Director of Public Prosecutions v Winnipeg Textiles Pty Ltd
[2016] VCC 1630
•4 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Unrestricted Suitable for Publication |
Case No. AP-16-1662
IN THE MATTER OF an appeal by the Director of Public Prosecutions pursuant to Section 257 of the Criminal Procedure Act 2009
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| WINNIPEG TEXTILES PTY LTD (ABN 080 687 725) | Respondent |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 October 2016 |
| DATE OF SENTENCE: | 4 November 2016 |
| CASE MAY BE CITED AS: | Director of Public Prosecutions v Winnipeg Textiles Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1630 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Occupational Health and Safety prosecution – appeal from Magistrates’ Court by DPP – failure to implement a system of induction of truck drivers making deliveries of bales of wool – allowing truck driver to be on foot in unloading area whilst bales of wool were being unloaded by forklift operator – bale of wool dislodged – truck driver struck by bale of wool and/or struck by gates on trailer of truck – plea of guilty – relevant sentencing considerations – general deterrence – mitigating factors
Legislation Cited: Occupational Health and Safety Act 2004, s23(1); Criminal Procedure Act 2009, s256(1), s257(1)
Cases Cited:DPP v Frewstal Pty Ltd (2015) 254 IR 423; DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55; DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557; WorkCover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700; DPP v City Circle Recycling Pty Ltd [2015] VCC 480; DPP v Resource Recovery Victoria [2015] VCC 472; DPP v Eliott Engineering Pty Ltd [2014] VCC 266; R v DMP Poultech Pty Ltd [2008] VCC 350; Baiada Poultry Pty Ltd v R (2011) 203 IR 396; Taleb v R (2014) 42 VR 666
Sentence: Order a Fine of $50,000 and restoration of costs in the Magistrates’ Court of $2,649.00.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Trapnell QC | Solicitor for the Office of Public Prosecutions |
| For the Respondent | Ms S Keating | Wotton + Kearney |
Introduction
1 Winnipeg Textiles Pty Ltd (“the respondent”) is a manufacturing company operating from premises in Footscray. Its manufacturing process requires raw wool, which is delivered to its premises in bales weighing up to 185 kilograms. Deliveries of the bales are made by truck.
2 On 1 April 2015, a truck driver suffered injury at the respondent’s premises. He drove a truck loaded with bales of wool into the factory at the respondent’s premises. He was readying the bales of wool on the trailer of his truck to be unloaded by a forklift operator when a bale was dislodged which either struck the truck driver or collected gates of the truck which then struck the truck driver, or both.
3 The respondent was charged with an offence under s23(1) of the Occupational Health and Safety Act 2004 (“the Act”) drafted in the following terms:
“On 1 April 2015 at Footscray in the State of Victoria pursuant to section 23 of the Occupational Health and Safety Act 2004 you were guilty of an offence in that as an employer you failed, so far as was reasonably practicable, to ensure that persons other than your employees were not exposed to risks to their health or safety arising from the conduct of your undertaking.”
4 Attached to the charge are the following relevant particulars:
“XII.The Accused failed to ensure, so far as was reasonably practicable, that persons other than its employees were not exposed to risks to their health and safety arising out of the undertaking of the Accused in that it failed to reduce the risk of powered mobile plant colliding with pedestrians at the workplace.
XIII.The risk that … [the truck driver] was exposed to was the risk of death or serious injury as a result of being struck by a forklift and/ or wool bales falling off or being dislodged off the truck whilst the forklift was being used to unload wool bales off the delivery truck.
XIV. It was reasonably practicable for the Accused to ensure that:
(i)its existing traffic management plan [was] followed and adhered to; and
(ii)delivery drivers were inducted into its traffic management plan upon entering the workplace.”[1]
[1]I was informed by email that the particulars were amended in the Magistrates’ Court in this form
5 The respondent pleaded guilty. The presiding Magistrate fined the respondent $7,000 and ordered it to pay costs of $2,649.00.
6 The DPP filed a Notice of Appeal with a single ground of Appeal that the sentence imposed by the presiding Magistrate was manifestly inadequate. Such an appeal is authorised by s257(1) of the Criminal Procedure Act 2009.
7 The section does not require the pleading of a ground of appeal. That is made unnecessary because s256(1) provides that an appeal from the Magistrates’ Court to this, the County Court, is a rehearing.
Agreed facts
8 The respondent’s premises is described in a folio of photographs comprising 28 photographs.[2] Photographs 4, 5, 14, 16 and 19 show the point in the factory where the truck driver drove his truck and brought it to a stationary position within a rectangular area bounded by yellow lines. That area was large enough to accommodate the truck.
