DPP v Frewstal Pty Ltd
[2015] VSCA 266
•24 September 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0131
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| FREWSTAL PTY LTD | Respondent |
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| JUDGES: | MAXWELL P, PRIEST and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 August 2015 |
| DATE OF JUDGMENT: | 24 September 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 266 |
| JUDGMENT APPEALED FROM: | DPP v Frewstal Pty Ltd (Unreported, County Court of Victoria, Judge Cannon, 1 June 2015) |
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CRIMINAL LAW – Appeal – Crown appeal against sentence – Occupational health and safety – Employer’s failure to ensure that persons other than employees are not exposed to risks to health and safety – Three charges – Failures with respect to the design of plant –Failures properly to maintain plant – Failures properly to instruct persons as to the use of plant – Failure causal of death of user of plant – Employer company fined an aggregate of $250,000 – Whether sentence manifestly inadequate – Residual discretion to dismiss Crown appeal despite inadequacy of sentence – Appeal dismissed – Occupational Health and Safety Act 2004 (Vic), s 23.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B F Kissane QC with Mr J Gullaci | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Respondent | Dr G J Lyon QC with Mr P J Hannebery | Moray & Agnew |
MAXWELL P:
Summary
The Occupational Health and Safety Act 2004 (‘OHSA’) imposes two principal safety duties on Victorian employers. The first is the employer’s duty to provide, so far as is reasonably practicable, a safe working environment for its employees.[1] The second is the employer’s duty to ensure, so far as is reasonably practicable, that ‘persons other than [its] employees’ are not exposed to safety risks as a result of the conduct of its undertaking.[2] In both cases, the employer is obliged to eliminate safety risks or, where that is not reasonably practicable, to mitigate the risks so far as practicable.[3]
[1]Occupational Health and Safety Act 2004 s 21.
[2]Ibid s 23.
[3]Ibid s 20.
The present case involves the second of these two duties. The respondent (‘Frewstal’) pleaded guilty to three separate breaches of its obligation under s 23 of the OHSA to ensure the safety of non-employees, in this case, delivery drivers engaged by a transport contractor.
Frewstal is the operator of a busy abattoir. In about 1991, it constructed and installed a ramp to enable the unloading of livestock from delivery trucks. On 14 September 2013, the ramp collapsed, killing a delivery driver.
The OHSA does not impose liability on employers for causing accidents. The legislative scheme is (with one exception) risk-based, not outcome-based.[4] Rather, the OHSA is breached when an employer fails to do what is reasonably practicable to eliminate or mitigate risk.
[4]Exceptionally, s 32 imposes liability for reckless conduct that ‘places … another person at a workplace in danger of serious injury’.
In this case, Frewstal failed, in three separate ways, to identify and eliminate a grave risk to safety. First, Frewstal failed to have the structural integrity of the ramp independently checked, either at the time of its construction or subsequently. As a result, a serious structural weakness in the ramp, which created the risk of collapse, was never detected. Secondly, as a result of heavy usage, that structural weakness produced a crack in the hoist lug, which heightened the risk of the ramp collapsing. Because Frewstal failed to have the structure independently inspected — which the applicable Australian Standard required be done annually[5] — the crack was never detected.
[5]Australian Standard AS2550.1-2011—Cranes, hoists and winches—Safe Use, s 7.
Thirdly, when the hoist lug failed, the collapse was not prevented — as it should have been — by the safety bar, which was not attached. Frewstal had never provided training or induction to delivery drivers regarding safety procedures, and as a result failed to eliminate the risk that a driver would be unaware of the need to attach the safety bar.
In each instance, the steps which Frewstal ought to have taken in order to eliminate the risk were straightforward and inexpensive. They were, on any view, ‘reasonably practicable’. So much was conceded on the plea.
Each of these separate breaches of s 23 carried a maximum penalty of $1.1 million. The seriousness of each breach had to be assessed separately and an appropriate penalty determined. As will appear, however, the sentencing judge was persuaded to impose an aggregate fine covering all three charges, in exercise of the power conferred by s 51(1) of the Sentencing Act 1991. The fine imposed was $250,000.
For reasons which follow, I consider that the penalty was manifestly inadequate. Each of the three breaches was a serious breach of the OHSA. Each constituted a failure to eliminate the grave risk which materialised on the day of the fatal accident. This was not an appropriate case for an aggregate penalty.
As explained in the joint judgment of Priest and Kaye JJA, however, the prosecutor failed to give the sentencing judge the assistance she needed to avoid appealable error. I respectfully agree with their Honours that, in the circumstances, the appeal must be dismissed in the exercise of the residual discretion.
Three separate breaches
The prosecution’s plea opening was clear and comprehensive. It spelt out fully the nature and significance of the three separate OHSA breaches, which I would characterise as follows:
·Charge 1: failure to design for safety;
·Charge 2: failure to inspect for safety; and
·Charge 3: failure to train for safety.
Charge 1: failure to design for safety
In the opinion of the prosecution expert, Wayne Baker, the hoist lug ‘predominantly failed due to poor design’. At no stage had Frewstal sought independent verification of the suitability of the design. Even when the ramp and the safety mechanism were replaced in April/May 2010, Frewstal failed to seek any professional oversight or expert opinion as to the suitability of the design.
The hoist lug failed to comply with the structural integrity requirements contained within the applicable Australian Standard. In Mr Baker’s opinion, the maximum rated capacity (strength) of the hoist lug was well short of that required to lift the ramp — even in an unladen state — for its design life.
As set out in the prosecution opening:
The Maximum Rated Capacity of the hoist lug was 72 kilograms (excluding the hoist mechanism and lifted plant). The recommended maximum weight of the load was 1500 kilograms. The maximum rated capacity according to [Frewstal] was 2 tonne (2000 kilograms).
As an employer, [Frewstal] failed as part of the conduct its undertaking (business or enterprise) to ensure that Ramp Number One was safe and without risks to health to persons other than its employees by failing to comply with the structural integrity requirements contained in section 4.5 of the Standard: section 23(1) of the Act.
In all the circumstances, it was reasonably practicable to control or eliminate the risk by complying with the structural integrity requirements so that the hoist lug was able to take the weight of the ramp, the operator and any livestock being unloaded for its design life.
The failure to have any independent testing done meant that the risk of catastrophic failure was unknown. It was that risk which materialised on the day of the fatal accident. As defence counsel conceded on the plea, structural failure was inevitable. Plainly enough, this was a very serious breach of the OHSA.
Charge 2: failure to inspect for safety
As Mr Baker explained in his report, Australian Standard AS2550.1-2011 outlines a maintenance and inspection regime for hoists which was relevant to the structural integrity of the failed component. Mr Baker said:
Australian Standard AS2550.1-2011 Section 7 specifically requires an annual structural inspection using crack detection methods that would have detected the crack prior to failure. It is possible that an inspection using non-destructive testing (NDT) to look for evidence of cracking would have detected the presence of a crack within one year of the final failure.
