Director of Public Prosecutions v SJ & TA Structural Pty Ltd (ACN 067 214 206)
[2019] VCC 2016
•6 December 2019
| IN THE COUNTY COURT OF VICTORIA AT WODONGA CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-18-01824
Indictment No. J10378647
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SJ and TA STRUCTURAL PTY LTD (ACN 067 214 206) |
---
JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 14 November 2019 | |
DATE OF SENTENCE: | 6 December 2019 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v SJ & TA Structural Pty Ltd (ACN 067 214 206) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2016 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – failing to provide and maintain systems of work that are safe and without risks to health
Legislation Cited: Occupational Health and Safety Act 2004, s21(1) and s21(2)(A)
Cases Cited:Dotmar Epp Pty Ltd v R [2015] VSCA 241; DPP v Frewstal Pty Ltd [2015] VSCA 266
Sentence: Convicted and fined $400,000.00: 6AAA declaration: Fine of $600,000.00.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Chisholm | John Cain Solicitor for Public Prosecutions |
| For the Accused | Mr A D Halse | Wotton & Kearny |
HIS HONOUR:
1 On 14 November 2019, SJ & TA Structural Pty Ltd pleaded guilty to one charge of failing to provide and maintain systems of work, that are safe and without risk to health, contrary to s.21(1) and s.21(2)(a) of the Occupational Health and Safety Act 2004, (the Act). The maximum penalty for the offence is a fine of $1,399,140.00.
2 The defendant company is without prior conviction.
3 Tendered as Exhibit A and read aloud in court was the prosecution opening on plea. In summary, at about 6.00 am on 18 August 2016, the deceased,
Adrian Heber, together with other employees of the defendant company, started work. The group’s first task for the day was to transport steel stair frames that had been made by the defendant company from the factory building to the yard for storage. This process involved the use of a 12-tonne Franna crane, driven/operated by Mr Ben Tyce. Chains were placed on the balance points on the steel stair frames, and each frame was guided in the trip to the yard by the deceased, Adrian Heber, and David Farrell.
4 The first or base frame was placed on timber dunnage, that was inadequate for its purpose. Once the first frame was placed on the dunnage, both the deceased, Adrian Heber, and David Farrell removed the chains from the steel frame, and the process was repeated, with dunnage placed on the top of the first frame, in order for a second frame to be stacked on it and the process was repeated a third time. In each case, the dunnage, both wooden and rubber, was inadequate and was used to perform the dual function as dunnage and as protection for the steel cleats attached to the stair frames. The purpose of the cleats was to enable the frames to be attached to the stairwells into which they were to be placed.
5 After a stack of three frames was erected, a new stack was commenced. The new stack was placed approximately a metre or so in front of the first stack. While the deceased, Adrian Heber, was standing with his back to the first stack, removing the chains from the first steel frame to the second stack, the first stack moved because the dunnage failed. The two top steel frames of the first stack slid forward, trapping the deceased, Adrian Heber, between them and the first frame of the second stack. The deceased, Adrian Heber, was pinned at the pelvis by the second frame of the stack and at the chest, by the top frame of the stack.
6 Mr Adrian Heber sustained fatal injuries and died at the scene.
7 The cause of death was mechanical asphyxia. This results from compression, (usually traumatic) of the chest, restricting the ability to breathe. In other words, the weight of the frame crushed Mr Heber’s chest, preventing him from breathing.
8 As Particular 4 in the indictment alleges, it was reasonably practical for SJ & TA Structural Pty Ltd to provide and maintain systems of work that:
(a) eliminated the risk by not stacking the stairs; or
(b) if the stairs were stacked, reducing the risk by eliminating excessive bearing pressure on the stair angle cleats acting on the dunnage, as well as excessive ground bearing pressure from the dunnage itself, by using sleepers or sufficiently large bearers.
9 The prosecution relied on expert opinion to the effect that:
(a) the method of storage used introduced two significant risks:
(i) excessive bearing pressure of the stair angle cleats acting on the dunnage; and
(ii) potential sliding between the stairs on the stair stack.
(b) these risks were known within the steel fabrication and crane industries at the time of the incident;
(c) the company could have removed the risk by not stacking the staircases during storage; or
(d) if storing the staircases three high, the accused could have used a sleeper or sufficiently large bearer, so that the stair weight could be borne directly by the bearer against the main structural member of the stair, eliminating the excessive bearing pressure acting through the angle cleats.
10 The defendant company, by its plea, accepted that the risk of the stacks shifting or moving causing the load to become unstable, thereby striking, trapping or crushing employees was reasonably foreseeable and, further, that it was reasonably practicable for the defendant company to provide and maintain systems of work that:
(a) eliminated the risk by not stacking the stairs; or
(b) if the stairs were stacked, reducing the risk by eliminating excessive bearing pressure on the stair angle cleats, acting on the dunnage, as well as excessive ground bearing pressure from the dunnage itself, by using sleepers or sufficiently large bearers.
