Director of Public Prosecutions v Supagas Pty Limited
[2025] VCC 120
•13 February 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00636
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SUPAGAS PTY LIMITED |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 December 2024 |
| DATE OF SENTENCE: | 13 February 2025 |
| CASE MAY BE CITED AS: | DPP v Supagas Pty Limited |
| MEDIUM NEUTRAL CITATION: | [2025] VCC 120 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charges under the Occupational Health and Safety Act 2004 – found guilty after jury trial – low gravity of offending – delay – specific deterrence and protection of the community – totality – non-conviction.
Legislation Cited: Occupational Health and Safety Act 2004; Sentencing Act 1991; Dangerous Goods Act 1985; Occupational Health and Safety Regulations 2017.
Cases Cited:Chiro v R (2017) 260 CLR 425; DPP v Frewstal (2015) 47 VR 660; DPP v CLM Infrastructure Pty Ltd [2017] VCC 192; Tones v R [2017] VSCA 118; DPP v Country Cart Pty Ltd [2022] VCC 2183; DPP v Peter Stoitse Pty Ltd [2022] VCC 870; DPP v Transdev Melbourne Pty Ltd [2022] VCC 1370; DPP v Multiworks Australia Pty Ltd [2021] VCC 1553.
Sentence: $50,000 fine, without conviction.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gurvich KC with Mr T. Bourbon | Office of Public Prosecutions |
| For the Accused | Mr D. Neal SC with Mr D. Oldfield | Seyfarth Shaw Australia |
HIS HONOUR:
Introduction
1At the outset, I will sentence Supagas Pty Ltd (Supagas) to an aggregate fine of $50,000, without convicting it of either charge.
2On 18 October 2024, a jury found Supagas guilty of two charges for offences under the Occupational Health and Safety Act 2004 (the Act). These charges penalise the same behaviour except one applies to Supagas' employees and the other to non-employees. For a body corporate, the maximum penalty for each offence is 9,000 penalty units or $1,450,710.
Circumstances
3For sentencing on a jury's guilty verdict, I must sentence on a factual basis most favourable to Supagas. Here, each charge particularised several alternate risks to health and safety. With Charge 1, for the jury to find Supagas guilty, it must have unanimously agreed 'there was a risk of serious injury or death to employees if they drove heavy vehicles when the wheel nuts of those heavy vehicles were not properly tensioned, which may result in the wheel separating from the wheel assembly causing an accident'. The same applies to Charge 2.
4Second, they must have been satisfied on one or more of the particularised measures[1]. This required the jury to be satisfied at least one of the particularised measures satisfied these questions:
(a) the particular measure would have eliminated or reduced the particular risk;
(b) it was reasonably practicable for Supagas to have implemented the measure; and
(c) Supagas failed to implement the measure.
[1] Chiro v R (2017) 260 CLR 425.
5The jury did not identify which of the suggested measures had been proven beyond reasonable doubt. Although Supagas requested I ask the jury to do so if they brought in a guilty verdict, I did not.
6The prosecution submits I should be satisfied the jury reached unanimity on this particularised measure:
'using "wheel nut indicators", so drivers could check that the wheel nuts were properly tensioned, and arranging for wheel nuts to be re-tensioned, if required.'
7Installing wheel nut indicators is an inexpensive and effective measure to monitor the tightness of wheel nuts. Within the trucking industry it was seen to be so.
8As to the incident itself, Supagas submits I should be satisfied beyond reasonable doubt the looseness of the three of particular nuts caused it. It points to:
(a) there was no direct evidence the truck in the incident or any of the other five trucks included in the prosecution case had under torqued wheel nuts;
(b) each of the other five trucks were inspected by various people and no torque measurements were taken;
(c) the prosecution's expert witness, Mr Marshall, measured and found the eight nuts on the driver's side outer rear wheel and five of the eight nuts on the failed wheel were not under torqued;
(d) during his oral evidence, Mr Marshall said the removal of metal around nuts 2,3 and 4 would have had a significant bearing on the measurements he obtained;
(e) Mr Marshall accepted there were other causes of wheel rim cracks;
(f) the fatigue cracks at hole 8 occurred between holes 1, 8 and 7 yet the nuts at these holes measured normally;
(g) the wear around the circumference of holes 2,3 and 4 was uneven despite the expectation of more even wear.
