DPP v Best Benchtops and Stone Pty Ltd
[2022] VCC 2296
•14 December 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01141
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEST BENCHTOPS AND STONE PTY LTD |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 December 2022 |
| DATE OF SENTENCE: | 14 December 2022 |
| CASE MAY BE CITED AS: | DPP v Best Benchtops and Stone Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 2296 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Two charges of failing to ensure workplace was safe and without risks to health – non-employee crushed by concrete slabs – importance of general deterrence – serious departure of duty owed by employer – serious failure to comply with statutory duties – early plea of guilty – burden of financial penalty – totality
Legislation Cited: Occupational Health and Safety Act 2004, Sentencing Act 1991, Fines Reform Act 2014
Cases Cited:DPP v Frewstal Pty Ltd [2015] VSCA 266, DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557, DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55, DPP v Andrew Buchanan Engineering Ltd [2021] VCC 2162, DPP v SJ & TA Structural Pty Ltd [2019] VCC 2016; DPP v Specialised Concrete Pumping Vic Pty Ltd [2018] VCC 105, R vCheshire (1994) 76 A Crim R 261, R v Smith (1991) 25 NSWLR 1
Sentence: Aggregate fine of $325,000
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Barr | Office of Public Prosecutions |
| For the Accused | Mr J. Teng | Hiways Lawyers |
HIS HONOUR:
1Best Benchtop and Stone Pty Ltd (Best Benchtop) has pleaded guilty to two charges under s26(1) of the Occupational Health and Safety Act 2004 (the Act). The charges arise out of the same incident. Each alleges Best Benchtop, having management or control of a workplace, failed so far as was reasonably practicable, to ensure that the workplace was safe and without risks to health. The difference between the charges lies in the alleged reasonably practicable means by which the risk of injury or death could have been reduced. For Charge 1, the allegation is it was reasonably practicable for Best Benchtop to reduce the risk of serious injury or death by removing complete packs of slabs using:
(a) a mobile crane fitted with stone handling attachments; or
(b) forklift with a container mast fitted with stone handling attachments.
2For Charge 2, the allegation to reduce risk by using temporary restraints to prevent any unintended movement of the slabs. Examples of those temporary restraints are support frames, chains, straps and bracing.
3In this case, by pleading guilty to the charges, Best Benchtops admits the ingredients of offences and their respective particulars.
4The maximum penalty for these offences are 9000 penalty units for a body corporate. Given the value of a penalty unit at the time of offending, in dollar terms, the maximum penalty for each charge is $1,486,980.
5The circumstances of these offences are set out in a document entitled, 'Summary of prosecution opening', which is Exhibit A. Its' factual contents were accepted by counsel for Best Benchtop.
Circumstances
6As with many corporations, Best Benchtop has a single director and shareholder, Mr Jingwu Li. It has existed for a short while having been incorporated on 20 January 2019. Its business involved importing semi-finished stone and slabs from China.
7Best Benchtop did not have any employees. Mr Li carried out the work required for the business. It operated from a warehouse in Campbellfield.
Incident
8On 19 February 2022, Mr Shaojie Liu was helping Mr Li to unload a delivery of stone slabs from a shipping container. The men were friends. The delivery comprised 105 stone slabs. Each slab weighed about 220 kilograms. The slabs were split into seven packs of 15 slabs. Each pack was secured by timber frames, bolted together and wrapped over the top with plastic sheeting. Since the slabs needed to be unloaded individually, the bolts needed to be loosened or removed and the plastic sheeting removed.
9Mr Li used a forklift to unload the individual slabs. Mr Liu stood three to four metres inside the container and performed various jobs including:
(a) removing the bolts from the timber frames; and
(b) attaching a clamp fitted on the forklift to the top of the slabs.
10The slabs were removed from the container by the forklift and placed on an A-frame inside the warehouse.
