Director of Public Prosecutions v The Elastomers Pty Ltd

[2024] VCC 482

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01575

DIRECTOR OF PUBLIC PROSECUTIONS

v

THE ELASTOMERS PTY LTD (ACN 103 387 015)

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JUDGE:	His Honour Judge Rozen
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2024
DATE OF SENTENCE:	19 April 2024
CASE MAY BE CITED AS:	DPP v The Elastomers Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VCC 482

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW    

Catchwords: Breach of ss 21(1) and 21(2)(a) of the Occupational Health and Safety Act 2004 (Vic) – Employee killed by rubber manufacturing machinery –Objective gravity – Risk of death or serious injury high – Likelihood of risk eventuating high – Countenance of unsafe practice – Sentencing principles in OHS prosecutions – Victim impact – Current sentencing practices

Legislation Cited:      Occupational Health and Safety Act 2004 (Vic); Occupational Health and Safety Regulations 2017 (Vic)

Cases Cited:DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69; Holmes v RE Spence & Co (1992) 5 VIR 119; DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557; DPP v Frewstal Pty Ltd (2015) 47 VR 660; DPP v Rapid Perforating Pty Ltd [2023] VCC 1167; DPP v Precast Civil Industries Pty Ltd [2022] VCC 110; DPP v Ace Metal Treatment Services Pty Ltd [2021] VCC 1420; DPP v D&R Henderson Pty Ltd (County Court of Victoria, Judge Cahill, 28 September 2023); Midfield Meat International Pty Ltd v The King [2023] VSCA 106; Director of Public Prosecutions v Dalgleish (a pseudonym) [2017] HCA 41; DPP v Clark [2023] VSC 220; 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; Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55; Hili v The Queen [2010] HCA 45

Sentence: Fine – $450,000 with conviction – s 6AAA declaration – Fine of $620,000 with conviction

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Gurvich KC & Mr T. Bourbon	Office of Public Prosecutions
For the Accused	Mr G. Livermore SC & Ms A. Dickens	Sparke Helmore Lawyers

HIS HONOUR:        

Introduction

1The accused company, The Elastomers Pty Ltd (‘the Elastomers’), pleaded guilty to one charge of failing to provide and maintain a safe working environment for employees by failing to provide or maintain plant that was safe and without risks to health, contrary to ss 21(1) and 21(2)(a) of the Occupational Health and Safety Act 2004 (Vic) (‘OHSA’). The offence carries a maximum penalty of a fine of 9,000 penalty units which, at the time of the offending, represents $1,486,980.

2The company falls to be sentenced on the basis of the Amended Summary of Prosecution Opening dated 21 March 2024,[1] which is an agreed document. A bundle of photographs of the plant before and after its modification were tendered at the plea to assist the Court in understanding the machinery involved.[2]

[1] Exhibit P2.

[2] Exhibit P1.

The Offending

The Workplace

3The Elastomers imports raw martials and processes them to manufacture various rubber compounds for businesses and industries. They operate from a factory located at 34 – 40 Nissan Drive, Dandenong South (‘the workplace’).

4The Elastomers operated two production lines at the workplace. Both production lines performed the same tasks – namely, processing raw materials to make different rubber compounds. The relevant difference between the two production lines was that one line had older machinery than the other. The offending incident occurred on the production line with newer machinery.

5The newer production line included an item of plant known as the Akron Line 2 (‘Line 2’). Line 2 was an automated machine, which produced rubber compound in sheet and strip form. Line 2 was typically operated by a single operator, who would enter the required specifications into Line 2 before starting the production process. A second operator would sometimes be tasked to assist on Line 2.

6There were two levels on Line 2. On the ground level, there was an “output end” or “batch out” area, which was in an alcove. The alcove contained what was colloquially referred to as the “Wig Wag”.

7The Wig Wag had two mechanised panels that reciprocated from left to right laying finished rubber product into an open topped container or pallet that sat on top of a scissor lift in the alcove.

