Dotmar Epp Pty Ltd v The Queen

[2015] VSCA 241

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0204

DOTMAR EPP PTY LTD	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, PRIEST and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 August 2015
DATE OF JUDGMENT:	9 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 241
JUDGMENT APPEALED FROM:	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:

1. 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

1. 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.

1. In my opinion, for the reasons that follow, the appeal should be dismissed. 

Charges, sentence and grounds of appeal

1. 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).

1. 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

1. 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 in use at Dotmar, it was equipped with interlocking guard doors which enabled the dangerous moving parts of the lathe to be fully enclosed so as to prevent access to them.  When the ‘Fat Boy’ lathe was supplied in 2003, it came with a operator’s manual which explained the role of the guard doors in ensuring the safety of the operator of the machine.

1. Charge 1 related to the operation of the ‘Fat Boy’ lathe.  As I have indicated, the lathe had an interlock switch which prevented it from operating if its guard doors were open.  It had been designed that way to prevent access to the rotating machine tool while the machine was in operation.  During the charged period, Dotmar tolerated a situation where employees used the ‘Fat Boy’ lathe with the interlock switch overridden, so that, contrary to its design, operators of the machine could use it with the guard doors open and put their hands near the its moving parts while those parts spun at high speed. 

1. The overriding of the interlock switch had taken place in or before 2004, when a leading hand employed by Dotmar removed one part of the interlock from the guard and positioned it elsewhere.  That overriding of the interlock switch had occurred was known to Dotmar, since the employee who had overridden the interlock switch informed the Production Manager, Simon Daniell, that he had done so.  Self-evidently, a key safety feature of the machine was thus rendered inoperable.  Despite this, the lathe continued to be operated with the guard doors open, and operators were permitted to place their hands near the high speed moving parts of the machine.

1. At this juncture it is convenient to note that, on 6 April 2006, a WorkSafe inspector, Glenn Williams, attended at Dotmar’s factory and inspected various machines. During that inspection, Mr Williams noticed that the interlock switch on the Fat Boy lathe had been bypassed, allowing access to dangerous parts of the machine whilst it was in operation. Inspector Williams issued an Improvement Notice under s 111 of the OHSA. When he returned to Dotmar on 15 May 2006, Inspector Williams observed that the doors of the lathe had been interlocked, so that no access could be gained to the machine’s dangerous parts whilst it was in operation. He thus deemed the Improvement Notice to have been complied with.

1. Apparently disdainful of WorkSafe’s intervention, however, and in plain disregard for the safety of its employees, within two months of the Improvement Notice having been deemed complied with, the lathe’s interlock had again been bypassed by Dotmar.  WorkSafe was not notified of the change, Dotmar having determined to once more allow the lathe to be used in an unguarded state for the performance of certain tasks (albeit only trained staff were to use the machine).

1. On 12 October 2009, an employee, Jason Ulahannan, was trying to remove waste product (plastic shavings or ‘swarf’) from the machine with his right index finger while the lathe was operating.  The tip of his finger was crushed and he received lacerations.  His injuries led to him being on altered duties for at least two weeks.  At the time of this incident, the system used for work of this kind involved the operator using his hand to pull the shavings from the rod while the machine was in operation.  This procedure required the operator to put his hand near the parting-off tool and rotating rod, these being the two parts of the machine which caused Mr Ulahannan’s injuries.

1. Ostensibly, Dotmar’s operating instructions for the Fat Boy lathe included a direction not to use the machine unless all guards were in place and correctly adjusted.  When Mr Ulahannan was first trained to use the machine, however, the demonstrator operated it with the guard doors open, and inserted his own hand into the danger area of the machine to remove swarf.  For about 12 months, whilst he operated the ‘Fat Boy’ lathe, Mr Ulahannan followed that same method that had been demonstrated to him.  On no occasion was he told to make sure the guard doors were closed at all times.

1. Remarkably, despite Mr Ulahannan having suffered injuries in the manner that he did in October 2009, some ten months later, on 19 August 2010, another employee, Sanesh Sebastian — who had initially demonstrated the use of the lathe to Mr Ulahannan — was operating the lathe with the interlock bypassed when he too was injured when he put his hand near the machine’s rotating parts.  His injuries — including a broken thumb which needed surgical repair — required him to be away from work for seven weeks.

1. It is important to note that, although the period of the first charge was ‘between the 12^th day of October 2009 and the 19^th day of August 2010’, save for the two month hiatus in 2006 following WorkSafe’s intervention, the lathe had been operated with the interlock overridden since at least 2004.  Dotmar’s Production Manager, Mr Daniell, knew that the interlock should not be bypassed, and that the lathe was designed to operate with the guard doors closed.  He was aware that, by using the lathe with the guard doors open, there was a risk that the operator might become entangled in the lathe, with resulting risks to life and limb.  Notwithstanding this state of knowledge, for several years Dotmar countenanced a state of affairs which permitted the lathe to be operated with a key safety feature disabled.