The site maintenance manager has stated that no records of a ‘major inspection’ as defined and outlined in Section 7 of the Standard exist to his knowledge, nor an equivalently rigorous inspection. It is a specific requirement of a major inspection that records be kept.
Oversight of the component by a suitably qualified and experienced engineer could have determined either the presence of the crack prior to failure, or observed the poor design which created a stress concentration in the hoist lug.
This oversight should have been sought when the hoist lug was moved in April or May of 2010, as this consisted of a structural design change.[6]
[6]Emphasis added.
Axiomatically, an employer is obliged to ensure, so far as reasonably practicable, the safety and suitability of plant and equipment used in its undertaking. This is a fundamental aspect of ensuring a safe working environment, both for employees and for non-employees. At a minimum, the discharge of this obligation requires the employer to inform itself of the applicable safety standards and to ensure that everything reasonably practicable is done to comply with them.
In this case, importantly, Frewstal had had its attention specifically drawn to the inspection requirements, as a result of enforcement action by a WorkSafe inspector in March 2009. After inspecting the workplace, the inspector issued an improvement notice under s 111 of the OHSA. In the notice, the inspector stated her belief that Frewstal was in contravention of ss 21(1) and 21(2)(b) of the OHSA. The contravention was said to be the result of non-compliance with Regulation 3.5.30(a) of the Occupational Health and Safety Regulations 2007 (‘OHS Regulations’).
The inspector stated the basis for her belief in these terms:
I observed — on 17/3/09 — lifting equipment, being hoists, slings lifting chains and blocks with endless chains, in use in the Maintenance Workshop. [the Maintenance Manager] was unable to provide evidence that the lifting equipment is inspected and/or tested at the appropriate intervals recommended by the manufacture and as specified in the relevant Australian Standard. He stated that there was no system in place to inspect lifting equipment. Failure to inspect and/or test lifting equipment as required by the manufacturer or relevant Australian Standard may lead to the use of damaged or faulty equipment. This could result in a failure of the equipment when under load, placing persons in the vicinity at risk of injury or death from falling loads.
Failure to ensure that the lifting equipment is inspected to the extent necessary to monitor the risk associated with its use, as required by regulation 3.5.30 of the Occupational Health and Safety Regulations 2007, is a contravention of s 21(1) and 21(2)(a) of the Occupational Health and Safety Act 2004.
[Frewstal] must ensure that the lifting equipment, identified above, is inspected and tested at intervals sufficient to monitor the risk of injury to persons from failure of the equipment.
Compliance may be achieved by, but is not limited to, creating a register of the lifting equipment, and scheduling and conducting inspections/testing at the intervals recommended by the manufacturer or as specified in the relevant Australian Standard. Lifting equipment identified, during inspection/testing, as damaged or defective should be removed from service and not returned until it is certified as safe.
Inspections, testing, repair work and certification must be conducted by suitably qualified and competent persons. Records of inspections/testing should be created and retained.
Further guidance can be found in Australian Standard 4991-2004 Lifting Devices, and WorkSafe publications; ‘Inspection & Disposal Bridge & Gantry Cranes and Lifting Accessories’ and ‘A handbook for workplaces Working safety with bridge & gantry cranes’.[7]
[7]Emphasis added.
As was pointed out on the plea, the improvement notice did not relate to the unloading ramp but to equipment in the maintenance workshop. The unloading ramps were not inspected. The crucial point, however, is that Frewstal was put on notice, in the most explicit terms, that it was a contravention of its safety obligations under the OHSA to fail to ensure that lifting equipment was ‘inspected and/or tested at the appropriate intervals recommended by the manufacturer and as specified in the relevant Australian Standard’.
At the same time, as appears from the notice itself, the inspector gave Frewstal a WorkSafe handbook entitled ‘Working safely with bridge & gantry cranes’. This document included information as to when major inspections were to be conducted and made clear that they had to be carried out by competent persons.
Remarkably, despite this enforcement action having highlighted the need for independent inspections, Frewstal did not subsequently have the ramp inspected by a competent person. The failure to arrange an inspection persisted until the time of the fatal accident, 4½ years later, despite there having been a number of opportunities for this to occur, namely:
(a) in December 2009, when it was decided to replace the ramp and the safety mechanism due to wear;
(b) in April/May 2010, when the new parts were fitted and the hoist lug relocated; and
(c) in December 2012, when the chain hoist on the ramp was replaced.
As the prosecution opening stated
If these inspections had have been conducted (ie there was oversight of the component by a suitably qualified and experienced engineer) the following would have been discovered prior to failure:
(a) The fatigue cracks;
(b)The design flaw relating to the stress concentration and Maximum Rated Capacity; and
(c) The need to address the corrosion on the lug.
In addition, WorkSafe had issued the following Alerts to employers:
(d) ‘Crane Inspection Records’, dated August 2010, which reminded crane owners that they ‘are required by law to undertake a preventative maintenance program, which includes regular major inspections of their crane (Refer to AS2550) to prevent breakdowns and failures before they occur’; and
(e) ‘Personnel and material hoists’, dated July 2011, which stated that ‘there have been a number of recent near-miss incidents where components have failed or fallen from hoists. Each incident had the potential to cause death or serious injury’.
Moreover, Frewstal’s maintenance program failed to protect the hoist lug against corrosion. There was no evidence of the lug being inspected for corrosion, nor of corrosion being removed and the component being repainted. The applicable Standard required steel work to be given ‘adequate protection against corrosion’.
The prosecution opening summarised the allegations under charge 2 in these terms:
As an employer, [Frewstal] failed as part of the conduct its undertaking (business or enterprise) to ensure that Ramp Number One was safe and without risks to health to persons other than its employees by failing to:
(a)Conduct periodic third party and major inspections of the hoist lug (including failing to conduct non-destructive testing of nominated critical areas of the hoist lug) on at least an annual basis as set out in sections 7.3.4 and 7.3.5 of the Standard; and
(b)Detect corrosion, remove corrosion and protect against corrosion of the hoist lug during its design life in accordance with s 3.3.7 of the Standard: s 23(1) of the Act.
In all the circumstances, it was reasonably practicable to control or eliminate the risk by:
(a)Conducting periodic third party and major inspections of the hoist lug (including conducting non-destructive testing of nominated critical areas of the hoist lug) on at least an annual basis; and
(b)Adequately detecting corrosion, removing corrosion and protecting against corrosion of the joist lug during its design life.
Plainly enough, the course of conduct on which this charge rested was separate and distinct from the conduct giving rise to the design charge. The minimum required for workplace safety was an annual inspection of the structural integrity of the ramp. Yet, on the undisputed evidence, Frewstal did not once have an independent inspection for this purpose. Its culpability was high, in my opinion, given the specific notice given to it in March 2009 of its obligation to ensure regular inspections and maintenance. The prosecutor’s submission to that effect was plainly correct.
