Director of Public Prosecutions v Saloon Park Pty Ltd

[2023] VCC 709

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02525

DIRECTOR OF PUBLIC PROSECUTIONS

v

Saloon Park Pty Ltd

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JUDGE:	His Honour Judge Rozen
WHERE HELD:	Melbourne
DATE OF HEARING:	21 April 2023
DATE OF SENTENCE:	5 May 2023
CASE MAY BE CITED AS:	DPP v SALOON PARK PTY LTD
MEDIUM NEUTRAL CITATION:	[2023] VCC

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Occupational Health and Safety – Failure to provide and maintain workplace that was safe and without risks to health – Guilty verdict following trial – Co-accused pleaded guilty – Parity – Victim impact – Capacity to pay fine – Fine with conviction

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

Cases Cited:DPP v Cranbourne Turf Club Inc [2023] VCC 506; Cheung v The Queen (2001) 209 CLR 1; Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55; DPP v Amcor Packaging Australia Pty Ltd [2005] VSCA 219; DPP v Frewstal Pty Ltd (2015) 47 VR 660; Lowe v The Queen (1984) 154 CLR 606; Drake Industrial v WorkCover Authority (NSW) [1999] NSWIRComm 341; Worboyes v The Queen [2021] VSCA 169; DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69; DPP v Best Benchtops and Stone Pty Ltd [2022] VCC 2296; R v Australian Char Pty Ltd [1999] 3 VR 834; R v Commercial Industrial Construction Group (2006) 14 VR 321; DPP v JCS Fabrications Pty Ltd [2019] VSCA 50; Kirk v Industrial Relations Commission (NSW) [2010] HCA 1

Sentence:                  $350,000 fine with conviction

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr C. Mandy SC & Mr T. Bourbon	Office of Public Prosecutions
For the Accused	Mr R. Taylor	HWL Ebsworth

HIS HONOUR:

1Early in the morning of 30 August 2019, two young jockeys employed by Saloon Park Pty Ltd (Saloon Park) as track-riders, Mikaela Claridge and Jaimee Hall, were engaged in trackwork in the dark at a horse training complex operated by Cranbourne Turf Club Inc (CTC). Ms Claridge was employed as an apprentice jockey. Ms Hayes was employed as a stable hand and track-rider. At approximately 4.35 am, the horses became spooked and stopped suddenly. Both Ms Claridge and Ms Hall were thrown to the ground. Ms Claridge was fatally injured; Ms Hall was unharmed.

2This incident precipitated an investigation of Saloon Park’s work practices which resulted in Saloon Park being charged with a number of offences against the Occupational Health and Safety Act 2004 (Vic) (OHSA). Saloon Park was not charged with causing the death of Ms Claridge. It was charged with exposing her and Ms Hayes to the risk of injury or death. The relevance of the tragic death of Ms Claridge to the Court’s task in imposing an appropriate sentence on Saloon Park is discussed later in these reasons.

3CTC was also charged with contravening the OHSA by exposing the jockeys to the risk of being thrown from their horses while riding in the dark. It pleaded guilty and was sentenced on the basis that its plea demonstrated both its acceptance of its culpability and a degree of remorse. On 28 February 2023, CTC was convicted and fined $250,000 and ordered to publish a notice in a racing journal outlining the circumstances of its offending and the outcome.[1]

[1] DPP v Cranbourne Turf Club Inc [2023] VCC 506.

4Having been arraigned on 20 March 2023 and pleading not guilty to one charge of contravening s 21 of the OHSA, Saloon Park was found guilty by a jury of 12 on 28 March 2023. In summary, the jury found Saloon Park guilty of failing to do all that was reasonably practicable to prevent Ms Claridge and Ms Hayes from being exposed to the risk of serious injury or death as a result of being thrown from their horses while performing track work in the dark. Specifically, the jury accepted that it was reasonably practicable for Saloon Park to have eliminated this particular risk by prohibiting its employees from riding in the dark.

5The company is to be sentenced on the basis of the jury’s verdict and the Court’s findings of any aggravating and mitigating circumstances of the offence of which Saloon Park has been convicted.[2] Any aggravating circumstances must be established beyond reasonable doubt.[3]

[2] Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55.

[3] Cheung v The Queen (2001) 209 CLR 1, 19.