9Despite the above matters, I am satisfied the jury found the wheel nuts were under torqued and that state led to the cracking in the rim and the separation of the wheel from the wheel assembly. The jury would have seen Mr Marshall as a compelling witness, preferable to Mr Padfield when they disagreed. Through his expertise, both academic and occupational, Mr Marshall was in an excellent position to offer his opinions, more so than Mr Padfield.
10In so finding, after hearing the evidence of Mr Marshall, the jury could have rejected other suggested causes of metal fatigue as implausible. The fact Mr Padfield was disappointed the cracks were not investigated in a particular manner does not derogate from Mr Marshall's position.
11As to this finding, Supagas pointed to the way the prosecution pleaded its case to the jury. As an example, it quoted a passage from the transcript[2]:
'The question to be answered in this case is not whether the wheel nuts on any Supagas vehicle were improperly tensioned on 14 January. Rather the question is whether there was a risk that Supagas vehicles might be driven in circumstances where the wheel nuts were not properly tensioned, which might result in the wheel separating from the wheel assembly.'
[2] Transcript at 506.
12Supagas invited my sentencing to ignore the accident because of the failure to establish the causal link between under torqued nuts and the accident itself to the required degree. As indicated above, I am not prepared to do so. Apart from following the Vibro-Pile approach, I do not understand the prosecution abandoned the causal link in that passage or elsewhere.
13Again, with Charge 1, in particular 5, the prosecution alleged it was reasonably practicable for Supagas to have reduced or eliminated the risk by providing and maintaining a system of work for ensuring the wheel nuts of heavy vehicles were properly tensioned. In five sub‑paragraphs, it asserted four separate and alternate ways of Supagas achieving this either elimination or reduction.
Particular (a)
14Sub-paragraph (a) required the drivers to check for and report to management any visible damage to the wheels so remedial steps could be taken. Before the accident, there was a driver's pre-start checklist with a specific item for tyre pressure and wear. Defects were to be reported to a supervisor. Within this checking process, drivers did look for rim damage. Of the nine industry guidelines admitted into evidence, only that from the Australian Trucking Association recommended this measure.
15Fatigue cracks in rims are extremely difficult, if not impossible in most cases, to see with the naked eye. After the accident, and out of professional curiosity, Mr Strangard inspected the written off rims at Supagas' yard. They had been removed from Supagas' trucks. They had fatigue cracks in their rims. As a very experienced mechanic, he was looking for such cracks on the surface of the rims. He detected none with his naked eye.
16There was evidence of fatigue cracks in wheels but no evidence of such cracks causing the disintegration of wheels, as happened in the accident.
17Returning to a visual inspection, the extreme difficulty applied to the cracks at holes 2, 3 and 4. No one associated with the accident truck or other trucks saw a fatigue crack and, after the accident, the crack at hole 8 was still not visible.
18The action of WorkSafe and its employees after the accident do not add to this issue. The failure of WorkSafe to issue a further improvement notice was due to factors other than the implicit agreement that this measure would not eliminate or reduce the risk.
19The ability to detect a fatigue crack in a rim by the naked eye was almost non-existent. The rarity aspect means such inspections would be unlikely to uncover fatigue cracks. It is unlikely the jury was satisfied this alleged measure would have eliminated or reduced the risk.
Particular (b)
20The measure in sub-paragraph (b) deals with wheel nut indicators. As I earlier said, the prosecution submits the jury relied on this sub-paragraph.
21Supagas voluntarily introduced wheel nut indicators after the accident. These indicators do not show the tension of the nuts at any time. However, re-torquing shortly after the attachment of a wheel showed only minor adjustment was needed. If the re-torquing was not done and the wheel nuts were not properly tensioned then there was a risk of further loosening through the use of heavy vehicles. Mr Padfield said, tentatively, the difference between 300 and 500 nanometres was 'a quarter of a turn, if that'. Nevertheless, a quarter of a turn covers the circumference between 0 and 90 degrees. This is significant and would be instantly noticeable by a visual inspection. Even lesser turns of 20, 30 or 40 degrees should be easily noticed when one is looking for such evidence. The fact since the accident no witness had seen any indicators showing a loss of torque does not deny their effectiveness.