The consequence of this persistent failure to inspect was that the risk of collapse continued to exist. On the evidence, had a competent independent inspection been undertaken at any stage, the accident would in all probability have been avoided.
Charge 3: failure to train for safety
Frewstal had no systems at all for the training, direction or induction of delivery drivers as to the use of the ramps and hoist. It was simply assumed that the drivers knew what to do because ramps operated at other sites.
The ramp structure included ‘a non-automated ratchet system’. This included a safety bar, which had to be engaged manually. When engaged, the bar would operate to prevent the ramp from collapsing. It also took some of the load off the electric chain hoist mechanism.
Self-evidently, the safety bar was the key safety feature built into the ramp structure. Even the most basic safety training or induction for delivery drivers would have highlighted the critical importance of engaging the safety bar. The failure to ensure that drivers were appropriately trained meant that the risk of a driver being unaware of the need to engage, and hence failing to engage, the safety bar persisted at the date of the fatal accident.
Ensuring adequate training and instruction is a foundational safety obligation of employers. Section 21(2)(e) of the OHSA provides that it is a breach of the employer’s safety duty if it fails to provide:
such information, instruction [or] training … to [its] employees as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.
Any proper assessment of risk in a workplace must, therefore, involve a consideration of what training is required to ensure the safety of all of those — employees and others — who are to perform work in the workplace. Self-evidently, it is critically important for an employer to ensure that non-employees — who may not be as familiar with the workplace as employees — are as thoroughly inducted into safety procedures as employees, and are made aware of all areas of potential risk within the workplace. For Frewstal to have had no system of training or induction for delivery drivers is indicative, in my view, of a failure to take its safety duties seriously.
In this case, the engagement of the safety bar was crucial to the elimination of the risk of collapse of the ramp. Once again, this breach involved a quite separate course of conduct from those constituting the other two charges. The persistent failure to ensure proper training was quite separate from the failure to ensure regular inspections of the ramp, and separate again from the failure to ensure that the ramp was properly designed.
Aggregate fine not appropriate
As noted earlier, defence counsel on the plea submitted that this was a proper case for the imposition of an aggregate penalty, pursuant to s 51 of the Sentencing Act 1991. Surprisingly, the prosecutor did not demur. In my opinion, it was incumbent on the prosecutor to emphasise the separateness of the breaches, as senior counsel for the Director did on the appeal. As explained below, the nature of the case meant that an aggregate fine was not appropriate.
Section 51 of the Sentencing Act 1991 relevantly provides as follows
(1)If a person is found guilty of 2 or more offences which are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character, the court may impose one fine in respect of those offences that does not exceed the sum of the maximum fines that could be imposed in respect of each of those offences.
(1A)Despite subsection (1), a court must not impose one fine in respect of 2 or more offences if at least one of them is a baseline offence.
(2) If a court imposes an aggregate fine in respect of 2 or more offences, the court—
(a)is not required to identify separate events giving rise to specific charges; and
(b) is not required to announce —
(i)the sentences that would have been imposed for each offence had separate sentences been imposed; or
(ii)whether those sentences would have been imposed concurrently or cumulatively.
(3)For the avoidance of doubt, an aggregate fine may be imposed in respect of convictions for offences that are the subject of a rolled-up charge or a representative charge.
As can be seen, the power to impose an aggregate fine on a person found guilty of two or more offences is enlivened in two — and only two — circumstances. The first is where the offences for which sentence is to be imposed are ‘founded on the same facts’. The second is where the offences form, or are a part of, a series of offences ‘of the same or a similar character’.
The defence submission on the plea was that
… [C]learly all three charges relate to the same hazard in the workplace. They are all occurring on the same day and they are, to some extent interlocking and overlapping. This indictment could conceivably have had all those charges wrapped up in one charge with just simply an array of different particulars. The fact that it’s not doesn’t necessarily add to the overall criminality of it albeit it does add to the potential maximum penalty.
… Your Honour’s looking at the entirety of the culpability here. These are all things that are directed to the same hazard. The failure to identify that hazard, the failure to inspect and maintain, the design flaw and instruction in relation to dealing with the secondary ratchet system, they all deal with the same matter.
This was, with respect, a mischaracterisation of the charges. They did not ‘all occur on the same day’, and they did not ‘all deal with the same matter’. Each breach of the OHSA was founded on its own — distinct — facts. As already noted, there were three distinct failures by Frewstal, each continuing over many years. The subject-matter of each breach — design, inspection and training — was a distinct course of conduct.
What gave the defence submission a superficial plausibility was that it was a single event — the collapse of the ramp — which exposed Frewstal’s breaches. And the indictment itself wrongly specified for each of the three charges that the date of the collapse was the date of the breach of the OHSA.
As pointed out earlier, however, the causing of the death was not an element of any of the offences which Frewstal committed. These were risk-based offences. It was Frewstal’s continuing failure to fulfil its safety duty — in three distinct respects — which meant that the risk of collapse was not eliminated.
On this analysis, the offences were not ‘founded on the same facts’, within the meaning of s 51(1). As the joint judgment points out, that is doubtless why the three breaches were not charged as a single offence under s 33(2) of the OHSA. Accepting, however, that they were properly to be characterised as ‘a series of offences of … a similar character’, there was in my opinion no occasion to consider an aggregate penalty. Each of the offences had to be considered separately and an appropriate penalty imposed. As already pointed out, the course of conduct supporting each charge was quite different from the course of conduct supporting each of the other charges.
The rationale behind aggregate sentences was explained by the Attorney-General in the Second Reading Speech to the Courts Legislation (Jurisdiction) Bill 2006, as follows:
The bill provides the Supreme and County courts with the option of imposing an aggregate sentence, a power that is currently confined to the Magistrates Court. An aggregate sentence is a sentence that applies to more than one offence. In some cases, such as where a defendant has been convicted of multiple, related offences, an aggregate sentence can be a more flexible and pragmatic option than imposing an individual sentence for each offence. It enables the court to impose a sentence reflecting all of the offender's conduct.
In some cases, this will enable the court to more clearly explain to the community the total sentence that it is imposing on an offender. It is therefore appropriate to give the Supreme and County courts the option of imposing an aggregate sentence …[8]
[8]Victoria, Parliamentary Debates, Legislative Assembly, 7 June 2006, 1775 (Rob Hulls, Attorney-General) (emphasis added).
The kind of case for which an aggregate sentence is appropriate is one where the number, similarity and proximity in time of the offences is such that it would be an artificial exercise to impose individual sentences and then, by means of modest orders for cumulation, to arrive at a total effective sentence proportionate to the total criminality. The archetypical example is the case of multiple offences of burglary and theft, committed over a relatively short period, where an aggregate sentence is a ‘more flexible and pragmatic’ way of ‘reflecting all of the offender’s conduct’.
