Director of Public Prosecutions v WCA
[2013] VCC 980
•12 August 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
Case No. CR-13-01162
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WCA (VIC) PTY LTD |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 29 July 2013 | |
DATE OF SENTENCE: | 12 August 2013 | |
CASE MAY BE CITED AS: | DPP v WCA | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 980 | |
REASONS FOR SENTENCE
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Subject: Sentence
Catchwords: Plea of guilty, failing of employer to ensure so far as reasonably practicable safety of non-employees in conduct of its undertaking;
Legislation Cited: Occupational Health & Safety Act 2004, s23
Sentence: Fine of $180,000
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Rose SC with Ms R Shann (on plea) | OPP |
| For the Accused | Mr I Hill QC with Mr D.J. Bracken (on plea) Mr D. J. Bracken (on sentence) | Marsh & Maher |
HER HONOUR:
1 The defendant company, WCA (Vic) Pty Ltd, (which I shall call “WCA”), has pleaded guilty to a charge of failing to ensure that persons other than its employees are not exposed to risks to their health and safety arising from the conduct of the undertaking of the company. This is an offence under s.23 of the Occupational Health & Safety Act 2004, for which the maximum penalty is a fine of 9,000 penalty units, equating to approximately $1,075,050.
2 This charge arises out of events at Bells Beach, on the afternoon of 3 March 2011, when a school group was attempting to snorkel at Jarosite Reef, in what turned out to be rougher than expected water conditions. In the course of this activity conducted by the defendant company, Mr Paul Simpson died, and a number of other people's safety was put at risk.
3 WCA was running a business called “West Coast Adventures and Surf School” in South-West Victoria, which contracted with clients, including some schools, to conduct water sport activities. One such client, Shelford Girls Grammar School, had engaged WCA to conduct activities for its surf camp commencing 1 March 2011, and attended by 19 Year 10 students, aged between 15 and 16, and three teachers.
4 On the afternoon of 3 March, the Shelford school group was to undertake its sole snorkelling session which, at the request of the school through one of the teachers, had been moved to Jarosite Reef off Bells Beach. The instructors allocated by WCA, Mr Clay Metcalfe and Ms Emma Beck, met the school group in the car park overlooking the beach, from where they indicated where they would be swimming; distributed flippers, and led them down to the beach. There were instructions about hand signals, and participants were told to "buddy up". The participants were divided into two groups, each to be escorted by one of the instructors. There was no assessment made by the instructors of the water conditions at the time, nor of the participants’ experience or swimming abilities to cope with the conditions.
5 From soon after entering the water, it became apparent that the current was much stronger than anticipated. The swimmers who set off following one instructor, were swept at least 50 metres in a direction away from the reef to which they were heading, and some panic followed amongst many of them. Some of the students, and one of the teachers, Ms Riley, soon started heading for shore, but, unfortunately the second group had already commenced to swim towards the reef, and became similarly overwhelmed by the current and waves.
6 Mr Paul Simpson was part of the second group. A science teacher at the school, he also had a sporting background and some experience in surf activities, and had attended three previous such camps and, indeed, had snorkelled at Jarosite Reef previously. However, he, too, must have found the water conditions that afternoon much more challenging than expected. He was seen assisting some students back to shore within minutes of entering the water, but himself was in difficulty and was assisted back towards the beach by Mr Metcalfe. Mr Metcalfe left Mr Simpson in water where he could stand, while Mr Metcalfe went back to try to assist other students who were still struggling. Mr Simpson was observed by Ms Riley, from the shore, to be on the edge of a deeper channel calling out for help, and appearing to be in great distress. However Ms Riley had already found the water too strong for her swimming ability, so believed that she would not be capable of assisting him. She lost sight of Mr Simpson at that stage.
7 Mr Metcalfe and the other teacher, Mr Hosking, remained in the water for a considerable time, ultimately succeeding in assisting all students safely to the water's edge. By that time, Mr Simpson had disappeared from sight, and although a search for him was immediately undertaken, with assistance from other beach users including someone who had approached with boat, he was found floating in the water face down. He was taken to shore, but protracted resuscitation was unable to revive him.
