Director of Public Prosecutions v Ricegrowers Limited

[2018] VCC 542

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01998

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICEGROWERS LIMITED

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November; 5 December 2017
DATE OF SENTENCE:	23 April 2018
CASE MAY BE CITED AS:	DPP v Ricegrowers Limited
MEDIUM NEUTRAL CITATION:	[2018] VCC 542

REASONS FOR SENTENCE
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Subject:  SENTENCING

Catchwords:  Failure to provide safe working environment for employees; defendant operates grain mill; maintenance worker died; power not isolated to auger in surge bin;  causation of death by company’s breach not proven; admissibility of Victim Impact Statements by family of deceased worker; late plea of guilty.

Legislation Cited:  Occupational Health and Safety Act 2004 s 21;
  Sentencing Act 1991, s 6AAA

Cases Cited:DPP v Frewstal Pty Ltd [2015] 47 VR 660; DPP v Amcor Packaging Pty Ltd  (2005)11 VR 557; Dotmar Epp Pty Ltd v R [2015] VSCA 241; DPP v Dalgliesh (a pseudonym)[1] [2017] HCA 41

Sentence:  Fine of $260,000 with conviction

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Gurvich QC	OPP
For the Accused	Ms K. Grinberg	King & Wood Mallesons

Pages 1 - 11

 

HER HONOUR:

1The company, Ricegrowers Limited, has pleaded guilty to a single charge under the Occupational Health and Safety Act 2004, of failing, so far as was reasonably practicable, to provide and maintain for its employees a working environment that was safe and without risks to health.

2The maximum penalty at the time this offence was committed was $1,328,490. 

3Ricegrowers Limited is a public company.  One of its divisions called "CopRice Feeds" operates a mill at Tongala.  This charge relates to operations at that site on 6 September 2014, and arises out of an investigation by Worksafe after an incident in which a maintenance contractor, Mr Chris McCann, was tragically killed.  That incident brought about extensive investigation of the plant and of safety procedures there. 

4Mr McCann died in a part of the plant called Surge Bin 401, where he was performing maintenance work.  The screw conveyer or auger at the bottom of that bin was activated and caused him fatal injuries.  At the time Mr McCann was alone, having attended on a Saturday to perform this work.  He was an outside contractor to the site, but was well acquainted with the workings of the mill and with the safety procedures and requirements there.  Although an independent contractor, the company owed him the same duties as it would have to a direct employee[2]. 

[2]Occupational Health and Safety Act 20014 s.21(3)

5At a safety meeting at the plant on the day before Mr McCann was killed, he had said he intended to come on the Saturday to fix the gate to the surge bin, which had been causing trouble for some time.  The site manager, Mr Brennan, who was present at that meeting, expected Mr McCann would have someone with him, but that would normally be his son, Gerrin McCann, who was on holidays at the time.  It appears no one enquired further about that.  Mr McCann had performed a confined space entry in that surge bin one or two weeks earlier when his son was with him as his standby person.  No Confined Space Entry permit was completed for 6 September 2014.

6The position and configuration of the surge bin meant that it could not be accessed inadvertently.  It was suspended some metres above the factory floor level, and the only access to it was covered by a plate positioned towards its top, close to the first floor walkway.  The plate was bolted or screwed into place and required removal of multiple bolts or screws for access to be gained.  There was no fixed ladder or lift mechanism to that access point, so it could only be accessed by someone placing a long ladder, or being raised on a scissor lift or the front of a forklift to reach it. 

7Immediately below the access plate was a warning sign that this was a confined space, and entry was by permit only.  The company had in place a confined space entry (“CSE”) procedure requiring a CSE permit to be completed.  Prior to opening the access point to a CSE, the power and air was to be isolated, (although there has been no explanation to me about working inside that surge bin without air and without breathing apparatus).  The CSE procedures required there to be a standby person to monitor the well-being of anyone inside the confined space, including by communicating and, if possible, observing the work being done.

8There were two ways of isolating power to the surge bin, but there were some differences in description and understanding amongst workers at this site as to exactly what these switches controlled.  One was a switch located in the electrical control room; the other was a switch on the outside of the surge bin on the other side from the access plate, beside a window into the bin through which an observer could see some of what was occurring inside it.  If either of the switches was utilised to isolate power from the bin, it was capable of being “locked out and tagged out” - that is a process known as LOTO - involving the use of a padlock and name tag in order to prevent someone else from turning the power back on.  When the power was isolated, the sensor inside the bin could not operate.  Mr McCann was familiar with the LOTO procedure and had apparently personally delivered training on it only a few weeks before he was killed.  He had not yet done the company's designated refresher or retraining for confined space entries. 

