DPP v Heavy Mechanics Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0020

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
HEAVY MECHANICS PTY LTD (ACN 137 483 124)	Respondent

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JUDGES:	PRIEST, NIALL and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2023
DATE OF JUDGMENT:	3 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 69
JUDGMENT APPEALED FROM:	[2022] VCC 107 (Judge Georgiou)

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CRIMINAL LAW – Appeal – Sentence – Crown Appeal – Offence under Occupational Health and Safety Act 2004, s 23 – Servicer of truck and trailer failed to adequately test coupling of truck and trailer – Decoupling on open road caused three deaths – Judge sentenced servicer with $210,000 fine – Whether sentence imposed manifestly inadequate – Failure to detect flawed coupling a serious departure from duty imposed – Respondent had multiple opportunities to detect problem – Risk associated with failure extremely grave – Sentence starkly disproportionate to seriousness of offending – Servicer resentenced – $350,000 fine imposed.

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Counsel
Appellant:		Mr A Palmer KC and Mr DNF Chisholm
Respondent:		Mr DD Gurvich KC and Mr T Bourbon
Solicitors
Appellant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Moray & Agnew

PRIEST JA:

On 27 February 2023, the Court heard an appeal by the Director of Public Prosecutions (‘DPP’) against a sentence — a conviction and fine of $210,000 — imposed upon the respondent, Heavy Mechanics Pty Ltd, by a judge of the County Court on 9 February 2022, for a breach of s 23(1) of the Occupational Health and Safety Act 2004 (‘OHSA’).[1]
[1]Section 23(1) 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.
Niall and Macaulay JJA, whose joint reasons for judgment I have had the advantage of reading in draft, have concluded that the appeal should be allowed. In my opinion, it should be dismissed. Given that Niall and Macaulay JJA have in their reasons comprehensively dealt with the essential facts;[2] the particulars of the charge;[3] and the judge’s reasons for sentence[4] (including the sentencing judge’s observations concerning general deterrence;[5] the seriousness of the breach;[6] circumstances peculiar to the respondent;[7] other sentencing cases);[8] and the appellant’s[9] and the respondent’s submissions[10] on the appeal, I am able to set out my reasons with relative brevity and little repetition.
[2]At [27]–[29].
[3]At [31].
[4]At [34]–[48].
[5]At [37].
[6]At [38]–[44].
[7]At [45]–[47].
[8]At [48].
[9]At [49]–[55].
[10]At [56]–[59].
The DPP’s right to appeal against sentence is found in s 287 of the Criminal Procedure Act 2009 (‘CPA’) — headed Right of appeal – inadequate sentence — which is located in Division 3 of Part 6.3, headed Crown appeal against sentence. Section 287 permits the DPP to appeal to this Court against a sentence imposed by an originating court if she ‘(a) considers that there is an error in the sentence imposed and that a different sentence should be imposed’, and ‘(b) is satisfied that an appeal should be brought in the public interest’.
This Court’s power to intervene on an appeal the DPP is governed by s 289, which is in the following terms:
Determination of Crown appeal
(1)On an appeal under section 287, the Court of Appeal must allow the appeal if the DPP satisfies the court that—
(a) there is an error in the sentence first imposed; and
(b) a different sentence should be imposed.
(2)In considering whether an appeal should be allowed, the Court of Appeal must not take into account any element of double jeopardy involved in the respondent being sentenced again, if the appeal is allowed.
(3)In any other case, the Court of Appeal must dismiss an appeal under section 287.
Until the promulgation of the CPA, the prevailing view in this State was that mere manifest inadequacy was not enough to warrant appellate intervention on a DPP appeal. It was generally accepted that the relevant principles were as laid down in Clarke,[11] so that this Court’s intervention was warranted only if a sentence revealed ‘such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle’. Put another way, the sentence had to ‘be such as to establish clear and egregious inadequacy’.[12] In my view, that remains the position.
[11]R v Clarke [1996] 2 VR 520, 522 (Charles JA).
[12]See DPP v Johnston (2004) 10 VR 85, 96 [28]; DPP v Oversby [2004] VSCA 208, [19]; DPP v Bright (2006) 163 A Crim R 538, 542–3 [10] (Redlich JA) (‘Bright’).
With the legislative abrogation of the principle of double jeopardy, I am now bound by prevailing authority to accept that, in the determination of a Crown appeal against sentence, this Court can no longer apply as a sentencing principle the notion that such appeals should be ‘rare and exceptional’.[13] I do not accept, however, that appeals against sentence by the DPP are simply the ‘other side of the coin’ of appeals against sentence by convicted persons based on manifest excess.[14] Notwithstanding the legislative abolition of double jeopardy as a factor to be taken into account in their determination, I consider the position remains that DPP appeals should only be brought where there is a compelling case to do so, and where the sentence first imposed is so manifestly, clearly, or plainly inadequate as to demonstrate error in principle. Any inadequacy in the sentence must be clear and egregious, to the extent that the sentence is so disproportionate to the seriousness of the crime as to shock the public conscience and undermine public confidence in the ability of the courts to play their part in deterring criminal activity.
[13]See, e.g., DPP v Karazisis (2010) 31 VR 634, 661 [120] (Ashley, Redlich and Weinberg JJA) (‘Karazisis’).
[14]Ibid 662 [123].
In Chatterton,[15] Crown appeals brought jointly by the State and Commonwealth DPP, the appellants sought to rely, first, on a complaint of discrete error (unlike the present case), and, secondly, on a complaint of manifest inadequacy. Thus, the first ground of appeal was that the sentencing judge had erred in finding that the respondent had reasonable grounds of rehabilitation. Having first observed that it was ‘by no means persuaded that the judge erred in her assessment of the respondent’s prospects’,[16] the Court said:[17]