8The alcove was formed by fixed metal barriers on three sides, leaving one side open. Operators were required to access the fourth (open) side of the alcove, which measured approximately 206 centimetres, to place containers or pallets onto the scissor lift, which would collect the rubber product from underneath the Wig Wag (‘the danger zone’).

9The danger zone was guarded by a presence sensing safety device called a light curtain. When the light curtain beam was interrupted (i.e., by an operator walking through it), the operations on Line 2 would cease. However, there was a gap of approximately 122 centimetres between the light curtain and the front side of the scissor lift. This meant that operators were able to enter the danger zone and were able to access the scissor lift without continually breaking the light curtain beam. Line 2 could therefore be restarted by a different operator pressing the restart button on one of two operator control panels while the first operator was still in the danger zone.

10There was one operator control panel adjacent to the alcove on the ground level. There was a second operator control panel located on the upper level of Line 2, which was known as the “mill end”.

11There was no direct line of sight from the upper-level control panel to either the ground floor control panel or the danger zone. Line 2 would sometimes be operated by two operators, one at the ground level and the other at the upper level.

12From time to time, the Wig Wag would cause the rubber product to become jammed or tangled. When this occurred, operators would need to enter the danger zone to remove the jammed or tangled rubber. Line 2 would then be restarted; including, on occasion, by a second operator pressing the restart button on the upper-level control panel.

The Incident

13On 26 May 2021, Jawad Mohammadi was working on the ground level of Line 2. Mr Mohammadi was being assisted by a second operator, Shahil Kaduppoyil, who was working on the upper level of Line 2. Mr Kaduppoyil had been employed by The Elastomers for 18 months.

14At approximately 8:00 am, Mr Mohammadi entered the danger zone, most likely to clear rubber product that had become jammed by the Wig Wag. As he entered the danger zone, he interrupted the light curtain, which stopped the operations on Line 2.

15Mr Kaduppoyil, who was still on the upper level of Line 2, could not see that Mr Mohammadi was in the danger zone. Without first communicating with Mr Mohammadi, Mr Kaduppoyil restarted Line 2 from the upper level control panel, which restarted the Wig Wag. The Wig Wag then struck Mr Mohammadi to the head, and he fell to the ground. There were no witnesses to the incident.

16I hasten to add that Mr Kaduppoyill had not been instructed to check that Mr Mohammadi had left the danger zone before the machine was re-started. The system of work at the workplace did not require that this crucial safety step was taken.

17Paramedics attended and attempted to treat Mr Mohammadi. He had a major open skull fracture to both the left and right sides of his head. He had lost approximately two litres of blood and was in cardiac arrest. Tragically, Mr Mohammadi died at the scene from his injuries.

WorkSafe Investigation and Expert Evidence

18The incident precipitated an investigation by WorkSafe. Inspector Brendan Adair attended the workplace, along with other inspectors, at approximately 9:45 am on the morning of the incident. Inspector Adair issued a non-disturbance notice to the Elastomers to allow him to make additional enquiries in relation to the operation of Line 2, including the operation of the Wig Wag.

19On 18 June 2021, Inspector Adair returned to the workplace with other WorkSafe inspectors and expert mechanical engineer, John Hambridge, where they were shown a partial demonstration of Line 2 in operation.  The following operational sequences were demonstrated:

(a)   The Wig Wag stopping upon the light curtain being interrupted.  The Wig Wag then being restarted using the control panel on the ground level.

(b)   The Wig Wag stopping upon the emergency stop button being pressed.  The Wig Wag then being restarted using the control panel on the ground level.

(c)   The Wig Wag stopping upon the light curtain being interrupted.  The Wig Wag then being restarted using the control panel on the upper level.

