Director of Public Prosecutions v YJ Auto Repairs Pty Ltd

[2023] VCC 1759

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-22-01255

DIRECTOR OF PUBLIC PROSECUTIONS

v

YJ AUTO REPAIRS PTY LTD

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JUDGE:	HIS HONOUR JUDGE DEMPSEY
WHERE HELD:	Melbourne
DATE OF HEARING:	11 September 2023
DATE OF SENTENCE:	27 September 2023
CASE MAY BE CITED AS:	DPP v YJ Auto Repairs Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VCC 1759

REASONS FOR SENTENCE
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Subject:SENTENCE – Criminal Law – Occupational health and safety breaches

Catchwords:              Accused company contracted to provided roadside assist services, no safe system of work regarding driver fatigue of workers – death of worker – profound victim impact - risk created high – serious breach - early plea – delay -– Company co-operative and without prior history – Company deregistered – disparate sentence warranted from co-accused – substantial aggregate fine with conviction

Legislation Cited:      Occupational Health and Safety Act 2004; Sentencing Act 1991.

Cases Cited:DPP v Frewstal [2015] VSCA 266, DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676; [2016] VSCA 55, DPP v Heavy Mechanics PtyLtd [2023] VSCA 69 Warman International Ltd v WorkCover Authority of New South Wales (1998) 80 IR 326 at 339.Worboyes v the Queen [2021] VSCA 169, DPP v RACV [2021] VCC 2150.

Sentence:                  Convicted and fined aggregate of $115 000.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Francesca Holmes	Office of Public Prosecutions
For the Accused	Emma Fargher	Radovic Lawyers

HIS HONOUR:

INTRODUCTION

1John Halls was employed by the Accused Company YJ Auto Repairs who had a secured contract with the RACV to provide emergency Roadside Assistance (ERA) in the Yarra Junction / Healesville area.[1]  On 10 March 2018, he had worked 89 hours of a 96 hour on call shift, and 17 hours straight since his first callout the previous day.  He was observed to be visibly tired by the last driver he assisted.  He took a stranded driver into Healesville rather than leave him on a deserted country road.  Mr Halls never returned home.

[1]I will come to the oversight or control the RACV were to have over this enterprise in due course.

2Just after 1 am on 10 March 2018, he was killed when his vehicle ran off the road and struck a tree. There was no collision with anyone or anything before the vehicle left the road, and no sign of braking or swerving before it hit the tree. There were no mechanical defects in the vehicle which might have caused it to run off the road.  Fatigue had caused his death.

3Experts commissioned to author reports as part of the investigation lamented the failure of both RACV and the Accused Company to provide a safe system of work with respect to fatigue.

4Sleep and fatigue expert Professor Drew Dawson, Director in Human Factors and Safety, University Research Centre, and the Engaged Research Chair in Psychology at Central Queensland University (and also formally appointed at University of South Australia), having examined the evidence, concluded:

‘Halls was very likely to have been fatigued at the time of the accident and that that level of fatigue (and therefore fatigue-related risk).  In my opinion, this level of fatigue-related impairment is not consistent with a safe system of work.

While it is likely that Halls' working time arrangement contributed substantially to the level of fatigue experienced, it is also possible Mr Halls' health and medication status may have affected his level of fatigue.

I have little choice but to conclude that the RACV and their sub-contractor, [erroneously described as] Yarra Valley Automotive [rather than Yarra Junction Automotive], failed to provide even the minimal requirements of a safe system of work with respect to fatigue.  In my view, this is an especially egregious situation since it is inconceivable in this day and age that RACV managers would have been unaware of the significant hazard posed by fatigue. Indeed, the RACV website has a significant body of literature devoted to the timely identification and management of fatigue-related risks to customers. To fail to apply the same knowledge and information to their staff is, in my opinion, a gross dereliction of their duty of care.’