8 In the meantime, the students were all safe, although several were distressed by their struggle in the water. One was suffering an asthma attack and two had swallowed considerable amounts of water. All were treated without lasting physical consequences. I accept that for some of the students the memories of their fear in the water that day have lingered, with ongoing effect on them including fear and less enjoyment of swimming, and two Victim Impact Statements from students speak of this. The consequences to one of the other teachers, Ms Riley, are set out in a Victim Impact Statement from her and I accept them to have been significant and ongoing for her.
9 From statements to police, Victim Impact Statements, and the general circumstances, I infer that all of the students and adults present that afternoon will have been deeply affected by the events, and particularly by the tragedy of Mr Simpson's death.
10 The impact and consequences for the family of Mr Simpson have obviously been the most serious. All descriptions indicate that he was a much respected, admired and loved man, who gave generously of himself and his time to the students and the communities of the schools where he had taught, and to sporting organisations of which he was part, including as a coach of girls' basketball teams. He clearly had imparted his own enthusiasm and interests to many, and had much more to give.
11 A deeply moving statement from his wife was read aloud in court, and to summarise would not do justice to the grief and loss expressed in it; both her own and that of their long awaited and treasured young daughter. To their daughter the loss of her adored father would have been bewildering at the time, and Mrs Simpson describes ongoing responses of her daughter. That such a young child will grow up without her father need only be stated to indicate the devastating long-term impact on her life, and on her mother's. Understandably, Mrs Simpson is still suffering her loss deeply, with constant reminders of how she misses her husband of more than 20 years, and deeply distressed at thinking of how he died. She and her daughter deserved more time with him. It is to be hoped that over time she can find comfort in recalling and appreciating the time she had with him.
12 I have also read a statement from Mr Simpson's brother, Mark, expressing his own loss and also describing the impact on his parents. This statement was also deeply moving, and hopefully he is proud of having expressed those feelings. Hopefully, he and his parents too will find some comfort in their memories and value the times they shared with him, and in watching his daughter grow up.
13 I accept that in the circumstances it is natural for family members to question "what if" or to speculate "if only". Unfortunately, none of that will reverse the tragic events of 3 March 2011.
14 In deciding on the sentence I must, and have, taken into account the very serious consequences and the effects of victims which resulted from the offence committed. However, the sentence I impose should not be seen in any way as a measure of the loss of Mr Paul Simpson to his family, friends, colleagues and students. Nor is it compensation for any of them. It is a penalty imposed for an offence, taking into account the serious consequences, but also various other sentencing factors which I shall describe.
15 I must assess the seriousness of the offending.
16 The company has pleaded guilty to this charge on the following bases:
(i) That it failed to provide adequate hazard identification or risk assessment and, specifically, on-site assessment of water and weather conditions on the day to determine whether the snorkelling should proceed;
(ii) That it failed to carry out any adequate assessment of the swimming competence of the participants;
(iii) That it failed to provide adequate equipment to participants; and
(iv) That it had failed to have adequate safety planning and equipment in case of an emergency arising during the activity.
17 By its plea of guilty, the company accepts inadequacies in those ways. From the summary of facts outlined to me, there seems to have been a sequence of failures, the first of which, being a failure to have staff check the water and weather conditions before having the group enter the water, looks, with hindsight to have been the most significant, and the failure to have safety equipment such as flotation devices on the beach in case swimmers got into trouble in the water, also must be seen as significant. With hindsight, each of the failures can be seen as likely to have decreased the risk of the tragedy that ensued, and I infer that each compounded with each other on the day.
18 However, I am satisfied that this is not a case where there was wanton disregard for safety standards. It is not alleged that the company was knowingly breaching any safety standards, although it has emerged that neither the school, nor WCA, was aware that there was a relevant guideline of the Department of Education and Early Childhood Development for outdoor education activities in venues including beaches. That guideline is now well known to both the school and the company.
19 WCA held relevant licences, with Tourism Victoria, having had to satisfy certain standards and requirements and held permits for conducting its activities within a marine national park. Its directors each have relevant tertiary qualifications, and considerable experience in these types of activities. Staff employed had what objectively would have appeared to be appropriate qualifications and experience. There is no suggestion that the omission of safety equipment or inadequacies in risk assessment and planning resulted from any attempt to save costs. On the contrary, I accept that the directors of this company were enthusiastic, relatively new owners of the business, who were endeavouring to run and build it, by providing services to the satisfaction of clients. Indeed, Shelford had used this business over the three preceding years. This was its fourth surf camp run by West Coast Adventures and Surf School, albeit the first two were run under different ownership, but with the current directors of the company as employees.