20Mr Hambridge prepared two expert reports in relation to the risks associated with the methods of stopping, starting and guarding the components of Line 2 which were involved in the incident on 26 May 2021, and the means of eliminating or reducing those risks.  Mr Hambridge expressed various opinions in his two reports, including the following:

(a)   The Wig Wag would stop when the light curtain was interrupted; however, the operator on the upper level could restart Line 2 (including the Wig Wag) by triggering a start switch on the upper control panel;

(b)   There was no direct line of sight from the control panel on the upper level to the alcove area containing the Wig Wag;

(c)   The Wig Wag should not have been able to be restarted from the upper level control panel.  Line 2 should have been made inoperative until the upper level controller accessed the ground level control panel;

(d)   There was no physical guarding in front of the Wig Wag.  An interlocked gate could readily be designed to prevent access to the “danger zone”;[3]

(e)   The hazards and risks to operational personnel associated with stopping and starting the Wig Wag presented a clear risk of major injury;

(f)    The risk could not be eliminated in the current set up of the machine, but it could be reduced by interlocked gates;

(g)   The rubber product occasionally bunched or snagged as it was laid into the container or pallet.  If this occurred, an employee was required to enter the area and untangle the product;

(h)   The risk of serious or fatal injuries would be extremely high if the machinery restarted whilst an employee was in the vicinity of the danger zone;

(i)    Following the incident, the additional controls implemented by the Elastomers were an adequate solution;[4] and

(j)    There was extensive industry literature available to employers in May 2021 about the relevant risk and available control measures, including Australian Standards AS4024:2019 ‘Safety of Machinery’ (August 2019) and WorkSafe Victoria, Compliance Code: Plant, Edition 2 (December 2019).

[3] This was done after the incident.

[4] This is a reference to the installation of an interlocked gate together with a system that enabled a person on the upper floor to see the presence of a person in the danger zone.

Objective Gravity

21The objective gravity of a contravention of s 21(1) of the OHSA is to be assessed by reference to the so-called Frewstal[5] factors. In Frewstal, Priest and Kaye JJA explained that 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 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 consequence 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.[6]

[5] DPP v Frewstal Pty Ltd (2015) 47 VR 660 (‘Frewstal’).

[6] Ibid, [127].

22As Niall and Macaulay JJA explained in the case of DPP v Heavy Mechanics Pty Ltd,[7] it is necessary to place s 21 of the OHSA in its proper statutory context to appreciate the relevant principles that must be applied in sentencing for a breach of the provision and assessing objective gravity.

[7] [2023] VSCA 69, [64] (‘Heavy Mechanics’).

23The statutory context includes both the objects of the OHSA in section 2 and the ‘principles of health and safety protection’ in section 4.

24Section 2 relevantly provides:

The objects of this Act are—

(a) to secure the health, safety and welfare of employees and other persons at work; and

(b) to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work;       

… having regard to the principles of health and safety protection set out in section 4.

(2) It is the intention of the Parliament that in the administration of this Act regard should be had to the principles of health and safety protection set out in section 4.

25Section 4 is relevantly in the following terms:

(1) The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.

(2) Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.

(3) Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.

26The ‘proactive’ nature of the duty imposed by s 21 on employers was emphasised three decades ago by Harper J in the case of Holmes v RE Spence & Co.[8] His Honour explained that an employer’s statutory responsibility to its employees ‘can only be discharged by taking an active, imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever-present reality’.[9]

[8] (1992) 5 VIR 119.

[9] Ibid, 123.

27Workers, such as Mr Mohammadi and Mr Kaduppoyil, who work on machines on a daily basis can become oblivious to the dangers that confront them. They become accustomed to performing their duties in an unsafe environment.[10] It is for that very reason that employers such as the Elastomers, and its directing officers, with the advice of experts as needed, are required to identify and control risks on an ongoing basis.

[10] Cf DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557, [32] (‘Amcor Packaging Pty Ltd’).

28Section 20(1) of the OHSA requires an employer to eliminate risks if that is reasonably practicable. It is only if elimination of a risk is not reasonably practicable, that an employer is permitted by law to reduce the risk so far as is reasonably practicable.

29Guarding of the dangerous parts of a machine is a well established means of addressing risks to the safety of those required to operate the machine. Regulation 99 of the Occupational Health and Safety Regulations 2017 (Vic) stipulates how an employer is required to implement machinery guarding as a risk control. Regulation 99 relevantly provides:

(1) This regulation applies to an employer … who uses guarding as a measure to control risk associated with plant.