As Legoe J in R v Nixon[9] explained in respect of the South Australian equivalent, the power to order an aggregate sentence must be exercised consistently with existing sentencing law and principles:
The section creates a statutory discretion whereby courts are provided with another alternative in formulating a multiple sentencing package. It is a discretion which is unfettered. At the same time, it is not a substitution for nor does it replace, the existing law and practice relating to the structure of multiple sentences, whether they be concurrent or cumulative, for the purpose of arriving at a total sentence. In my opinion it is a very useful power which should be used where the circumstances for using the section do not conflict with other well-established principles of sentencing practice. It seems to me that the section is one that can be used by a Court of Criminal Appeal where the multiple sentences are properly concurrent in accordance with the above principles.
[9](1993) 66 A Crim R 83, 85–6.
That explanation of principle was adopted by this Court in DPP v Felton.[10]
[10](2007) 16 VR 214, [44].
Comparable cases
As is noted in the judgment of Priest and Kaye JJA, the prosecutor gave the sentencing judge a table showing the disposition of charges under the OHSA in cases where there had been a fatality. I respectfully agree with their Honours that the table was of little or no worth, and should not have been provided to the judge. On the appeal, senior counsel for the Director properly conceded that this was so.
The fundamental defect of the table was that it treated the result of the particular OHSA breach(es) — fatality — as the unifying feature. As Priest and Kaye JJA have explained the fact that a death occurs as a result of a safety breach provides little guidance as to the seriousness of the breach. And it is the seriousness of the breach, not the causing of a death, which is the relevant point of comparison between cases.
As counsel for both parties accepted on the appeal, a very serious breach of the OHSA, 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 OHSA, not the gravity of the consequence.
Secondly, and just as importantly, the table gave the sentencing judge no information at all from which she could have discerned whether a particular case was, or was not, relevantly comparable to the case before her. It is well-established that comparable cases can assist a sentencing judge in determining the applicable sentencing range for the case at hand.[11] But if information of this kind is to be of assistance to a judge, it must be confined to cases which are properly described as relevant comparators (whether because they are materially the same or because they are instructively different), and sufficient information must be provided to enable the judge to make meaningful comparisons.
[11]Hudson v The Queen (2010) 30 VR 610, 617 [28].
In response to a request from this Court, senior counsel for the Director filed a supplementary submission, identifying four sentencing decisions which were said to be comparable cases for present purposes. The following summary is based on the supplementary submission, which helpfully identified the key features in each of the cases.
DPP v Melbourne Water Corporation[12]
[12]Unreported, County Court of Victoria, Judge O’Neill, 27 February 2014.
The defendant company pleaded guilty to one charge of failing to provide a safe working environment, in breach of s 21(1) of the OHSA. The company ran a sewerage treatment plant where a number of employees worked. There were numerous concrete walkways constructed over channels where sewerage was treated. In certain sections of the walkway, slatted steel grates were used, embedded in grooves, to allow access to the channel. In other sections, checker-plates were used, which were secured to the walkway using bolts.
On a number of occasions between 2008 and 2011 (when the fatal accident occurred), the company received reports of slatted grates being dislodged or missing. The company was aware of the risk that an employee might fall through a dislodged or missing grate into the channel. On 1 December 2011, an employee’s body was discovered in the channel, along with a slatted grate. The company acknowledged on the plea that there was a link between the dislodged grate and the fatal fall.
The company had no prior convictions. The offending was described as being ‘in at least the middle range’. The judge imposed a fine of $400,000 on the single charge.
DPP v City Circle Recycling Pty Ltd[13]
[13]Unreported, County Court of Victoria, Judge Dean, 9 April 2015.
The defendant company pleaded guilty to one charge of failing to provide a safe working environment and one charge of failing to provide instruction and supervision to enable employees to work safely. In the Magistrates’ Court, an aggregate fine of $225,000 was imposed. The Director appealed to the County Court.
The company operated a recycling facility. An employee was killed when a front-end loader reversed over him. The deceased was working as a load inspector on the tipping area, which required him to inspect incoming loads.
The company knew that the deceased moved around the tipping area on foot, without a radio to communicate with the drivers of vehicles at the location. He should not have been allowed to do this and should have been trained to do his job in a safe manner.
The judge found that the breaches of the OHSA were serious. There was no finding as to whether the breaches caused the employee’s death. The company had no prior convictions. It was held that there was a ‘degree of overlap’ between the two charges, which resulted in a significant moderation of the fine imposed on charge 2. The fine on the first charge was $300,000 and on the second charge, $125,000, producing a total fine of $425,000.
DPP v Resource Recovery Victoria Limited[14]
[14]Unreported, County Court of Victoria, Judge Hampel, 23 April 2015.
The defendant company operated a recycling depot. Trucks drove through the yard and dumped material on the floor of a large open air shed. The material was manually sorted and then moved by front-end loaders to the back of the shed. The sorted material was then transferred into either a semi-trailer or a hopper.
A front-end loader exiting the shed collided with a sweeper being driven near the entrance to the shed. The driver of the sweeper was hit by the bucket of the front-end loader and killed.
The company had provided no training or instruction for employees in relation to operating vehicles and moving plant. There was no traffic management plan. There had been a series of near-miss incidents prior to this death.
The company pleaded guilty to two breaches of s 21. The first charge was a failure to provide a safe working environment; the second was a failure to provide adequate information, instruction and training. Once again, the defendant had no prior convictions.
The judge regarded the breaches as ‘systemic failures’ and imposed an aggregate fine of $450,000.
DPP v Elliott Engineering Pty Ltd[15]
[15]Unreported, County Court of Victoria, Judge Murphy, 27 February 2014.
The company was found guilty, after a trial, of two breaches of s 21(1). The company received containers of heavy steel components for a particular job. In the course of the unloading of one container, a component fell on a worker and killed him. The breaches of which the company was convicted were:
·Failure to provide information, instruction and training regarding how to unpack the container safely. There was a failure to provide sufficient information and instruction about the hazards of walking into the container when steel components were still inside, once the unloading had commenced. There was also insufficient training in safe methods and procedures to undertake the work;
·Failure to have adequate supervision whilst the unpacking occurred, to ensure that the work was carried out in a safe manner.
In the view of the judge, the offending was of ‘mid-range seriousness’, because dealing with heavy metal was ‘intrinsically dangerous’. Oral instructions had been given, but no written instructions, and this created a higher risk of non-compliance. Unpacking the containers was high-risk work, his Honour held, and thus required constant supervision.
The company had a prior conviction arising out of defective fork-lift operations. The judge imposed an aggregate fine of $400,000. (I note in passing that there was a greater degree of factual overlap between the breaches than in the present case).
Conclusion
This was, in my opinion, precisely the kind of information which the sentencing judge should have been given. It would have given her Honour, as it has given this Court, important guidance with respect to current sentencing practice and it would have given her Honour a ‘yardstick against which to examine a proposed sentence’.[16]
[16]Hili v The Queen (2010) 242 CLR 520, 537 [54].