22The fact these indicators were not required in any improvement notice before or since the accident, were not required by roadworthy certificates, were seen by the NHVR as 'a good tip', were not supplied with new trucks, were not suggested in the owner's manual or widely used are implied expressions of opinion by unknown persons. These circumstances would have been weighed by the jury.
Particular (c)
23Sub-paragraph (c) required drivers to conduct and document a physical check of the wheel assemblies at an interval between 50 to 100 kilometres from the commencement of the shift following a relevant service and arranging for the wheel nuts to be re-tensioned, if required.
24Supagas used qualified tyre suppliers who notified drivers and Supagas of the need for re‑torquing after wheels are removed and refitted. Supagas' supervisors at Dandenong did the same. Drivers followed that requirement. When done, only a minor adjustment was needed. No witness said the drivers should conduct torque checks themselves where there were experts with the necessary tools. It is the ATA and the Izuzu manual which asserts the need for checks; the former by drivers; the latter is silent as to whom. It is unclear whether this injunction applies to the kind of vehicles in the Supagas fleet as opposed to long haul trucking.
25Supagas' response to an improvement notice requiring changes to its system of retorquing. Its changes were approved by WorkSafe without need to document what was done. This is a two-part measure. The first part ensured proper tensioning and by requiring writing down that it was done ensured the carrying out of the first part. I consider the jury accepted this measure.
Particular (d)
26The measure in sub-paragraph (d) required monthly checks and re-torques, if required, to be conducted by a qualified mechanic or a tyre and wheel company. None of the guidance material required monthly torque checks. WorkSafe did not require monthly checks by way of an improvement notice after the accident. Nor was there any evidence of such an industry practice or the corresponding adoption of the practice by any employer.
27This measure may well avoid the circumstances leading to the accident or the risk generally but raises the issue of reasonable practicability. I would imagine the cost to Supagas of such monthly checks for its fleet would be large. It is doubtful the jury accepted this measure.
28There are no aggravating factors. There are a number of mitigating factors. Supagas had a pre-start checklist which required the immediate reporting of abnormalities. Within the checklist, there were checks on tyres for pressure and wear. It had an extensive maintenance and repair system using professionals including tyre replacements. Its fleet managers were experienced and engaged with service providers. It reminded drivers to obtain torques. It had not experienced any accidents attributable to wheel nuts or to wheel safety. Despite WorkSafe visits in 2016 and 2018, no improvement notices were issued requiring the measures in the sub‑paragraphs to which I have identified.
Victim impact statement
29I am satisfied the jury concluded Supagas beached its statutory duty and caused the accident. No one, other than Maurice Tino, was injured. He declined to give an impact statement. On his evidence, he suffered minor injuries.
Criminal record
30Supagas does not have a criminal record. It has not been found guilty or convicted of any offence. It relies upon its good character.
31To determine an offender’s character, s 6 of the Sentencing Act 1991 sets out these factors:
(a) the number, seriousness, date, relevance and nature of any previous findings of guilt or convictions of the offender;
(b) the general reputation of the offender;
(c) any significant contributions by the offender to the community.
32As to (a), as noted above, there are no previous findings of guilt or convictions. However, I do not know the corporate history of Supagas: how long it had existed or even the period it has conducted the gas business. This business was established in the 1960s by others. The only tangible indication is Supagas obtaining a major hazard facility licence in 2013. I daresay Supagas was in existence before the granting of that licence. I suppose its good character has existed for upwards of a decade at least. Given the nature of its undertaking, this is no mean feat. Its good character is a considerable factor.
33As to (b), there was no direct evidence. The matters in (c) below, which I am about to discuss, are indirect evidence of its good reputation.
34As to (c), senior personnel from Supagas related entities sit on committees of related industry bodies and the Australian Standards' committees. For retail suppliers of flammable gases it provides advice and guidance to the development of proper industry standards and practices.
35As part of (c), Supagas donates monies to three charitable or community organisations. It is a member of two associations, presumably for charitable purposes. The total amounts contributed are relatively small.