Facts

6The Training Complex at Cranbourne was opened in 1990 and is the largest thoroughbred training facility in Australia.

7It is well understood by participants in the horse racing industry that thoroughbreds are generally a flighty and temperamental breed of horse.

8The Training Complex is used by horse trainers to work, ride, gallop, and trail their horses in preparation for competitive races. As at May 2019, 162 licensed horse trainers used the Training Complex and up to 800 horses were trained at the Training Complex each day.

9In August 2019, the Training Complex was open six days per week (Monday to Saturday) between 4.00 am and 9.30 am.

10CTC is responsible for granting permission to trainers to use the Training Complex. One such trainer permitted to use the Training Complex was Saloon Park. Saloon Park maintained stables at the Training Complex.

11Trainers are charged fees by CTC to use the Training Complex. CTC developed training rules and regulations, which users of the Training Complex including Saloon Park were required to agree to, and comply with, in order to use the Training Complex.

12CTC maintains eight separate training tracks at the Training Complex. One of those training tracks is a deep sand track that runs through dense bushland adjacent to seven other tracks. This track is known as the Sand Trails or the Bush Track (the Sand Trails).

13The Sand Trails are popular with horse trainers who use the Training Complex, as training on the trails is good for the fitness levels of the horses that run on it. The Sand Trails are approximately 1,400 metres long, with several undulations and an optional uphill section.

14There is some lighting at the entrance of the Sand Trails, near where a ‘hut’ is located in which a track supervisor, who is employed by CTC, is stationed. There is no other lighting on the Sand Trails.

15Unlike the seven other training tracks at the Training Complex, the Sand Trails are not a circular track with running rails on either side of it. Rather, there are shrubs and trees located along both sides of the Sand Trails for most of the way around it. Tree branches hung over the Sand Trails track, which meant that track riders could collide with the branches while riding horses on the Sand Trails.

16The Sand Trails are located near the Royal Botanic Gardens Cranbourne. Wildlife from the Gardens, including kangaroos, wallabies, rabbits, and foxes, was frequently observed on or near the Sand Trails. Such wildlife could spook horses running on the Sand Trails and cause them to react, including by stopping suddenly. Horses could also collide with wildlife on the Sand Trails.

17When riding during daylight hours, track riders would be able to see wildlife on the Sand Trails and adjust the way that they were riding – for example, by slowing their horse down to a walk or by anchoring themselves in the saddle – so they could ride past the wildlife in a safe manner. However, when riding in dark conditions, track riders would not be able to see wildlife on the Sand Trails until they had ridden over the wildlife or were very close to it.

18Horses have better night-time vision than humans. Therefore there was a risk that a horse could perceive an animal in the vicinity of the sand trails before its rider perceived the presence of the animal. The horse could react before the rider was able to. The consequences for the safety of the rider in such a circumstance are obvious.

19Track riders who were employed by Saloon Park Pty Ltd were routinely directed to ride horses on the Sand Trails each Friday, commencing shortly after 4.00 am in dark conditions. Saloon Park’s employees were also intermittently directed to ride horses on the Sand Trails on other days.

20Saloon Park’s track riders would typically ride horses onto the Sand Trails in a trot before picking the speed up to a canter and cantering two laps of the Sand Trails.

30 August 2019

21On 30 August 2019, Ms Claridge and Ms Hayes commenced working at the Training Complex shortly before 4:00am. Other Saloon Park employees that were also working at the Training Complex that morning, included Kasey Keys, who was  supervising Ms Claridge and Ms Hayes.

22Ms Claridge and Ms Hayes assisted in the unloading of horses that were to complete track work that day from a truck and in putting riding gear onto those horses. In accordance with their usual work practices, Ms Claridge and Ms Hayes were directed by Kasey Keys about which horses to ride and on which track to ride them. As 30 August 2019 was a Friday, Ms Claridge and Ms Hayes were directed to ride horses on the Sand Trails.

23Ms Claridge and Ms Hayes completed one ride out to, and around, the Sand Trails together on different horses. During this ride, Ms Claridge said to Ms Hayes ‘Oh my God it is so dark out here this morning’. The evidence heard by the jury was that it was a particularly dark morning as there was no moon light.