Critically, this information would have obliged the prosecutor to challenge the defence submission that the ‘upper range’ of penalties was ‘around the $400,000 mark’. (For reasons already given, to speak of a range of sentences for ‘death cases’ reflects a fundamental misapprehension about the nature of OHSA offences). As Priest and Kaye JJA have pointed out, however, the prosecutor did not take issue with that submission, and her Honour doubtless took it into account.
In my opinion, the breaches to which Frewstal pleaded guilty were at least as serious as those for which sentence was imposed in the first three cases. And, as I have emphasised, Frewstal was guilty of three separate breaches, each of them serious. By contrast, in the case of Melbourne Water Corporation, a fine of $400,000 was imposed on a single charge of failing to provide a safe working environment.
In the case of City Circle Recycling, the fines imposed totalled $425,000, in circumstances where the degree of overlap between the charges meant that there had been ‘significant moderation’ of the fine imposed on charge 2. In the present case, for the reasons I have given, there was no overlap between the charges. The failures were quite separate from each other. The only limiting consideration was one of totality.
Had information of this quality and utility been provided to the sentencing judge, it is very likely that the result would have been different. These cases make clear, in my opinion, that a total fine of only $250,000 for these three serious breaches fell outside the range reasonably open in the circumstances of the case.
Residual discretion
It has long been accepted that, on a Crown appeal, an appellate court may decline to intervene to correct an error if the prosecutor on the plea failed to do what was reasonably required to assist the sentencing judge to avoid the error.[17] Recently, in CMB v The Attorney General for New South Wales,[18] the High Court reinforced this proposition in strong terms.
[17]R v MacNeil-Brown (2008) 20 VR 677, 684 [20]; see DPP v Holder (2014) 41 VR 467, 474–5.
[18][2015] HCA 9.
French CJ and Gageler J said:
The Crown (by whomever it is represented) has a duty to assist a sentencing court to avoid appealable error. That duty would be hollow were it not to remain rare that an ‘appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error.[19]
Kiefel, Bell and Keane JJ said:
The determination of the appropriate sentence is one that rests solely with the court. The public interest in the sentencing of offenders does not permit the parties to bind the court by their agreement. Nonetheless, the prosecutor is under a duty to assist the court to avoid appealable error. Where the sentencing judge indicates the form of proposed sentencing order and the prosecutor considers that such a penalty would be manifestly inadequate, the prosecutor discharges his or her duty to the court by so submitting. The failure to do so is a material consideration in the exercise by the Court of Criminal Appeal of the residual discretion.[20]
[19]Ibid [38].
[20]Ibid [64].
I respectfully agree with Priest and Kaye JJA that the imposition of what I
regard as an inadequate sentence is to be explained by the shortcomings in the presentation of the prosecution case on the plea, as identified in the joint reasons. It follows that the appeal must be dismissed in the exercise of the residual discretion.
PRIEST JA
KAYE JA:
Introduction
Frewstal Pty Ltd (‘Frewstal’) operates an abattoir in Stawell.
Whilst he was engaged in unloading livestock from a truck at the abattoir on 14 September 2013, Chad Lynch suffered serious injuries from which he died. The direct cause of Mr Lynch’s injuries was the catastrophic failure of a piece of Frewstal’s plant.
An investigation by WorkSafe detected several breaches of the duties Frewstal owed under s 23 of the Occupational Health and Safety Act 2004 (‘OHSA’)[21] to persons other than its employees. In essence, the breaches included failures with respect to the design of the relevant plant; failures to properly maintain the plant; and failures to properly instruct persons as to the use of the plant.
[21]Section 23 provides:
Duties of employers to other persons
(1) An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.
Penalty:1800 penalty units for a natural person;
9000 penalty units for a body corporate.
(2) An offence against subsection (1) is an indictable offence.
On 15 May 2015, Frewstal pleaded guilty in the County Court to three charges laid under s 23 of the OHSA.[22] Following a plea, on 1 June 2015 the judge imposed
an aggregate fine[23] of $250,000.
[22]The maximum penalty of 9000 penalty units equated to a maximum fine on each charge of $1,299,240, since a penalty unit was $144.36.
[23]See Sentencing Act 1991, s 51.
By Notice of Appeal dated 29 June 2015, the Director of Public Prosecutions appeals against the sentence imposed.
There is a single ground of appeal which claims that the aggregate fine imposed on the three charges is manifestly inadequate. The ground is accompanied by ‘particulars’, only two of which require distinct mention. They assert that the judge —
(g)failed to have sufficient regard to the aggravating features of the offending and in particular:
– that the Respondent was provided with a Worksafe handbook titled ‘Working Safely with Bridge and Gantry Cranes’ which included information as to when inspections and third-party inspections were to be conducted;
– the Respondent failed to have an inspection or third-party inspection carried out on Ramp No. 1, despite there being a number of opportunities for this to occur;
(h)failed to have sufficient regard to the fact that the breaches of the [OHSA] caused head injuries to Mr Chad Lynch (the deceased) that ultimately resulted in his death.
For the reasons that follow, we would dismiss the appeal.
Overview
Chad Lynch and his wife, Greta Boyd, carried on the business ‘Lynch Livestock Carriers’. O’Sullivan Transport, which is also involved in livestock transport, subcontracted to Lynch Livestock Carriers the delivery of 730 lambs to Frewstal’s abattoir. Mr Lynch had previously delivered livestock to the abattoir several times.
There were two ramps at the abattoir. They could each be raised and lowered to permit livestock to be unloaded from different levels of multi-level livestock trucks and be placed in holding pens. Ramp Number One was an unloading ramp which possessed a non-automated ratchet system whereby a safety bar sat under the ramp to act as a secondary safety mechanism whilst it was in use.
Ramp Number One had the following features:
· First, a large metal frame (or ‘mainframe’), approximately six metres in height, which acted as a guide for the ramp.
· Secondly, there was a metal ramp or gangway, which allowed livestock to be transferred from truck-trailers to the abattoir’s holding pens. The gangway was about nine metres in length, and led from the unloading (or trailer) end down to an area from which livestock was discharged into holding pens.
· Thirdly, at the trailer end of the gangway was a smaller ‘A’ frame connecting the gangway to an electric chain lifting hoist. This hoist enabled the height of the gangway to be adjusted to the various levels of the livestock truck-trailers.
· Fourthly, on either side of the ‘A’ frame was a non-automated ratchet system, where a safety bar sat underneath the gangway. This ratchet system served as a ‘secondary safety system’. It also took some of the load off the mechanism of the electric chain hoist.
· Fifthly, the electric chain hoist was connected by a hook to a ‘hoist lug’ (otherwise described as a ‘metal fabricated bar’, ‘eyebolt’ or ‘metal lug’), which was welded to the mainframe.
· Sixthly, a pendulum controller was used to operate the hoist. The controller was connected to the gangway by a long lead, permitting an operator to stand on the ramp as it was raised and lowered.
