Director of Public Prosecutions v Seascape Constructions Pty Ltd
[2023] VCC 751
•10 May 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00134
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEASCAPE CONSTRUCTIONS PTY LTD |
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JUDGE: | HIS HONOUR JUDGE MURPHY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 March 2023, 10 May 2023 |
DATE OF SENTENCE: | 10 May 2023 |
CASE MAY BE CITED AS: | DPP v Seascape Constructions Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2023] VCC 751 |
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 –Capacity to pay fine – Fine with conviction
Legislation Cited: Occupational Health and Safety Act 2004 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: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; DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69; DPP v Best Benchtops and Stone Pty Ltd [2022] VCC 2296; R v Commercial Industrial Construction Group (2006) 14 VR 321; Worboyes v The Queen [2021] VSCA 169
Sentence: $420,000 fine with conviction
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Palmer KC with | Office of Public Prosecutions |
For the Accused | Mr R. O'Neill with Mr G. Barr | HWL Ebsworth |
HIS HONOUR:
1The company, through its authorised representative has pleaded guilty to one charge of failing to ensure that persons other than its employees were not exposed to risks arising from the company's undertaking, contrary to s23(1) of the Occupational Health and Safety Act 2004 (Vic). The maximum penalty is $1,399,140.
2The offence occurred on 27 June 2017, nearly six years ago, on a construction site operated by the company in Kalkallo. The circumstances of the offence which resulted in the avoidable death of Mr Mario Mancini was set out in the prosecution opening which was read in open court on the sentence indication hearing and which I incorporate by reference and have exhibited.
3In brief outline in August 2016, the company entered a contract to build a two-storey home in Kalkallo. Construction commenced in around February 2017. The company was the holder of a relevant building permit and engaged various subcontractors to undertake the work. The company had a project manager, Mr Lidhar, who acted as the supervisor of the site.
4The company had engaged another company, Carpenters Code Pty Ltd to undertake carpentry work. This company constructed the ground floor timber framing but were unable to finish the rest of the job. Seascape had engaged a Mr Henry to carry out plastering works at the site. He assisted Mr Lidhar the site supervisor, to engage new carpenters to complete the job. A couple of days before 23 June, Mr Mancini and another person, Mr Taleb attended at the site and Mr Henry explained the work to be undertaken. Although Seascape had a Safe Work Method Statement (SWMS) for work to be undertaken by the earlier carpentry company, no such SWMS was provided to Mr Mancini and Mr Taleb. There was never any discussion between Mr Lidhar and Mr Mancini as to how to safely undertake the work.
5On Friday, 23 June the two carpenters commenced work at the site. Mr Lidhar stopped in front of the site at one stage to observe progress but did not speak to either of the men. He organised for flooring sheets to be provided to the site and to be lifted by crane onto the first floor frame. This was done on the following Monday, 26 June. He was not present on that day, nor on the following day.
6On the following day, Mr Henry attended at the site to check whether the two carpenters needed anything. The two carpenters including Mr Mancini were working on the first floor, laying flooring sheets. They were attempting to use a compressed air hose but it was not working and they were forced to use their nail gun. At some stage around 10 am, Mr Mancini was on the first floor using an air hose to lower his nail gun to the ground, when he fell over the edge onto the slab below. As a result of the fall, despite an ambulance being called, he died at the scene.
7When Safe Work inspectors arrived, they found there was no fall protection in place for persons working on the first floor which was at a height of 3.1 metres.
The gist of the culpability of the company
8Under the Occupational Health and Safety Act 2004 (Vic) (‘OH&S Act’) employers are required to ensure, so far as reasonably practicable that persons other than their employees are not exposed to risks to their health and safety arising from the conduct of the undertaking. By its plea the company has admitted that persons working at the site on the first floor were exposed to the risk of falling from a height which could cause death or serious injury. Further, it was reasonably practicable to reduce the risk by ensuring that perimeter edge protection had been installed before it was carried out. The company failed to ensure that this occurred.