11At about 9.50 am, Mr Liu was crushed when about 30 slabs tipped over and fell on him. He was standing within the 'fall shadow' of these slabs. The 'fall shadow' of a slab is the region swept by a slab during a toppling movement from vertical to where it stops falling. Mr Li, workers from nearby businesses and emergency services attempted to lift the slabs off Mr Liu but were unsuccessful. He died at the scene.
WorkSafe Investigation
12That day, WorkSafe inspectors attended the workplace and issued a non-disturbance notice. Prohibition and improvement notices were issued and Best Benchtop complied with their requirements. Although invited, Mr Li was not interviewed. Nevertheless, Best Benchtop provided statements and documents.
13After the incident, Best Benchtop ceased operations. It no longer imports stone slabs.
Criminal history
14There are no findings of guilt or convictions made against Best Benchtop. This is evidence of good character. Given the short period of the existence of the corporation, that is unsurprising.
Victim Impact Statement
15Jishun Liu is the son of Mr Liu. His father’s death has had a profound impact upon him and his family:[1]
'Since the passing of my father, my family has struggled to enjoy life and embrace new experiences with the same passion and drive. It is like living with dark clouds hovering over our heads. My father was my role model and my dearest friend, he was someone whom I could open my heart to as well as share my passions with. Till this day I still struggle to accept his absence, some nights I would cry myself to sleep whilst listening to the voice messages he sent me back in the days.'
[1] Victim Impact Statement of Jishun Liu declared 23 November 2022
16His mother worries if he is late coming home from work or school. She always reminds him and his sister to stay safe.
Legal considerations
17Section 5(1) of the Sentencing Act 1991 (the Act) sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender’s rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in;
(e) to protect the community from the offender.
18The Director’s counsel referred to passages from several authorities, including DPP v Frewstal Pty Ltd[2] and DPP v Amcor Packaging Australia Pty Ltd[3], from which one draws these propositions, applicable to offences under s 26(1) of the Act:
(a) The purpose of the Act is to require employers to examine their workplaces, identify risks to the safety of employees and relevant others and their potential consequences and take steps to reduce or eliminate those risks. The same duties apply to persons in the position of Best Benchtop, which has the management or control of a workplace[4];
(b) The objective seriousness of Best Benchtop's contravention of its duty is the primary factor in sentencing for these offences. Other relevant considerations are secondary[5];
(c) In assessing the objective seriousness or gravity of the offence, one examines the extent of Best Benchtop's failure to comply with its statutory duties, which involves the foreseeability of a risk, the likelihood of it occurring, the consequences if it eventuates and what should have been done by it within the parameters of reasonableness. The objective seriousness of the failure is not directly determined by its consequences: a very serious failure may yield a minor injury while a minor failure may yield a serious injury or death. It is a subtle distinction but the purpose of the Act is to force persons in the position of Best Benchtop to examine their workplaces and practices and take steps to eliminate or reduce the risk of injury. The Act is dealing with a category of persons who are capable of, at least, increasing the safety of their workplaces. The Act seeks to ensure proper regard is paid to the issue of safety;
(d) Accordingly, general deterrence is particularly important as a sentencing purpose[6]. It assumes an even greater importance where the likely consequence of a risk eventuating is the infliction of serious injury or death. I have avoided quoting from cases but the Court in the DPP v Vibro-Pile (Aust) Pty Ltd[7] stressed the importance of general deterrence for these offences[8]:
'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.'
[2] [2015] VSCA 266.
[3] (2005) 11 VR 557 at [35].
[4] See ss 2 and 4 of the Act.
[5] DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557 at 565.
[6] DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at paragraph 233.
[7] (2016) 49 VR 676.
[8] Ibid at paragraph 233.
19As can be seen, in this type of case, with the emphasis on the objective seriousness of the offending and the sentencing purpose of general deterrence, the focus in sentencing is upon the punitive aspects of sentencing, subject always to the need to impose a just punishment and a fair sentence.
20Section 5(2) of the Sentencing Act sets out matters to which I must pay regard, where they are relevant. As noted above, the gravity of the contravention is particularly important.