At about 2:40pm in the afternoon of 14 September 2013, Mr Lynch suffered serious head injuries when Ramp Number One suddenly collapsed. When found, Mr Lynch was on the ramp while the ramp was at its lowest point on the ground. He was taken to Stawell Hospital and thence airlifted to the Alfred Hospital, where he died some weeks later. Significantly, the secondary ratchet safety system was not in use at the time that the ramp collapsed.
It is clear that Ramp Number One collapsed because the hoist lug failed. Among other things, in the course of the WorkSafe investigation, a mechanical engineer, Wayne Baker, concluded that ‘the hoist lug failed catastrophically (suddenly) as a result of having been significantly weakened by fatigue crack growth and a previous partial failure’. Mr Baker found that ‘the two sides of the [hoist] lug failed almost simultaneously’. At the time of the hoist lug’s failure, the secondary ratchet safety system was not taking any load because it was not in use.
Charge 1 — Unsuitable design of the hoist lug
As we have mentioned, the ramp collapsed because the hoist lug failed. The mechanical engineer engaged by WorkSafe, Wayne Baker, concluded that the hoist lug failed primarily due to poor design.
Ramp Number One had been built in 1991. In 2009, Frewstal decided to replace the ramp and safety mechanism due to wear. As a result, new parts were installed in April or May 2010. The mainframe was not altered, save for the fitting of the safety mechanism to each side of it. Further, for reasons of balance, it was deemed necessary to move the hoist lug approximately 300 millimetres towards the walkway side of the ramp. Significantly, however, there was no professional oversight of, or expert opinion sought as to, the suitability of the design of the hoist lug for its intended purpose when this installation of new parts, and movement of the hoist lug, took place.
As it happened, the design of the hoist lug meant that it was not able to perform the requisite task for the design life of the component. Frewstal did not have regard to the appropriate Australian Standard, AS1418.1-2002, Cranes, Hoists and Winches — General Requirements. The hoist lug failed to comply with the structural integrity requirements contained within that Standard because the ‘Maximum Rated Capacity’ (or strength) of the hoist lug was significantly less than that required to lift the ramp — even in an unladen state — for its design life.
Charge 2 — Failure to provide for adequate inspection of plant
Frewstal conducted daily (and two-monthly) inspections of the ramps and hoists. There were, however, no major inspections or third-party inspections conducted on the hoist system or the hoist lug by competent persons.
An Improvement Notice under s 111 of the OHSA was issued to Frewstal in March 2009. It related to a failure to provide evidence of a system of work concerning inspection and testing of lifting equipment. WorkSafe later provided Frewstal with a WorkSafe publication, Working Safely with Bridges and Gantry Cranes. This publication indicated when major inspections and third-party inspections should be carried out, and made plain that such inspections must be completed by competent persons. Despite having been provided with the publication, Frewstal did not follow the recommended procedures for inspections.
It seems clear that had Frewstal arranged inspection by a competent person under the Australian Standard AS2550.1-2011, Cranes, Hoists and Winches — Safe Use — General Requirements, the fatigue cracks, the design flaws in relation to the Maximum Rated Capacity, and the need to address the corrosion on the hoist lug, would have been discovered prior to the hoist lug’s failure.
It is also significant that in August 2010 and July 2011, WorkSafe issued ‘alerts’, Crane Inspection Records and Personnel and Material Hoists. Those alerts sought to bring preventative maintenance and ‘near-miss issues’ to the attention of employers.
Frewstal’s maintenance program of the hoist lug failed adequately to protect against corrosion. It paid no regard to Australian Standard AS3990-1993, Cranes, Hoists and Winches — Safe Use — General Requirements, which requires steel work to be given adequate treatment against corrosion.
Charge 3 — Failure to provide adequate instruction to drivers
Frewstal failed to implement systems to train, direct or induct livestock delivery drivers as to the use of the ramp and hoist, it being assumed that drivers knew what to do, since similar ramps were in use at other sites.
O’Sullivan Transport, who, as we have said, subcontracted the delivery of livestock to Lynch Livestock Carriers, received no documentation from Frewstal with respect to attendance at the abattoir or the operation of any plant or equipment onsite.
Prior to the collapse of Ramp Number One, Scott Rayer, who was employed by Lynch Livestock Carriers, had also delivered livestock to the abattoir. Although Mr Lynch had instructed Mr Rayer what to do when he attended the abattoir, this instruction related solely to the use of Ramp Number One (which was more suited to their trailer set up). Mr Rayer received no further instruction from Frewstal as to how to unload stock at the abattoir. By contrast, when he had delivered livestock to another abattoir, Mr Rayer had been inducted on the use of their unloading ramps.
Other of O’Sullivan Transport’s drivers variously stated that, either they had been told by other drivers what to do, or simply not received any training or induction, so far as unloading livestock at Frewstal’s abattoir was concerned using the unloading ramps.
Frewstal failed adequately to train delivery drivers in the use of its unloading ramps. In particular, it failed adequately to instruct drivers that safe use of Ramp Number One required engagement of the secondary safety ratchet system before stepping onto the ramp and unloading livestock.
The Director’s submissions
The Director submitted that it was not reasonably open to the sentencing judge to have arrived at the sentence that she imposed had proper weight been given to the circumstances of the offence and the offender.
Counsel for the Director submitted that there were ‘three distinct breaches’ of s 23 of the OHSA — failure with respect to design, inspection and maintenance, and instruction — ‘albeit with some overlap between the respective offences’. It was argued that, in fixing an aggregate fine for the three breaches, the judge must have paid insufficient regard to the maximum penalty available on each charge. Although counsel conceded that the prosecution had ‘acquiesced’ in the imposition of an aggregate fine, nonetheless each of the offences was a serious example of an offence under s 23.
Frewstal’s culpability and degree of responsibility for the offending was, it was submitted, ‘significant’. Counsel pointed to the deficiencies in the design of the hoist lug, the failure to conduct adequate inspections and the failure to properly instruct delivery drivers not to step onto the ramp unless the secondary safety ratchet system was engaged. Given the obvious risks associated with falls from heights, the three breaches of the OHSA must be viewed as serious examples of a breach of s 23. Although the sentencing judge concluded that ‘this was an accident waiting to happen’, that conclusion is not reflected in the quantum of the fine imposed. Counsel submitted that the fine imposed did not meet the needs of general deterrence, and neither sufficiently denounced nor punished Frewstal.
Counsel for the Director also placed a deal of reliance on aggravating features spelled out in the particulars accompanying the ground of appeal.[24] Between March 2009 — when Frewstal were provided with the publication Working Safely with Bridge and Gantry Cranes following a WorkSafe inspection — no major or third party inspections by competent persons were carried out in relation to Ramp Number One. Insufficient weight must have been afforded to this feature of aggravation.
[24]At [79] above.