11 Tendered as Exhibit B on the plea, was a bundle of photographs depicting the scene of the industrial accident. The photographs demonstrate and make good the prosecution case.
12 Tendered as Exhibit C on the plea, were two photographs depicting a type of dunnage that could have been used in all the circumstances of the case.
13 Tendered as Exhibit D, were victim impact statements from the deceased, Adrian Heber’s father, stepmother, three brothers, a former partner, and present partner, who, at the time of writing her statement, was six months’ pregnant with the second child of that relationship.
14 It is impossible to do justice to the contents of each statement. Each of the deponents to the statements write of their loss: the loss of a son, a stepson, a brother, a former partner who was the father to a child of that relationship and a current partner and father to two children of that relationship. Their loss is different in each case. Each victim’s statement carries the hallmarks of grief, loss of friendship, companionship and support, both personal and financial. The victims recount receiving the news of the death of the deceased, Adrian Heber, who was aged but thirty-three years. Each write of the loss of what the future would have brought to each of them, should Adrian Heber still be alive today.
15 The defendant company has been operating in manufacturing and construction for twenty-five years. The company entered its plea at the earliest opportunity and must receive the benefits that flow from the plea and the time at which it was made. The defendant is a company without prior conviction. Mr Halse of counsel, who appeared on behalf of the defendant company, placed emphasis on its response to the fatality. All employees were instructed to take time off work and were advised not to return to work until they felt ready to do so.
16 The defendant company had signed and commenced work on a $1.86 million project. Mr Simon Phillips, a director of the defendant company, approached the company to whom the defendant company was contracted and sought to cancel the contract, as it was felt that the health and wellbeing of the company’s employees was such, that it would be inappropriate to proceed with the contract. The consequent loss of work as a result of the cancellation of this contract, imposed significant financial strain upon the defendant company. Despite the financial difficulties, the defendant company is still trading and will continue to do so and has no intention of winding up.
17 The officers and employees of the defendant company were cooperative with all investigators and authorities and recognised the difficult task of investigating workplace tragedies. It was submitted that the defendant company’s attitude and cooperation shows insight and an appropriate response to the industrial accident and fatality and this impacts upon the role of specific deterrence, as a sentencing consideration.
18 Mr Halse stressed that the defendant company’s safety record and attitude had been commendable over its lifetime. Further, he submitted that the management plan for the office project which involved the stairs, incorporated voluminous health and safety matters and extended to 127 pages. Further, it was submitted that the defendant company’s performance over the years had been exemplary and as an example of that, the defendant company relied upon a safety award received by them, as a result of their work in the Junee Correctional Centre expansion project. Further, the defendant company had introduced additional training programs for workers, including but not limited to training for the workshop overhead crane, for all workshop employees. The defendant company continues to attend at the Albury/Wodonga Regional Safety Health and Environment Group and uses assistance, provided by consultation with Worksafe. Importantly, new stillages had been constructed for the stacking of large irregular shaped items, photographs of which are Exhibit 1 on the plea.
19 Over and above these matters, Mr Halse relied upon the defendant company’s membership over many years of the Australian Industry Group and attendance at training sessions and information sessions.
20 Further, Mr Halse relied upon the extensive reconsideration and revision of all safety procedures and standing operating procedures and protocols of the defendant company since August 2016.
21 Emphasis was placed on the size of the company which was incorporated in 1994. The company’s management structure includes four persons only and over time, the number of employees has built up to the equivalent of 25 full time employees. It was noted that an aspect of the defendant company’s relationship with its employees was that many of its employees were long term employees.
22 The defendant company has been, over the years, active in the Albury/Wodonga community, by contributing to a number of charities in the area. One example being the supply of steel to bush fire victims in 2009, for fencing in the Mudgegonga, Kancoona and Upper Gundowring areas.
23 Finally, Mr Halse raised the issue of the possible consequences to the defendant company of being convicted and its ability to continue to obtain work and in particular, government work and work from Tier 1 builders.
24 As part of the defendant company’s outline of submissions, and attached documents, were profit and loss statements for the financial years 2014 through to 2018, as well as a profit and loss estimate for the financial year 2018/19. Over the years, the company’s profit margin has ranged from 3.3 per cent to 5.6 per cent, with sales generally rising over the years as has gross profit. It is anticipated that for the financial year 2018/19, the company, which is run through a family trust, will have a net profit of $377,729, which represents a net profit margin of 5.8 per cent.