Objective seriousness
9In sentencing for offending of this type, the primary consideration is the objective seriousness of the offending.[1] In DPP v Frewstal Pty Ltd,[2] the Court of Appeal outlined the principles by which a sentencing court should be guided in assessing the objective seriousness of offending under the OH&S Act.
[1] DPP v Amcor Packaging Australia Pty Ltd [2005] VSCA 219, [35].
[2] (2015) 47 VR 660.
10Priest and Kay JJA explained that first, unlike cases of unlawful homicide the occurrence of death or serious injury is not an element of the offence 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.
11Secondly, 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 that might result from the breach.
12Third, an assessment of the extent of the risk involved. 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 this particular case, endangering the employees or others, and the potential gravity of the consequences of such an event, particularly whether there is a risk of death or serious injury.
13The 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.
14Applying these principles to the present case, I accept the prosecution's submissions that Seascape's departure from its statutory duty must be regarded as very serious and its conduct involved a very serious departure from acceptable safety standards.
15In making this assessment, I have had regard to the five matters identified in s 20(2) of the OH&S Act, as relevant to the assessment of ‘reasonable practicability’.
16The first of these is the likelihood of the hazard or risk eventuating.[3] The second concerns the degree of harm that could result if the risk eventuated.[4] I conclude that in the circumstances present the degree of harm ranged from serious injury through to death, as in the case of Mr Mancini.
[3] Occupational Health and Safety Act 2004 (Vic), s 20(2)(a)
[4] Occupational Health and Safety Act 2004 (Vic), s 20(2)(b)
17Third, in sentencing I am required to consider what Seascape knew or reasonably ought to have known about the risk and any ways of eliminating or reducing it.[5] Here there was a degree of evidence before the court concerning what Seascape knew or ought to have known about these matters. The prosecution submission notes that the accused company had been the subject of three improvement notices, and one prohibition notice issued by the Authority. Further WorkSafe had provided guidance material addressing the risk including the compliance codes in the building industry.
[5] Occupational Health and Safety Act 2004 (Vic), s 20(2)(c)
18The company itself had identified the risks in its OH&S manual and its Safe Work Methods Statement. Despite this, on this occasion, it failed to ensure that the perimeter edge protection was installed before the work was carried out. This was notwithstanding that the relevant timber for the carpenters to erect fall protection had been delivered to the site.
19On the plea it was put by Mr O'Neill on behalf of the company that Mr Lidhar, the site supervisor had not expected the carpenters to commence work without installing fall protection. It was their responsibility to do that. It was not disputed that a SWMS had not been executed between the company and the two carpenters.
20In circumstances where the completion of carpentry work clearly required working from height on the first floor and Mr Lidhar knew this; he failed in his supervisory obligations. I find that in these circumstances, Seascape was, through its officers and employees aware of the presence of a risk of injury, should there be a fall from height. As was submitted by the prosecutor, the risk of a fall from height “is both notorious and grave”.
21As I noted, the company was well aware of the ways to reduce the risk as it had been subject to visits from the Authority. The duty of an employer under the OH&SAct is to actively monitor conditions in which it requires its employees or contractors to work.[6] Here that was not done.
[6] R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181, [48].
22The fourth consideration concerns the availability and suitability of ways to eliminate or reduce the risk.[7] Here there were readily available measures for Seascape to eliminate or reduce the risk, which was of course to ensure that fall protection was erected.
[7] Occupational Health and Safety Act 2004 (Vic), s 20(2)(d)
23The final matter to be considered in reasonable practicability is the cost of eliminating or reducing the risk. There was no significant cost to ensuring that fall protection had been erected prior to the carpenters commencing work on the first floor laying the flooring.