24After returning from their first ride, Ms Claridge and Ms Hayes mounted different horses and rode back out to the Sand Trails. On this occasion, Ms Claridge was riding a horse named ‘Dharma’. ‘Dharma’ was known to be a quiet horse with a very good temperament. Ms Claridge had previously ridden ‘Dharma’ on multiple occasions.

25At approximately 4:35am, Ms Claridge and Ms Hayes rode their respective horses onto the Sand Trails and turned left to commence another circuit together. Both riders picked their horses up to a canter. Without warning, both horses stopped suddenly and then moved to the left.

26As a result of this, Ms Claridge and Ms Hayes were thrown forwards over the front shoulders of their respective horses. Ms Hayes landed on her knees and was able to keep hold of her horse. Ms Hayes then heard rustling and saw that ‘Dharma’ was running through the bushes. Ms Hayes also saw that Ms Claridge was lying on her left side on the ground. Ms Hayes ran over to Ms Claridge, who was not conscious.

27Ms Claridge was provided with emergency medical treatment by an on-track Ambulance Transport Attendant and then by ambulance officers; however, she died at the scene a short time later.

28The relevance of the accident to sentencing is discussed later in these reasons.

29At approximately 6:45am on 30 August 2019, WorkSafe inspectors Noel Lewis, David Steer, and Shane Taylor attended the Training Complex.

30Inspector Lewis and Inspector Steer observed that there were several low-hanging tree branches that encroached into the area above the Sand Trails, including one branch that was approximately two metres high and which encroached into that area by two metres from the edge of the track.

31Inspector Lewis also observed several areas of the Sand Trails track where water had pooled, including one area in which the pool of water was approximately five metres wide.

32On 10 September 2019, CTC determined, as a temporary measure, that the Sand Trails would only be open for use during daylight hours. On 26 November 2019, CTC determined that, commencing from 1 December 2019, the Sand Trails would only be open from 6:30am each morning.

Objective Seriousness

33The primary consideration in sentencing for OHS crimes is the objective seriousness of the offending.[4]

[4] DPP v Amcor Packaging Australia Pty Ltd [2005] VSCA 219, [35].

34In DPP v Frewstal Pty Ltd,[5] the Court of Appeal outlined the principles by which a sentencing court should be guided when assessing the objective seriousness of offending against the OHSA.

[5] (2015) 47 VR 660.

35Priest and Kaye JJA,  explained that first, unlike cases of unlawful homicide, the occurrence of death or serious injury is not an element of the offences charged.  An offender is punished according to the gravity of the breach of duty owed under the Act, not according to the result or consequences of the breach.

36Secondly, the gravity of the breach is measured by two factors: (1) the seriousness of the breach itself; that is, the extent to which the offender has departed from its statutory duty; and (2) the extent of the risk of death or serious injury which might result from the breach.

37Thirdly, an assessment of the extent of the risk itself involves consideration of two factors:

(1) 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
(2) The potential gravity of the consequence of such an event, particularly whether there is a risk of death or serious injury.

38The fact that the breach in a 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. 

39Applying these principles to the present case, I accept the prosecution submission that Saloon Park's departure from its statutory duty was ‘relatively high' and that its offending ‘represents a serious example of the relevant offence’.[6]

[6] Sentencing Submissions on Behalf of the Director of Public Prosecutions dated 19 April 2023, [14].

40In making this assessment I have regard to the five matters identified in s 20(2) of the OHSA as relevant to the assessment of ‘reasonable practicability’.

41The first of these is the likelihood of the hazard or risk eventuating.[7] Given the regularity with which horses were ridden in the dark and the presence of wildlife in the vicinity of the sand trails, the risk of a rider being dislodged from a horse and falling to the ground was quite likely to eventuate.

[7] Occupational Health and Safety Act 2004 (Vic), s 20(2)(a).

42The second matter concerns the degree of harm that would result if the risk eventuated.[8] I conclude that in such circumstances the degree of harm ranged from no injury (as in the case of Ms Hayes) through to death (as in the case of Ms Claridge).

[8] Occupational Health and Safety Act 2004 (Vic), s 20(2)(b).

43Thirdly, the jury was and I am, in sentencing, required to consider what Saloon Park knew or reasonably ought to have known about the risk and any ways of eliminating or reducing it.[9]

[9] Occupational Health and Safety Act 2004 (Vic), s 20(2)(c).