(2) The employer … must ensure, so far as is reasonably practicable, that guarding   designed for that purpose will prevent access to the danger area of the plant.

(3) The employer … must ensure that—

(a) if access to the area of the plant requiring guarding is not necessary during operation, maintenance or cleaning of the plant, the guarding is a permanently fixed physical barrier; or

(b) if access to the area of the plant requiring guarding is necessary during operation, maintenance or cleaning of the plant, the guarding is an interlocked physical barrier that allows access to the area being guarded at times when that area does not present a risk and prevents access to that area at any other time; or

(c) if it is not reasonably practicable to use guarding referred to in paragraph (a) or (b), the guarding used is a physical barrier that can only be altered or removed by the use of tools; or

(d) if it is not reasonably practicable to use guarding referred to in paragraph (a), (b) or (c), a presence-sensing safeguarding system is used that eliminates any risk arising from the area of the plant requiring guarding while a person or any part of a person is in the area being guarded

30In applying the Frewstal factors, it is necessary to recognise that the identification of what is reasonably practicable in a given case ‘… will be informed by the nature of the undertaking and the type of risks that might result in a failure to discharge the duty’.[11]

[11] Heavy Mechanics (n 7) [69].

31In this case, the duty to safeguard workers such as Mr Mohammadi from risks arose in the context of a factory operated by a ‘specialised rubber compound manufacturer’ which had been in operation since 2003.[12] The company’s submissions characterise the industry in which it operated as a ‘high risk industry’.[13] The Line 2 machine, which was a significant piece of plant used at the factory, had been in operation since 2013.

[12] Affidavit of Kalairajan Sockalingam affirmed 22 March 2024, [14] (Exhibit D1).

[13] Outline of Plea in Mitigation and Submissions Regarding Sentence dated 22 March 2024, [27], [30].

32As noted earlier, it is an agreed fact that the Wig Wag from time to time would cause the rubber product to become jammed or tangled. When this occurred, a worker would need to enter the danger zone to remove the cause of the blockage. The production process would then be re-started, ‘including, on occasion, by a second operator pressing the restart button on the upper-level control panel’.[14] It is common ground that the worker who restarted the machine in such circumstances was unable to see a worker in the danger zone. A serious injury to a worker in the danger zone was therefore very likely in the circumstances taking into account the opinion of Mr Hambridge.

[14] Exhibit P2, [14].

33That such an unsafe work practice was allowed by the employer to develop is an example of the phenomenon described by the Court of Appeal in Amcor Packaging Pty Ltd of workers and their employer barely seeing the danger to which they were exposed.[15]

[15] Amcor Packaging Pty Ltd (n 10) [32].

34Applying the Frewstal factors in this context, I consider that the objective gravity of the offending is at least mid-range.

Victim Impact

35The Court must have regard to the impact of the offence on any victim.

36The late Mr Mohammadi was married and he and his wife had three adult children.

37One of Mr Mohammadi’s children, Mourtaza Mohammadi, made a victim impact statement detailing the impact on him and the other members of the family of the death of Mr Mohammadi.[16]

[16] Victim Impact Statement of Mourtaza Mohammadi dated 15 March 2024 (Exhibit P3).

38Mr Mohammadi explains that his world and that of the family’s changed forever with his father’s passing. He describes his father as a remarkable person who had a strong bond with all members of the family. He remembers fondly his time with his father and says that his death has left a hole in the family’s  hearts which cannot be filled.

39There is of course nothing this Court can do to bring Mr Mohammadi back. Nor can the fine that is imposed by the Court be in any way equated with the worth of the late Mr Mohammadi to those that loved him.

40I have taken into account the impact of the offending on the victims.[17]

[17] Sentencing Act 1991 (Vic), s 5(2)(daa).

