Director of Public Prosecutions v Redback Tree Services

[2017] VCC 1602

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 1701195

DIRECTOR OF PUBLIC PROSECUTIONS

v

REDBACK TREE SERVICES

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 November 2017
CASE MAY BE CITED AS:	DPP v Redback Tree Services
MEDIUM NEUTRAL CITATION:	[2017] VCC 1602

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. Coghlan
For the Accused	Mr R. Taylor

HIS HONOUR:

1Through its sole director, Liam Peterson, Redback Tree Services Pty Ltd has pleaded guilty to one charge of failing to maintain a safe system of work.

2The particulars of the charge on the indictment and the details set out in the prosecution opening, Exhibit A, outline the agreed statement of fact in this case.  I incorporate Exhibit A into these reasons for sentence.

3Very briefly stated, Redback operated a tree maintenance and removal business.  In April and May of 2014, Redback employed Scott Gamble, then 22 years of age.  Mr Gamble had worked for Redback for some four years.

4On 2 April 2014, another company employer attended at 87 Chesterville Road, Highett to quote on the removal of two trees from the front of those premises.  Powerlines were observed to be within 2 to 3 metres of the trees in question.

5On 1 May of 2014, four employees including Mr Gamble attended to remove the trees.  Mr Gamble was cutting branches from the trees and climbed the tree in order to carry out that task.  One branch hit the nearby powerlines and
Mr Gamble was tragically electrocuted and killed.

6Although the risk the existence of live powerlines had been identified by Redback, no real steps were taken to deal with that risk.  The power was not shut down or suppressed.  No other steps to reduce the risks were taken.  The plea of guilty acknowledges that it was reasonably practical to deal with the known risk.  In this case, I take that to be, shut down the electricity in some meaningful way.

7The prosecution of this matter commenced with charges being laid on 4 June 2015.  A contested committal proceeding commenced in March of 2016.  The case could not resume on resumption because of the illness of the presiding Magistrate, and when it was finally re-listed in June this year, the issues between the parties were resolved and the company indicated a plea of guilty to the current charge.

8Scott Gamble's parents attended court on the plea today, although no victim impact statements had been produced or tendered in evidence.  Mr and
Mrs Gamble are supportive of the operators of the defendant company.

9Redback was founded in 2008 and incorporated in 2010.  Mr Peterson is its sole director.  The company employees 11 people.  It has no prior criminal convictions, nor any outstanding subsequent matter pending.

10Subsequently to Mr Gamble's tragic and totally preventable death, the company has instituted further employee training and completely ceased any activity proximate to live powerlines.  This apparently is the only incident in its nine year history.

11The company is a sponsor of a child through World Vision and can be described as an otherwise good corporate citizen.  I was informed that the company is financially successful and has the capacity to pay an appropriate fine.  Mr Taylor who appears for Redback informed me that the company turned over in excess of $1m in the last financial year.

12The seriousness of the offence is determined by the extent of the relevant risk and an assessment of the steps taken to eliminate that risk.  In my view, as I have said throughout the course of this hearing, the breach must be assessed as an upper middle level example of this offence.

13There was a clear risk identified of death and/or serious injury, created by working so close to the live powerlines.  Although I have had some debate about this issue with Mr Taylor, it appears to me that virtually nothing was done to reduce or eliminate that risk.  It would appear that the company relied upon the skill of Mr Gamble to avoid having branches coming in touch with the electric wires.  Obviously that failed.

14I take into account the company's plea of guilty.  The plea demonstrates corporate remorse for the crime and has saved the community the cost of a criminal trial.  Witnesses and the family of Mr Gamble have been spared the trauma of such a trial.  The company is entitled to a reduction to the sentence I would otherwise impose to reflects its plea of guilty, and I will return to the effect of that reduction subsequently.

15I take into account the company's lack of prior criminal history in its otherwise good Worksafe history.

16I take into account current sentencing practices insofar as they can be ascertained in this case.  The cases referred to me by the prosecution and indeed by Mr Taylor in his submissions are Magistrates' Court cases and do not involve death.

17Current sentencing practices, just one fact to consider. Pursuant to s.5 of the Sentencing Act, The High Court has made it clear that it is just one factor to be considered amongst many.

18Clearly general deterrence must be the predominant sentencing factor in factor in cases of this sort.  Corporate employers need to understand that substantial penalties await company convicted of offences against the Occupation Health and Safety Act of 2004.  The maximum penalty of $1,299,000 fine demonstrates how seriously Parliament views breaches of this act.

19The fine I am about to impose should in no way be seen as placing a value on the life of Mr Scott Gamble.  No penalty could ever do that.  This offence involves around the court's assessment of risk.  As I see it, I view the risk as obvious and the failure to deal with it as serious.

20In all the circumstances, the company is convicted and is fined the sum of $150,000.

21Pursuant to s.6AAA of the Sentencing Act, I indicate that but for its plea of guilty, I would have imposed a fine of $180,000.

22COUNSEL:  As Your Honour pleases.

23HIS HONOUR:  You need time?

24MR TAYLOR:  We will need about three months to get that released.

25HIS HONOUR:  I will make a formal stay of six months.

26MR TAYLOR:  As Your Honour pleases.

27HIS HONOUR:  Do I need any other orders, Ms Coghlan?

28MS COGHLAN:  No, Your Honour.

29HIS HONOUR:  All right.  I will return your folder of so called comparable cases and you can use it next time, Mr Taylor.

30MR TAYLOR:  Thank you.

31HIS HONOUR:  All right, I will adjourn until 10 o'clock, isn't it?

32ASSOCIATE:  Yes.

33HIS HONOUR:  Ten o'clock Monday.

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