44There was a deal of evidence before the jury concerning what Saloon Park knew or ought to have known of these matters. I note in this regard that both Mr Keys and his daughter Kasey were present at CTC on Fridays when track riding took place in the dark. As noted, Saloon Park had stables at the track and had been using the facility for many years.

45I find that in these circumstances Saloon Park was, through its officers and employees, aware of the presence of wildlife at the track or at least ought to have been aware of the presence of wildlife.

46What was known about the available ways to reduce the risks?

47The jury was informed of a WorkSafe publication entitled ‘Horse Stables and Track Riding Safety Guidebook’ published in August 2018 (Guidebook). This Guidebook is a detailed WorkSafe document and was produced with the cooperation and involvement of the racing industry.[10]  Its purpose is set out at page 3:

This guide provides information for employers, employees, Health and Safety representatives and contractors working within a stable and horse-training facility management environment to ensure that hazards and risks are identified and risk-control measures are put in place

[10] There is a list of the organisations involved in the development of the Guidebook at p 72. The list includes Racing Victoria Ltd and the Australian Jockeys Association.

48The Guidebook provides the following guidance in Part 4: ‘Track riding safety (training venues)’:

There are hazards involved in track-riding.  These include unruly horses, loose horses, riders being dislodged and/or horse falling, too many horses on the track and a horse going through a rail.  These hazards increase significantly when riding in the dark, cold or heat[11]

[11] Guidebook, 47 (emphasis added).

49This is followed by a list of 'Work Practices to avoid' which includes: 

Lighting not being maintained, having no procedure in place to follow if lights fail pre-sunrise, and float parks not being lit

50I consider this to be a clear recognition by the racing industry and the State’s work safety regulator of the particular hazards associated with riding horses in the dark.

51I find that Saloon Park ought to have been aware of this WorkSafe guidance. Employers are required under the Act to keep up to date with such safety guidance material. The evidence is that the Guidebook was published in 2018 and was available for access and download on WorkSafe’s website.

52Mr Taylor, counsel for Saloon Park, submitted that I can’t conclude to the requisite standard that Saloon Park had actual (as opposed to imputed) knowledge of the document. I accept this submission.

53The duty of an employer under the Act is to actively monitor conditions in which it requires its employees to work.[12] Ignorance of risks is no excuse if compliance with that aspect of the duty would have revealed the risks. I also consider that Saloon Park was aware of the characteristics of thoroughbred racehorses discussed earlier.

[12] R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181, [48].

54The fourth consideration concerns the availability and suitability of ways to eliminate or reduce the risk.[13] I find that there were readily available measures to Saloon Park to eliminate or reduce the relevant risk which are suitable. These included prohibiting its employee track riders from riding horses on the sand trails in the dark. There was nothing to prevent it implementing such a direction.

[13] Occupational Health and Safety Act 2004 (Vic), s 20(2)(d).

55The final matter is the cost of eliminating or reducing the risk. There was no cost associated with making the change.

56In the language of the Act, it was clearly reasonably practicable to have prohibited riding in the dark. While I accept that it is not possible for an employer like Saloon Park to remove all of the risks associated with horse-riding, the particular risks associated with riding on the sand trails in the dark were both obvious and entirely avoidable. It was reasonably practicable to have eliminated those risks. That was what the OHSA required Saloon Park to do.[14]

[14] Occupational Health and Safety Act 2004 (Vic), s 20(1)(a).

57In summary, the objective seriousness of Saloon Park’s offending is significant as is its moral culpability for that offending.

Victim Impact

58The primary victim of Saloon Park’s offending is of course Mikaela Claridge. The evidence before the court is that she was a remarkable young woman who was determined to pursue a career in the dangerous horse racing industry. Her years of dedicated training were starting to bear fruit when her life was violently ended on 30 August 2019. That her death was clearly preventable makes it all the more tragic.

59In sentencing CTC, I determined that four members of Mikaela Claridge’s family and her former partner, Chelsea Hall, were secondary ‘victims’ of CTC’s offending within the meaning of the Sentencing Act 1991 (Vic).[15] I was therefore required to have regard to the impact on them of the offence and any injury loss or damage that resulted directly from the offence.[16] It was accepted by counsel in this matter that Saloon Park must be sentenced on the same basis.