[2]Exhibit C
9 Some of those photographs, which were taken at a distance away from the driver’s side, front, and passenger side of the truck, show the truck in a stationary position. This was within the rectangular area bounded by yellow lines and also within a larger rectangular area bounded by blue lines.
10 Photographs 5, 14 and 16 show the long side of the truck. It comprised a prime mover and a trailer. The bales of wool were stacked one on top of the other, three high at the rear of the trailer, and stacked two high toward the front of the trailer. There were gates on the trailer restraining the bales a wool within the trailer, and a curtain which ran along the whole length of the trailer.
11 The respondent devised a system which is described in the following way in the agreed statement of material facts (“the agreed statement”):
“5.The unloading area had a designated truck parking bay. Additional line markings encompassed that area. A further small area near the entry doorway was delineated by concrete blocks. Signage advising ‘drivers stay in cabin or safety areas’, and ‘no unroping when forks are unloading’ was suspended above the truck parking bay, and a further two small 7” x 4” sheets were stuck to the wall in the area delineated by concrete blocks. Those sheets included a ‘pedestrian exclusion zone procedure’ and an instruction that ‘truck keys should be removed and handed to forklift operators prior to unloading’.
6.Winnipeg had also developed a ‘pedestrian exclusion zone procedure’. That procedure detailed that: ‘Truck drivers should stay in their cabin or the driver assembly area whilst unloading was taking place’. However, Winnipeg did not provide delivery drivers with a site induction, nor did it induct those drivers into its procedures. Moreover, forklift operators were only provided with verbal instructions on these requirements. Responsibility for ensuring adherence to these practices was ultimately left to the forklift operators, and reliance placed on truck drivers to adhere to safe working industry practices.”
12 The incident which resulted in the truck driver suffering injury is described in the agreed statement in the following way:
“7.At approximately 1:50 pm on Wednesday 1 April 2015, … [the truck driver], a sixty-year-old truck driver employed by SeaRoad Logistics, sustained a laceration to his head and ligament damage to his right knee when he was struck by an unknown object whilst his truck was being unloaded at the workplace. … .
…
9.It was subsequently determined that both forklift operators commenced unloading … [the truck driver’s] truck whilst he was still in the process of readying the trailer in preparation for unloading. A forklift being operated by … [a forklift driver] dislodged a wool bale that struck … [the truck driver]. … [The truck driver] was then struck either by the wool bale or the trailer gates.”
13 Photograph 19 shows the concrete blocks referred to in paragraph 5 of the agreed statement. The other photographs show other views of the factory which have given me a very good understanding of the physical features of the factory and of the point where the incident occurred.
The legal principles
14 The prosecutor provided me with a submission in writing in which he referred me to a number of relevant authorities. These authorities set out the guiding principles for sentencing, and also a number of decisions to assist me in determining the fine I should impose for a contravention of s23(1).
15 In DPP v Frewstal Pty Ltd,[3] Priest and Kaye JJA summarised the guiding principles for sentencing as follows:
“● 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.”[4]
[3](2015) 254 IR 423
[4]at 444-445 paragraph [127]
16 I will address each of those guiding principles for sentencing in the same order as enunciated by their Honours.
17 Although the respondent had devised the system described in paragraphs 5 and 6 of the agreed statement, there was a complete failure by the respondent to undertake any level of induction of the truck driver so that he knew that he was to stay in the cabin of his truck or in a safety area; that he was not to undertake “unroping” when forklifts were unloading from the subject truck; that there was a pedestrian exclusion zone procedure, and that the keys to his truck should be removed from the truck and handed to a forklift operator prior to unloading being undertaken.
18 A system of work is no system at all if a critical step in the system is ignored. That was what occurred here. The system that was devised and, if implemented, should have resulted in the truck driver being nowhere near the area where the forklift operator was undertaking unloading of the truck. Furthermore, if the forklift operator was the person to whom the truck driver was required to give the keys to the truck, then it is obvious that the particular forklift operator did not do that.
19 What occurred here demonstrates a departure from the respondent’s system which exposed the truck driver to a risk to his health and safety. The seriousness of the breach can only be characterised as a complete failure to properly implement the system and to ensure its compliance, because it permitted the truck driver to be in close proximity to the truck at a time when it was being unloaded by a forklift.
20 The extent of the risk of death or serious injury which might result from the breach was high. The photographs show that the bales of wool were stacked three high on the rear portion of the trailer. Photograph 13 shows a close-up of that portion of the trailer with a bale of wool on the concrete tarmac of the unloading area. The photograph demonstrates the height from which a bale could fall. The bales weighed about 185 kilograms. The weight of the bales of wool and the height at which they were stacked on the trailer, demonstrate that the risk of death or serious injury was high should one of the bales become dislodged, fall and strike the truck driver.
21 There was a high likelihood of the truck driver being struck by a bale of wool, which endangered his safety, and if such an event occurred, there was an undoubted risk of death or serious injury.
