DPP v Dotmar Epp Pty Ltd (Unreported, County Court of Victoria, Judge Patrick, 18 August 2014)
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CRIMINAL LAW – Appeal – Sentence – Occupational health and safety – Failure to provide and maintain a working environment that was safe and without risks to health – Two charges – Permitting employees to use unguarded machinery – Safety features knowingly overridden despite previous WorkSafe intervention and prior injuries – Permitting workers to use machinery in unsafe manner – Three employees injured in separate incidents – Appellant fined a total of $375,000 – Appellant’s culpability very high – Specific deterrence – General deterrence – Sentence not manifestly excessive – Appeal dismissed – Occupational Health and Safety Act 2004 (Vic) s 21(1).
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr O P Holdenson QC with Mr A D Halse
M + K Lawyers
For the Crown
Mr B F Kissane QC
Ms V Anscombe, Acting Solicitor for Public Prosecutions
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment of Priest JA. For the reasons which his Honour has given, I too would dismiss the appeal.
PRIEST JA:
Introduction
Pursuant to leave granted by a judge of this Court, Dotmar Epp Pty Ltd (‘Dotmar’) has appealed against sentences imposed the County Court on 18 August 2014, contending that the sentences are manifestly excessive.
In my opinion, for the reasons that follow, the appeal should be dismissed.
Charges, sentence and grounds of appeal
Dotmar pleaded guilty in the County Court to two charges under s 21 of the Occupational Health and Safety Act 2004 (‘OHSA’). Charge 1 related to a period of about ten months, between 12 October 2009 and 19 August 2010, whereas charge 2 related to a single day falling between those two dates, 18 March 2010. In essence, both charges concerned failures to provide or maintain plant and systems of work that were, so far as reasonably practicable, safe and without risks to health.[1]
[1]OHSA, s 21(2)(a).
Following a plea, the judge sentenced Dotmar to pay a fine of $300,000 on the first charge, and $75,000 on the second, making for a total penalty of $375,000.[2]
[2]At the relevant time, the maximum penalty available on each charge was 9000 penalty units, being the equivalent of $1,051, 380 per charge.
The offending
Dotmar engineers plastic products at a factory in Dingley. In so doing, it
utilises routers and lathes, including a CNC ‘Fat Boy’ lathe. A lathe is a machine tool which rotates a workpiece on its axis so that other tasks, such as cutting or drilling, can be completed. One of the features of the ‘Fat Boy’ lathe was that, unlike the other lathes…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Dotmar Epp Pty Ltd v The Queen [2015] VSCA 241
Case
[2015] VSCA 241
Decision Date
CaseChat Overview and Summary
Dotmar Epp Pty Ltd appealed against its conviction and sentence for breaches of occupational health and safety laws, following the injury of three employees. The matter was heard in the Court of Appeal. The company was found guilty of two charges under the Occupational Health and Safety Act 2004 (Vic), specifically for failing to provide and maintain a working environment that was safe and without risks to health. The first charge related to permitting employees to use unguarded machinery, while the second involved permitting workers to use machinery in an unsafe manner.
The court had to determine whether the appellant's culpability was high enough to warrant the substantial penalty imposed, and if the sentence was manifestly excessive. The appellant argued that the sentence did not adequately account for its efforts to improve safety measures, while the prosecution contended that the severity of the breaches and the resulting injuries justified the fine. The court considered the need for specific deterrence, to prevent the appellant from repeating the same offences, as well as general deterrence, to discourage other businesses from engaging in similar conduct.
The Court of Appeal held that the appellant's culpability was indeed very high, given the deliberate overriding of safety features despite prior intervention by WorkSafe and previous injuries to employees. The court found that the sentence of $375,000 was not manifestly excessive, taking into account the seriousness of the offences and the need for deterrence. The appeal was dismissed, and the original sentence was upheld.