Secondly, even assuming that her Honour’s finding was not supported by the evidence, there would be a real question as to whether an error of that kind, taken alone, could warrant allowing a Crown appeal against sentence. That would be so even if the error were to be regarded as material.
We accept, of course, that s 287 of the Criminal Procedure Act 2009, which confers a right of appeal against sentence upon the [DPP] … is couched in the language of there being ‘an error in the sentence imposed’ and it being shown that a ‘different sentence should be imposed’.
However, the section also requires that the Director be satisfied that an appeal should be brought ‘in the public interest’. It is difficult to see how a specific error, which does not of itself constitute an error of principle, can ever, in the absence of manifest inadequacy, warrant setting aside the sentence originally imposed. There is no warrant, in the legislation, for this Court to ‘tinker’ with a sentence imposed below merely because the judge acted upon some erroneous view of the evidence. A good deal more must be shown before a Crown appeal can succeed.
In context, the ‘different sentence’ to which s 289 refers should, in our view, be understood as one which reflects the fact that the original sentence was manifestly, clearly, or plainly inadequate.
Crown appeals against sentence are only brought where there is a compelling case to do so.
In DPP v Brown[18] the Court said:
The principles governing appeals by the Director of Public Prosecutions are well known. They are conveniently set out in DPP v Bright.^[[19]^] An appeal should not be brought unless the inadequacy in the sentence is clear and egregious, to the extent that the sentence is so disproportionate to the seriousness of the crime as to shock the public conscience and undermine public confidence in the ability of the courts to play their part in deterring criminal activity.
[15]DPP v Chatterton [2014] VSCA 1 (Weinberg, Whelan and Priest JJA) (‘Chatterton’). See also R v Clarke [1996] 2 VR 520, 522 (Charles JA).
[16]Chatterton, [78].
[17]Ibid [79]–[84] (emphasis added). Cf DPP v Ghazi (2015) 45 VR 852, 858–9 [30]–[33] (Redlich, Santamaria and Beach JJA); DPP v O’Neill (2015) 47 VR 395, 423–4 [108]–[111] (Warren CJ, Redlich and Kaye JJA). See also DPP v Hudgson [2016] VSCA 254, [118] (Weinberg, Whelan and Priest JJA); DPP v Rivette [2017] VSCA 150, [28]–[30] (Ashley and Priest JJA); DPP v Oksuz (2015) 47 VR 731, 791 [257] (Croucher AJA); DPP v Osborn [2018] VSCA 207, [211] (McLeish JA).
[18][2009] VSCA 314.
[19](2006) 163 A Crim R 538, 542–3 [10] (Redlich JA).
Despite the abolition of double jeopardy as a consideration informing the determination of Crown appeals, the High Court has maintained that Crown appeals are to be distinguished from offender appeals against sentence in that their primary purpose is not directed to the correction of error in the particular case, but instead to laying down principles for the guidance of sentencing judges. Hence, in Green,[20] a case which concerned the question whether the New South Wales Court of Criminal Appeal had erred by increasing the sentence of two co-offenders, thus creating a disparity between the sentences imposed on them following a Crown appeal and the sentence imposed on a co-offender (against which the Crown had not appealed), French CJ, Crennan and Kiefel JJ observed:[21]
The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (Crown appeals) under s 5D of the Criminal Appeal Act 1912 (NSW) is ‘to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons’.[22] That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the ‘residual discretion’.
[20]Green v The Queen (2011) 244 CLR 462 (‘Green’).
[21]Ibid 465–6 [1] (citations as in original).
[22]Griffıths v The Queen (1977) 137 CLR 293 at 310 (Barwick CJ) (‘Griffiths’); Everett v The Queen (1994) 181 CLR 295 at 300 (Brennan, Deane, Dawson and Gaudron JJ), discussed in Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 578–584 [8]–[20] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also R v Borkowski (2009) 195 A Crim R 1 at 18 [70].
French CJ, Crennan and Kiefel also observed:[23]
A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is ‘to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons’.[24] That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.[25]
[23]Green, 477 [36].
[24]Ibid 465–6 [1].
[25]In Director of Public Prosecutions (Vic) v Karazisis (2010) 206 A Crim R 14 at 39–42 [104]–[115] it was suggested that relevant factors in Victoria include delay, parity, the totality principle, the rehabilitation of the offender and the conduct of the Crown.
Later, in Dalgliesh,[26] Kiefel CJ, Bell and Keane JJ remarked:[27]
In the present case, the Court of Appeal’s conclusion that there had been a misapplication of principle which affected the range of sentences applied by the sentencing judge was sufficient to warrant appellate intervention on the ground of manifest inadequacy.
Accordingly, this case is not the occasion to reconsider the bases on which it has been said in the past that Crown appeals on sentence should be a ‘rarity’.[28] In particular, this case does not require this Court to come to a concluded view of the reservations expressed by Gleeson CJ in Wong v The Queen[29] as to the ongoing validity of the reasons previously given for treating Crown appeals on sentence as exceptional.
[26]DPP v Dalgliesh (2017) 262 CLR 428 (‘Dalgliesh’).
[27]Ibid 448 [60]–[61] (citations as in original).
[28]Griffıths at 310, 327, 329–330; Malvaso v The Queen (1989) 168 CLR 227 at 233–4; Everett v The Queen (1994) 181 CLR 295 at 299–300.
[29](2001) 207 CLR 584 at 592–593 [9]–[10]. See also R v Pham (2015) 256 CLR 550 at 565–566 [49].
And in Cumberland,[30] a case in which the High Court was concerned with Northern Territory provisions concerned with double jeopardy in Crown appeals, Bell, Gageler and Nettle JJ said:[31]