25 On behalf of the crown, Mr Chisholm of counsel, submitted that the defendant company’s offending must be regarded as very serious. He submitted the objective seriousness of the breach, constituted the primary factor, in determining the appropriate penalty and the factors that are subjective to the defendant company, should play a subsidiary role. He submitted that the gravity of the contravention is not to be determined by its consequences, but by the extent that the employers failed to meet their duties under the Act. Further, he submitted that the extent of the defendant company’s failure to meet their duties under the Act, is itself, determined by three factors:
(a) the extent of the departure from the duty owed, in particular 'the measure of the evidenced disregard concerning … safety';
(b) the extent of the risk to health and safety thereby created, in particular 'the foreseeable potential consequences' of the breach; and
(c) the likelihood or risk of potential harm occurring.
26 Mr Chisholm submitted that the defendant company’s conduct involved a very significant departure from acceptable safety standards and that the foreseeable potential consequences of the defendant company’s conduct, included death and that in the present circumstance that actually occurred. Finally, he submitted, that it was very likely that the stacks of stairs could shift or move, causing the load to become unstable thereby striking, trapping or crushing employees. He further submitted that looking at the factors concerning reasonable practicability, under s.20(2) of the Act, the likelihood of the hazard or risk concerned eventuating was obvious, as was the degree of harm that would result if the hazard or risk eventuated. That the accused knew or ought to reasonably have known about the hazard or risk and any ways of eliminating or reducing the hazard or risk and that there were available and suitable ways of eliminating the risk or hazard and finally that the cost of eliminating or reducing the hazard or risk was minimal.
27 Mr Chisholm submitted that in cases where the potential risks of a breach include the possibility that someone could be killed, or seriously injured, meant that general deterrence would normally assume considerable significance.
28 Both counsel for the Crown and the defendant company provided me with a number of summaries of cases in order to assist me at arriving at an appropriate sentencing disposition in all the circumstances. As noted in discussion with counsel, whilst the cases can be of some assistance, each case turns on its own facts and the exercise of the sentencing discretion is unique in every case.
29 In Dotmar Epp Pty Ltd v R [2015] VSCA 241, Priest JA, delivering the judgment of the court, opined at paragraphs [22] and [23] of the judgment that:
“ … The OHSA is concerned generally with risks to health and safety; and, under Pt 3, concerned specifically with the duties owed with respect to health and safety. It is the extent of the failure to ensure that employees are not exposed to risk to their health and safety which determines the objective gravity of the offence. The consequences of the failure generally do not. That is not to say that the fact of death or injury occurring is necessarily irrelevant. The occurrence of an accident, resulting in death or injury of a particular kind, may inform an assessment of, first, the existence of the risk, and, secondly, the nature and seriousness of that risk.6
Hence, in determining the gravity or seriousness of the offence, the sentencing court must assess, first, the extent of the departure from the duty owed; secondly, the extent of the risk to health and safety thereby created; and, thirdly, the likelihood or risk of particular harm resulting. Put another way, in a case such as the present, the gravity or seriousness of a breach is to be measured by reference to the potential consequences of the breach; the extent of the evidenced disregard for the safety of employees; and the risk of the potential consequences of the breach materialising.”
30 In DPP v Frewstal Pty Ltd [2015] VSCA 266 at [127], Priest and Kaye JJA opined:
“In our opinion, sentencing judges should be guided by the following principles:
• 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 the 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 consequences 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.”
31 In my opinion, the extent of the departure from the duty owed by the defendant company to its employees was serious and the extent of the risk to the health and safety thereby created was manifest. I regard the likelihood of risk of the particular harm resulting as high.
32 As against that, the defendant company has pleaded guilty. The defendant company is without prior conviction. The defendant company’s attitude to the fatality to my mind was exemplary, both in respect to its attitude to its employees, as well as its cooperation with investigating authorities. Further, the defendant company has engaged an expert in the field of occupational health and safety, to assist them in reviewing and re-writing many of their safety manuals and standard operating procedures within the workplace and the implementation of these reviews.
33 General deterrence is an important sentencing factor in cases involving breaches of the Occupational Health and Safety Act 2004. In my view, specific deterrence has little or no part to play in the circumstances of this case. Taking into account the matters to which I have referred, I convict the defendant company and fine it $400,000.
34 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for its plea of guilty, I would have sentenced the defendant company to a fine of $600,000.
35 MR CHISHOLM: May it please, Your Honour.
36 HIS HONOUR: Is there anything arising?
37 MR HALSE: No, Your Honour.
38 MR CHISHOLM: No, Your Honour.
39 HIS HONOUR: I would like to thank counsel for their assistance in this matter. Adjourn the court till 10.30 Monday morning please.
- - -
4
2
1