Finally, counsel for the Director submitted that Frewstal’s breaches were causative of death. In fixing penalty, the judge was required to consider the foreseeable potential consequences of the breaches when assessing the objective seriousness of the offences. It was submitted that the potential risk caused by the breaches — which materialised — was that someone would be killed or seriously injured. The aggregate fine imposed does not reflect adequately reflect the aggravating features of Frewstal’s conduct.
Frewstal’s submissions
On the plea, counsel for Frewstal submitted that the three charges differed in seriousness or gravity. Additionally, the three charges related to the ‘same single hazard in the workplace on the same day’. Frewstal’s counsel submitted to the sentencing judge that it was ‘appropriate in this case to have regard for both this and the overlapping nature of the charges in assessing the totality of the offending’. The prosecution did not seek to contradict these submissions.
In this Court, senior counsel for Frewstal submitted that ‘the penalty is low but defendable’. Further, counsel submitted that the penalty imposed by the judge ‘sits comfortably within the middle range’ of sentences in other cases drawn to the judge’s attention during the plea. The prosecution had provided the judge with a table showing fines that had been imposed in other ‘fatality’ cases (without, it must be said, making any attempt to explicate the factual bases of the cases). Although the prosecutor had put Frewstal’s culpability as ‘mid to high level’, he had not cavilled with the submission of Frewstal’s counsel that an examination of generally comparative sentences in the prosecution’s table had ‘an upper range coming in around the $400,000 mark’. Thus, in effect, the prosecution had accepted the analysis of previous penalties proffered by the defence.
Counsel took issue with the Director’s submission characterising the hazard as an obvious risk of ‘fall from heights’. It was pointed out that, on the plea, counsel had distinguished the present from those cases where there was a risk of ‘fall from height’, and the prosecution took no issue to that submission.
In the course of the plea, counsel submitted that ‘there is substantial divergence between the gravity of the three offences’. He characterised charge 1 as the ‘design’ charge; charge 2 as the ‘inspection and maintenance’ charge; and charge 3 as the ‘instruction’ charge. Counsel argued that charge 2 related most closely to the cause of the accident; that is, the failure of the hoist lug to bear the required weight due to fatigue cracking, such fatigue cracking having been capable of detection had there been proper inspection and maintenance. Charge 1, counsel argued, served more to ‘emphasise the seriousness’ of charge 2 rather than ‘represent a substantial portion of the criminality itself’. Counsel put that charge 3 was ‘of the least gravity’. Acknowledging that more could have been done to ensure that drivers were adequately instructed in the use of the secondary safety ratchet, there was ‘little to suggest the absence of such additional instruction contributed to the incident’. Chad Lynch was an experienced driver who had delivered to the abattoir on a number of occasions. Further, there were clear instructions on the use of the secondary safety ratchet device on the plant itself. There was no evidence to suggest that any lack of instruction contributed to Mr Lynch’s non-engagement of the device before the incident.
Before the sentencing judge, Frewstal’s counsel argued that the objective probability that the hoist lug would fail was ‘low’. The judge appeared to accept that was so, in that she observed that ‘it was a most unfortunate coincidence of circumstances which led to the realisation of the grave risk’. Counsel adhered to that submission in this Court.
It was pointed out that the judge had said that she ‘must place significant weight on general deterrence’, but that the weight to be given to that aspect would be different if conduct of the specific nature alleged was prevalent. The sentence imposed, it was submitted, adequately reflects considerations of just punishment, denunciation and general deterrence.
Counsel argued that at no point during the plea hearing did the prosecution contend that the circumstances surrounding the WorkSafe visit in March 2009 were an aggravating feature of the offending. He reminded the Court that the judge concluded that Frewstal ‘did not wantonly disregard the need for safety and they did have certain measures in place’. It is unsurprising that the judge did not refer to the circumstances surrounding the 2009 visit as aggravating, so counsel submitted, when no submission had been forthcoming from the prosecution that it was so.
Importantly, counsel conceded that the breaches of the OHSA were causative of death. The fact of death, it was conceded, ‘was indicative of the scale of the potential harm posed by the hazard in the workplace’. It was submitted that the catastrophic consequence of the risk could not be considered a ‘likely’ outcome of the breaches.
Finally, counsel urged a number of matters in mitigation, including that Frewstal had operated for 30 years or more in a hazardous industry without incident; that it had co-operated with investigators; that it had entered early guilty pleas; and that it had taken significant remedial steps.
Discussion
A deal of the difficulty attending this case arose out of the prosecutor’s acquiescence on the plea that the imposition of an aggregate fine was appropriate.
Section 51(1) of the Sentencing Act 1991, permits the imposition of an aggregate fine for two or more offences if those offences ‘are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character’. The sum of the fine imposed, however, must ‘not exceed the sum of the maximum fines that could be imposed in respect of each of those offences’. In theory, that meant that the maximum fine available to the sentencing judge was equal to 21,000 penalty units.[25] Subsection (2) provides that in imposing an aggregate fine for two or more offences the court ‘is not required to identify separate events giving rise to specific charges’, and is not requires to announce ‘the sentences that would have been imposed for each offence had separate sentences been imposed’, or ‘whether those sentences would have been imposed concurrently or cumulatively‘. And, for the ’avoidance of doubt’, sub-s (3) provides that ‘an aggregate fine may be imposed in respect of convictions for offences that are the subject of a rolled-up charge or a representative charge’.[26]
[25]The maximum fine per charge was 9000 penalty units. Since a penalty unit was $144.36, the notional maximum fine available to the sentencing judge was $3,897,720 ($144.36 x 9000 x 3).
[26]On a ‘rolled-up’ charge or ‘representative’ charge, the sentence imposed cannot exceed the maximum sentence available on a single charge: R v SBL [1999] 1 VR 706; R v Jones [2004] VSCA 68; R v Beary (2004) 11 VR 151; DPP v Jones (a Pseudonym) (2013) 40 VR 267.
Although s 51 does not limit the kinds of offences for which an aggregate fine may be imposed — and to that extent ostensibly permits an aggregate in the case of any two or more offences founded on the same facts, or which are of the same or similar character — an undeniable problem associated with resort to an aggregate fine is that it adds opacity to the exercise of the sentencing discretion. Aggregate fines may be very convenient in a busy Magistrates’ Court, where a magistrate may be required to sentence for a number of offences arising out of similar circumstances, but their utility in a case such as this is to be doubted. That is particularly so where the prosecution contends that the circumstances of each charge are distinct and are without overlap. Indeed, for cases that ‘arise out of the same factual circumstances’, s 33(2) of the OHSA permits two or more contraventions to be charged as a single offence.[27] In such a case, however, subsection (4) makes clear that ‘a single penalty only may be imposed in respect of those contraventions’.
[27]See DPP v Coates Hire Operations Pty Ltd (2012) 36 VR 361, 369–70 [31]–[34] (Maxwell P, Weinberg JA and Hollingworth AJA) (‘Coates’).