36For an entity of Supagas' age at the time of the accident and conducting a large industrial concern with a fleet of vehicles, these offences are its first. They can be considered to be out of Supagas' character. Accordingly, specific deterrence and the protection of the community from Supagas are of little, if any, importance.
Personal
37Since 1968, Supagas and its predecessors have conducted the business of supplying gases: domestic and commercial liquid petroleum gas; industrial gases; medical gases; speciality gases; and helium. By 2019, Supagas operated in 10 retail sites in Victoria. Its principal site is in Dandenong which incorporates an administrative office, a gas manufacturing plant and the distribution centre for bulk and bottled gas. These last are distributed by tankers, trucks and light vehicles. At present, Supagas has 332 employees in this State.
38The Dandenong site requires a Major Hazard Facility licence under the Dangerous Goods Act 1985. The licence was first obtained in 2013. It needs to be renewed every five years. It was renewed in 2018. It was due for renewal in 2023 but, as yet, the renewal has not been granted.
39Whether seeking or renewing its licence Supagas must submit a detailed safety case. This case must satisfy the regulator Supagas has functional, advanced level processes and safety systems across its Dandenong site. The regulator then physically audits what Supagas has written. This audit takes two or three days. In relation to vehicles, the audit looks at bulk tankers, equipment, pre-start checks and maintenance. If the audit raises issues with these vehicles, these issues are taken up with the rest of the fleet of vehicles.
40Apart from the above audits, the regulator examines Supagas' systems through annual surveillance audits, oversight audit plans and routine contact. For example, in October 2016, Conrad Tulloch, a WorkSafe inspector, examined its fleet and its system of pre-start checks. Again, in September 2018, another inspector, Mr Padgett, attended the Dandenong site in response to an anonymous complaint regarding truck maintenance. He found no basis for the complaint. Neither Tulloch nor Padgett, or anyone else saw the need for visual checks for wheel rim cracks, wheel nut indicators or changes to the system for re-torquing of wheels previously removed.
41In the year before the accident, Supagas spent $665,000 maintaining its Victorian fleet. Following the accident, it spent $38,405 in the magnetic testing of all its vehicles and $40,248 on buying safety equipment. Most importantly, by 2027, it will have spent $12 million replacing all vehicles aged more than eight years.
Legal considerations
42Section 5(1) of the Sentencing Act 1991 sets out the purposes of sentencing and s 5(2) sets out the matters a court must have regard, where relevant to the particular case.
43In this case, of the purposes, general deterrence stands out. As the Court said in Vibro-Pile[3]:
'…general deterrence is of particular importance in offending of this kind. The sentences imposed need to draw attention to the importance of workplace safety, and to send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment'.
[3] At [233].
44The objects of the Act are set out in s 2(1). These objects are further explained in s 4. For example, s 4(3) requires an employer to act proactively to take all reasonably practicable measures to ensure health and safety at workplaces. This is a further explanation of the employer's need, for example, to examine its health and safety risks. For, as the authorities make clear, the general duty offences under the Act are risk, not outcome, based.
45Supagas submits general deterrence is ill-suited to the circumstances which have not occurred before or since. In the passage I have quoted from Vibro‑Pile, the particular importance of general deterrence in this type of offending stems from two interrelated considerations.
46I daresay nowadays the importance of workplace safety is well known to large employers in particular. I would place Supagas in that category. Awareness is one thing but the continued determination to act on one's own volition to examine one's workplace carefully from the health and safety perspective is another. I do not accept Supagas' submission and consider general deterrence remains an important sentencing purpose here.
47Just punishment always applies. There is little need to denounce this offending because the failure of Supagas was due to an inadequacy of actions. It was not deliberate. Specific deterrence requires little weight, if any, largely owing to the measures taken by Supagas since the accident.
48Section 5(2) of the Sentencing Act 1991 sets out factors which I must take into account, where they are relevant to the sentencing of Supagas.
49I have already noted the maximum penalties for the offences and Supagas' lack of a criminal history. In sentencing for offences under the Act, the objective serious of the offending is the most important sentencing matter. A lesser role is played by those factors which are personal to the offender (e.g. delay and good character).
