Director of Public Prosecutions v Rapid Perforating Pty Ltd

[2023] VCC 1167

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-02383

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAPID PERFORATING PTY LTD

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 2023
DATE OF SENTENCE:	4 July 2023
CASE MAY BE CITED AS:	DPP v Rapid Perforating Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VCC 1167

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Failing to provide and maintain a safe working environment; Employee sustained crushing injury causing death exposing offence; Whether risk of death or serious injury readily foreseeable; Whether failure constituted a serious breach of the Act; No prior convictions: Whether the issuing of previous improvement notices operated to preclude or limit leniency; Plea of guilty; Response to incident demonstrative of remorse; Primacy of general deterrence.

Legislation Cited:      Occupational Health and Safety Act 2004 (Vic); Sentencing Act 1991 (Vic).

Cases Cited:DPP v ACE Metal Treatment Services [2021] VCC 1420; DPP v Precast Civil Industries [2022] VCC 110; DPP v SJ and TA Structural [2019] VCC 2016; DPP v Montague Pty Ltd [2018] VCC 1553; DPP v Frewstal [2015] VSCA 266.

Sentence:                  Fined $280,000 with conviction.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms R. Champion	Office of Public Prosecutions
For the Accused	Mr S. T Russell	Piper Alderman

HIS HONOUR:

1On 28 June 2023 Rapid Perforating Pty Ltd (A.C.N. 119 748 140) pleaded guilty to one charge that on 19 February 2021 it failed to provide and maintain safe plant or systems of work, contrary to ss 21(1) and 21(2)(a) of the Occupational Health and Safety act 2004.

2The sole director and business owner of Rapid Perforating is James Gibson.

3As at February 2021, the company operated out of a factory located at 71 Yale Drive Epping. It employed 15 people and was engaged in the production of perforated metal, expanded metal grating, and handrail products.

4The tragic incident which exposed this offence occurred when an employee of Rapid Perforating, Daryn Raines, lost his life when he was crushed whilst operating one of the company’s machines used to perforate steel.

5The following summary of the circumstances of the offence is largely based on the Summary of Prosecution Opening.

6Daryn Raines was employed by Rapid Perforating as a machine operator. He had been working there for about one month by 19 February 2021. On that day Mr Raines was operating a turret punch machine which was referred to in the workplace as “T2”.

7Turret punch machines perform punching operations such as opening and cutting round, square, and variously shaped holes in sheets of metal. It is a relatively large machine where sheet-metal is put onto a table and then clamped onto the carriage of the machine. The clamps are engaged and disengaged from a foot pedal control close to the carriage. The carriage holds onto the worksheet and moves it during processing, manoeuvring it under and around in order for it to be treated by the tools inside the turret.

8On the day that Mr Raines was operating this machine an exclusion zone or operational zone had been marked out around the machine in the form of blue and red painted lines on the floor. The purpose of these lines was to mark out where a machine operator should not venture whilst the machine was operating.

9Mr Raines was at the loading point of the machine which is on the right hand side near the control panel. The sheets were loaded at that point and that is where the machine operator would ordinarily stand. Loading and unloading sheets was a manual task.

10In this instance auxiliary tables had been placed at the front of the T2 machine. They had been installed about 3 or 4 years prior to this incident. They were there to ensure that the sheet-metal did not protrude from the front of the machine and to support the sheet-metal as it slid out. The tables were bolted to the ground.

11At about 11.35am on this day Mr Raines was discovered by co-workers pinned in a standing position between one of the auxiliary tables bolted to the ground and the end of the travelling mechanical carriage attached to the T2 machine. He was thus inside the machine’s operational or exclusion zone. That is to say, he was pinned in the space between the auxiliary table and the sideways moving carriage.

12The co-workers who found him used equipment to cut the legs of the table in order to free Mr Raines from the machine. He was placed on the ground but was unresponsive. Shortly afterwards paramedics pronounced him dead at the scene. A post-mortem examination carried out by Dr Chong Zhou from the Victorian Institute of Forensic Medicine determined the cause of death as crush injuries sustained in a workplace incident.