[15] DPP v Cranbourne Turf Club Inc [2023] VCC 506, [74]-[91].

[16] Sentencing Act 1991 (Vic), s 5(2)(daa) & (db).

60At the hearing of Saloon Park’s plea, six victim impact statements were filed by the prosecution and read by the prosecutors in open court. The Statements were made by:

(a)   Bernie Claridge, Mikaela’s father;[17]

(b)   Jack Claridge, Mikaela’s brother;[18]

(c)   Colleen Claridge, Mikaela’s mother;[19]

(d)   Karl Claridge, Mikaela’s brother;[20]

(e)   Chelsea Hall, Mikaela’s former partner;[21] and

(f)    Jaimee Hayes, the fellow track-rider with whom Mikaela was riding on 30 August 2019[22]

[17] Victim Impact Statement of Bernie Claridge dated 27 January 2023 (Exhibit P3).

[18] Victim Impact Statement of Jack Claridge dated 27 January 2023 (Exhibit P4).

[19] Victim Impact Statement of Colleen Claridge dated 27 January 2023 (Exhibit P5).

[20] Victim Impact Statement of Karl Claridge dated 28 January 2023 (Exhibit P2).

[21] Victim Impact Statement of Chelsea Hall dated 2 February 2023 (Exhibit P6).

[22] Victim Impact Statement of Jaimee Hayes dated 18 April 2023 (Exhibit P1).

61As I noted in sentencing CTC, each statement eloquently describes in great and moving detail how important Mikaela was to her family, her former partner and her work colleague. I can only briefly summarise the Statements.

62In his statement, Mikaela’s father Bernie described the ‘indescribable joy’ he experienced watching his three children grow up. He described their close sibling bond. His daughter’s funeral felt like his heart was slowly being ripped out of his body. Mr Claridge has been diagnosed with depression.

63Mikaela’s brother Jack describes his ‘overwhelming grief, emotion and distress’ and explains that he has ‘lost the most beautiful friend and sister in the world’.

64Her other brother Karl feels that a part of him isn’t there anymore. He also explains the effect of the death on the family saying ‘the bond we had as a family has gone’.  He describes the professional psychological support that he has needed to help him cope.

65Mikaela’s mother Colleen describes the impact of her youngest child’s death in the following words:

No words can even begin to explain the feeling I have. It’s like an empty hole inside of me. Mikaela was my world. She was my family’s world. Everyone still says to me ‘she’s here with you’. But the reality is, she isn’t. She’s gone, and simple family events like birthdays and Christmas are just so difficult to deal with. As a mum, not to have my daughter as a living part of my life is something I’m never going to get over. We all know racing is dangerous, Mikaela knew that too, but what makes the grief worse (if that is possible) is that it feels like her death was avoidable. It is so terribly hard not to think ‘if only proper processes were followed’ my daughter would be alive

66Mikaela’s former partner Chelsea Hall was also a jockey. She has found it impossible to continue in the career she had chosen as a result of Mikaela’s death. She concludes her statement as follows:

I feel so depressed when I think about how I’ll never get to wake up next to her again, never get to touch her, smell her or hold her again. I miss the way she used to look at me. I miss laughing together. I miss my life with Mik in it

67Finally, Ms Hayes, who also gave evidence during the trial, explained that since the day in question she has ‘suffered from awful on-going anxiety towards being able to continue [her] journey as a track rider’. She describes Mikaela as a ‘beautiful person in every possible way’ who ‘deserved so much better than what happened to her that morning at Cranbourne’. Ms Hayes will miss Mikaela every day and will remember her in her heart always.

68It is clear that Mikaela was a much-loved young woman who, in her short life, touched the lives of the people around her. It is not possible for me to do justice to the unimaginable and enduring pain that Mikaela’s death has caused to those who were closest to her.

69I have taken the impact of Mikaela’s death on those people into account as I am required to do in determining the appropriate sentence to impose.

Circumstances of the Offender

70Saloon Park was incorporated in 1993. It is a family business and Ken Keys is the sole director. It has 11 employees of whom 6 are track riders.

71All of Saloon Park’s horses are trained at the Cranbourne facility where it has stables.

72As part of the process known as ‘instinctive synthesis’, a sentencing court must have regard to an ‘offender’s previous character’.[23] This will always involve a consideration of whether an offender has prior convictions. Where an employer is found guilty of an offence under the OHSA, a court will generally consider how the employer approaches the safety of its employees more generally, among other considerations.