1. Charge 2 related to an incident on 18 March 2010, when an  employee, Robert Cummins, was operating a Wadkin router at Dotmar’s factory.  He was drilling holes into a plastic product when his leg became trapped between the table and frame of the router, causing him to suffer lacerations which required his hospitalisation for three days and six weeks’ absence from work.  The router was not adequately controlled so as to restrict access between the router frame and router table during the machine’s operation.

1. The router was designed to cut and drill holes into plastic products.  Plastic was placed onto the router table and held in position by pressure suction.  The router had a moving table which moved the plastic under the router head for drilling or cutting.  Suction was lost if holes were drilled all the way through the plastic, so that the general practice was to stop short of perforating the plastic when drilling.  Once the holes had been commenced, the operator would usually take the plastic to a pedestal drill to complete them.  It seems, however, that a practice arose whereby some operators — so that the machine did not have to be stopped — would tape over holes in the plastic in order to maintain suction. 

1. On the day that he was injured, Mr Cummins was using the router to cut and drill plastic.  He taped holes in the plastic to maintain suction.  While he was standing behind the router table, and leaning over to reach holes inaccessible from the front, the router table moved as part of the router’s operation cycle, trapping Mr Cummins’ leg between the table and the router frame.  He could not reach the emergency stop button, which had to be activated by another employee.  Ultimately he was freed by emergency services and taken to hospital.

1. Prior to Mr Cummins being injured, he had raised a concern with Dotmar’s occupational health and safety manager, Frances Cant, about the risk of being bumped by the router’s table.  No steps were taken by Dotmar to control or eliminate the risk, since Ms Cant did not believe there was a risk.

Discussion

1. There are two grounds of appeal.  They assert respectively that the sentences imposed on charge 1 and charge 2 are manifestly excessive.  Both grounds are accompanied by ‘particulars’ which it is unnecessary to set out in detail.  Among other things, the particulars assert that the sentencing judge erred in her assessment of the gravity of the offending; gave too much weight to general deterrence; and failed to give adequate weight to the plea of guilty, Dotmar’s lack of prior convictions, delay, totality and proportionality, and matters in mitigation.  In my view, however, such particulars are of limited utility, since an assessment of whether a sentence is (or is not) manifestly excessive may only be made by synthesising all relevant factors, including the circumstances of the offence and the offender, and the features going in aggravation and mitigation.  A claim that a sentence is manifestly excessive usually does not admit of much elaboration or sustained argument, since a sentence is either plainly excessive or it is not.

1. At first blush, some might regard the sentence on charge 1 as somewhat stern.  On proper analysis, however, it cannot be characterised as manifestly excessive.  Not only did the offending behaviour embraced by the first charge take place over a ten month period, but it occurred against a background of several years’ egregious failure to adhere to proper safety procedures with respect to the Fat Boy lathe.

1. In a seductively simple submission, counsel for the appellant advanced the proposition that, all other things being equal, a breach of the OHSA involving a death is always to be treated more seriously for sentencing purposes than a breach that does not. Putting Coates[3] at the forefront of his submissions — in that case a fine of $500,000 was imposed on a Crown appeal following a fatality — senior counsel argued that the fine of $300,000 imposed in this case on charge 1 (where there was no fatality) could be seen to be manifestly excessive.

   [3]DPP v Coates Hire Operations Pty Ltd (2012) 36 VR 361 (Maxwell P, Weinberg JA and Hollingworth AJA) (‘Coates’).

1. With respect, the fallacy inherent in that approach lies in the assumption that the seriousness of an offence under the OHSA is necessarily to be gauged by whether death or injury has been caused (or, for that matter, by whether there is an absence of death or injury). Such an approach equates the gravity of the consequences of a breach — that is, whether the breach resulted in death or injury, or neither death nor injury — with the gravity or seriousness of the breach.[4]  The OHSA is concerned generally with risks to health and safety; and, under Part 3, concerned specifically with the duties owed with respect to health and safety.  It is the extent of the failure to ensure that employees are not exposed to risk to their health and safety which determines the objective gravity of the offence.  The consequences of the failure generally do not.[5]  That is not to say that the fact of death or injury occurring is necessarily irrelevant.  The occurrence of an accident, resulting in death or injury of a particular kind, may inform an assessment of, first, the existence of the risk, and, secondly, the nature and seriousness of that risk.[6] 

   [4]Cf Sentencing Act 1991, s 5(2)(c).