13WorkSafe inspectors attended on the day and ascertained that the two auxiliary tables which had been bolted to the ground created a “trapping space” with the travelling mechanical carriage. An immediate risk to health and safety of employees was identified due to the lack of guarding around the moving parts and trapping spaces, which would have prevented access by employees. A Prohibition Notice was issued requiring the company to stop using the machine until it had been repaired and guarding had been installed to ensure that the risks associated with access to its danger points had been appropriately addressed.

14Some months later, on 9 June 2021, WorkSafe inspectors noted that the company had installed perimeter guarding that prevented access to the operating machine. A light curtain had been installed to the front of the machine, the effect of which was to stop the machine when the light beam was broken. The machine required two reset buttons to be pressed in order to operate it after the light curtain beam had been broken. The rear of the machine was guarded with two interlocked gates. If a gate was opened once the machine was in operation, the machine would stop. After a gate had been opened, a number of reset steps were required to recommence operation.

15As part of WorkSafe’s investigation an expert report was obtained from an engineer, Mr Kahn Sheu Ooi. In his opinion, the incident occurred as a result of the failure to control access into the hazardous operation area of the turret punch press, where physical contact with powered components such as the carriage was possible whilst it was operating. A crush space of 640 mm was identified between the carriage and the axillary table. That gap was closed when the carriage commenced its movement past the edge of the auxiliary table. There was no system in place to sense the presence of a person once they had entered that space.

16Ms Champion, who appeared on behalf of the Victorian Director of Public Prosecutions, tendered photographs and two short videos which showed the operation of the machine and the trapping space highlighted by Mr Ooi.

17The existing risk control in the form of the line markings was described by Mr Ooi as “administrative” only, and in the circumstances, inadequate. It still allowed a person to enter the danger area whilst the machine was operating. What was required was a “higher-order” control such as fixed guards or interlocked guards so as to provide adequate protection to the operator. An interlocked guard refers to a system which will shut the machine down if it senses movement. A light curtain is an example of such a system where the intrusion of an object into the light beam, such as part of a person’s body, will shut off power to the machine.

18There was, according to Mr Ooi, readily available published information about appropriate controls such as this to be used in respect of machines of this kind. Examples included published technical standards, WorkSafe publications and safety specific publications from the manufacturer and supplier of these machines. For example, an 11 page publication available since September 2018, on the manufacturer’s website identified crushing hazards associated with the operation of the machine including the carriage. It recommended identifying the hazardous area and installing a light curtain to prevent entry.

19Control measures of that type were readily available and according to Mr Ooi unlikely to cost an excessive amount.

20Further, Mr Ooi formed the view that the likelihood for injury to occur to a person working with this machine was high. That was so because, as I have indicated, the setup of the machine at that time allowed a person to enter into the danger area whilst the machine was operating by simply stepping over a line marked on the floor. There was no way for the system itself to identify the presence of a person in that danger area. The potential consequences of being crushed or struck by the movement of the carriage were obviously serious and in this case fatal.

21To summarise the gravamen of this offending therefore, there was in this case a risk to the health and safety of employees, including Mr Raines, of being crushed between the auxiliary table and the carriage. There were identifiable measures which would have eliminated or reduced that risk which Rapid Perforating failed to take. Those measures included for example, installing a light curtain. In all of the circumstances it was reasonably practicable for Rapid Perforating to implement measures of that kind which were available and suitable.

22The maximum penalty for an offence against s 21(1) of the Occupational Health and Safety Act 2004 is 9000 penalty units for a body corporate which at the relevant time amounted to $1,486,980.

Victim impact

23A victim impact statement together with the lyrics of two songs expressing her grief were submitted by Yvonne Raines, Daryn Raines’ mother.

24The loss of her son has been devastating. It comes on top of the loss of her daughter to illness only a few years ago. The heartache, anger and frustration that she has experienced each day knowing that she will never see her son again has had a severe impact on her mental health. She suffers from severe anxiety and depression and requires professional psychological support and treatment.

25In a supporting report, her treating psychologist suggests that her recovery is likely to be very slow and she is likely to continue to struggle emotionally for the foreseeable future.

26The impact of this offence is an important consideration to be taken into account in formulating sentence.

Prior convictions

27Importantly Rapid Perforating has no prior convictions.