20 I have assessed the culpability of the offending as significant, but through negligence and lack of appreciation of risk, rather than deliberate disregard for safety. I do not regard the objective seriousness of what occurred in this case as being at the highest or even middle range of possible instances of such an offence, and as I say significant but towards the lower end.
21 As has been noted in other cases, the primary purpose of this and similar legislative provisions is to focus on prevention of the risk of harm - specifically of injury or death to others. That makes general deterrence of high importance, that is to deter others conducting similar types of businesses from taking risks with the safety of their customers, whether deliberately or by lack of due care and attention.
22 While I regard such general deterrence as having an important role in this case, I take into account that there has already been a strong general deterrent effect from the event itself. In the comparatively small field of adventure activity operators, in particular those in surf activities, the events the subject of this case are already widely known, and will have been a very salutary reminder to all involved of the need to constantly re-assess risks and safety considerations. Similarly amongst schools organising such excursions or activities, the tragedy of these events will have become known very quickly, and will have acted as a reminder of the need to check and even question if all safety measures are adequate. In this way, I regard the events themselves as having acted as a significant deterrent to potential further breaches.
23 I regard specific deterrence of the defendant company as of less importance in this case because I am satisfied that the directors are well aware of the need to take greater care with safety in future, as is reflected by their responses and changes they have made.
24 The maximum penalty for this offence, for a company, is a fine of 9,000 penalty units or approximately $1,075,000. That maximum indicates how seriously the offence is regarded by Parliament, and I must take it into account, and have done. It is also relevant to have regard to the commercial size and resources of the company. Were the employer charged not a company but a natural person, the maximum penalty would have been 1,800 penalty units. In my view, this is an indication that by setting the much higher maximum penalty for a company, Parliament has envisaged that such offences may be committed by very large corporations in the course of conducting very extensive undertakings, and that it is relevant for me to have regard to the relatively small size and resources of WCA as a corporation and employer.
25 There are several reasons why the sentence I impose should not be anywhere near the maximum penalty prescribed, and nor should it be so crushing as to destroy the defendant company.
26 First, and very importantly in this case, the company pleaded guilty at a very early stage. This demonstrates remorse by the directors and staff of the company, and what its counsel, Mr Hill, described as appropriate corporate response in the circumstances.
27 As a matter of law, a plea of guilty entitles any defendant to some leniency in his or its sentence. That is because it has utility value, in any case where it occurs, and when indicated as early as it was in this situation, will have saved the community the considerable cost and time of disputed hearings at committals and trial stages. Moreover, in the present case, it has saved all witnesses from the inconvenience of attending court but, more importantly from having to re-live by describing in detail what would have been very upsetting memories for them. It has also saved the family of Mr Simpson from what could well have been an ordeal of having to hear evidence of those events in detail.
28 Mr Hill points out, and I accept, that in this case there is also the dimension of the circumstances of the 19 students who were at the beach, who may all have been required as witnesses. As they were in Year 10 at the time, they would now be in Year 12, and the impact would have been considerable on their studies, by having to attend court and, in particular, having to re-live the events by giving detailed evidence about them. That has been able to be avoided by the company's early plea of guilty.
29 Although it has been said in cases of offences under Occupational Health & Safety provisions that a plea of guilty and remorse are often not as important as the objective seriousness of the offending, I regard the saving of the distress to witnesses and Mr Simpson's family of a protracted disputed hearing as of significance in this case.
30 I also take into account that neither the company, WCA, nor either its directors, had any prior convictions. As it was incorporated for the purpose of the purchase of the business in 2009, the company had only been in existence for some 18 months before these events. Perhaps of more significance is the record of the two directors, Mr Dane Hubbard and Mr Sam Edwards. I am told that neither of these two men had been in any trouble with the law, and that is consistent with the strong personal references submitted, as well as their achievements and work histories. I am satisfied that they have both been productive, responsible members of the community. I also accept that each of them has been deeply and genuinely distressed knowing that their company was responsible for a tragic death that day, and that they are both still affected. Their genuine remorse is consistent with the early plea of guilty.