Presumably, the prosecution thought that it was not appropriate to employ a single charge for the three contraventions of the OHSA that were distinctly charged in the indictment. That being so, it is somewhat curious that the prosecution then acquiesced in the imposition of an aggregate fine, in circumstances in which a sentencing court is not required to identify separate events giving rise to specific charges, and is not required to announce the fines that would have been imposed for each offence had separate sentences been imposed. As a result, it has been difficult — if not impossible — for this Court, by recourse to the penalty imposed, to gauge the seriousness with which the sentencing judge regarded the individual breaches alleged. At least in part, that situation was brought about by the prosecution’s attitude to the appropriateness of imposing an aggregate fine.
Moreover, the prosecution put before the judge a table showing the disposition of charges under the OHSA in cases where there had been a fatality. Presumably, the table was provided in order to assist the sentencing judge to determine current sentencing practices.[28] In our opinion, however, it should not have been provided to the judge. It was of little or no worth. Among its manifold deficiencies, it provided the reader with few particulars about the facts of the included cases, and little or no detail about features in aggravation or mitigation. Remarkably, it contained references to cases in which charges had been withdrawn. Very little of value could be drawn from it. Counsel for Frewstal used it as a springboard, however, to submit to the sentencing judge that the ‘range’ of fines to be discerned from the table ‘seems to have the upper range coming in around the $400,000 mark and seems to have penalties … probably in the low six figures as a starting point’. As we have mentioned, although the prosecutor put Frewstal’s culpability as ‘mid to high level’, he did not quibble with defence counsel’s interpretation of the table. Indeed, it seems to us that the prosecutor — at least tacitly — accepted that the ‘upper range’ of fines in similar cases was approximately $400,000, and that Frewstal’s culpability fell somewhere between mid-level and high level. For the purposes of this appeal, the adequacy of the fine of $250,000 must be assessed in light of the prosecution’s attitude on the plea.
[28]Sentencing Act 1991, s 5(2)(b).
An assessment of whether the sentence imposed in the present case may properly be described as manifestly inadequate is not one that is free from difficulty. In part, any assessment has been rendered problematic since the manner in which the prosecution put the case to the sentencing judge is markedly different from the way in which it was argued on appeal. In our view, if the case had been put to the sentencing judge in the same manner as it was presented in this Court, the question whether the sentence was manifestly inadequate would, perhaps, have been borderline. That is so, we think, principally in light of the nature of the offending.
We would make the following observations about the offences. First, the gravamen of the offending on charge 1 relates to the original manufacture and installation of the hoist lug in 1991. On the one hand, there is little information as to who made and installed it, although it was accepted on the plea that the manufacture and installation of the hoist lug took place without the intervention or assistance of an independent expert engineer. Moreover, it was accepted that its design was deficient. On the other hand, there is no information as to the expertise of the person who made and installed it. And the hoist lug did serve its purpose for over two decades, notwithstanding that Ramp Number One was subjected to heavy use, without incident.
In our view — and as was conceded on the plea — charge 2 clearly is the more serious charge. Following WorkSafe’s intervention in 2009, Frewstal was on notice that its inspection system for hoists and similar equipment was deficient. Although, it may be observed, the Improvement Notice did not relate specifically to the hoist in use at Ramp Number One, but related to ‘lifting equipment … in use in the Maintenance Workshop’, nonetheless the Notice was apt to put Frewstal on notice that its practices generally with respect to lifting equipment were wanting. The Improvement Notice made useful suggestions as to how the deficiencies might be rectified, including the inspection and testing of equipment at intervals sufficient to monitor the risk of its failure. Frewstal’s failure to implement WorkSafe’s suggestions, or to undertake appropriate inspections by qualified third parties, is highly relevant to the gravity of the offending.
We also consider that the offending on charge 3 is somewhat serious in nature. It may be that Frewstal, operating a large abattoir, when dealing with an experienced truck driver such as Mr Lynch, might not have thought it necessary to give him instructions as to the need to engage the secondary safety ratchet. That does not excuse or mitigate, however, the failure ensure that all those using Ramp Number One had appropriate instruction and training. The secondary safety ratchet mechanism was not only important in protecting the ramp from collapse, but it had a role to play in preserving the longevity of the hoist lug.
As was made clear by Frewstal’s counsel, however, the case was put before the sentencing judge — by both sides — in a very different manner. We of the view that the sentence, based on the case as it was put to the sentencing judge, could not properly be characterised as being manifestly inadequate. At the risk of repetition, the prosecution did not challenge the proposition put on behalf of the respondent that it was appropriate to impose an aggregate sentence. That stance carried with it an implied a concession by the prosecution that the three offences were founded on the same facts, or formed or were part of the series of offences of the same or a similar character.
Further, the prosecution put before the judge a table of cases, which, although misconceived, seemed to illustrate that, on current sentencing practices, the highest penalty imposed was $475,000. As we have said, the very experienced prosecutor did not challenge the proposition put by the respondent’s counsel that the ‘upper range’ was around $400,000. Moreover, as we have said, the prosecutor had put that the offending was ‘mid to high level’.
As earlier observed, had the case been put to the sentencing judge in the same way it was presented in this Court, the issue of whether the sentence was manifestly inadequate might have been borderline. In our view, however, even had the Director made good the contention that the sentence imposed was manifestly inadequate, we would nonetheless have dismissed the appeal in the exercise of discretion. It seems to us that, by accepting that an aggregate fine was available; by putting that Frewstal’s offending was in the mid to high level; and by, in effect, promoting the notion that a fine of $400,00 was toward the ‘upper range’ of sentences available in the proper exercise of discretion; the prosecution helped bring about the fixing of a fine of the order imposed. These factors would militate in favour of exercising the residual discretion to dismiss the appeal.[29]
[29]DPP (Cth) v Gregory (2011) 34 VR 1, 21 [77] (Warren CJ, Redlich JA and Ross AJA); DPP v Karazisis (2011) 31 VR 634, 658 [104] (Ashley, Redlich and Weinberg JJA); Munda v Western Australia (2013) 249 CLR 600, 624 [72] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).
The foregoing is sufficient to dispose of the appeal.
An important question arose in this appeal concerning the effect on penalty if death or serious injury has resulted from the relevant breach of the OHSA. Given that this is so, it is necessary that we make some further observations as to sentencing in cases such as the present. In so doing, we are not unmindful of the fact that Chad Lynch’s death has had a significant impact on those close to him. His widow, Greta Boyd, and his mother, Nola Hinch, both described the devastating effect upon them and their family of Mr Lynch’s injuries and death. In cases such as the present, it is natural that the family members and friends of a person who has lost his or her life will focus primarily on the fact of death. So much is only a natural human response. It is therefore important that the Court endeavour to make clear the manner in which legal principle dictates that sentencing must be approached in a case of this kind.
In our opinion, sentencing judges should be guided by the following principles:
· 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 OHSA, 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 (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).
· 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.[30]
[30]Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610, 650 [95].
Conclusion
For the foregoing reasons, the Director’s appeal must be dismissed.
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