Nature and gravity of the offence
21The breach is a serious departure from the duty owed by Best Benchtop to ensure the workplace was safe and without risks. The weight of each pack of 15 slabs was 3,300 kilograms. Plainly, one slab alone, weighing 220 kilograms, is a high risk of causing serious injury or death if it were to fall on a person.
22WorkSafe has published a pamphlet entitled 'Unloading stone slabs from containers.' It bears the date October 2013. It starts with the question – What is the problem? – and says:
'Workers have been trapped and crushed while unloading stone slabs from shipping containers. The problem is often due to one or more slabs "toppling" (ie falling from vertical), often as a consequence of a slab moving more than expected or in an unintended way. For example, a slab might tilt to a greater angle than anticipated.'
23The pamphlet then poses the question – What are the risks? – and says:
“There have been a number of serious crushing incidents where toppling slabs have trapped a person against the floor or wall of a shipping container or other structure or between slabs. These have resulted in fatalities, amputations and musculoskeletal injuries affecting the trunk, back, shoulders and arms. Some incidents have occurred when attempting to remove single slabs from either A-frames or crates standing vertically. Causes of incidents include inappropriate packing methods, excessive number of slabs being moved and the use of equipment such as forklifts and lifting attachments not specifically designed for the task. While movement of the slabs may be intended, the speed, forces and extent of movement are commonly underestimated, and once the falling load topples, there may be no opportunity for escape”.
24When unloading slabs from containers which are not open at the top and a forklift is used, the pamphlet says in part:
'Before stone slabs are released from any transport restraints, ensure that no person is in the fall shadow of any slabs or crates at any time. Provide temporary restraints such as straps, chains or purpose-made mechanical devices to restrain slabs that aren't being removed and to limit movement of slabs being removed only to vertical. These temporary restraints must be able to be placed and controlled from outside the fall zone and must not impede separation of slabs for removal. Separate individual slabs from the end closest to the container door so people aren’t moving into the fall shadow. Use either wooden or proprietary brand wedges designed for the task.'
25One can see the emphasis is upon preventing anyone coming within the fall shadow. Mr Liu was in the fall shadow when he was crushed by the slabs.
26Each of the charges identifies measures which could have been implemented to reduce the risk of injury or death. As I said earlier, for Charge 1, the risk would have been reduced if, instead of separating the slabs and removing them individually, Best Benchtop removed the complete packs of slabs from the container using:
(a) a mobile crane fitted with stone handling attachments; or
(b) a forklift with a container mast fitted and with stone handling attachments.
27For Charge 2, the risk would have been reduced if, while unloading the slabs, Best Benchtop used temporary restraints such as support frames, chains, straps or bracing to prevent any unintended movement of the slabs.
28The gravity of the offences is serious and the level of culpability of Best Benchtop is high. I agree with the Director’s counsel where he wrote[9]:
'It is submitted that the breaches constitute a serious departure from the duty to ensure that the workplace was safe and without risks. There is no evidence of any identification of the risks of being crushed by the stone slabs nor of consideration in reducing or eliminating those risks. The likelihood of the risk eventuating with the methods of unloading stone slabs employed by the accused were substantial with a high risk of consequent serious injury or death.'
[9] Outline of prosecution submissions, dated 28 November 2022 at [13].
29These measures, particularly in the case of Charge 2, would have been inexpensive and relatively simple measures for Best Benchtop to put in place. Given the size of the risk in this case, even if the measures were expensive, they should have been adopted.
30Best Benchtop did nothing to relieve the need for Mr Liu to enter the container and come within the fall shadow. The system of unloading did not address the risk identified in the pamphlet. I must say, after viewing the photographs, the risk of toppling was obvious.
31This State would have many small businesses whose operations are very risky. Even ignoring the principles stated in the authorities, general deterrence must be a very important factor. Persons in the position of Best Benchtop must look to the safety of their workplaces. They must look to the risks posed by their workplaces and take reasonable steps to reduce or eliminate the risks.