28However, the prosecution indicated that the company has previously been issued with a number of improvement notices. Improvement notices are issued pursuant to s 111 of the Occupational Health and Safety Act 2004 when an inspector forms a reasonable belief that there is a contravention of a provision of the Act. Essentially the improvement notices are directed to rectifying the contravention.

29On 30 October 2013 Rapid Perforating was issued with four improvement notices with respect to risks of crushing to fingers and hands caused by inadequate guarding of machine T2 (that is the machine the subject of this contravention) and other turret machines known as “T1” and “T3”. Directions were given to install physical barriers, fixed guarding, interlocking guards and presence sensing systems. Follow-up inspection at a later date established that those improvement notices had been complied with.

30On 23 November 2016 an improvement notice was issued to Rapid Perforating in relation to the risk of crushing due to a non-operating interlocked device on a guard of a machine and another improvement notice with respect to a risk of serious injury due to inadequate guarding on the same machine. Follow-up inspection at a later date established that those improvement notices had been complied with.

31I will return to the relevance of these notices shortly.

Procedural history

32The charges in respect of this matter were issued on 29 April 2022, the offence having occurred on 19 February 2021. They came before the Magistrates’ Court for committal mention on 19 August 2022. That hearing was administratively adjourned to enable an application for summary jurisdiction which came on for hearing on 28 November 2022 and was ultimately determined on 16 December 2022. The application was refused and Rapid Perforating entered a plea of guilty, it did not seek to cross-examine any witnesses and the company was committed to this Court by way of straight hand up brief.

The circumstances of the company

33Rapid Perforating is a family company that has been operating since 2006. It started with one role feed and turret with five employees. Over the years it has grown and now operates in Victoria, New South Wales, Queensland and South Australia employing about 35 employees. I was told that the daughter of the current owner, Jacqueline Gibson, is in the process of taking over management of the company and intends to continue the family’s management of the business. Ms Gibson was present during the plea hearing. She has been connected with the business in various ways over many years. It was said that she was well aware of the responsibilities to ensure that every employee is able to work in a safe working environment.

Systems in place before the incident

34With respect to systems in place prior to the incident, Mr Russell, who appeared on behalf of Rapid Perforating, explained that new machine operators were trained one-on-one by competent machine operators. Part of the training involved reinforcing that operators were not to step over the demarcation lines on the floor once the machine was operating. That line was in existence and observed by WorkSafe inspectors prior to this incident. That procedure of instruction and supervision for new employees was undocumented at the time of the incident however formal records are now maintained as to the training provided.

35With respect to the “trapping space” created by the installation of the auxiliary tables, Mr Russell explained that was done to assist the machine operator in supporting sheets of metal prior to and after the operation of the press. That installation was carried out in an attempt to replicate a table that had been provided by the manufacturer when a new and almost identical turret machine was acquired.

36It was further explained that Rapid Perforating did not appreciate that adding a table designed to assist the operator in this way also created a risk. It was submitted that risk was not foreseen and only became apparent after the incident. That configuration had been in place for 3 or 4 years and there had been no incident which might have specifically drawn attention to the hazard.

37There had otherwise been changes made over the years to generally increase safety such as the installation of guards, rail barriers, increased signage, PPE and further training. For example, a T4 turret machine manufactured in Japan was installed in the factory in February 2017. The installer authorised by the manufacturer commissioned the T4 on site and trained the Rapid Perforating manager on the operation of the machine. No light curtains were installed by those authorised installers on that machine. The assumption was made that configuration complied with the appropriate standards both in Australia and Japan.

Response to the incident

38Immediately after the incident, an external workplace psychologist was contracted to attend the workplace and provide counselling to employees. Interim controls were introduced to ensure compliance with WorkSafe directions and a leading Occupational Health and Safety (OHS) consultant in guarding was engaged to carry out a full investigation of the premises.

39All of the recommendations put forward by that consultant were implemented including the installation of interlocked perimeter fences and light curtains. The company also engaged another consultant to implement the WorkSafe OHS Essentials Program. That consultant has worked on an ongoing basis with the company to provide guidance and ensure that Rapid Perforating is meeting its OHS responsibilities.

40Further changes were also made to employee information handbooks, induction checklists and various written operating procedures. Training and inspection processes have been enhanced and any new plant introduced to the factory will be assessed by an expert OHS consultant to ensure all safety issues are adequately addressed and risks eliminated.