5Professor Phillip Swann, Senior Research Fellow, School of Public Health and Preventative Medicine at Monash University and former Principal Scientist, Driver Impairment and Manager Drugs Alcohol and Fatigue at VicRoads, having also examined the evidence, concluded:

‘The sleep associated medical prescription medication Moclobemide and medical prescription medication that promotes sleep Zolpidem, were being used by John Halls prior to and at the time of his death in the fatal accident and were a potentially significant fatigue risk factor.

The RACV systems of work do not appropriately recognise the potential fatigue risks associated with the operation of an RACV breakdown assistance vehicle. The RACV Roadside Emergency Assistance drivers are required to undertake potentially hazardous tasks, such as driving a vehicle and work at the roadside servicing a vehicle and in these work situations the risks associated with fatigue are significant. The RACV systems of work do not appear to provide appropriate fatigue risk management information for RACV Roadside Emergency Assistance drivers.

Also, the RACV systems of work do not appear to appropriately monitor the RACV Roadside Emergency Assistance driver's workload, breaks, sleep related health conditions, such as sleep apnoea and insomnia, and their use of sleeping and alerting medications and drugs.

The 21 on-call shifts, which Mr Halls worked in the previous year, have an unusually long on-call shift period of approximately 96 hours with many potential fatigue risk factors. These fatigue risk factors include factors related to:

·     quality of the sleep environment when working extended shifts, given the unpredictability of the timing and frequency of the on-call alerts;

·     the quantity of sleep opportunity after finishing a job, given the unpredictability of the timing of the on-call alerts;

·     the time since last sleep, given the unpredictability of how many consecutive calls will be received at any set period during the extended shift period.

The ways of eliminating or reducing these fatigue hazards include the employer providing Fatigue Risk Management Training and Education at the beginning of employment and at regular intervals updating this information.

These training fatigue risk activities should focus on the risks of fatigue, such as micro sleeps, the personal symptoms of fatigue and the actions that should be done to reduce fatigue, such as the use of caffeine and planning ahead to ensure sufficient restorative sleep is obtained every 24 hours.  The fatigue risk management training should also include how to manage fatigue risks before driving at night, information on how to take preventative naps, and potentially fatigue risk driving or working, and information on how to use recovery naps during on-shift breaks.

Other actions include reducing shift risks by:

·     Monitoring job times during on-call shifts to identify when the next job involves both night driving and when the designated driver on-call has had, at that point in time, less than 10 hours break between jobs.  When this happens, the employer should provide a back-up alternative driver to take the next on-call job and take any other further jobs until the RACV Roadside Emergency Assist driver has had a 10 hour in-shift break;

·     reducing the alternating four-day plus extended shift times to two days, which still allows two full days for recovery;

·     other actions include regular monitoring of driver sleep related health conditions such as insomnia and sleep apnoea and use of sleeping and alerting medications;

·     the employer should also consider these fatigue risk factors when designing shift schedules, selecting and outfitting RACV Roadside Emergency Assist vehicles, selecting employees, and should provide employees with information on their responsibilities to manage their off-work time breaks to ensure they start each on-call work period both fully alert and fit for duty.

The RACV OH&S documents and Operations Manual are inadequate with regard to fatigue risk knowledge.  Fatigue is not mentioned as a factor in the documents, although these documents have information on other risks such as manual handling and vehicle risks.  There were similarly no fatigue or risk management documents provided in relation to Yarra Junction Automotive.’

6That is a convenient insight as to what constitutes the essential criminality admitted by the plea of guilty by YJ Auto Repairs to the charges on the indictment.[2]

[2]I have of course taken into account the totality of matters alleged in the Summary of Prosecution Opening (Exhibit A)

7The maximum penalty the Accused Company faces is 9,000 penalty units for each charge. A penalty unit at the relevant time was $158.57. Accordingly, the maximum fine for each charge is $1,427,130.

8At this early juncture of my sentencing remarks, I want to impress something upon Mr Halls' many friends and family who understandably take an interest in these proceedings.  A fine is the only penalty the law permits me to impose. The fact it is a monetary penalty, which is the only means of punishment, and the amount of any fine that I am to impose, is in no way a measure of the worth of Mr Halls' life. 