50The temptation is to view an accident as defining the failure to reduce or eliminate the risk. Generally, the cause of an incident or its consequences are not important in the assessment of the objective seriousness of the offending however, they often are.
Nature and gravity of the offending
51In DPP v Frewstal, Priest and Kaye JJ said[4]:
'In our opinion, sentencing judges should be guided by the following principles:
First, unlike cases of homicide, the occurrence of death or serious injury is not an element of the offence charged. An accused is punished according to the gravity of the breach of duty 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 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 (such as the event that occurred in the particular case) endangering the safety of employees or others; and the potential gravity of the occurrence 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'.
[4] (2015) 47 VR 660 at [127[.
52I have already set out how the prosecution defined the risk in both charges. Although particular 4 for the charges are expressed broadly, the risk was due to improperly tensioned wheel nuts leading to the cracking in the rim of the wheel.
53Mr Marshall thought the cracking would have been visible before the accident. Given the evidence of others, it was not. Apart from Mr Marshall this risk had not materialised before in the experience of various other witnesses. Not unnaturally, there were no industry standards requiring pre-start checks for wheels or requiring drivers to conduct re‑torque checks. This particular risk was known but only to a few.
54The jury would have preferred, as I have said already, the evidence of Mr Marshall to that of Mr Padfield. Both had metallurgical experience but Mr Marshall was far more experienced in relation to heavy vehicles. Mr Marshall maintained his position after cross-examination. In particular, his view that wheel cracks are usually the consequence of loose wheel nuts. Mr Padfield did not agree with that proposition. He did not have the opportunity to test the wheel rim to determine the cause of the cracking. He had never seen even loose wheel nuts causing the catastrophic damage caused to this wheel rim but could not say what caused the failure. Generally, he conceded the possibility of loose wheel nuts and rim failure through the mechanism described by Mr Marshall.
55Nevertheless, the evidence of Peter Dinicol implies widespread knowledge of the need for wheel nut indicators with them being industry practice.
56Staying with Charge 1, the likelihood of the event endangering the safety of Supagas' employees was very low.
57Supagas relies on a passage from the Victorian Sentencing Manual[5], citing DPP v CLM Infrastructure Pty Ltd[6]:
'…where the seriousness of the consequences of the breach is high but the breach is at the lower end of the scale (for example as a result of its unforeseeability) the gravity of the breach will be taken to be at the lower end of the scale'.
[5] At [31.2].
[6] [2017] VCC 192.
58Or, as Maxwell P said in Frewstal:
'As Counsel for both parties accepted on the appeal, a very serious breach of the OHSA, involving clear disregard for the safety of workers might result in only a minor injury or no injury at all, if the breach were detected before an accident occurred. Conversely, a relatively minor breach can result in a death, in circumstances which could not reasonably have been anticipated. In both cases the touchstone for sentencing is the gravity of the breach, not the gravity of the consequences'.
59This case does fall, in my opinion, within the second example given by Maxwell P. Supagas' breach was relatively minor even though it could have resulted in serious injury or death. The particular risk posed by loose wheel nuts in these charges was largely unknown. It was known to the experts, Mr Marshall and Mr Padfield. It was not known to the drivers, supervisors and mechanics who dealt with these trucks. Loose wheel nuts pose other risks and this was well known. Supagas had a system of re-torquing before the accident. To an extent, it relied on the preparedness of the drivers to attend for retorquing. Generally, Supagas did not disregard risks posed by its vehicles:
(a) it implemented a system where drivers would check the condition of heavy vehicles before each shift even though drivers were not required to check for cracks in the wheel rims;
(b) two of the external businesses involved in tyre changing, JMB Automotive and Banlay Pty Ltd, would notify Supagas that the wheels needed tensioning so it could arrange for that work to be done;
(c) the truck involved in the accident had an unusual history beforehand. It was operated by a contractor, not an employee. It required extensive repairs. It was off the road for a long time. During the repairs, wheels were removed and replaced but there was no checking of the tension of the nuts afterwards. This occurred because of the nature of the arrangement between Supagas and the contractor and the unusual circumstances of the truck being off the road for so long. It was a source of considerable distress to the contractor. It was an unusual set of circumstances leading to the incident.