Defence submissions

41In light of all of these matters Mr Russell submitted that the degree of departure from the standard required in this case tended to the lower end of the range of offending having regard to the following matters;

First, the contravention was not a deliberate action on the part of the company to avoid its responsibilities under the Occupational Health and Safety Act 2004. Rather there was instead a failure to assess the impact of changes that were actually designed to eliminate risk;

Second, there had not been any indication that the installation of the auxiliary table had created a risk and indeed no one had foreseen the risk or appreciated it.

Third, the operator was not required to access the area where the incident occurred when operating the machine.

Mr Russell also referred to two comparative authorities to which I will refer below to assist in locating the appropriate sentencing range.

Prosecution submissions

42Contrary to the defence submissions, Ms Champion submitted this offending involved a significant departure from the statutory duty owed to Rapid Perforating’s employees. That was so because the risk was reasonably foreseeable. The photographs and particularly the videos demonstrated that the risk of crushing was self-evident.

43The line markings on the floor demonstrated knowledge of the risk to health and safety yet those markings were “significantly deficient” to mitigate against the risk of crushing. The system in place allowed a person to enter the danger area while the machine was operating and such safety system as was in place relied solely on the employee complying with the line markings.

44Safety in the workplace needed to allow for worker error or carelessness. As the expert evidence established it was necessary to implement controls of a higher order than were in place and there were identifiable measures readily available to address the risk.

45Those measures such as guarding to protect against the risk of crushing were necessary in the circumstances because there was a high likelihood of the risk of crushing eventuating. Indeed if that risk materialised the likelihood of injury or even death was high as what happened to Mr Raines demonstrated.

46It was submitted that the company should be convicted and penalised with a fine that expressed the strong need for general deterrence for offending of this kind.

Comparative authorities

47Mindful of the need to provide meaningful assistance in the form of relevant comparators Mr Russell referred to two decisions namely DPP v ACE Metal Treatment Services[1] and DPP v Precast Civil Industries.[2]

[1] [2021] VCC 1420.

[2] [2022] VCC 110.

48In the former case the accused company allowed a guard to remain in place that was in a very bad state of repair such that it did not operate to provide the level of protection which would have protected the employee from the risk of serious injury or death. There the employee was working alone on an elevated platform area and was crushed by the moving plant when the guard failed to stop the machine from continuing its path. The accused company had identified the risk but had failed to take action to maintain the guard and protect the employee. The level of departure from its statutory duty was relatively serious and a fine of $300,000 was imposed.

49In the latter case of Precast, a radial press needed to be cleaned each day at the end of production. Although light curtains were installed they did not prevent employees accessing dangerous parts of the plant through gaps. The breach was found to be a serious example of the offence and the company was fined $275,000.

50Ms Champion also referred to two further authorities DPP v SJ and TA Structural[3]  where a $400,000 fine was imposed in circumstances where the structures supporting steel staircases in storage failed causing the death of an employee. In DPP v Montague Pty Ltd,[4] a contractor fell through the roof of a storage facility and lost his life. The roof had been in a state of disrepair and the defendant company had failed to install risk controls such as safety mesh and fall prevention systems. The company had a prior conviction albeit not particularly relevant for the purposes of that sentence. It was fined $380,000.

[3] [2019] VCC 2016.

[4] [2018] VCC 1553.

51Clearly, current sentencing practice is but one of a myriad of factors that need to be synthesised for the purpose of fixing sentence. The cases to which I have been referred provide some, though limited, assistance.

Principles

52The principles to be applied in sentencing for offences of this kind are well known. They were succinctly and helpfully summarised by Priest and Kaye JJA in Frewstal:[5]

•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.

[5] DPP v Frewstal [2015] VSCA 266 at [127].

Analysis

53Applying those principles, I accept that the auxiliary tables were installed with the intention of rendering the tasks of the machine operator easier and safer. The thinking involved in utilising the design of a more modern iteration of the turret machine appears to have been with the best intentions.