Section 414(1)(c) of the Criminal Code (NT) (the Code) confers on the Crown a right of appeal to the Court of Criminal Appeal against any sentence imposed for an indictable offence. Section 414(1A) provides that, in exercising its discretion on a Crown appeal against sentence, the Court of Criminal Appeal must not take into account any element of double jeopardy, involving the respondent being sentenced again, when deciding whether to allow the appeal or to impose another sentence or both.
Section 414(1A), like the equivalent provision under the New South Wales sentencing statute considered in Green v R,[32] was enacted to implement the proposal of the Council of Australian Governments for Double Jeopardy Law Reform.[33] As with the provision considered in Green, it is clear that s 414(1A) does not extinguish the appellate court’s discretion, commonly referred to as the ‘residual discretion’, to dismiss a Crown appeal notwithstanding that the sentence is erroneously lenient.[34]
As explained in the joint reasons in Green, Crown appeals are distinguished from offender appeals against sentence in that their primary purpose is not directed to the correction of error in the particular case, but rather, to laying down principles for the guidance of sentencing judges.[35] And as their Honours also explained, the circumstances may be such that any guidance provided to sentencing judges is limited, while allowing the appeal may occasion injustice.[36] Among the circumstances that their Honours identified as enlivening the residual discretion is delay in the appeal process.[37] …
[30]Cumberland v The Queen (2020) 379 ALR 503 (‘Cumberland’).
[31]Ibid 505 [4]–[6] (citations as in original).
[32](2011) 244 CLR 462; 283 ALR 1; [2011] HCA 49.
[33]Green at [25] (French CJ, Crennan and Kiefel JJ); Northern Territory, Legislative Assembly, Parliamentary Debates, Hansard, 23 February 2011, pp 7394–5
[34]Green at [26] (French CJ, Crennan and Kiefel JJ).
[35]Green at [1] (French CJ, Crennan and Kiefel JJ).
[36]Green at [2] (French CJ, Crennan and Kiefel JJ).
[37]Green at [2] (French CJ, Crennan and Kiefel JJ).
In light of Green and Cumberland, in the determination of this case I have borne steadily in mind that the principal purpose of DPP appeals — which sets them apart from appeals against severity of sentence by convicted persons — is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons, rather than the correction of judicial error in particular cases. Furthermore, I have approached the matter on the basis that, for appellate intervention to be warranted, the inadequacy of the sentence under appeal must be clear and egregious, to the extent that the sentence is so disproportionate to the seriousness of the crime as to shock the public conscience and undermine public confidence in the ability of the courts to play their part in deterring criminal activity.
That approach is informed by three further considerations. First, as the heading to s 287 of the CPA suggests, the relevant ‘error in the sentence’ is an inadequate sentence.[38] Secondly, s 287 was enacted against the backdrop that courts of authority had over time developed a significant body of principles governing the proper approach to Crown appeals, yet Parliament in direct terms sought legislatively to abrogate but one of those principles, double jeopardy.[39] So much lends support for the view that, save for double jeopardy, the legislature intended to leave undisturbed the remaining substantial body of principles that had hitherto governed Crown appeals. Thirdly, unlike an appeal against sentence by a convicted person, the DPP does not require leave to appeal. That fact underscores the proposition that the principal purpose of Crown appeals is to lay down principles for the governance and guidance of first instance sentencing courts.
[38]See Interpretation of Legislation Act 1984, s 36(2A)(a). See also Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594, 618 (McHugh J).
[39]See CPA, s 289(2).
Given the delay of more than seven years in this case between the offence and sentence, a curious feature of the respondent’s case in this Court was the absence of any apparent reliance on the ‘residual discretion’, which, as the authorities make clear, clearly survived the abolition of double jeopardy.
The failure to invoke the residual discretion by reason of delay does not mean, of course, that the more than seven year delay was irrelevant in the exercise of the judge’s sentencing discretion. In this Court, the DPP sought to explain the delay by submitting that the matter was only referred to WorkSafe for investigation in May 2016, following an antecedent investigation by Victoria Police that did not result in the laying of charges. Thereafter, charges were not laid until 3 November 2017 — that is, more than three years after the fatal accident — and a committal proceeding was conducted in September 2019. After the matter finally reached the County Court, the jury in an initial trial were discharged on 8 November 2019. A retrial, listed for 20 April 2020, was delayed due to the pandemic, so that the respondent’s second trial — which resulted in conviction — did not commence until 7 June 2021. No satisfactory explanation was advanced, however, for the time that it took for WorkSafe to take up the investigation, or for investigators to lay charges. Nor was the Court provided with a reason for the delay of almost two years between the laying of charges and committal. In those circumstances, I would echo the view that there is
a serious incongruity between the assertion that an offence is serious and that the courts must, through the sentences they impose, endeavour to limit its incidence, on the one hand, and such a leisurely progression of the criminal justice proceedings which follow its commission that literally years pass before the matter comes before the court, on the other. For a number of reasons, the investigation and prosecution of criminal conduct should be conducted as quickly as is reasonably practicable if the objectives of the system are to be attained. Additionally, a legitimate sense of unfairness can develop when the criminal justice process proceeds in what can be perceived as too leisurely a fashion.[40]
[40]R v Schwabegger [1998] 4 VR 649, 659–60 (Vincent AJA).