   [5]Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399, 414–5 [62] (Maxwell P, Bongiorno JA and Kyrou AJA).

   [6]See Sentencing Act 1991, ss 5(2)(daa), (da) and (db).

1. Hence, in determining the gravity or seriousness of the offence, the sentencing court must assess, first, the extent of the departure from the duty owed; secondly, the extent of the risk to health and safety thereby created; and, thirdly, the likelihood or risk of particular harm resulting.[7]  Put another way, in a case such as the present, the gravity or seriousness of a breach is to be measured by reference to the potential consequences of the breach; the extent of the evidenced disregard for the safety of employees;[8] and the risk of the potential consequences of the breach materialising.

   [7]Coates, 378 [68].

   [8]DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557, 565 [35] (Vincent, Eames and Nettle JJA) (‘Amcor’).

1. In this case, Dotmar well knew that overriding of the interlock of the guard doors permitted operators to put their hands near the dangerous moving parts of the machine, and that this presented a grave risk to the safety of its employees.  Moreover, Dotmar’s conduct demonstrates a cavalier disregard for the safety of its employees.

1. A particularly serious aspect of Dotmar’s conduct involved its response to WorkSafe’s intervention in 2006.  As I have mentioned, in order to comply with the Improvement Notice issued by Inspector Williams, Dotmar reinstated the interlock.  Within two months, however, the interlock was again overridden, with the resulting risks to the health and safety of employees that such a situation presented. 

1. Moreover, having been put on notice by the incident involving Mr Ulahannan that the bypassing of the lathe’s safety mechanisms was apt to realise the palpable risk to the physical safety of employees that the use of the unguarded machine presented, by its further action (or, perhaps, inaction) over an extended period Dotmar continued to sanction the ongoing danger to employee safety that the use of the machine in an unguarded condition presented.  That conduct led to a second incident in which the serious risk to the health and safety to employees flowing from the use of the unguarded machine was again realised. 

1. It is thus plain that, with respect to the operation of the lathe, Dotmar showed an almost complete disregard for the safety of its employees.  Indeed, it beggars belief that Dotmar did not take immediate remedial steps after Mr Ulahannan was injured, but instead permitted the continued operation of the unguarded lathe.  Thus, not only was it important to reflect the need for general deterrence in the sentence imposed, but the need for specific deterrence was pronounced.  Moreover, the requirements of just punishment and denunciation were also highly significant.

1. In my view, the matters in mitigation were limited.  Acknowledging that the guilty pleas had some utilitarian value, they were not entered early.  They were only entered on the first day of what was to have been a trial, Dotmar having conducted a three day contested committal in November 2012, during which each of the victims was cross-examined.  Furthermore, the fact that Dotmar had no prior convictions, and that belated steps were taken to improve safety at the Dingley factory, are of limited relevance in light of its earlier disdain for the safety of its employees over a considerable period.[9] 

   [9]Amcor, 565 [35]; Coates, 377 [64].

1. Guarding of the dangerous parts of machinery, so as to eliminate or reduce the risk to workers of being seriously injured or killed, is nothing new or novel.  To the contrary, the provision of adequate guarding is an elementary safety feature of any machinery with moving parts having the potential to cause death or injury should a worker come into contact with them.  Very little imagination was required to see the need for, and very little initiative was needed to provide for, such a rudimentary — but key — safety feature.  Indeed, over long period Dotmar was acutely aware of the imperative to provide for adequate guarding of the lathe, but

ignored it.  Not only was the need for guarding fundamental, but Dotmar had been reminded of its obligations by the Improvement Notice in 2006.  Yet, in cynical disregard for the safety of its employees, Dotmar had again disabled the interlock on the guard doors within two months of deemed compliance with the Notice.  Thereafter, once Dotmar had been again put on notice of the potential risk to employees’ safety by the incident involving Mr Ulahanan, it took no steps to reinstate an important safety feature of the lathe, resulting in a second employee being injured.  Dotmar’s conduct is worthy of the strongest denunciation and condemnation.

1. In my view, the sentence on charge 1 was within the realms of sound discretionary judgment.

1. So far as the sentence on charge 2 is concerned, it is unremarkable.  Ms Cant, Dotmar’s occupational health and safety co-ordinator, had been advised of the risk of being bumped by the router’s table, yet did nothing to ameliorate that risk.  In addition, Dotmar tolerated a dangerous practice whereby employees taped holes in plastic being machined, and leaned over the moving router table.  Given these matters, the fine imposed on charge 2 can be seen to be well within the range of sentences open in the proper exercise of the sentencing discretion.

Conclusion

1. The appeal must be dismissed.

KAYE JA:

1. For the reasons given by Priest JA, I too would dismiss the appeal.

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