading would prove difficult. This was based on past experience. These containers had been unpacked before at intervals of six or so months. Prestige's failure was an inability to realise part of the load was unsafe for it to unload.
63I cannot say whether by 15 January it was too late to insist on the repackaging of the panels. I also cannot say whether the appearance of the load on arrival at Prestige's differed from that which was depicted in the supplier's photograph. But the photograph should have alerted to the risk in unloading. I can only guess at the significance of the supplier's advice to tilt the container to assist with the unloading.
64By its plea, Prestige acknowledges the return of the shipment was the ultimate, relevant measure it could have taken. This is so, even though there could be a direct financial cost of returning the container to China. There could also be other financial costs through the interruption of production schedules and the consequent non‑compliance of contractual obligations. As to the submission there was maybe no guarantee from the supplier as to the proper packing of these panels in the future, if it were made a condition of any future contract, then the failure to comply would enable Prestige to reject the shipment.
65As it turns out, it bypassed the contractual issue by ceasing its importation and replacing the imported panels with its own manufactured panels. Importing these panels was cheaper than making them but that calculation came before the hidden costs of importation. The cost of this proceeding, including a fine, the associated costs under the Workers Compensation legislation, the costs of focusing on safety measures generally within the workplace, and the psychological impact on others, including Mr Williams. These are legitimate considerations. However, in terms of the risk and consequence equation, in the interest of the safety of its employees, they needed to be put aside.
66In this case, the shipment should not have been unloaded. It should have been realised Prestige could not safely unload it. Whether the shipment should have been returned or not, does not matter.
67Perhaps the evidence in the committal hearing revealed more but on the material before me, the risk of death or injury, serious or otherwise, would have been far less obvious than the blatant. If the risk had been realised, I dare say the remedy of returning the shipment would not have been taken. Simply the shipment would remain largely unloaded.
68The failure of Prestige was a failure to appreciate the impossibility of unpacking these vertical panels safely. Its task was to examine the situation presented by the vertical panels and evaluate what was required to remove them from the perspective of the safety of its employees. It did not reach the correct conclusion in what was an unusual situation. Since the parties sought to characterise the degree of departure, I would place it below the middle. I do not agree with the Director's categorisation of moderately high. It is less than that.
69The second aspect of the equation is the extent of the risk in terms of the likelihood of it occurring, and if it occurs, its consequences. As Mr Cullen pointed out, the stock was not loaded into crates by the supplier. This increased the chance of the stock shifting in transit. Moreover, the loose stock was not secured within the container. There was the real possibility of injury. Given the weight of these panels, the consequences could be at least physical injury, if not serious injury or death. I would consider the combination of the likelihood and consequences yields a categorisation of high.
70The objective gravity of the defendant's departure is about the middle range. I do not consider the objective gravity of the defendant's failure was towards the lower end as Prestige contends.
Guilty plea
71There was a committal hearing in July 2022. Prestige offered to plead guilty to the same charge but with revised particulars after receiving the transcript of the hearing. In a sense, it was a different charge for its substance lay in the particulars. In terms of the timing of the plea, it was a plea entered at the earliest reasonable opportunity.
72In pleading guilty to the charge, Prestige has accepted responsibility for its offending. It has saved the time and expense of a trial. It has allowed other trials to be listed earlier than would be the case. It has spared witnesses the burden of giving evidence in a trial. Through the plea it has accepted responsibility for its offending. These are matters where Prestige has assisted the administration of justice.
73At the present time, a plea of guilty deserves an even greater discount on sentence than would have been imposed in its absence. Why this was so was explained in the case of Worboyes v The Queen[13]. Prestige's counsel quoted from paragraph 39 from that decision. But I think paragraph 35 explains more fully the court's reasoning and consequently the enhanced effect on sentencing. The court said[14]:
“As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this state have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this state is in crisis requiring a response from the courts. We therefore consider that whilst the courts of a state continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and concomitantly as attracting an augmented mitigatory effect on sentence simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead, such encouragement must come from an actual and palpable amelioration of sentence.”
[13][2021] VSCA 169.
[14] At [35].
74These observations apply today almost as much as they did in 2021. Since the outbreak of the pandemic and for several years, there were few criminal jury trials. This resulted in a considerable build-up of such trials. During the last two years, this court has devoted very significant resources to overcoming the backlog. But what remains is large and will take some time and effort to overcome. The guilty plea requires a significant discount on the sentence which I would have imposed if Prestige had pleaded not guilty but had been found guilty after a trial.
75The guilty plea is indicative of remorse. The most important part of remorse is the determination not to reoffend. Prestige has taken sizeable steps to avoid reoffending in relation to health and safety.
Prospects of rehabilitation
76Assessing the prospects of rehabilitation of an offender, it is as relevant where the offender is a corporation, as it is for an individual. A corporation is the creation of the law, but a trading corporation like Prestige is made up of individuals.
77I accept the guiding persons are sorry for what occurred. The effect of Mr Smith's death upon Mr Williams has been profound. He suffers from recognised psychological disorders. He has received regular counselling since 2020 and will continue to do so. Prestige has ensured this type of accident will not reoccur by changing its business.
78Since the accident, Prestige has increased its efforts to safeguard its employees. In January 2021 it employed Wayne McNab on a full‑time basis to advise and guide it on health and safety issues. It has been very active:
(a) preparing and implementing 18 new safe work method statements;
(b) arranging external OH&S audits;
(c) obtaining external engineering advice;
(d) conducting weekly toolbox meetings;
(e) establishing an OH&S committee which meets bi‑monthly and has representatives from throughout the business;
(f) enabling the manufacturers of equipment use in the business to regularly train its employees; and
(g) introducing an employee assistance program once a provider has been engaged.
79Prestige has replaced various safety equipment with new equipment at a cost of over $48,000. Apart from those employees engaged for the new manufacturing side, it has employed others to help with the safety of others.
80In light of the above, I consider Prestige has rehabilitated itself. It has passed the prospective stage, reaching actuality.
81I agree with its counsel's submission that the sentencing purpose of specific deterrence has little role to play. Similarly, the allied sentencing purpose of protecting the community from Prestige. In fact, I do not consider either purposes, any real application here.
Current sentencing practices
82The Director's counsel drew my attention to two sentencing of judges of this court. One of the sentences was mine.
83On 3 April 2023 the court – that is the Court of Appeal – delivered its judgment in the Director of Public Prosecutions v Heavy Mechanics Pty Ltd. I have drawn this judgment to the attention of the parties. I invited their submissions and I have received submissions this morning.
Sentence
84Finally, on the charge of failing to ensure a safe workplace, with conviction, Prestige is fined $225,000.
6AAA
85If Prestige had not pleaded guilty to the charge, and had been found guilty after a trial, I would have fined it $335,000 with conviction.
‑ ‑ ‑
1
6
0