32It is a pity Best Benchtop was unaware of the WorkSafe pamphlet. It addressed what is an obvious and well-known risk. It explained the risk and the ways of mitigating it.
Denunciation
33Nevertheless, there is a need for my sentences to denounce Best Benchtop's conduct in relation to each charge.
Specific deterrence and protection of the community
34Specific deterrence and protection of the community from Best Benchtop play a less prominent role here, mainly because Best Benchtop no longer imports these slabs and has stopped trading. At least, at present, there is no opportunity to re-offend. Given the short period its existence, Best Benchtop’s previous good character is of limited importance.
35Corporations are legal fictions. They comprise natural persons. Here, the natural person was Mr Li, its sole director. It had no employees. To the extent a corporation can be remorseful, Best Benchtop is through Mr Li. Mr Liu was a friend of Mr Li. Following his death, Mr Li has made three payments totalling $100,000 to Mr Liu's family, $25,000 of which he borrowed from two friends. To the extent corporations have prospects of rehabilitation, these payments, along with the guilty pleas, indicate they are good.
Current sentencing practices
36My attention was drawn to three sentences of judges of this court. Only one, DPP v Andrew Buchanan Engineering Ltd[10], concerned an offence under s26(1). The other two concerned offences under s 21[11]. In the Andrew Buchanan case, one person was killed and another injured. There were two charges, one concerned the unsafe system of work and the other, the lack of supervision. Because the two workers were unsupervised, they devised a system of work which was unsafe.
[10] [2021] VCC 2162
[11] DPP v SJ & TA Structural Pty Ltd [2019] VCC 2016; DPP v Specialised Concrete Pumping Vic Pty LtdGuilty pleas
37As to the timing of Best Benchtop's pleas of guilty, they were made at the earliest reasonable opportunity.
38In almost every case, a plea of guilty deserves a mitigation of the sentence which would be otherwise imposed. At the very least, it avoids the need for a trial, which saves time and expense. It allows other trials to be heard earlier than would otherwise be the case. It avoids the need for witnesses to give evidence at a trial. There were 31 proposed witnesses in this case. Generally, giving evidence is an onerous task for witnesses and would be particularly so for Mr Liu's family.
39Due to the restrictions caused by the pandemic, the courts have struggled to deal with criminal cases efficiently. This has prompted the Court of Appeal in a case of Worboyes v R to explain that pleas of guilty are worthy of a greater discount of the sentence if made at this time:[12]
'As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it greater utilitarian benefit than at other times and in other circumstances, and concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.'
[12] [2021] VSCA 169 at [35].
40Best Benchtop's guilty pleas entitled it to a significant discount on the sentence I would otherwise impose if it had pleaded not guilty to the charges but had been found guilty after a trial.
Financial circumstances of Best Benchtop
41Section 52(1) of the Sentencing Act provides if a court decides to fine an offender it must in determining the amount and method of payment take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose.
42A copy of Best Benchtop’s taxation return for 2020-2021 shows a taxable net income of $10,968 and a surplus of assets over liabilities of $26,414. I do not agree with the submission there is no material supporting the submission of Best Benchtop's limited financial circumstances. There is the taxation return. I do not know whether a profit and loss statement and balance sheet has been prepared. I agree there is an obligation upon Best Benchtop to provide details about its position but I cannot say whether it has failed to do so[13]. Although not possessing a full balance sheet for Best Benchtop, I doubt it would show more by way of net assets. The corporation has existed since only 2019. Its' business was importing these slabs and this was the second shipment. There was little opportunity to amass assets.
[13] R v Cheshire (1994) 76 A Crim R 261 at 270.
43On the face of it, Best Benchtop has a very limited capacity to pay fines within a reasonable period. This raises the impact of s52(1) in the context of prosecutions under the Act. In examining this issue, I came across the case of R v Smith[14], which was instructive. I alerted the parties to the case and invited submissions. On short notice, the Director’s counsel provided a detailed submission.
[14] (1991) 25 NSWLR 1.