[23] Sentencing Act 1991 (Vic), s 5(2)(f).

73In this regard, Saloon Park tendered 27 character references on the plea[24] and submitted that:

All corporate persons act through natural persons. In the present case at the
time Saloon Park is synonymous with Mr Keys, it was noted during the trial
that Saloon Park operated under the business name Ken Keys Racing.

The volume and content of the references provided to Saloon Park at the
request of Mr Keys make it clear that Mr Keys has an exemplary reputation in the thoroughbred racing industry[25]

[24] Bundle of Plea Material filed 20 April 2023 (Exhibit D1).

[25] Sentencing Submissions on behalf of Saloon Park Pty Ltd dated 20 April 2023, [19]-[20].

74I reject this submission. Whatever the practical reality may be, as a matter of law Saloon Park Pty Ltd is not ‘synonymous with Mr Keys’. It is a separate legal entity with its own legal personality. It has the legal obligations that are imposed by s 21 of the OHSA. It must pay any fine that is imposed by the courts. Mr Keys has none of these responsibilities. He was not charged as either an employee or an officer of Saloon Park Pty.[26]

[26] As he could have been under ss 25 or 144 of the OSHA, respectively.

75Having said that, I accept that as the sole director, Mr Keys was the manifestation of the company in every practical sense. When third parties dealt with SP, they did so through Mr Keys.

76I have read the references to which the submission refers. A number speak of both Saloon Park Pty Ltd’s ‘character’ and that of Mr Keys personally. For the reasons just explained, the former are directly relevant to the Court’s sentencing task; the latter less so. In the former category is a reference from Wayne Smith, a current track-rider, who refers to the company as ‘professionally run’.[27] In a similar vein, Cassandra Healy, a stable hand, describes the company as safety conscious and states that she has never been asked to perform unsafe work.[28]

[27] See, for example, Reference Letter from Wayne D Smith dated 10 April 2023 (Exhibit D1).

[28] Reference Letter from Cassandra Healy dated 10 April 2023 (Exhibit P1).

77A number of other references from those who have worked for or conducted business with the company speak highly of its general reputation within the horse racing industry over a number of decades. For example, Stella Margaret Steel has conducted business with the company for 20 years. Ms Steel speaks of the company not taking ‘shortcuts over safety’.[29] John Bowers is an equine veterinarian who worked for Saloon Park for over 30 years. Mr Bowers refers to the safety conscious culture of the company.[30] There are several other very positive references.

[29] Reference Letter from Stella Margaret Steel dated 8 April 2023 (Exhibit P1).

[30] Reference Letter from John Bowers dated 7 April 2023 (Exhibit P1).

78I have taken these references into account as part of my assessment of the character of the offender before the court. I have mitigated the sentence imposed to the moderate extent permitted by law.

79Mr Taylor’s written submissions also refer to evidence the jury heard that track-riders Ms Hall and Ms Hayes were fearful of raising safety concerns with Saloon Park.[31] He submitted that this evidence should be considered in light of the character references which speak of Saloon Park as a safety-conscious employer.  

[31] Sentencing Submissions on behalf of Saloon Park Pty Ltd dated 20 April 2023, [16].

80Both women repeated their concerns in their Victim Impact Statements.[32]

[32] Exhibit P6, 6 (Ms Hall); Exhibit P1, 2 (Ms Haye).

81Mr Mandy SC, who appeared with Mr Bourbon for the prosecution, submitted that the evidence is relevant to general deterrence. He submitted that apprentices as a class of worker, may be expected to be less inclined to raise safety concerns with their employers, out of a concern about how such conduct may affect the security of the employment. Because such concerns may extend beyond the horse racing industry, he submitted that this is relevant to general deterrence.

82The difficulties with this submission are two-fold. First, there is no evidenceis that the court has no evidence of any concerns beyond those raised by the two track riders who worked for Saloon Park. I have therefore not taken this matter into account in assessing the need for the sentence to promote general deterrence.

83In the financial year to 30 June 2021, Saloon Park made an after tax profit of $322,500. The court was not provided with any more recent information than this.