It is important to note that, during the very long delay between the offending and sentence, there had been no further offending. In addition, it appears that the respondent had changed its practices by no longer servicing bolt-in tow-eye couplings; and had, in the wake of the fatal incident, sought to convince any customers driving trailers with bolt-in tow-eye couplings to change to safer weld-in versions. Moreover, the sentencing judge found — correctly, in my view — that the respondent’s rehabilitation was ‘well underway’. In those circumstances — and contrary to the appellant’s submissions — the delay in this case — which I regard as being extraordinary — was a very significant mitigating feature.
In the present case, the DPP contended that the sentence imposed on the respondent was manifestly inadequate having regard to: the objective seriousness of the offending; the need for general deterrence; the impact of the offending upon its victims; and current sentencing practices.
The judge found that the respondent’s departure from the duties it owed was significant and the objective gravity of the offending was serious.[41] It is plain, however, that those involved with the servicing of the truck and trailer had not completely ignored the need to ensure that the relevant coupling was serviceable. Keith Haire and Richard Trethowan had tested the condition of the coupling by means of a ‘tug test’, which was a test used by others in the industry. But as the judge concluded from the evidence, the tug test was inadequate because it did not pick up small — but dangerous — movements in the tow-eye coupling.
[41]DPP v Heavy Mechanics Pty Ltd [2022] VCC 107, [67] (‘Reasons’).
Furthermore, Mr Haire and Mr Trethowan did not consider the visible wear to the block of the tow-eye coupling was a matter that required further investigation. In other words, they had turned their minds to the need to ensure that persons other than respondent’s employees were not exposed to risks to their health or safety arising from the conduct of the respondent’s undertaking, but, in breach of the duties that they owed to those persons, had failed to reduce those risks so far as was reasonably practicable, by adopting a system of servicing the coupling which included disassembling it, further inspecting it, and — depending on its condition — either reassembling or replacing it. The degree of harm that would result if the risk of the coupling failing eventuated should have led the respondent to rely on more than a visual inspection, in circumstances where it showed signs of wear.
In my view, however, the respondent’s offending was not the product of a wholesale and flagrant disregard of the duties it owed. Rather, the true gravity of the offending lay in the failure to carry out the relatively simple and inexpensive process of disassembling the coupling once signs of wear were noticed, in circumstances where the risks associated with the coupling’s failure were manifest. As to that, the judge accepted that ‘there was no blatant disregard for safety’. Nor was ‘this a case where there was a deliberate overriding of safety methods’. There was ‘no evidence that the company had ever before experienced an event such as the one that occurred on 7 August 2014’.[42] And the judge accepted that ‘the tug-test was performed by some in the industry to check for movement, and hence whether the coupling was safe or unsafe’.[43]
[42]Reasons, [68].
[43]Ibid [69].
Given the judge’s findings, although the seriousness of the respondent’s breach cannot be gainsaid, I consider that the offending was not attended by the kind of high degree of moral culpability on the part of those who represented the respondent’s ‘heart and mind’ that is all too often encountered in breaches of the OHSA. Although the extent of the risk of death or serious injury which might result from its breach of the duties it owed was extremely grave, this was not a case where the respondent had completely ignored the risk by failing to carry out any testing of the coupling.[44] Rather, the testing, accompanied by visual inspection, of the coupling, was in the circumstances inadequate.
[44]See DPP vFrewstal Pty Ltd (2015) 47 VR 660, 686 [127] (‘Frewstal’).
Factually, the present case bore little resemblance to the cases that were relied upon by the DPP before the sentencing judge and in this Court. In my view, apart from helping form a very general impression of the broad parameters of sentences imposed in prosecutions for breaches of the OHSA, they were of negligible assistance. Certainly, they were of no help in identifying any current sentencing practice — let alone a ‘tariff’ — for cases involving the failure to maintain heavy vehicles.
Finally, I would observe that, as was made clear in Dinsdale,[45] manifest inadequacy of sentence is a conclusion that does not depend on the attribution of identified specific error, and frequently does not admit of much amplification. And as was observed in Lowndes:[46]
The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass[47] and R v Clarke.[48] Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic.[49] The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.
[45]Dinsdale v The Queen (2000) 202 CLR 321, 325 [6] (Gleeson CJ and Hayne J) (‘Dinsdale’).
[46]Lowndes v The Queen (1999) 195 CLR 665, 671–2 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
[47](1993) 72 A Crim R 561.
[48][1996] 2 VR 520.
[49]See House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ) (‘House’).
When imposing sentence on the respondent, the sentencing judge: properly understood the effect of the jury’s verdict (and sentenced in accordance with it);[50] accurately summarised the relevant facts;[51] took into account ‘the deep and profound impact the incident had on each of the victims’;[52] recognised that ‘the primary sentencing purpose