The Accused Company 

9Mr Halls was not directly employed by RACV. RACV retained the services of contractors who, by their contract, were required to have sufficient mechanically skilled staff, equipment, and vehicles to provide a 24/7 Emergency Roadside Assist services to all RACV members requiring assistance in a specified geographical area. Whatever the legal or contractual arrangements, all ERA drivers providing ERA services to RACV members were required to drive RACV badged vehicles and wear RACV badged clothes. 

10I pause to note the RACV is a obviously a large, well established organisation. It is a not-for-profit organisation focused essentially on road safety since it was founded in 1903.  It has more than two million members and employs 3,000 people directly.  It has been providing ERA services for more than a century and its ERA service is a large undertaking. At the time of its plea, namely RACV, had contracts with 91 regional depots and 350 direct and indirect contractors who provided ERA services and they attended approximately 820,000 callouts a year.[3]It was accepted by the prosecution on this plea that the RACV had the over-arching influence in the ERA area, contracting to others to perform duties to the RACV’s standards. That was not said to absolve YJ Auto of any responsibility (as their plea of guilty obviously tells otherwise), but it is a fair description of the reality of the relationship between the two entities.

[3]RACV plead guilty to 1 charge of failing to ensure the health and safety of non-employees and was fined with conviction $475 000. Sentence of Judge Hampel [2021] VCC 2150 on 16 December 2021.

11The RACV contract for the Yarra Junction/Healesville area was with an entity called Yarra Junction Automotive Repairs. That was not a company but was one of a number of trading names or companies which operated out of a mechanical workshop in Yarra Junction owned or operated by Dominic Pezzimenti. It appears it was one of a number of small, family run endeavours employing no more than half a dozen people. Just months before Mr Halls died in March 2018, ownership of Yarra Junction Automotive Repairs Pty Ltd, one of Mr Pezzimenti’s Yarra Junction entities, was transferred to his granddaughter, Brooke Hampton in December 2017.  She had no previous experience in the field before she took over her role.

12Ms Hampton told investigators that the company took over the contract to provide ERA services on behalf of the RACV in the Yarra Junction/Healesville area.  Nothing changed in terms of the day-to-day operations of YJ Auto in the three months or so since Ms Hampton took the helm so far as the drivers employed to actually provide the services were concerned. It appears to me that a number of unsafe workplace practices developed at the ERA wing of Yarra Junction Automotive Repairs, which had become entrenched.

13The RACV of course held an overarching obligation to provide the necessary training for those they contracted to perform business on their behalf. That does not mean YJ Auto were blameless, far from it, but it is clear that RACV’s failures impacted on the way its contractors usually worked.

14In that regard, I considered the breach of the Accused’s Company before me to be one truly borne out of neglect to examine further the practices that were already established. I do not find the Accused acted with real indifference towards the safety of its own staff, but more out of lack of experience and taking comfort, I suspect, in the continuation of the established status quo.  Though Ms Hampton is not prosecuted in her personal capacity, it is worth observing that taking Directorship of a Company is no small undertaking as it is the Company that owes such an important duty to those it employs. I will return to this in due course.

15For about 12 months before Mr Halls' death, he and the only other Roadside Assist driver employed by a Yarra Junction entity (Mr David Robinson), were the only two employees providing ERA coverage for the Yarra Junction entities in their specified area. They worked alternate 96 hour straight rosters, an arrangement they came to themselves. They ought never have been permitted to.  Had they had any proper training or guidance from the RACV and/or YJ Auto it simply beggars belief that they would have chosen to work this way, or equally so, that they would have been allowed to do so by a conscientious employer.

16If one of the two employees were sick or took holidays, the other covered for him.  Before that, these two ERA drivers had worked a 12 days on, two days off, daytime only shifts. Mechanics engaged in other businesses operated by other Yarra Junction entities shared a roster for the weekends and night shifts.

17It is noteworthy that the practice within the ERA type industry was variable, but the statement of Mr Ashley Anderson who had a similar business providing services in Rosebud had developed, and it seems without any guidance from the RACV, a sensible workplace practice to avoid fatigue.  He also further stated;

‘The RACV contract could be done cheaper by employing less people or cutting corners but that would mean that employees would be overworked and the quality of the job would fall, and you could improve profitability by making people work more hours but this isn't right.’