60Apart from the incident itself and looking at the other circumstances I consider, as I have already said, the gravity of Supagas' breach as being very low. It did not know of the ability of loose wheel nuts to cause metal fatigue in the wheel rims and leading to failure. It was not alerted to that possibility. Plainly, it has been since the accident. The significance of cracks was not appreciated by drivers. They did not bother to look often because of the belief they could not be detected by the naked eye. Mr Peebles said he did not check for them, saying sarcastically, because he did not have an X-ray machine. In any event, he had never seen such a crack, whether before or after the accident. It was not appreciated by the supervisors, who had been drivers themselves. The experts came to the matter only after the incident.
61As a first offence, I would treat it as exceptional, atypical and out of character. For Supagas, I would treat it as an instance of not going far enough in identifying a foreseeable, but unlikely, risk. Even before the remedial steps taken by Supagas, it was unlikely specific deterrence would be a significant sentencing purpose. The focus would be on rehabilitation. These observations apply equally to Charge 2.
62Another point was raised and for completeness, I will address it. I do not consider the filing of these charges in the summary, and not the committal, stream of the Magistrates' Court is of any value. There was no evidence as to why it was done and I decline the implicit invitation to speculate
Delay
63An incident occurring in 2019 and a trial in 2024 raises the issue of delay. The uses made of delay are set out in this passage from Tones v R[7]:
'It is well established that significant delay between the time that an offender is interviewed by police and the time that charges are laid, and the delay between the laying of charges and trial, can be a powerful mitigating factor. There are two limbs to delay. The first limb concerns unfairness to the offender, in the sense that the relevant charge – or the prospect of such a charge – was "hanging over" the accused's head and caused him or her anxiety ('unfairness limb'). The second limb concerns whether, during the period of the delay, the offender made progress towards rehabilitation and whether there were good prospects of ongoing rehabilitation ('rehabilitation limb')'.
[7][7] [2017] VSCA 118 at [36].
64Generally, the unfairness limb would have little application to a body corporate. It might if the body corporate was a vehicle embodying the activities of one or two individuals. Supagas has operations in other parts of Australia apart from Victoria. It has a sizeable number of employees in this State. I daresay the outcome of its present licence renewal application depends, in part, on the outcome of this proceeding. It is fair to say there would be some anxiety over this proceeding, at least, in the upper echelons of Supagas' management. However, in the absence of any further evidence, I will give that limb little weight.
65As to the second limb, Supagas has used the period of delay very appropriately. The most important aspect is developing and progressively implementing a policy of replacing the trucks in its fleet older than eight years and at a large cost. This is aimed at avoiding the issue raised by the accident and other, unrelated, problems with ageing trucks. It is a major policy and deserves the significant mitigatory effect which the Court spoke of in Tones' case. This second limb raises Supagas' prospects of rehabilitation.
Prospects of rehabilitation
66Supagas has co-operated with WorkSafe inspectors and investigators in the aftermath of the accident. It responded appropriately to the requirements of statutory notices. As I have already stated, it commenced the replacement of all vehicles over eight years old by 2027. The cost of this policy will be $12 million. The oldest vehicles have already been replaced.
67I have already mentioned the cost of magnetic particle testing. Supagas now requires its contractors to have its annual roadworthy certificates for their vehicles.
68In February 2019, Supagas fitted wheel nut indicators to the trucks in its fleet. This was not a specific requirement of any improvement notice. The need to install them has not been taken up legislatively or otherwise since. When a wheel is removed from a truck, Supagas directed its service providers to leave the indicators off the wheel and re‑instal them after the re‑torquing has been done.
69Rather than assessing Supagas' prospects of rehabilitation as good, bad or indifferent, I would say it has rehabilitated itself such that there is no need to speak in terms of its prospects.
70That conclusion means the sentencing purposes of specific deterrence and protecting the community from Supagas have no part to play in this case.
Current sentencing practices
71The Director summarised two cases in this Court.[8] Ironically, both were my sentences. Supagas could not find any comparable cases. However, it drew my attention to a passage from the judgment of Maxell P in Frewstal about the use to be made of comparable cases[9].
[8]DPP v Country Cart Pty Ltd [2022] VCC 2183 and DPP v Peter Stoitse Pty Ltd [2022] VCC 870.