9The configuration inside this surge bin was such that product entered from the top and dropped to the bottom where the screw conveyer or auger at the base of the bin operated to move the product out of the bin.  If the power was operating, the screw conveyor would be automatically activated by an electrical sensor on a side wall inside the bin which detected the presence of product.  That occurred if the sensor was covered even for less than a second.  On the day in question the power had not been isolated before Mr McCann entered the bin, and as I have said, no CSE permit had been completed. 

10It is not known why Mr McCann entered the bin without a standby person present,  without completing a CSE permit for that day, and without first isolating the power.  It is not known precisely what caused him to come into contact with the moving auger, but it can be presumed that his presence or movements within the bin were detected by the sensor which activated the screw conveyer or auger, the power not having been isolated.  There was part of a wooden pallet found across steel members inside the bin, apparently used as a makeshift platform. 

11Offences under s.21 of the Occupational Health and Safety Act are directed to ensuring that workers are not exposed to unnecessary risks to health in their working environment.  An employer is required to take what measures are reasonably practicable to prevent workers being exposed to foreseeable risks to health or, if not able to be eliminated, to reduce such risks. 

12The company has pleaded guilty to a single charge of failing to provide and maintain for its employees a working environment that was safe and without risks to health to employees, by failing so far as was reasonably practicable to provide and maintain safe plant.  The particulars allege that it was reasonably practicable to locate an emergency stop button within reach of the access plate to the surge bin, to stop the screw conveyer in the event of it operating during maintenance.

13I must assess the seriousness or gravity of the offending in this case and, in doing so, I am to be guided by the following principles[3].  First, for offences of this type, the result or consequences of the offending is not an element of the offence. 

[3]DPP v Frewstal Pty Ltd [2015] 47 VR 660 at 686-7

14Secondly, the gravity of the breach is measured by two factors - first, assessing the degree to which the accused has departed from its statutory duty, that is, assessment of the extent of the failure[4]; and secondly, the extent of the risk of death or serious injury which might result from the breach. An assessment of the extent of the risk itself involves consideration of both the likelihood of the occurrence of an event as a result of the breach and the gravity of that result. 

[4]Dotmar Epp Pty Ltd v R [2015] VSCA 241

15The prosecution concedes that there are features of the extent of departure or failure which lower the gravity in this case, as urged by the defence.  However, the prosecution submits that the gravity of risk of serious injury or death for someone coming into contact with the operating auger at the base of the surge bin was so great in this work place that it must be recognised as part of the synthesis that also recognises the mitigatory factors, and must be reflected in the sentence. 

16Applying those principles, I take into account that I cannot be satisfied beyond reasonable doubt that the breach of duty in this case did in fact cause or contribute to the death of Mr McCann. 

17From an objective point of view, there were in place a number of safety procedures.  There was a confined spaces entry procedure requiring a standby person to be present, and power and air to be isolated, and there was a warning sign just below the access plate to the surge bin that an entry permit was required.  There was a LOTO system, that is, lock out tag out system, for where the power was turned off.  There were training requirements in safety procedures.  There were safety meetings such as the one held the day before Mr McCann's death.  That very meeting suggests that subjectively some procedures were not as assiduously followed or enforced as the policies of the company suggest, or that some complacency may have crept into the methods of those familiar with this part of the workings of the mill.  However, I have insufficient information to make any finding to that effect.

18I also take into account that entry into the surge bin could not occur inadvertently.  Entry into it was not often required, but I infer that frequency was variable because, despite records showing very few past confined space entries, Mr McCann had entered it one or two weeks before this incident, and needed to do so again this day.  It was highly unlikely that someone untrained or inexperienced would ever enter the surge bin.  This is in contrast to some cases where the relevant risk exists in a busy area of a workplace to which many people, including those with limited, if any, training, have access and, therefore, more are exposed to the risk.

19I also take into account that an emergency stop button placed near the entry point to a CSE is apparently not common industry practice, and I regard this as relevant to the extent of the company's failure to take reasonable precautions. 