The contravention

18Investigations conducted by WorkCover after Mr Halls' death revealed the RACV (and hence YJ Auto) did not train contractors or their employees in relation to the risks of fatigue. Although there was a general provision in the contract between the RACV and Yarra Junction Automotive Repairs in relation to OH&S compliance, there was no specific obligation imposed on contractors by RACV to ensure that they had safe systems of work concerning fatigue and its associated risks.  RACV did not conduct any checks or audits in relation to training or safe systems of work in relation to the risks of fatigue.

19Neither RACV nor Yarra Junction entities had turned their minds to their respective obligations to protect drivers against the risk of death or injury from driver fatigue.  RACV is, as I said, a large, well established, well-resourced enterprise who engage themselves in public awareness campaigns about driver fatigue. That it did not turn its mind to the effect of fatigue on its own drivers (more than 350 contractors State-wide as I understand it) is simply astonishing.

20This Accused, though much smaller and not as well-resourced as its co‑accused, had the face-to-face or more intimate relationship with its loyal, direct employees like Mr Halls and Mr Robinson.  In some ways, it makes the way the Company’s failures graver.

21By its plea, the Company acknowledges and takes responsibility for failing to provide and maintain, so far as was reasonably practicable, a safe working environment and systems of work to enable employees to perform their work safely; and failing to provide such information, instruction, or training as necessary to enable employees to perform their work in a safe manner.

22Specifically, the Company acknowledges and takes responsibility for its failure to have in place procedures and schedules implementing shorter maximum shift lengths and/or mandatory breaks between shifts and failing to provide employees with information and training about the risks associated with fatigue. This failure gave rise to the real risk of serious injury or death to employees if they drove whilst fatigued, in that a motor vehicle accident could occur.

Assessment of contravention

Risk not outcome based assessment

23The parties agreed the following principles apply to this case. The Occupational Health and Safety Act 2004 (the ‘Act’) is breached when an employer fails to do what is reasonably practicable to eliminate or mitigate risks to the safety of its employees. All breaches of the Act and departures from acceptable safety standards are to be denounced.

24The scheme of the Act is risk based, not outcome based. The objective seriousness of a contravention is not determined by its consequences, but by the extent of the employer’s failure to meet their duties under the Act.

25In DPP v Frewstal Pty Ltd[4] the Court of Appeal at [127] articulated a number of guiding principles that apply to the sentencing exercise:

‘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 Act], 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 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][2015] VSCA 266 (Frewstal).

26I feel I need to re-enforce that I am not sentencing the Accused Company for the death of Mr Halls, though his death figures so prominently in the plea. There is a caveat to what I just said. The fact that the failure to take reasonable practicable measures to eliminate or reduce the risk that Mr Halls was exposed, by the materialisation of the risk, which resulted in the death of a worker, is not an irrelevant consideration.

27To put another way, in Frewstal at [48] and [127] it was put in these terms:

'A very serious breach of the Occupational Health & Safety Act, involving clear disregard of 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 of the Occupational Health & Safety Act, not the gravity of the consequence. (Maxwell JA)

‘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. (Priest and Kaye JJA)'

28In assessing the gravity of the breach, Frewstal at [127] also provides this assistance:

'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.

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.'

29I propose to approach my sentencing task with these principles in mind.

Post offence matters

Impact of Mr Halls’ death

30Mr Halls’ death devastated his close-knit family, his wife of more than 50 years, his children, their partners, and his grandchildren. Their victim impact statements[5]  were powerful, moving and make the point that his death was so needless, so preventable and if anything good is to come from his passing, it ought to be that all employers are more conscious of the health and safety of those who loyally work for them.

[5]Exhibits B, C, D and E.

31Mr Halls’ funeral venue was simply too small to hold all of those who came to pay their respects to him. The crowd spilled into the street. He was given a guard of honour by the local SES, fire brigade and police in recognition of the kind of selfless, community minded man he was. He is understandably so terribly missed by those who knew and loved him.