54I also accept that there was nothing in the 3 or 4 years since that modification that specifically alerted Rapid Perforating to the risk exposed by this tragedy. As was identified during discussion on the plea this was not a case of being put on notice of a risk and then recklessly disregarding that risk such as appears to have occurred in Ace Metal.[6]

[6] DPP v ACE Metal Treatment Services [2021] VCC 1420.

55That said, as Ms Champion persuasively argued, the risk of causing a serious crushing injury was quite obvious once the way in which the machine operated, particularly the speed at which it is capable of operating, is appreciated. The video footage well makes that point.

56Moreover, the systems in place, in particular, the line markings, were inadequate because, as the expert evidence established, the machine was able to continue to operate even if a person strayed into the danger area. In my view an incident of the kind that befell Mr Raines was reasonably, if not readily, foreseeable.

57I consider that the likelihood of an event of this kind occurring was reasonably high and its potential consequences were, as this incident demonstrates, catastrophic.

58The impact this offence has had has likewise been profound and that is important to note. Although this legislative scheme is risk based rather than outcome based, Mr Raines’ tragic death in this case serves to illustrate the nature and seriousness of the risk that Rapid Perforating failed to eliminate or adequately mitigate.

59It follows that this contravention cannot be characterised as falling at the lower end of the scale for offending of this kind. Although the company’s approach was not one of deliberate or reckless disregard, there nevertheless was a serious failure to protect an employee from a risk that exposed them to serious injury or, as eventuated here, death. Accordingly, Rapid Perforating will be sentenced on the basis that this offence constitutes a serious breach of the Act.

60Although I have, earlier in these reasons, referred to the improvement notices previously issued to Rapid Perforating in 2013 and 2016, I have determined not to take them into account for the purposes of fixing this sentence. I appreciate that there may be some circumstances in which such notices may be relevant but I am not satisfied that is so in this case. The notices referred to were issued and they were complied with. Accepting generally that crushing injuries were an obvious hazard, there was nothing about those notices that could bear on the circumstances of this incident.

61In my view, improvement notices are not to be treated as akin to prior convictions or as some means by which the defendant company’s moral culpability might be elevated.

62Without any disrespect intended, the circumstances in which a WorkSafe inspector might form a belief as to a contravention will be necessarily different from those required of a court. Those differences mean that ordinarily it would neither be fair nor appropriate to treat a finding leading to the issuing of an improvement notice as a basis on which to preclude leniency for a subsequent criminal contravention.

63Moreover, I would have thought that a collaborative approach, rather than an adversarial approach, between employers and WorkSafe inspectors should be encouraged and would more likely further the objectives of the Act. In that context, it might well become counterproductive to treat Worksafe inspectors’ findings with respect to improvement notices as somehow akin to prior convictions.

64Accordingly, Rapid Perforating is to be treated as a first offender and is entitled to draw on the good character it has acquired in the years since it commenced operations in 2006.

65I must also give significant weight to the fact that Rapid Perforating has pleaded guilty in what I accept was the earliest practicable opportunity, and that it has done so at a time when this Court continues to manage a large number of cases delayed by the pandemic. Not only is the plea indicative of remorse, it is of significant utilitarian value. It follows that the sentence imposed will be substantially reduced.

66Finally, I note that Rapid Perforating’s response to this incident was appropriate and also evidences its remorse. The use of expert consultants after the event to identify and address risks and to continue to utilise them on an ongoing basis seems consistent with the approach countenanced by the Act to proactively maintain a safe working environment. It is the sort of approach all employers should be striving to emulate. In light of the lack of prior convictions and that response, it will not therefore be necessary to emphasise specific deterrence.

67Whilst the subjective matters I have referred to are important to weigh in the sentencing calculus, they cannot displace the primacy of the sentencing objective of general deterrence for this type of offence. The sentence to now be imposed will need to draw attention to the fundamental importance of workplace safety and the need to make it clear to all employers that the failure to act to protect employees from risks to their health and safety in the workplace will attract significant punishment.

Sentence

68Taking all relevant matters in to account Rapid Perforating Pty Ltd will be sentenced as follows:

69On the one charge of failing to provide and maintain a safe working environment it will be convicted and sentenced to pay a fine of $280,000.

70I will declare pursuant to s 6AAA of the Sentencing Act 1991 that but for its plea of guilty Rapid Perforating would have been sentenced to pay a fine of $430,000.