Current Sentencing Practices

41Section 5(2)(b) of the Sentencing Act 1991 (Vic) (‘Sentencing Act’) requires the Court to have regard, among a range of other matters, to ‘current sentencing practices’ in sentencing an offender.

42In their written submissions, defence counsel referred in a table to four previous decisions of this Court in which fines of between $275,000 and $300,000 had been imposed.[18] In each case the accused company had pleaded guilty to one charge under s 21(1) and (2)(a) of the OHSA.

[18] The cases are DPP v Rapid Perforating Pty Ltd [2023] VCC 1167 (‘Rapid Perforating Pty Lts’); DPP v Precast Civil Industries Pty Ltd [2022] VCC 110 (‘Precast Civil Industries Pty Ltd’); DPP v Ace Metal Treatment Services Pty Ltd [2021] VCC 1420 (‘Ace Metal Treatment Services Pty Ltd’); DPP v D&R Henderson Pty Ltd (County Court of Victoria, Judge Cahill, 28 September 2023).

43Counsel submitted that these cases are comparable to the present case because ‘each involved a comparable risk of an employee entering an area of risk, exposing them to a risk of death or serious injury from crushing or entanglement’. It was also submitted that ‘the seriousness of offending in these matters is at a higher level of seriousness than the current matter for the reasons set out in the table’.[19]

[19] Outline of Plea in Mitigation and Submissions Regarding Sentence dated 22 March 2024, [45].

44The ultimate submission made on behalf of the company was that ‘it is open to the court to impose a with conviction fine in the range of those set out in the comparable cases’.[20]

[20] Outline of Plea in Mitigation and Submissions Regarding Sentence dated 22 March 2024, [51] (emphasis added).

45The prosecution accepted that the four cases identified by defence are comparable and that they appropriately identify current sentencing practices.

46The role of comparable cases in sentencing in a case such as the present needs to be explained. It was described by the Court of Appeal in Midfield Meat International Pty Ltd v The King[21]:

… while comparable cases may assist to reveal a possible pattern or range of previous sentences, an examination of comparable cases does not have the consequence that a range or pattern of sentences, as revealed by the cases, is necessarily correct, or that the upper or lower limits of those sentences are immutable. As Gageler and Gordon JJ said in Dalgliesh:

[S]entences are not binding precedents, but are merely ‘historical statements of what has happened in the past’. ... Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court[22]

[21] [2023] VSCA 106.

[22] Ibid, [204] (citations omitted).

47Further, Gageler and Gordon JJ emphasised that, while it is important for sentencing courts to strive for consistency in the application of sentencing principles, this ‘provides no basis for treating s 5(2)(b) as though it were a statutory command to sentence within a “band” derived from current sentencing practices’.[23]

[23] Director of Public Prosecutions v Dalgleish (a pseudonym) [2017] HCA 41, [82] (‘Dalgeish’).

48There is a further reason why care must be taken in the use that may be made of sentences imposed in these earlier cases. As pointed out by the prosecution, each of the companies pleaded guilty at a time when there was a severe backlog in this Court’s lists as a result of the pandemic.[24] In imposing sentence in Rapid Perforating Pty Ltd, the court ‘substantially reduced’ the fine on account of the plea of guilty being made at a time when the court ‘continues to manage a large number of cases delayed by the pandemic’.[25]

[24] In accordance with the decision of Worboyes v R [2021] VSCA 169, offenders who pleaded guilty during this time were entitled to an ‘actual and palpable amelioration of sentence’: [35].

[25] Rapid PerforatingPty Ltd (n 18) [65].

49The court made similar observations in Ace Metal Treatment Services Pty Ltd[26] and Precast Civil Industries Pty Ltd.[27]

[26] Ace Metal Treatment Services Pty Ltd (n 18) [44].

[27] Precast Civil Industries Pty Ltd (n 18) [40].

50Fortunately, the COVID-19 backlog in Victorian courts is largely a thing of the past.[28] Because the guilty plea in this case pre-dated the Chief Judge’s update, I will ameliorate the fine to a modest extent.