Company and Director’s conduct

32The Company, really in its infancy under the Directorship of Ms Hampton, was nothing but co-operative with investigators. As I will come to later, the Company improved their employment agreement to include more appropriate breaks.

33The Company has ceased carrying on business. The Company has not been actively carrying on a business since late 2019. The Company was formally deregistered on 9 May 2021 and the sole ABN attached to the Company was cancelled weeks later on 21 May 2021.

34After the committal proceeding, WorkSafe advised them on 13 August 2021 of their intention to apply for the Company to be reinstated for the purpose of pursuing this criminal prosecution, which has obviously occurred. 

35The Company and Ms Hampton have no intention of resuming its business in the future. The death of Mr Halls and the Court process have acted as strong deterrents in that regard.

36Ms Hampton has been gainfully employed elsewhere since April 2020, now more than three years ago, and five years after the offending including the present date.[6]

[6]Exhibit 5 – Letter of Gloria Marinelli dated 4 September 2023.

37In those circumstances, I accept there is no risk that this Company will reoffend and there is no need for the sentence to really reflect specific deterrence.

38The Company I am dealing with has ceased trading for years. It has no employees.  It has no income.  It has no assets. It will not recommence trading. That Company has no prior convictions or subsequent matters nor, should I add, does its Director.

39This does not mean though that this sentencing exercise is an illusory one or an arid exercise. I will come to why that is so in due course.

Crown submissions

40The Crown's submissions are that YJ Auto has engaged in serious breaches of the Act, in that the conduct surrounding the incident that resulted in the death of Mr Halls, involved a significant and substantial departure from their statutory duty to provide and maintain a safe system of work for its employees; and provide such information, instruction, or training to its employees to allow them to perform their work in way that was safe and without risk to health.

41The Director submits that there was a risk of serious injury or death to persons who drove roadside assistance vehicles while fatigued, in that serious motor vehicle accidents could occur.

42This risk was high, in circumstances where no documented steps had been taken to guard against fatigued drivers providing the emergency break down services which could be provided at any time day or night.

43In this case, it was submitted the fatality was a demonstration of the materialisation of the high risk of death or serious injury which obviously existed. Whilst this is not always the case, where it does occur, it is, as I have said previously, relevant to demonstrate the degree of seriousness of the relevant threat to health or safety resulting from the breach.

44It is well known in the community that the risk of a fatigued driver is both a risk to themselves and others. It is submitted that in circumstances and conditions under which the relevant employees operated, that ‘the likelihood of the occurrence of an event as a result of the breach’, such as it was which occurred, was high.

Accused’s submissions

45YJ Auto provided an outline of the following matters were called in aid to reduce the objective gravity of the offending:

(a)   that it is not offending that involves blatant or deliberate disregard of employee safety, in that the Company did not knowingly or recklessly choose to expose employees to risk;

(b)   that the extent to which an employee was required to provide roadside assistance, and the likelihood of an employee becoming fatigued was dependent on the changing frequency of calls received across any one shift;

(c)   that despite the admitted inadequacy of such measures, the Company did indeed have safety measures in place to address and avoid the risk of collision posed by fatigue in that there was the ability of an employee to have someone cover them if they became too fatigued during a shift;[7]

(d)   this case can be distinguished from a situation where unrealistic working schedules were mandated by employers in that the subject employees devised between them and requested the schedule that was in place.  I have said enough about that already; and

(e)   that despite acceptance of the existence of the risk, it was said the deceased’s fatigue at the time of the collision was contributed to by his use of Zolpidem in the hours prior to the collision. To me, it seems to be a fair inference that Mr Halls’ use of Zolpidem was a result of him having worked such arduous and unnatural hours for such a long period of time, he required assistance in a medical form to have any real quality of sleep.

[7]A matter that I note Judge Hampel queried if a backup or relief drivers were truly available or were more a promise honoured in the breach at [39].

46The prosecution did not take issue with these submissions insofar as they were matters which do not aggravate the relevant offending by significantly increasing the gravity of the risk.