20Nevertheless, for the infrequent occasions when maintenance was required inside that surge bin, the configuration inside it held no protection for a person who was working there.  If the power was functioning to the sensor plate and auger, the risk of coming into contact with the moving auger was high, and that meant the risk of extremely serious injury or death for any person coming into contact with the moving auger was very high.  The need to eliminate the risk of power remaining on to the auger while a person was inside the bin was therefore critical.  Even though an emergency stop button was not mandated by any regulations or industry standards, and, as I have just said, I am told was not commonly used in the industry, installation of an emergency stop button within reach of the access plate was clearly reasonably practicable as a measure to significantly reduce that risk. 

21In all of these circumstances, I assess the seriousness or gravity of this instance of this offence as within what can generally be called the low range, but towards the high end of that range, for such an offence. 

22I have already explained my reasons for ruling that intended victim impact statements from Mr McCann's partner, Ms Smith, his son Gerrin, and friend,
Mr Golds, will not be taken into account.  I have not read any of them.  That does not mean that I am not conscious that a number of people - relatives, friends and fellow workers - are still grieving the loss of Mr Chris McCann, and the circumstances of his death.

Plea of Guilty

23I take into account that the company has pleaded guilty to this charge and is entitled to some leniency in its sentence for doing so.  It does not attract as much leniency as an early plea would have done.  This plea of guilty was entered on the second morning of the refixed trial when empanelment of a jury was scheduled to commence.  There had, until then, been three charges on the indictment, and the matter resolved to a plea of guilty to a single charge with more confined particulars of breach than had previously been alleged, and I have taken this into account.

24However, there had been a contested committal hearing at which suggestions had been made that Mr McCann intended his own death.  There had been two days of pre-trial argument last July requiring rulings on admissibility of evidence, as part of which the company alleged that a Worksafe inspector had used improper means to obtain some evidence – an expert report.  An earlier trial date had been vacated, although due to no fault by either side, but with no sign of resolution.  The defence says that at that point there was some communication by it to commence a proposal for resolution.  However, the prosecution disputes that that communication was productive of the ultimate charge.  When the refixed trial commenced, resolution had not eventuated.  It was only on the second morning, and when a jury was due to be empanelled, that the plea was entered.  Notwithstanding that the plea was to a single more confined charge, I regard this as a late plea of guilty.

25While the company was entitled to take all legal points available to it, and is not to be punished for doing so, in my view the points it took through the committal and pre-trial stage significantly reduced the utilitarian value of the plea.  These were disputed hearings lasting some days. Further, those points and the objection to victim impact statements being received, have, in my view, greatly diluted what remorse might have been inferred from the fact of the plea of guilty.

26Defence counsel also referred to the plea of guilty having eliminated ongoing stress to personnel at the Tongala plant about the forthcoming trial.  However, I infer that a considerable amount of stress from possible witnesses and the anticipation of the trial was from personnel who had worked with and were still distressed by memories of Mr McCann's death at the site.  I doubt that any reduction in stress to Mr Gerrin McCann and Mr Golds, both likely to have been called as prosecution witnesses, was substantial when there was objection then taken to use of their intended victim impact statements.

27Nevertheless, the company is entitled to some reduction in its sentence for the utilitarian value of the plea of guilty, having avoided the likely two further weeks of a trial, and putting witnesses through the inconvenience of having to attend to give evidence, and as many would have needed to travel to Melbourne, quite long distances, that was likely to be considerable. 

28I want to make clear that I have imposed no greater punishment on the company for exercising its rights on legal grounds, including to object to the admission of the victim impact statements.  However, I consider it inconsistent with genuine remorse or empathy for those close to Mr McCann.  I reject the defence submission that the taking of a legitimate legal point does not affect remorse.  Remorse is not a concept or state of mind based on the strict letter of the law. 

29I also note that in Victoria there is no usual amount of reduction for a plea of guilty, and I have explained why, in my view, the reduction in this case should be lower than it would have been had it occurred much earlier and had there been a more empathetic attitude to which legal points to take, more reflective of remorse. 

30I shall state the reduction in sentence for the plea of guilty after I have imposed sentence.

Company’s circumstances

31I turn now to the company's own circumstances. 

32Ricegrowers Limited was incorporated in 2005, the operation having previously been conducted as a cooperative. 