84Mr Taylor submitted that a fine similar to that imposed on CTC ($250,000) would put the company ‘out of business’ and that the company would ‘need to be declared insolvent’.[33] I will return to this submission.

[33] Sentencing Submissions on behalf of Saloon Park Pty Ltd dated 20 April 2023, [24].

Parity

85The principle of parity stipulates that offenders who have jointly engaged in the same type of criminal conduct should ordinarily receive similar sentences. CTC and Saloon Park were originally charged on a single indictment and, although they are charged with different offences, their position is similar to that of co-offenders. Each company has been charged with failing to control the same serious risk to the health and safety of two identified track-riders at the same location on the same date. The precautions that the prosecution alleged were reasonably practicable were essentially the same. The principal difference between them is that CTC controlled the track and Saloon Park controlled the track-riders.

86In such cases, differences in sentencing outcomes can, and in fact must, reflect the differing culpability of co-offenders as well as their differing circumstances. However, any difference that engenders a ‘justifiable sense of grievance’ on the part of the more heavily sentenced co-offender that justice has not been done will amount to a sentencing error.[34]

[34] Lowe v The Queen (1984) 154 CLR 606.

87The question here is whether either of the corporations is more culpable than the other.

88Mr Taylor, on behalf of Saloon Park, submitted that it was less culpable than CTC. The basis of this submission was that CTC controlled access to the sand trails not only by having them open from 4.00am six days a week but by having a CTC employee overseeing use of the trails at that time while it was dark. Mr Taylor submitted that the position of CTC was somewhat analogous to that of a ‘host employer’ with which a labour hire employer places one of its employees to work. In this analogy, Saloon Park is the labour hire company. He submitted that it is generally the case that the labour hire employer is less culpable than the host in such situations.

89Mr Mandy SC submitted on behalf of the Director that there is no ‘reason to distinguish between the objective seriousness of Saloon Park’s offending and the objective seriousness of CTC’s offending’.[35] Both companies could easily have reduced the risks associated with riding on the sand trails in the dark albeit by implementing different measures.

[35] Sentencing Submissions on Behalf of the Director of Public Prosecutions dated 19 April 2023, [23].

90I accept that to a certain extent the relationship between host employer and labour hire employer is analogous to the relationship between CTC and Saloon Park. In the case of Vibro-Pile, the Court of Appeal rejected a similar argument that Frankipile, an employer which had provided one of its employees to work at a site controlled by Vibro-Pile, was less culpable in respect of a risk to safety at the site on the basis that it did not control the site. The Court concluded that:

[it] has long been established that the safety duties of labour hire employers are not diminished by their lack of control over the ‘host’ employer’s workplace. The labour-hirer must take positive steps to ensure the safety of the hired worker in that workplace, and has a positive obligation to directly supervise and monitor the work of the hired worker to ensure a safe working environment[36]

[36] Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55, [151].

91The Court of Appeal cited a 1999 decision of the Industrial Relations Commission of NSW which considered the liability of a labour hire employer under the similarly-worded s 15 of the now repealed OHS Act 1983 (NSW).[37] The Industrial Relations Commission in that case concluded that:

Indeed, in our view, an employer who sends its employees into another workplace over which they exercise limited control is, for that reason, under a particular positive obligation to ensure that those premises, or the work done, do not present a threat to the health, safety or welfare of those employees[38]

[37] Drake Industrial v WorkCover Authority (NSW) [1999] NSWIRComm 341.

[38] Drake Industrial v WorkCover Authority (NSW) [1999] NSWIRComm 341.

92The Industrial Relations Commission also considered that ‘the labour hirer has a positive obligation … to directly supervise and monitor the work of the employee to ensure a safe working environment’.[39]

[39] Drake Industrial v WorkCover Authority (NSW) [1999] NSWIRComm 341.

93Applying these principles to the current case, I consider that the culpability of Saloon Park is at least as high as that of CTC. While it is true that CTC enabled horses to be ridden on the sand trails in the dark, the risk to the employees of Saloon Park was created by its direction to its track-riders that they must ride on the trails in the dark. In other words, if Saloon Park had taken the step of directing its employees not to ride on the trails in the dark, the risk found by the jury to exist would have been entirely prevented, regardless of what CTC did. There was evidence before the jury that at least one other trainer only used the Sand Trails during daylight hours.