47There was an obvious risk associated with any person working a continuous 96 hour shift. It would have been reasonably practicable for YJ Auto to eliminate or reduce the risk to the health or safety of its employees by providing:

(a)   information about risks associated with fatigue; and/or

(b)   training about how to protect against fatigue; and/or

(c)   suggested policies or procedures to minimise risk to drivers who provided the service.

48One of the indicators of just how practicable it would be to eliminate or reduce the risk occurred from almost the moment WorkSafe commenced their enquiries in July 2018 with a highly co-operative Director who instantly modified the general Employment Agreement documentation as recommended to include a 7 hour break when infrequent occurrence of a late night calls occur.[8]

[8]See also Ashley Anderson statement summarised at [38] and following in the SPO.

49As I alluded to earlier, despite Ms Hampton being newly installed as Director with experienced staff, it remains for the company to design and implement a system of work that is as safe as reasonably practicable.

50I am satisfied the failure to inform, train and recommend strategies regarding fatigue created an appreciable risk, that drivers working such a roster would be fatigued, and their safety would, as a result, be endangered. I am also satisfied that the risk of endangerment was grave; that is, that there was a risk such as that which materialised here, namely, death. I am satisfied, therefore, that this is a serious breach of the Company’s obligations under the Act.

Sentencing principles

Maximum penalty

51The maximum penalty for this offence prescribed by Parliament is 9,000 penalty units which, translated into the dollar terms applicable at the time of the breach, is more than a $1.4m fine. That is one measure of the seriousness with which the offence is regarded. Whilst each case must be assessed by reference to its own facts and circumstances, the maximum fine available provides some guidance as to where, in any individual case, it sits on the scale of seriousness of offending.  

Deterrence, denunciation and just punishment

52General deterrence is of considerable importance in cases of OH&S breaches where, as here, the consequence of a breach is a real risk of death or serious injury.

53As the Court of Appeal emphasised in DPP v Vibro Pile (Aust) Pty Ltd,[9] the penalty must draw attention to the importance of workplace safety and send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment. That message must be re-enforced and my sentence is designed to do so.

[9] [2016] VSCA 55 at [233].

54On the other hand, as the New South Wales Court of Appeal said in Warman International Ltd v WorkCover Authority of New South Wales:[10]

‘The level of penalty must, on the one hand, compel attention to the occupational health and safety risks in order to ensure that persons are not exposed to such risks at their workplaces but, on the other, must not be oppressively high.’

[10] (1998) 80 IR 326 at [339].

55Denunciation and just punishment are also relevant matters.

Previous good character of the company / prospects for reform

56The Company had really only been operating for a short period of time prior to this incident, having been incorporated on 17 July 2017. It is relevant that the Company had no prior convictions, the Company had no subsequent convictions and has now ceased all activity.

Delay

57More than five years have passed between the offending and now, which is naturally a matter I must take into account in mitigation of sentence.

Plea of guilty and remorse

58The Company indicated an intention to plead guilty and the matter resolved prior to a directions hearing on 30 September 2022. The Company was arraigned on 10 October 2022.  I consider this an early plea.

59The Company has saved this court and the community the expense of a lengthy trial.  It has saved Mr Halls’ family the anguish of having to sit through or even give evidence at a trial. That is a human saving in a case like this which must be reflected in the penalty I impose.

60A greater discount reflecting the utilitarian benefit of the plea too is justified in my mind, given the plea was entered during the course of the pandemic.[11]

[11]Worboyes v the Queen [2021] VSCA 169.

61Further, the Company’s plea of guilty indicates a desire to accept responsibility and demonstrates, insofar as a legal fiction such as a company can, remorse.  Ms Hampton’s actions in promptly cooperating with WorkSafe and rectifying the breach is in my view indicative of remorse.[12]  I note Ms Hampton attended the plea on behalf of the Company.

[12]I have dealt elsewhere with the Director’s decision to stop the Company trading after the fatality.