24In the language of the OH&SAct it was clearly reasonably practicable for an operator like Seascape to have ensured that its method of supervision of its contractors was such that a SWMS was entered into and complied with along with proper supervision to ensure that the risk of working from height was reduced or eliminated. I accept that in the building industry, the supervisor doesn't have to be on site all the time, but clearly the supervisor must ensure that contractors working on a site were doing so, pursuant to a SWMS and in compliance with that SWMS. It was reasonably practicable for Seascape to have eliminated the risk and the OH&S Act requires Seascape to do that.[8]
[8] Occupational Health and Safety Act 2004 (Vic), s 20(1)(a).
25In summary, the objective seriousness of Seascape's offending is very significant and its moral culpability is high.
Victim impact statement
26The primary victim of Seascape's offending is Mrs Mancini and she has given two victim impact statements indicating that the death of her husband has had a major and continuing impact on her. In the statement dated February 2020 (Exhibit C), she said,
'It's the first I've had to acknowledge that I'm a widow and it's very confronting for me. And my husband Mario died through no fault of his own.'
27She then goes through her married life and how important her late husband was to her, and how his death has caused major financial problems for her. She's had to borrow money, and she's lost the support that he provided her. It has been a strain on her family. She says,
'He was the most loving, loyal, caring and generous man I've ever known. He hated to sit still and he had to be doing something all of the time.
28She says her social life has changed since he passed away. “We were always doing something socially, these days [she] only goes out about once every three months.” And then when she does she goes home to an empty house. She ends by saying,
'Mario passing away at work has had a huge impact on all aspects of my life. I have a serious health condition and Mario was my carer. I no longer sleep well, I have anxiety and my health is suffering.'
29In a supplementary statement (Exhibit C), she elaborates on the financial impact which the loss of her husband has had on her, the difficulties she's having with sleep and also some division within the family. She worries about her grandchildren, if she's no longer there. And she notes,
'The situation has taught me that things can change very quickly, when you're not expecting it. Every day is a struggle. I have negative thought patterns and stew on things that have happened since Mario passed away. It's been a domino effect since Mario's passing, so many negative and difficult things have happened for me and my family, that should not have happened if he was still here.'
30Obviously, nothing that I can say in my sentence will bring Mario back, but I have taken into account the impact of his death on Ms Mancini, and no doubt other family members, as I am required to do in determining the appropriate sentence to impose.
Circumstances of the offender
31I now turn to consider subjective considerations in relation to this matter. First, the company has pleaded guilty. The matter has had some history: the company originally pleaded not guilty, the matter was brought on for trial, there was a ruling by a trial judge and then a subsequent plea of guilty, then the matter was referred to the Court of Appeal which set aside the plea.
32The matter was referred back to this court for trial and was the subject of a sentence indication in March. I gave an indication, that indication was accepted, and the matter has proceeded by way of a plea hearing on this day. The plea of guilty is, I am satisfied, some evidence of remorse. Remorse is also indicated by the apology made to Mrs Mancini for her loss by the company's counsel and I take that into account.
33Further the plea of guilty is to be taken into account as it facilitates the course of justice and it must be given additional weight when a plea is entered in circumstances of the pandemic. The Court of Appeal has said that this calls for a perceptible amelioration of sentence.[9]
[9] Worboyes v The Queen [2021] VSCA 169
34It 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 determining a penalty in relation to an offence of this seriousness.’[10]
[10] DPP v Amcor Packaging Australia Pty Ltd [2005] VSCA 219, [35]
History of the company
35The background history of the company and its principal Mr Sagor are set out in the defence submissions.
36The business was established in 1998 and Mr Sagor has been able to advance from an Associate Diploma in Civil Engineering that he undertook part-time while working as a bricklayer with his brother, and also working in local government and in concreting until he obtained the necessary ten years of work experience to obtain a builder's licence. He then incorporated the company in 1998 doing small renovations and now builds single and double-storey homes, with between 50 and 90 builds per annum. In accordance with industry practices, he uses a number of sub-contractors to conduct the business.