22 In DPP v Frewstal,[5] Maxwell P made an observation which is very relevant to the responsibility of the respondent to properly implement a system and to ensure compliance with it. The President observed:
“Any proper assessment of risk in a workplace must, therefore, involve a consideration of what training is required to ensure the safety of all those - employees and others – who are to perform work in the workplace. Self-evidently, it is critically important for an employer to ensure that the non-employees – who may not be as familiar with the workplace as employees – are as thoroughly inducted into safety procedures as employees, and are made aware of all areas of potential risk within the workplace. For Frewstal to have had no system of training or induction for delivery drivers is indicative, in my view, of a failure to take its safety duty seriously.”[6]
[5]Supra
[6]at 430 paragraph [33]
23 That observation could easily have been written about the failures of the respondent in this case.
Sentence
24 The Prosecutor referred me to a number of decisions which demonstrate the seriousness of a breach of s23 of the Act. I propose to only refer to DPP v Vibro-Pile (Aust) Pty Ltd.[7] The Court of Appeal made the following very relevant observation of the importance of general deterrence in sentencing for a breach of the Act:
“The seriousness with which breaches of s 21 of the OHSA are to be treated is, as the sentencing judge observed, reflected in the maximum penalty of 9000 penalty units, or $1,075,050. The sentencing judge also rightly observed that 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.”[8]
[7][2016] VSCA 55
[8]at paragraph [233], and also DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557 at 565
25 The Prosecutor also referred me to a number of decisions which demonstrate that mitigating circumstances should not be permitted to overwhelm the imposition of just punishment given the objective gravity of the offending. The personal factors relevant to the respondent are therefore of lesser importance in arriving at an appropriate sentence for an offence of this kind.[9]
[9]WorkCover Authority of New South Wales v Profab Industries Pty Ltd (2000] 49 NSWLR 700 at 714 paragraph [31], and DPP v Amcor Packaging Australia Pty Ltd (supra) at 564 paragraph [34]
26 The Prosecutor then referred me to a number of decisions which he submitted demonstrated the current sentencing practice in sentencing for offences of this kind.[10] I will return to whether I am assisted by the decisions said to be comparable later in these reasons.
[10]DPP v Frewstal (supra); DPP v City Circle Recycling Pty Ltd [2015] VCC 480; DPP v Resource Recovery Victoria [2015] VCC 472; DPP v Eliott Engineering Pty Ltd [2014] VCC 266; R v DMP Poultech Pty Ltd [2008] VCC 350, and Baiada Poultry Pty Ltd v R (2011) 203 IR 396
27 Counsel for the respondent did not cavil with the legal principles relevant to sentencing for an offence of this kind. She did, however, seek to establish that the respondent had devised a system which it had implemented which demonstrated that it was safety conscious, and that its failure to provide the truck driver with an induction only constitutes a residual risk. For the respondent to submit that it had implemented a system is wrong, and is simply not supported by the evidence. It cannot seriously be contended that failing to undertake an induction of the truck driver was only a residual risk.
28 Counsel for the respondent referred me to case extracts of prosecutions under the Act in the Magistrates’ Court to demonstrate that current sentencing practices support the conclusion reached by the Magistrate in fining the respondent $7,000.
29 This is an appropriate moment to address the assistance which can be derived from comparable decisions. My view is that it is rare that a decision based upon similar subject matter is truly comparable. There are inevitably so many variables that the comparable decisions may provide some guidance, but not a great deal more. Having said that, I am more assisted by the observations made by sentencing judges in those decisions. Their observations have been very helpful to me in the process I have undertaken in analysing the gravity of breaches and the process of reasoning in determining a just sentence.[11]
[11]If the decisions of the Magistrates’ Court are said to be comparable then they are manifestly inadequate across the board
30 The Prosecutor referred me to not only the comparable decisions which I have footnoted, but to a discussion of those comparable decisions in Frewstal and Vibro-Pile. I have read all of those decisions. It is very clear that general deterrence warrants the imposition of significant financial penalties given the fact that the maximum penalty is 9000 penalty units.
31 I am not persuaded that the extracts of prosecutions in the Magistrates’ Court give me any real assistance, because the extracts are absent of the detail that is essential to determine whether they are comparable with what I am dealing with here, or whether the relatively modest fines represent relatively minor breaches of the Act.
32 The Prosecutor referred me to Taleb v R.[12] Although this case concerned the question of parity, it stands for the proposition that I am not obliged to sentence the respondent by having regard to the prosecutions in the Magistrates’ Court if I come to the conclusion that to do so would be to impose a sentence which is manifestly inadequate. I have no hesitation in saying that I will pay no regard to those extracts, because if I was guided by those extracts, it would inevitably result in the imposition of a manifestly inadequate sentence.