94The sentence that the Court imposes must of course take into account any relevant differences between the two companies. The principal difference from a sentencing viewpoint is that CTC accepted its responsibility by pleading guilty whereas Saloon Park contested the charge.

95Saloon Park had every right to put the prosecution to its proof and is not to be punished for so doing. However, it is not entitled to the ‘actual and palpable amelioration of sentence’ that was accorded to CTC.[40] The s 6AAA ‘discount’ for plea in the case of CTC was $130,000. The Court indicated that, but for its plea of guilty, CTC would have been fined $380,000. This is therefore the sentence against which parity is to be assessed.

[40] Worboyes v The Queen [2021] VSCA 169, [35].

Consideration

96It was common ground at the hearing that subjective factors such as the ‘good character’ of the company and its lack of prior convictions ‘must play a subsidiary role in the determination of penalty to the seriousness of the offence’.[41]

[41] DPP v Amcor Packaging Australia Pty Ltd [2005] VSCA 219, [35].

97Subjective factors for this purpose include the financial circumstances of the offender.[42] Before the court may impose a fine it must have regard to the financial circumstances of Saloon Park.[43] Although the Court has limited information before it about this subject, I accept that it likely that the company will find it very difficult to pay a significant fine.

[42] See, for example, DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69, [85]; DPP v Best Benchtops and Stone Pty Ltd [2022] VCC 2296, [46].

[43] Sentencing Act 1991 (Vic), s 52.

98Mr Taylor urged me to reduce the level of fine in light of Saloon Park’s financial situation. A similar submission was made recently to this court in another case under the OHSA. In the case of DPP v Best Benchtops and Stone Pty Ltd[44], his Honour Judge Lauritsen examined the authorities and concluded that the court should give little weight to this consideration in determining the appropriate penalty. His Honour held that ultimately the court must impose a fine that marks ‘the community’s view of the offence and deter[s] other possible offenders’.[45] I have adopted the same approach which I consider to conform with the relevant sentencing principles expressed by the Court of Appeal.

[44] [2022] VCC 2296.

[45] DPP v Best Benchtops and Stone Pty Ltd [2022] VCC 2296, [46].

99The maximum penalty for an offence against s 21 is a fine of 9,000 penalty units. At the date of this offence, that represented a maximum fine of $1,486,980. This maximum penalty demonstrates the seriousness of this offence and of the responsibility of employers more generally under the Act.

100It has been stated by the Court of Appeal on more than one occasion that employers are required by the Act to take an active, imaginative and flexible approach to the safety of those who may be affected by their undertakings.[46] An employer must identify risks to health and safety and take steps to obviate those risks.[47]

[46] R v Australian Char Pty Ltd [1999] 3 VR 834, 847; DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557, 565; R v Commercial Industrial Construction Group (2006) 14 VR 321, 332; DPP v JCS Fabrications Pty Ltd [2019] VSCA 50, [51].

[47] Kirk v Industrial Relations Commission (NSW) [2010] HCA 1, [11].

101It is for that reason that employers are not permitted under the law to wait until they receive a complaint about a safety issue before they take action.  An employer is expected to be proactive and to inform itself about any WorkSafe regulations, codes or guidance material relevant to the industry in which it operates.

102In the present case, I consider that Saloon Park was required to consider the WorkSafe guide book published in August 2018 to which reference has earlier been made, and to assess its own operations against the standards contained in the Guidebook.  It does not appear that this was done, or at least not done adequately.

103I also note and take into account that Saloon Park has no prior convictions and there is nothing subsequent since the charges were laid.

104I further take into account the good corporate character of the offender as outlined above although I note that such subjective matters should not be accorded undue weight in sentencing under the Act as general deterrence is the primary sentencing consideration.[48]

[48] DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557, [36].

105In a case such as the present, the court must impose a fine at a level that deters other employers from risking the safety of those affected by the risks that arise from their undertakings.  The Court must send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment.[49]

[49] Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55, [233].

Orders

106Taking into account the maximum penalty, the objective gravity of the offence as discussed above, the impact on victims, together with the other matters to which I have referred including the fine imposed on CTC, I impose a fine of $350,000 with conviction.

107I grant a stay of 6 months. I note that if the fine is unable to be paid in that time, the company may seek an instalment order.[50]

[50] Sentencing Act 1991 (Vic), s 56.