31 Also consistent with the accepting of responsibility by the two directors on behalf of their company, is that they have not abandoned the company to save their own personal resources.
32 The nature of corporations, and the very reason for most businesses to be run through them, is that they are a separate legal entity from the individuals who run them. This is often seen as a shield for such individuals, and a means by which they may run a business and protect their own personal assets. In this case, I am told that both Mr Hubbard and Mr Edwards are committed to trying to continue to run the business through the company. They have apparently been doing so for the last two years since these events, during which time they have managed to wholly repay the considerable sum borrowed from a bank for the purchase by the company of the business, and they have also been repaying family members who assisted with the original financing of the purchase. This has occurred while staff have continued to be employed and paid. The directors have not drawn wages themselves, taking only modest amounts for their own living expenses. They have sold a property they both owned together to achieve this. Neither owns his own current residence, and each of them is living in rented accommodation.
33 In the course of continuing to operate the business, WCA has acquired extra safety equipment, has changed some of its paperwork and procedures to improve safety checks, and has complied with all requirements of the WorkSafe Inspector who investigated these events.
34 A letter from the company's accountant sets out the average takings, expenses and net surplus before tax of the business over the last four years. Mr Rose, Senior Counsel for the prosecution, informed me that the prosecution had been provided with financial information in advance and had satisfied itself that it was reliable. It is clear from those figures that the bank loan of $250,000 could not have been repaid from earnings of the company, and so not without the sale of the property I am told occurred. I am satisfied that the expected net annual surplus of approximately $76,000, before any payments to either director for wages or drawings, is comparatively modest, and that a crushingly large fine payable immediately would prevent the company from continuing to trade.
35 The maximum penalty for this offence is a monetary one. No penalty short of a fine would be appropriate and the company acknowledged that there should be a substantial fine in the circumstances. I take into account that the actions so far by the directors of the company, and their stated intention for the future, is one of accepting responsibility for the failures of 3 March 2011 and for the ultimate tragedy that resulted. If a penalty were imposed in an amount or manner which was too far beyond their means, the effect would be that it would force the company into liquidation. That would deprive the Victorian community of the benefit of the fine. Indeed, if that occurred, it would potentially leave the family of Mr Simpson, the students and teachers involved on the day, and the large number of other people who have felt the impact of those events, feeling aggrieved that the company did not fulfil its punishment. have taken these considerations into account in deciding on the amount of the penalty and the manner it is to be paid.
36 For the reasons outlined, I am of the view that a substantial but not crushing fine is the appropriate penalty, and I am going to order that it be paid in a manner which will involve protracted instalments but of amounts which it is realistic to expect will be able to be paid, and which are within the limits proffered by the company through counsel and the accountant's letter.
37 I now come to the announcement of the sentence.
38 On the charge of failing to ensure that persons other than its employees are not exposed to risks to their health and safety arising from the conduct of the undertaking of the company, WCA (Vic) Pty Ltd is fined $180,000 with conviction. Pursuant to s.53 of the Sentencing Act, I direct that this fine be paid by instalments. The first instalment is to be of $50,000, to be paid no later than 12 November 2013. That is three months from today. Thereafter, the balance is to be paid by monthly instalments of $3,000 due on the 12th of each successive month until the total is fully paid. It is, of course, open to the company to pay higher instalments to discharge the fine sooner.
39 This represents well over twice the expected annual net profit of the company before tax, and before any payments of wages or drawings to the two directors and, in my view, is a significant fine and a salutary penalty and should be seen as such.
40 I repeat that this should not be seen, in any way, as a measure of the loss of the life of Mr Paul Simpson. The imposition of a fine in any amount could never reinstate the lives of his family, nor of the students and teachers at Shelford Girls Grammar School, nor of the directors or staff of the defendant company as they all were as at 3 pm on 3 March 2011.
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ADDENDUM
41 On 14 August 2013 the order made on 12 August 2013 by Her Honour Judge Cohen was amended to include a statement pursuant to s. 6AAA of the Sentencing Act 1991: “Pursuant to s. 6AAA of the Sentencing Act 1991, but for the plea of guilty the Court would have imposed a fine in the sum of $260,000 with conviction. “
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