[12](2014) 42 VR 666
33 During the exchanges I had with counsel there was reference to the maximum penalty of 9000 penalty units and the jurisdictional limit on the imposition of a fine applicable in the Magistrates’ Court by which I am bound. To the extent that it may have been submitted that the jurisdictional limit binding the Magistrates’ Court is, in some way, the maximum penalty is wrong. The gravity of the offences is to be derived from the maximum penalty available. A jurisdictional limit on sentencing cannot constitute a de facto maximum.
34 Also during exchanges there was reference to the reason why the respondent was prosecuted in the Magistrates’ Court, and not a higher court. The respondent sought to derive some comfort from the fact that the prosecution, brought by the WorkCover Authority in the Magistrates’ Court, is a demonstration of the seriousness of the breach of the Act is wrong. The fact that the respondent was prosecuted in the Magistrates’ Court is not evidence of the seriousness of the breach; that is a matter for me to determine. That decision merely represents a prosecutorial authority’s choice of a jurisdiction in which to prosecute the respondent for reasons peculiar to it and its decision-making process.
The plea
35 The respondent is a company which was incorporated in 1988. Its current director, who I assume was the gentleman seated behind counsel for the respondent, has been a director of the respondent since 2000.
36 The respondent, as at 2015, had twelve permanent employees and three casual employees. Many of the employees are long-serving employees of sixteen years, some of twelve years and others of ten and four years. The continuing loyalty of its employees says something about its reputation and its workplace culture.
37 The respondent’s financial position is not good. As at April 2016, it was projected that it would suffer a loss in excess of $100,000. As a result, it now has seven employees, five of whom are full time; and I assume the other two are part time or casual. It projected that its financial accounts for 2016 will demonstrate a loss of about $150,000. These losses are due to market factors, not mismanagement.[13] I must add at this point that no effort was made to provide me with the taxation returns relevant to the corporate structure of the respondent. What material was provided was informative to a point. Despite my misgivings about that evidence, I accept that the respondent is not in a particularly sound financial position, but continues to trade notwithstanding the stated losses. I have tailored my consideration of an appropriate financial penalty in accordance with the evidence put before me by the respondent.
[13]Exhibit 2
38 Counsel for the respondent submitted there are a number of factors which go to mitigation. In summary they are:
·It has no prior convictions.
·It has a demonstrated commitment to safety in the workplace, and more particularly, it has now undertaken induction of 38 truck drivers and is ensuring compliance with this system so that there is significantly less likelihood of an event such as this occurring again.
·It entered a plea of guilty at the mention stage, which is also evidence of its remorse.
·It is community minded, having made donations, albeit, relatively modest ones, to community organisations in 2014 and 2015.
·It is in a potentially parlous financial state.
39 The truck driver was present in Court. He read his victim impact statement.[14] It is a graphic account of the injuries and loss he has suffered as a consequence of suffering injury, but more importantly, a major injury to his right knee. He suffered a complete tear of his quadriceps tendon and a partial tearing of the vastus tendon. He has suffered the loss of articular cartilage over the patella and irregularity in the trochlea groove.
[14]Exhibit D
40 He has undergone surgery to repair the tendon damage. Part of the surgery involved a reconstruction to reconstitute the complete tear of the quadricep tendon. He is likely to face further surgery in about fifteen years. His head injury has left him with ongoing tinnitus.
41 Additionally, his loss of enjoyment of life is significant. There appears to be no aspect of his relationships with his partner, friends and family, and social, domestic and recreational life which is unaffected by his injuries. Whilst he is able to work as a truck driver and to engage in levels of pleasurable activity, they are accompanied by interference with his mobility and by pain. It is fair to say that the consequences to the truck driver are significant, causing disablement and altering the course of his day-to-day existence and enjoyment of his life in the future.
42 There is no issue here that the dominant sentencing consideration is general deterrence. Whilst the sentence can be moderated by factors going to mitigation, it must be remembered that the purpose served by the Act is made evident in s2 and s4 – essentially, to protect employees and other persons from risks to their health and safety.
43 I have paid due regard to all of the submissions made by counsel for the respondent in arriving at what I think is a just sentence given the gravity of the respondent’s offending. Additionally, I have paid due regard to all of the other relevant sentencing considerations which I am called upon to weigh in the balance when arriving at a just sentence.
44 In the circumstances, I consider that a just sentence is to convict the respondent and impose a fine of $50,000 which may be considered to be rather modest when compared with some of the decisions I was provided. I also order that the respondent pay the costs relevant to the prosecution in the Magistrates’ Court of $2,649.00.
45 If it had not been for the respondent’s early plea of guilty, I would convicted the respondent and imposed a fine of $150,000, along with the restoration of the Court costs.
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