62In determining the quantum of a pecuniary penalty, the Court is required to take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose and, to the extent that this is realistic, I have done so, even with the suspicion that no fine will actually ever be honoured as the Company effectively no longer exists.[13]  

[13]DPP v Heavy Mechanics Pty Ltd [2023] VSCA 69 at [85] noting that the financial circumstances of the offender have less force when one has regard to the importance of deterrence as a sentencing objective.

63While dealing with matters concerning the procedural history of this matter, something needs to be said here about the role of counsel. Despite what I will describe neutrally, or perhaps euphemistically as this matter having a rocky path to ultimate conclusion,[14] I want it known just how well the Company was served by its counsel at late notice who provided helpful, concise submissions, augmented by realistic and sensible oral submissions. The concessions and fairness of the Crown’s submissions are also worth noting here too.

[14]The matter being adjourned once to allow for previous Counsel’s availability and then the missing of Court ordered deadlines by that Counsel for the filing of important documents such as submissions not only had the potential to see the plea be further adjourned but had the potential to create the impression the Accused themselves were not taking the matter seriously – the latter factor I am satisfied is demonstrably not the case.

Parity and comparable cases

64For the RACV’s failure to provide information to contractors about the risks associated with fatigue, training about how to protect against fatigue, and policies or procedures to assist contractors to minimise the risk to drivers (on a much broader and deeper scale), the RACV was convicted and fined $475,000 by Judge Hampel.

65RACV was the Goliath to this Accused’s David. RACV which likewise pleaded guilty and could call on its impeccable character as a corporate citizen, had made significant (impressive) changes to its operation too after the offence. The parties were in agreement though, that for a multitude of reasons, not least involving the size, role and resources of the respective entities, and the different nature and magnitude of their failings, it was inevitable that there would have to be a disparate sentence imposed on this company.

66Current sentencing practices are of some relevance, though the broad range of offences and offenders means that care  must be taken when considering past decisions. As the Court of Appeal noted in DPP v Heavy Mechanics Pty Ltd, 'Outcomes in particular cases are not precedents, and a comparison with other cases risks ignoring the differences and the individual features of each case.'[15]

[15][2023] VSCA 69 at [83].

67Ms Fargher said that her search of WorkSafe’s directory of prosecution and enforceable undertaking outcomes did not reveal other comparable cases, in the way that that term is understood, dealing with risks associated with fatigue or issues concerning the duration of on-call shifts. Ms Holmes concurred.

Disposition

68I was invited to consider exercising my discretion not to impose a conviction under s8 of the Sentencing Act1991 when fining the Company, having regard to all of the circumstances of the case including the nature of the offence, the character and past history of the offender, and the impact of the recording of a conviction on the offender's economic well-being or employment prospects.

69Given the early plea, absence of prior or subsequent convictions, the short duration of the breach by the Company and the matters reducing the objective gravity set out above, it was submitted that it is open for me to not record a conviction.

70I consider the overall gravity of the offending well worthy of attracting a conviction as a punishment. The act of conviction itself must have deterrent value to other employers and remind them of their duty to put worker safety first.

71Further, there is nothing that suggests that there will be harm to the future prospects of the Company by the recording a conviction as the Company does not have a future per se.  A substantial fine, with conviction is the appropriate penalty in a case such as this.

72I was invited (by agreement) to impose an aggregate fine under s51 of the Sentencing Act 1991 as the offending is essentially founded on the same facts and I shall do so. This does not mean the fine will be reduced, or otherwise disproportionate to the criminality involved.  

73I have had regard (to the extent it is practicable to do so) the financial circumstances of the Company and its capacity to pay any fine under s52 of the Sentencing Act.

74Balancing the various sentencing considerations as best I can, sometimes pulling in very different directions as they often do, YJ Auto Repairs is convicted and fined an aggregate sum of $115,000.

75COUNSEL:  As Your Honour pleases.

76HIS HONOUR:  Thank you to counsel.  In about half an hour you will have an unrevised copy of my reasons and, I stress, they will be unrevised.

77MS HOLMES:  Yes, Your Honour.

78HIS HONOUR:  Adjourn the court.

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