in this case is general deterrence’;[53] considered ‘the extent of the company’s departure from the duty owed is significant and the objective gravity of this offending is serious’;[54] and had regard to the sentencing cases put before him.[55] He also properly took into account mitigating factors, including: the respondent’s good reputation and ‘character’;[56] the absence of prior or subsequent convictions, and the fact that it has never been served with an improvement or prohibition notice by WorkSafe;[57] the delay (and its effects);[58] and the respondent’s financial circumstances (including that ‘the company is of modest size and profits’, and ‘the imposition of a significant fine will create financial hardship for the company’).[59] In other words, it could not be contended that the judge acted upon a wrong principle, allowed extraneous or irrelevant matter to guide or affect him, mistook the facts, took into account an irrelevant consideration or failed to take into account some material consideration.[60]
[50]Reasons, [14]–[17].
[51]Ibid [2]–[13].
[52]Ibid [34]–[41].
[53]Ibid [63]
[54]Ibid [67].
[55]Ibid [91].
[56]Ibid [78].
[57]Ibid [79].
[58]Ibid [80].
[59]Ibid [82]–[90].
[60]House (1936) 55 CLR 499.

Ultimately, the DPP has failed to persuade me that the sentence imposed on the respondent is manifestly inadequate, let alone that the sentence displayed inadequacy that was clear and egregious, or demonstrated such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle. I have been unable to detect any error of principle revealed by anything the judge said, or in the magnitude of the penalty imposed, requiring the guidance of this Court. Certainly, the sentence is not so disproportionate to the seriousness of the crime as to shock the public conscience and undermine public confidence in the ability of the courts to play their part in deterring criminal activity. Indeed, I consider that the sentence imposed — albeit, perhaps, tending towards leniency — was within the range of sentences open to the judge in the proper exercise of the sentencing discretion.
For these reasons, I would dismiss the appeal.