44Smith had been convicted of murder and sentenced to life imprisonment. Later, the prosecution called him as a witness in the prosecution of another person for murder. He refused to be sworn or give evidence. For his contempt of court he was fined $60,000 even though as a prisoner he earnt $12 per week.
45As a matter of law, a sentence of imprisonment cannot be made cumulative upon a sentence of life imprisonment. Smith appealed. By a majority, his appeal was dismissed. Kirby P dissented and would have sentenced him to 12 months' imprisonment, to be served concurrently with the life sentence. Mahoney JA said:
“The purpose of punishment is, in formal terms, to punish, to rehabilitate, to mark the public disapproval and to deter the offender and the others. Mr Smith is not in a position to be further punished or deterred by what is done. But it remains important that what is done to him should both mark, clearly and emphatically, the community's view of his offence and (if it may) deter other possible offenders.
The choice is between imprisonment and fine. The trial judge saw fine as appropriate and he was, in my opinion, right. A period of imprisonment for a person in gaol for life would, in my respectful opinion, be seen by the others as derisory”.
46To me, Smith's case represents an instance where an inability to pay a large fine within a reasonable time is no impediment to its imposition. In his case, it was imposed to mark the public's disapproval of his contempt and to deter him and others from behaving in a similar fashion. Given the emphasis on general deterrence and the gravity of the offence in sentencing for offences under the Act, I agree with the Director’s submission that s52(1) is a lesser consideration in this sentencing process[15]. The appropriate view is that expressed by Mahoney JA in the above passage. The fine should mark the community' s view of the offence and deter other possible offenders. As in Smith's case, deterring him was pointless because of the sentence he was serving. In this case, deterring Best Benchtop was of little importance because of its remorse and the actions taken of ceasing to trade.
[15] I do not consider the comment of Weinberg JA in Japar v R (2013) 44 VR 695 at [10] creates any principle of law.
47The Director's counsel drew my attention to s29 of the Fines Reform Act 2014 (Fines Act). In certain circumstances, the Director of Fines Victoria may make a director of a corporation a, 'declared director.' A declared director is jointly and severally liable for the payment of the registered fine unless he or she is ordered not to be one by the Magistrates’ Court. The grounds for such an order are set out in s30(4) of the Fines Act. If Mr Li was a declared director, he may well establish the ground in paragraph (b). In any event, I do not consider s29 relevant to the issue raised by s52 of the Sentencing Act.
48The fact that Mr Li is the sole breadwinner for his family and that he has a six year old disabled daughter is immaterial. The accused is Best Benchtop, not Mr Li. Even if Mr Li was the accused, then hardship to his family would be immaterial unless the circumstances were exceptional.
49As invited by its' counsel, I will treat the payment of $100,000 to Mr Liu’s family as being made on behalf of the corporation. I agree it ought not automatically be deducted from any fines I will impose. Best Benchtop has engaged lawyers to represent it in this proceeding. It has not sought to proceed to liquidation or create a situation where it is de-registered. Its' counsel submitted an aggregate fine of $200,000 was appropriate. These factors imply a capacity to pay a fine beyond that which its tax return suggests.
Totality
50The principle of totality plays an important role in this case. The charges arose out of the same incident. The distinction between the charges lies in the measures which could have been taken to reduce the risk of injury or death. Not unnaturally, the possibility of an aggregate sentence was raised. This is governed by s51 of the Sentencing Act.
51In all of the circumstances, I consider an aggregate fine of $325,000 is appropriate. It balances the degree of Best Benchtop's criminality, which is very high and the importance of general deterrence with the mitigating factors of the guilty pleas, the prospects of rehabilitation and the others factors.
Sentence
52On Charges 1 and 2, Best Benchtop is convicted and fined $325,000.
53I will refer the fines to Fines Victoria for collection.
Section 6AAA
54If Best Benchtop had not pleaded guilty to these charges but had been found guilty after a trial, I would have imposed an aggregate fine of $450,000.
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[2018] VCC 105
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