AMCOR PACKAGING AUSTRALIA PTY. LTD. (TRADING AS AMCOR FIBRE PACKAGING AUSTRALASIA)
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JUDGES:
VINCENT, EAMES and NETTLE, JJ.A.
WHERE HELD:
MELBOURNE
DATE OF HEARING:
23 June 2005
DATE OF JUDGMENT:
6 September 2005
MEDIUM NEUTRAL CITATION:
[2005] VSCA 219
1st Revision - 7 September 2005
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Criminal Law – Crown appeal – Manifest inadequacy – Respondent a corporation – Unsafe work practices resulting in death of an employee – Relevance of respondent’s prior convictions – General deterrence – Applicability of principle of double jeopardy where respondent a corporation – Appeal allowed – Respondent re-sentenced.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr J.D. McArdle, Q.C. Ms K.T. Armstrong
Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent
Mr B.E. Walters, S.C. Mr T.E. Wraight
Freehills
VINCENT, J.A. EAMES, J.A. NETTLE, J.A.:
This is an appeal by the Director of Public Prosecutions against the sentences imposed upon the respondent in the County Court, at Melbourne, on 28 October 2004, on two counts of failing to provide and maintain, as far as practicable, a safe working environment for its employees, contrary to section 21 of the Occupational Health and Safety Act 1985[1].
[1]Section 21 of the Act provides:
“(1)An employer shall provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health.
(2)Without in any way limiting the generality of subs-section (1), an employer contravenes that sub-section if the employer fails –
(a)to provide and maintain plant and systems of work that are so far as is practicable safe and without risks to health;
…
(e)to provide such information, instruction, training and supervision to employees as are necessary to enable the employees to perform their work in a manner that is safe and without risks to health.”
The respondent, a company that has operated in Australia for many years was, on 25 March 2003, engaged in the manufacture of paper products from pulp at premises in Fairfield, Victoria. At about 3.30 p.m., on that day, one of its employees, Darren Moon, was working, in the ordinary course of his duties, in close proximity to a set of very large unguarded rollers on a paper manufacturing machine, when he was drawn against them and fatally injured. The machine, which was capable of manufacturing a number of different grades of paper, was extremely large and occupied the entire floor of the building. The base material used in the process was passed into it as a liquid pulp, and then taken through a series of supported rollers where it was drained, pressed, dried out and eventually rolled onto a reel and cut according to client specifications. When manufacturing light paper, the machine would process at 470 metres of material per minute. Heavier product would pass through it at between 160 and 200 metres per minute.[2] Mr Moon was working at a part of the machine known…
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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AGLC
DPP v Amcor Packaging Australia Pty Ltd [2005] VSCA 219
Case
[2005] VSCA 219
Decision Date
CaseChat Overview and Summary
The case of DPP v Amcor Packaging Australia Pty Ltd involved the Director of Public Prosecutions (DPP) appealing against the sentence imposed on Amcor Packaging Australia Pty Ltd, a corporation, for unsafe work practices that resulted in the death of an employee. The case was heard by the court of appeal. The central issue before the court was whether the original sentence imposed on Amcor Packaging was manifestly inadequate, particularly in light of the corporation's prior convictions and the need for general deterrence. The court was also required to consider whether the principle of double jeopardy applied to a corporate respondent, potentially impacting the ability to impose a harsher penalty on appeal.
The court examined the nature of the offence and the principles surrounding sentencing for corporate entities. It noted that while the principle of double jeopardy traditionally protected individuals from being tried twice for the same offence, it did not necessarily apply in the same way to corporations. The court held that a corporation could be re-sentenced if the original sentence was found to be manifestly inadequate. The court found that the original sentence did not adequately reflect the gravity of the offence or serve as a sufficient deterrent, given the corporation's prior history of similar breaches. The court emphasised the importance of ensuring that penalties imposed on corporations for such serious offences are sufficient to serve as a deterrent not only to the offender but also to the broader industry.
In light of the above, the appeal was allowed, and the court re-sentenced Amcor Packaging Australia Pty Ltd. The court imposed a penalty that it deemed appropriate, considering the seriousness of the offence, the need for deterrence, and the corporation's prior convictions. The final orders included a significant financial penalty and other measures intended to ensure compliance and prevent future occurrences of similar offences. The decision underscored the court's commitment to holding corporations accountable for serious breaches of safety regulations, particularly where such breaches result in loss of life.