33Although there are some prior convictions for safety violations, those were actually against the previous CopRice entity or entities.  They are largely historical, some dating back many decades, and there were none during the last 15 years and none in Victoria.  To this extent, the admission of those prior offences does reflect a fulsome admission by the current entity, Ricegrowers Limited, given that it was not the actual perpetrator of the prior offences.  I accept that this prior history does not reflect any flagrant disregard for, or violation of, safety standards, and note that none related to the Tongala site, its operations or management. 

34I have been provided with information about significant corporate charitable contributions, and engagement with local community organisations.  I accept that the company has a recognised presence in the local areas of its mills, including the Tongala area, and that it contributes to each local community, and the community more widely.

35In assessing the seriousness of the offending, I have already outlined aspects    

of safety procedures in place at the Tongala mill before 6 September 2014.  I have been provided with an expansive description of safety procedures and layers of responsibilities within the company, both nationally and at the Tongala mill.  I accept that they reflect a company that does take safety precautions seriously.  I accept that measures were taken after the incident, some of which were commenced before the prosecution began, to improve processes for risk assessments, to remind and retrain staff in such measures as well as in already existing safety requirements, and that there was a focus on the application of its safety policies and procedures to independent contractors.  I accept that the company has shown itself willing to take proactive steps to do this.

Sentencing Principles 

36I turn then to applicable sentencing principles, many of which have already been touched upon.  I take into account that the maximum penalty at the time was just over $1.328 million which is an objective reflection of the potential gravity of offences of this nature.  I have already explained my assessment of the gravity of the offending in this case, and that I assess it to be at the upper end of the low range for offences of this nature. 

37General deterrence is the most important sentencing purpose in this case[5] as was agreed by both prosecution and defence.  That means that the sentence should send a message to other employers of the importance of maintaining safe work places and ensuring so far as is reasonably practicable the safety and elimination of risks to health of its worker, and that consequences of not doing so will attract serious punishment.  That does not mean that to achieve this purpose the sentence should be disproportionate and I have not made it so. 

[5]DPP v Amcor Packaging Pty Ltd  (2005) 11 VR 557

38As the defendant does not have prior offences under this Act, and none in relation to the Tongala plant, as it had many safety procedures already in place and has taken further steps to upgrade its assessment of risks and measure to eliminate or reduce them since this incident, I do not regard specific deterrence as requiring much weight in this sentence. 

39I have already referred to my views about the plea of guilty and the degree of leniency that it attracts. 

40I was referred to sentences imposed in some other cases, so-called comparable cases.  The prosecution included mainly very substantial ones which the defence distinguished by emphasising that in those a death was proven to be caused by the offence, and some involved flagrant risks taken by employers.  The defence provided some other cases at a much lower range, generally from Magistrates' Courts and where the perceived risk to safety had not eventuated. 

41While current sentencing practice is a sentencing consideration and I have taken an overview of the cases provided by each side, the High Court case of  DPP v Dalgliesh (a pseudonym)[6] has made clear that current sentencing practice is only one consideration in the synthesis to be performed, and a range of sentences must not be regarded as a constraint. 

[6][2017] HCA 41

42I come now then to announce the sentence on which I have decided.

Sentence

43On the charge of failing so far as was reasonably practicable to provide and maintain for its employees a working environment that was safe and without risks to health, Ricegrowers Limited is fined $260,000 with conviction. 

44The order I make will not be referring that fine for enforcement to the Fine Enforcement Authority which is a new form of order.

45For the purposes of s.6AAA of the Sentencing Act, I state that if the company had not pleaded guilty but been found guilty of this charge after a trial, the sentence would have been a fine of $300,000 with conviction. 

46Now, have I overlooked anything that I needed to do - I do not think there are any ancillary orders in this matter.

47MR GURVICH:  No other matters, Your Honour.

48MS GRINBERG:  No, Your Honour.  

49HER HONOUR:  All right.  I will have my associate hand back the envelope containing the victim impact statements.  I again apologise for how long it has taken to hand down this sentence.  I will revise it as soon as the transcript is available.  I do go on leave so that if that is not able to be obtained this week, there may be some hold up, but I will do my best to have it revised before the end of this week.

50MS GRINBERG:  As the court pleases.

51HER HONOUR:  All right.  I think my next matter - there is time so I will adjourn the court till 3.30. 

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