NIALL JA

MACAULAY JA:

On 7 August 2014, Patrick Daley drove a Kenworth tanker truck to which was attached a Tieman tanker trailer along the Wodonga-Yackandandah Road, towards Yackandandah, in Northern Victoria. The truck and trailer were joined by a ‘Ringfeder’ and a ‘tow-eye coupling’. The tow-eye coupling consisted of a number of components, including a tow-eye pin, a block (mounted on the A frame of the trailer) and a castellated nut which secured the tow-eye pin within the block.
At approximately 8:45 am, the coupling failed and the trailer detached and moved onto the opposite side of the road. It struck two cars. Three people were killed in the collision.

The connection between truck and trailer failed because of a failure in the tow-eye coupling. More specifically, investigating police observed that:
(a)a castellated nut of the type used in the tow-eye coupling was located approximately 100 metres from the final position of the trailer;
(b)the thread of the nut appeared to be worn;
(c)at the rear of the truck, a tow-eye pin was hanging from the Ringfeder;
(d)the thread of the tow-eye pin showed signs of wear and damage; and
(e)the split-pin designed to stop the nut from loosening had been sheared off.

Heavy Mechanics Pty Ltd (‘the respondent’) was, at the time, in the business of maintaining and repairing heavy vehicles. It was retained by the owner of the rig to service and maintain the truck and trailer. Those services included an ‘A’ service performed approximately every 10,000 kilometres; a ‘B’ service performed approximately every 20,000 kilometres; and an annual ‘C’ service.
On an indictment filed in the County Court, the respondent faced trial on a single charge which alleged a contravention of s 23 of the OHSA in that between about 7 August 2013 and 7 August 2014, being an employer, the respondent failed to ensure, so far as was reasonably practicable, that persons other than its employees were not exposed to risks to their health or safety arising from the conduct of its undertaking. During that 12 month charge period, the respondent serviced the truck and trailer 26 times.
Appended to the charge were the following particulars:
1. Between about 7 August 2013 and 7 August 2014 the undertaking of Heavy Mechanics Pty Ltd included the servicing and maintenance of a Kenworth tanker truck (registration WFU 823) and a Tieman tanker trailer (registration 66759S), including:
a.       A ‘B’ service at intervals of approximately 20,000 km;
b.       An ‘A’ service mid-way between each ‘B’ service; and
c.       An annual (or ‘C’) service.
2. The truck and trailer were joined by a bolt-in tow-eye coupling, the components of which included:
a.       A block with a circular bore welded to the drawbar of the trailer;
b. A tow-eye pin, the eye of which fitted into a ‘Ringfeder’ on the truck, and the shaft of which was inserted into the bore of the block;
c. A castellated nut which secured the tow-eye pin within the block and which was tightened, according to manufacturer’s specifications, to a torque of 500 NM; and
d. A split pin, which was inserted between the castellations of the nut and through a hole in the shaft of the tow-eye pin.
3. Unless the tow-eye pin was completely rigid and unable to move within the block, the movement of the truck and trailer would cause progressive wear to the block, to the shaft and thread of the tow-eye pin, and to the thread of the nut, and this wear would eventually (unless detected during servicing) result in the failure of the coupling.
4. There was, thus, a risk that if the coupling was not properly serviced the coupling could fail, thereby causing the trailer to decouple from the truck and exposing road users to the risk of serious injury or death.
5. To reduce this risk, it was reasonably practicable for Heavy Mechanics Pty Ltd to adopt a system of servicing the coupling which included each of the following steps:
a. Visually inspecting the coupling (including the block) for any signs of loosening, movement, damage or wear; and
b. Decoupling the trailer from the truck and then physically checking whether the tow-eye pin was able to move within the block (including any degree of rotational, lateral or longitudinal movement); and
c. In the event that any signs of loosening, movement, damage or wear were detected, disassembling (in full or in part), further inspecting and (depending on the condition of the coupling) either reassembling or replacing the coupling (in full or in part).
6. Heavy Mechanics Pty Ltd failed to adopt this system of servicing the coupling.
7. Heavy Mechanics Pty Ltd instead used a system of servicing the coupling (comprising a visual inspection and a ‘tug’ test) which failed to reduce, so far as was reasonably practicable, the risk of decoupling, in that:
a. The externally visible signs of movement and wear on the face of the block never prompted a more detailed inspection of the coupling (including disassembly); and
b. While a tug test may be suitable for the purpose of checking whether a tow-eye pin is properly connected to the Ringfeder of a truck, a tug test is not sufficient for the purpose of detecting whether the tow-eye pin is completely rigid and unable to move within the block.
8. The coupling was disassembled and the tow-eye pin and nut were replaced on 17 June 2011 (at which time the truck and trailer were being serviced by a different company). Between that date and 1 August 2014 (the final date on which Heavy Mechanics Pty Ltd serviced the truck and trailer), the truck and trailer travelled approximately 354,000 km without Heavy Mechanics Pty Ltd ever disassembling or replacing the coupling.
9. If on (or prior to) 1 August 2014 Heavy Mechanics Pty Ltd had serviced the coupling in accordance with the system set out in Particular 5, this would have revealed that there was significant wear to the block, to the shaft and thread of the tow-eye pin, and to the thread of the castellated nut, and that the coupling needed to be replaced.
10.On 7 August 2014 this undetected wear caused the coupling to fail while the truck and trailer were travelling towards Yackandandah on the Wodonga-Yackandandah Road.
11.The trailer decoupled from the truck and struck two vehicles that were travelling in the opposite direction, killing the sole occupant of the first vehicle and both occupants of the second vehicle.
Following trial before Judge Georgiou and a jury, the respondent was found guilty of the charge. Following a plea in mitigation, the respondent was convicted and the judge imposed a fine of $210,000. We observe that the maximum penalty that could have been imposed was $1,328,490.
From that sentence, the DPP appeals on the single ground that the sentence imposed was manifestly inadequate.[61]
[61]The appeal is of right under s 287 of the CPA.