[28] See DPP v Clark [2023] VSC 220, [50]; County Court of Victoria, Update on pending criminal jury trials, 9 October 2023.  

Consideration

51It has been stated by the Court of Appeal on more than one occasion that employers are required by the OHSA to take an active, imaginative and flexible approach to the safety of those who may be affected by their undertakings.[29] An employer must identify risks to health and safety and take steps to obviate those risks.[30] The role of sentencing courts is to impose sentences that encourage employers to do just that and thereby to give effect to the objects of the OHSA.

[29] R v Australian Char Pty Ltd [1999] 3 VR 834, 847; Amcor Packaging Pty Ltd (n 10) 565; R v Commercial Industrial Construction Group (2006) 14 VR 321, 332; DPP v JCS Fabrications Pty Ltd [2019] VSCA 50, [51].

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

52It was said on behalf of the company that there had been no near misses to alert it to the dangers associated with the inadequate guarding. I understood this to be a matter I should take into account in mitigation of sentence. This submission misconceives the legal obligations of a Victorian employer. 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. It is also required to seek the input of its workforce because those that work on a daily basis with risks may be best placed to suggest ways in which the risks may be addressed.[31]

[31] Occupational Health and Safety Act 2004 (Vic), s 35(1)(a).

53Applying those principles to this case, what that means is that management at the company, guided by experts,[32] should have been proactively considering whether the state of guarding on the machine, considered in the context of a system of work that required employees to enter the danger zone; where there was no line of sight between an employee on the upper level and an employee in the danger zone, provided the ‘highest level of protection’[33] against risks to the health and safety of employees that was reasonably practicable in the circumstances that prevailed in the years leading up to this entirely foreseeable tragedy. Considered in that way, the answer is obvious. It would have been obvious to a diligent manager. While the charge relates to a single date, it is clear that the risks were present for a considerable period.[34] The company’s failure to ask that question informs my assessment of its moral culpability, which I consider to be high.

[32] See Ibid, s 22(2)(b); AmcorPackaging Pty Ltd (n 10) [32]; Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55, [54] (‘Vibro-Pile (Aust) Pty Ltd’).

[33] Occupational Health and Safety Act 2004 (Vic), s 4(1).

[34] Cf Frewstal (n 5) [39]-42].

54Having said that, the Elastomers is to be credited for its general approach to workplace safety, the systems instituted since the incident and for engaging machinery safety expert Mr Roger Lim to conduct a detailed risk assessment of Line 2, including before and after its installation.[35]  As Mr Livermore submitted on its behalf, this was not a company that sat on its hands and did nothing to address the risks associated with its enterprise.  This is a matter that I have taken into account in mitigation of penalty.

[35] Exhibit D1, [21]-[30].

55I also take into account the utilitarian value of the plea of guilty. 

56I also note and take into account that the company has no prior convictions and there is nothing subsequent since the charges were laid.

57I further take into account the good corporate character of the company as explained in its submissions, 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.[36]

[36] Amcor Packaging Pty Ltd (n 10) [36].

58In 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 clear message to employers that failure to eliminate or mitigate safety risks will attract significant punishment.[37]

[37] Vibro-Pile (Aust) Pty Ltd (n 32) [233].

59For the reasons explained earlier, I consider that the cases to which I was referred by the defence are of limited assistance. 

60It is trite that there is no single correct sentence for a given case and different judges may have imposed higher or lower fines in those cases.[38] Each case must be sentenced on the basis of its own facts.

[38] Dalgliesh (n 23) [7].

61What the law requires is the consistent application of sentencing principle.[39] That is not the same as a search for numerical equivalence.

[39] Hili v The Queen [2010] HCA 45, [49].

Orders

62Taking into account the objective gravity of the offence and the company’s moral culpability as discussed above, as well as the efforts that had been made by the Elastomers to address risks, together with the plea of guilty and the other matters to which I have referred, I impose a fine of $450,000 with conviction.

63Pursuant to s 6AAA of the Sentencing Act, I indicate that but for the plea of guilty, I would have fined the company $620,000 with conviction.