[9] (2015) 47 VR 660 at [49].
Double punishment
72Supagas submits I should not punish it for the same acts or omissions. The two charges deal with the same departure but are aimed at different persons. Charge 1 deals with Supagas' employees. Charge 2 deals with persons other than its employees. Because Supagas has a fleet of vehicles which are used on public roadways, a risk to the health and safety of employees may also be a risk to the health and safety of others. This is not necessarily the case but with the accident, it was.
73The general rule is that there should be a sentence for each offence. Compliance with the totality principle where fines are appropriate is through the moderation of the fine for each offence, so the totality is not disproportionate to the criminality. Another way of obeying the totality principle is through the mechanism of an aggregate fine.
Disposition
74Supagas sought a non-conviction sentence. After drawing my attention to s 8 of the Sentencing Act and to a passage from a text[10] the latter described the recording of a conviction as a significant act of legal and social censure, Supagas submitted:
(a) Supagas depends on its fleet of vehicles. It has no previous findings of guilt or convictions despite the fleet travelling great distances over the years.
(b) the breaches are at the very low end of the scale for offences under ss 21 and 23 of the Act.
(c) convictions will affect its reputation and may affect its ability and that of related entities to supply essential goods and services. This could affect many other businesses and customers.
(d) disclosure of a conviction may adversely affect its ability to tender successfully. A conviction will need to be disclosed in the tender documents.
(e) it has contracts with upstream suppliers and downstream customers. A conviction may enliven disclosure and auditing requirements and may prejudice its relationships with both suppliers and customers.
(f) a conviction may prejudice Supagas' application for the renewal of its major hazard facility licence. It referred to regulations 449 and 452 of the Occupational Health and Safety Regulations 2017, which, admittedly, refer to the existence of a finding of guilt, not a conviction.
[10] Fox & Freiberg, Sentencing: State and Federal Law, 2nd edition at [1.504].
75Supagas submitted a fine without conviction is within range. It cited two sentences of this Court[11] and the brief summaries of three cases from cases published by WorkSafe.
[11] DPP v Transdev Melbourne Pty Ltd [2022] VCC 1370 and DPP v Multiworks Australia Pty Ltd [2021] VCC 1553.
76There was no objection to Supagas' submission as to the possible adverse effects on its business by the imposition of a conviction or convictions. Accordingly, I accept those submissions.
77Apart from the issue of conviction or no conviction, Supagas submitted one or other of these dispositions was appropriate: a fine without conviction; discharges under ss 72 or 75 of the Sentencing Act with a modest payment to a charitable purpose.
78Section 72 allows a court, following the recording of a conviction, to adjourn the proceeding for up to five years upon the offender undertaking to attend court if called upon to do so during the period of the adjournment, to be of good behaviour during that time, and to obey any special conditions imposed. If satisfied the terms of the adjournment have been obeyed, the court must discharge the offender.
79Section 75 is similar to s 72 except the adjournment follows the recording of no conviction. If satisfied the offender has complied with the terms of the undertaking, the court must dismiss the charge.
80The sentencing option under s 75 is still frequently used in the Magistrates' Court. Its earlier forms were used as a way to avoid a conviction. It was often coupled with a payment to the Poor Box, later the Court Fund. Payments to the Poor Box was an Irish invention. With the coming of the ability to fine without conviction, it was expected to be less often used. Although its use in the Magistrates' Court has declined, it is still often used when coupled with a payment to the Court Fund. The monies in this Fund are used for charitable purposes.
81If one looks at the ultimate disposition of a sentence under s 72 or s 75, they may be applicable to prosecutions under the Act. They are not applicable to this case because, primarily, of the sentencing purpose of general deterrence and the guide provided by the maximum penalties. General deterrence retains an important role even though I have assessed the gravity of this offending as very low. In rejecting a sentence under ss 72 and 75, with or without some charitable contribution, I am not overlooking the strong mitigating factors of Supagas.
82Ultimately, I consider a modest aggregate fine without conviction to be appropriate.
Sentence
83On the charges, without conviction, I fine Supagas the aggregate amount of $50,000. I will refer the fine to Fines Victoria for collection.
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