37He had a number of site supervisors, and it was in effect one of those supervisors that let him down on this particular occasion, by failing to ensure that the carpenters were properly supervised and that the requirements of the SWMS was fulfilled.
38Although the company did have OH&S procedures there was a breakdown in proper supervision and induction of the carpentry sub-contractors including
Mr Mancini that led to this tragic event.39Mr Sagor is the sole shareholder and director of the company. He holds a diploma in work, health and safety and is clearly a successful operator in the construction industry. There are a number of references as to his character and as to his work sites and his mentoring role to various contractors. The references speak to his professionalism and of the safety culture that he operates within his sites. I take them into account.
40I am also required to take into account the interest in the rehabilitation of the company following this offence. It is clear from the material before me that following this event, the company has made significant efforts to improve its OH&S environment. It has maintained a consultant, Mr Johnson, who has undertaken a comprehensive system of training and appropriate procedures for the company, employees and its contractors. He has provided a reference in which he says,
'The company has made drastic improvements in the health and safety environments of the workers. [Mr Sagor] has always fully supported every initiative and safety control that I proposed at any work site. He is sincere and genuinely concerned that all his work sites operate safety.'
41He notes that sometimes site supervisors do not operate with the same level of concern as is the nature of the industry. But he says,
'In my opinion the level of health and safety measures implemented at all his work sites has increased by probably 80-90 per cent since I started working. And I think it is significant and certainly trending in the direction that [Mr Sagor], myself and any authority would want to see it going.'
42He notes there hasn't been a serious incident to his knowledge and he hopes Mr Sagor continues to make the necessary improvements to make the industry safer.
43I take into account the references, and particularly Mr Johnson’s reference. They indicate that Mr Sagor is genuinely concerned that all his work sites operate safely. From the material before me, I am satisfied that this event has had a salutary effect on the company and on Mr Sagor personally, and he has taken very significant remedial action, although it is accepted that the Authority has been back to one of Seascape’s sites subsequent to this event.
Comparable cases
44Both parties referred the court to a number of decisions that are relevant comparators. As general deterrence is the principal sentencing consideration in offending of this type, I have given significant weight to the cases that were put before me by both parties. Each sentence is however not a precedent and the moral culpability of all the relevant companies does vary. This case however, is to be determined on the basis that this offending shows a high level of moral culpability, particularly where the Authority had brought matters to the notice of the company on previous occasions.
45In sentencing for this offence factors relevant include the financial circumstances of the offending company.[11] Before the court may impose a fine, it must have regard to the financial circumstances of Seascape.
[11] 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].
46Here, however the company did not seek to put specific information as to its financial circumstances before the court. As Mr Palmer indicated, the business is operating as a company and regardless of its specific financial circumstances it must be prepared to wear or pay for any fine that might be imposed and continue trading.
47The maximum penalty for an offence against s 23 of the Act is a fine of 9,000 penalty units. At the date of this offence, that represented a maximum fine of $1.399m. This maximum penalty demonstrates the seriousness of this offence and of the responsibility of employers more generally under the Act.
48I also note and take into account that Seascape has no prior convictions and there was nothing subsequent since the charge was laid.
49I further take into account the good corporate character of the offending company, although I note that such subjective matters should not be accorded undue weight in sentencing under this Act, as general deterrence is the primary sentencing consideration.[12]
[12] DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557, [36].
50In a case such as the present, the court must impose a fine at a level that deters other employers and those in the building industry of risking the safety of those affected by the risks that arise from their undertaking. The court must send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment.[13]
[13] Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55, [233].
Orders
51Taking into account the maximum penalty, the objective gravity of the offence as discussed, the impact on the victim, I impose a fine of $420,000 with conviction. I grant a stay of three months. I note that if the fine is unable to be paid at that time, the company may make a second instalment order.[14]
[14] Sentencing Act 1991 (Vic) s 56.
52Pursuant to s 6AAA of the Sentencing Act, I declare that had the company not pleaded guilty, I would have imposed a fine of $525,000.
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