The reasons for sentence

The judge proceeded on the basis that the jury accepted each of the particulars beyond reasonable doubt.
The judge noted that the truck and trailer were last serviced by the respondent on 1 August 2014. During that service, which was undertaken by Keith Haire and Richard Trethowan, the condition of the coupling was tested by means of a ‘tug test’. For that purpose, Mr Trethowan got into the driver’s seat of the truck, started the engine, placed the truck in gear, then operating the accelerator and the clutch pedal, caused the truck and trailer to rock backwards and forwards.
Meanwhile, Mr Haire stood close by the tow-eye coupling, watching for movement of the tow-eye pin within the block. He gave evidence that he did not see any movement. Mr Haire and Mr Trethowan also performed a visual examination of the Ringfeder and the tow-eye coupling to see whether there were any obvious defects. They concluded that the tow-eye coupling was in a serviceable condition. Assessing it as ‘old wear’, they did not consider the externally-visible damage to the block of the tow-eye coupling was a matter that required further investigation. The truck and trailer remained joined during service, that is the respondent did not disconnect the trailer to aid in its visual examination nor did it perform any manipulation or testing beyond the tug test to identify movement within the components.

General deterrence

The judge accepted that the primary sentencing purpose was general deterrence.

The seriousness of the breach

On the plea, there was a dispute between the parties as to the relative seriousness of the breach. The prosecution submitted that the offending was very serious involving a very significant departure from acceptable safety standards and ‘an almost complete disregard for an apparent, known and readily-identifiable risk’. The respondent submitted that the respondent’s departure from its statutory duty was ‘moderate’. The respondent accepted that the likelihood of an event occurring as a result of the breach was high and the potential gravity of an event was also high.
As already noted, the connection between truck and trailer was secured by a castellated nut that secured a connecting pin. The critical risk arose from the ability of the pin to move within the housing when the truck was in motion. Such movement risked stripping the thread from the pin and nut leading to failure of the connection. In order to avoid that risk it was important to detect whether or not there was any free movement of the pin within the block. The respondent employed the tug test for that purpose.
By way of summary, it suffices to note at this point that the judge referred to and applied the correct principles, and concluded that the company's departure from the duty owed was significant and the objective gravity of this offending was serious.[62]
[62]Reasons, [67].
In that regard the judge noted that Mr Haire was aware that any movement of the coupling was problematic and had used the tug method for many years to see if there was movement. The judge concluded that, although used by some others in the industry, the tug test was inadequate: it was incapable of picking up small, but nevertheless dangerous, movements in the tow-eye coupling.[63]
[63]Ibid [70].
The judge concluded that the respondent ought to have known about the risk of decoupling having regard, in particular, to the external wear plainly visible on the block. That wear should have alerted the respondent to the possibility of movement in the tow-eye coupling, and thus the risk of the coupling failing.[64]
[64]Ibid [72].
The judge noted that a more detailed inspection of a unit showing wear on the block, including its disassembly, and the use of the bar test to check for movement, were both readily available, inexpensive, and suitable ways to reduce the risk. The judge noted that the relevant risk of decoupling as a result of the failure over the period of offending was high and the result if the risk eventuated could not have been more serious.
The judge acknowledged that the offence was one of risk rather than outcome, in the sense that the gravity of the offending is concerned with the nature of the risk to safety and not whether that risk eventuates. Nevertheless the judge took into account the impact that the fatal collision had on the families of the victims, some of whom had prepared victim impact statements. After recounting that evidence, the judge referred to the deep and profound impact the incident had on each of the victims.

