Director of Public Prosecutions v Tooradin Excavations Pty Ltd formerly known as TGS sand and Soil Pty Ltd (ACN 105 185 233)

[2014] VCC 1419

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-01436

DIRECTOR OF PUBLIC PROSECUTIONS

v

TOORADIN EXCAVATIONS PTY LTD
formerly known as TGS SAND AND SOIL PTY LTD (ACN 105 185 233)

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	08 August 2014
DATE OF SENTENCE:	15 September 2014
CASE MAY BE CITED AS:	DPP v Tooradin Excavations Pty Ltd formerly known as TGS sand and Soil Pty Ltd (ACN 105 185 233)
MEDIUM NEUTRAL CITATION:	[2014] VCC 1419

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the DPP	Ian Hill QC	OPP
Trevor Wraight
For the Accused	Robert Taylor Samuel Stafford	Collins, Biggers & Paisley

HIS HONOUR:

1       On 8 August 2014 the offending Company (hereinafter referred to as TGS) pleaded guilty by its authorised representative to the offence of failing to provide systems of work without health risks contrary to s 21(1) and s 21(2)(a) of the Occupational Health and Safety Act 2004 particularised in the Indictment. The offence occurred on or about 22 November 2010. The maximum penalty for the offence is 9,000 penalty units. At the time of the offence the maximum penalty in monetary terms was $1,075,050.

2       TGS has no prior convictions.

3       The prosecution tendered and relied upon a folder of materials marked exhibit A.  Item 2 in that folder is a document entitled ‘Prosecution Opening For Plea’.  It was read to the court.  The Defence did not dispute it’s contents.   I incorporate it in its entirety into these Reasons.  I do not propose to repeat it.  Suffice to say, the evidence reveals that on 22 November 2010 at about 12.25 pm, an employee of TGS, a Mr Adrian Dowel, was tragically killed whilst operating an excavator at a sand quarry at Nyora operated by TGS.  Death was caused by asphyxia as a result of the cabin of the excavator becoming inundated with a large quantity of sand from a collapsed wall of sand that had become destabilised by water.  Mr Dowel had been employed by TGS for some 10 years and had over 20 years’ experience as a machine operator.  He was considered to be a good and safe operator.

4       Evidence obtained by WorkSafe as part of its investigation supports the conclusion that the incident leading to Mr Dowel’s death was the result of:

·TGS having created a mine slope of unstable geometry that was formed of weak materials and further destabilised by water;

·TGS knowing that water was present within the slope and seeping from it on the morning before the fatal landslide, failed to take all reasonable actions to prevent entry to the area which had been identified as unsafe;

·TGS systems of work did not include barricading or other suitable demarcation of unsafe work areas; and

·TGS not having in place suitable systems of work to provide for effective identification and understanding of geotechnical hazards.

5       Those failures by TGS are reflected in the particulars of the charge on the Indictment.

6       The prosecution also tendered a victim impact statement authored by Mr Gregory Dowel, a brother of the deceased, which spoke of the understandable grief and lasting impact of the death upon his mother, his sister and his brothers.  I take into account the impact of the offence upon the family of the deceased.

7       Turning to matters relied upon in mitigation.  Counsel for TGS tendered a folder of materials marked exhibit 1.  It contained ‘Defence Sentencing Submissions’ and supporting materials which included the Reasons for Sentence of three other Judges of this Court in different cases in which sentences were imposed in 2010 upon companies for breaches of the same legislation.

8       Counsel for TGS stressed the significance of the plea of guilty in mitigation of sentence and submitted that it also evidenced remorse.  I accept those submissions.

9       It was submitted that it was significant that TGS had no prior convictions despite the nature of its business exposing it to significant risk.  There were no other matters pending against TGS.  TGS had responded appropriately to prevent any recurrence.  All of this supported the conclusion that TGS was a good corporate citizen with a good OHS culture.  Counsel submitted that the circumstances giving rise to the incident were unusual and that TGS did not deliberately ignore the risk involved.  It was submitted that, in all these circumstances, the need for specific deterrence was reduced.  I accept those submissions.

10      It was submitted that in assessing the seriousness of the offence I should look at the nature of the breach rather than the consequences.  It was submitted that the case falls within the ‘low to moderate range of offending’ and that, having regard to current sentencing practice, a fine of between $300,000 and $350,000 was appropriate.  TGS has the capacity to pay a fine within that range.

11      I did not understand counsel for the prosecution to dissent from those propositions. 

12      Nevertheless, it was submitted on behalf of the prosecution that the following matters made the breaches by TGS ‘relatively serious’:

·TGS was aware on the morning of the incident that there was water seepage in the area where the landslide occurred;

·The quarry manager considered that area to be dangerous because of the water seepage;

·The risk of serious injury or death by working in that vicinity was foreseeable;

·Such risks could have been eliminated or reduced as far as reasonably practicable by demarcating the unsafe area thereby preventing the excavator from operating within it; and

·Shortly after the incident the company produced a Safe Operating Procedure in relation to all operations at the base of spoil faces or a face that is not natural ground which prohibited all employees or machines from entering such areas throughout the entire site at any time.

13      Counsel for the prosecution directed my attention to the decision of the court of Appeal in DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557 at [35] in support of its submissions as to the seriousness of the offence. I was also referred to three other recent sentencing decisions of Judges of this Court to assist me to identify current sentencing practice.

14      In my judgement, the submissions made on behalf of TGS as to the range encompassed by current sentencing practice is well founded.  I am inclined to describe the offending as within the ‘moderate’ band of that range.  Accordingly, I order that for the offence to which it has pleaded guilty TGS be convicted and fined $340,000.  But for the plea of guilty, I would have imposed a fine of $430,000.