The judge noted that the respondent had a good reputation, no prior or subsequent convictions, and that the delay between the incident and sentence was in excess of seven years.
The judge also took into account the financial circumstances of the company.[65] The respondent is the trustee of a family trust associated with the Haire family. There was evidence before the judge as to the financial standing of the respondent. That evidence which included a profit and loss statement for the years ending 30 June 2011 to 30 June 2021 showed a fluctuating net profit with the last three years of that decade of $79,960, $186,355, and $172,206.
[65]As required by s 52 of the Sentencing Act 1991.
The judge accepted that the respondent was of modest size and profits, and that the imposition of a significant fine would create financial hardship for the company.
The judge had regard to a number of other cases to which he was referred.[66]
[66]Orbit Drilling Pty Ltd v The Queen; Smith v The Queen (2012) 35 VR 399; [2012] VSCA 82 (‘Orbit’); DPP v AAA Auscarts Imports Pty Ltd (County Court, Judge Allen, 12 May 2009) (‘AAA Auscarts’); Tomlin (VWA) v Valley Sweep Pty Ltd (Magistrates’ Court, Magistrate L Hill, 2 October 2020) (‘Tomlin’); DPP Thiess Services Pty Ltd [2015] VCC 1954 (‘Thiess’); DPP v New Sector Engineering Pty Ltd [2020] VCC 400 (‘New Sector Engineering’); DPP v Grampians Free Range Poultry Pty Ltd (County Court, Judge Taft, 4 July 2018) (‘Grampians Free Range Poultry’); Frewstal (2015) 47 VR 660; [2015] VSCA 266; DPP v De Kort Enterprises Pty Ltd [2019] VCC 291 (‘De Kort’); Di Tonto v R; AM Design and Construction Pty Ltd v R [2018] VSCA 312.

Submissions on the appeal

The DPP submits that although the judge found, correctly, the offending to be objectively serious, the sentence imposed did not reflect this finding.
The DPP submits that the objective gravity of the offending is to be assessed having regard to three factors: the extent of the departure from the duty owed; the risk created by the departure; and the likelihood of the harm occurring.
As to the first, the DPP says that the conduct of the respondent involved a very significant departure from acceptable safety standards having regard to the following:
(a)The integrity of the coupling was critical to the safety of other road users.
(b)Unless properly serviced, it was inevitable that the coupling would eventually fail.
(c)There was obvious wear to the coupling, which could clearly be seen without disassembly, and which could only have resulted from movement of the pin within the block.
(d)The respondent chose to disregard that evidence of movement.
(e)The respondent asserted that it did so on the basis that the wear was ‘old’. However, even if the wear was old, the clearly visible gap between the lugs on the pin and the flanges on the block meant that the pin was able to move within the block.
Second, the DPP says that the foreseeable potential consequences of the respondent’s conduct included multiple deaths. And third, the likelihood of the incident occurring was high.
Based on these factors the DPP submits that, as the judge found, the offending was serious.
The DPP submits that the delay of seven years ought to attract very little mitigatory weight. There was no evidence the delay was particularly burdensome and although the respondent had changed its practice by no longer servicing bolts in tow-eye couplings, it had not acknowledged the wrongfulness of its conduct, nor was there evidence that it had used the time to undertake relevant training or review of its processes.
The DPP submits that the sentence was out of line with current sentencing practices. The DPP says that the sentence imposed on the respondent could only be said to be consistent with current sentencing practice if the objective seriousness of the respondent’s offending is at the very bottom end of the range of seriousness reflected in those decisions. Inferentially, submitted the DPP, the judge may have given too much weight to the respondent’s financial circumstances although such conjecture was not put forward as establishing any specific error.

The respondent’s submission

The respondent acknowledged the judge’s finding that the offending was serious and involved a significant departure from its statutory duty, but noted that it was not wilful, that it had used the tug test in the belief that it was adequate for the purpose of detecting movement within the coupling.
The respondent said that the judge had appropriate regard to the respondent’s limited means when determining the amount of the fine, and did not place too much weight on this factor.
The respondent said the delay between the end of the offending period and the respondent being sentenced was extraordinary, and there was no further offending in this time. The respondent had been operating for 13 years at the time of the offending and had no prior or subsequent convictions. The respondent claims that aside from the offending, it had established and maintained a good safety reputation, supported by a number of character references. The respondent also points to the work it lost as a result of the offending, which it submits the judge was right to regard as a form of extra curial punishment.
As to current sentencing practice, the respondent submits that the guidance provided by cases, including those raised by the DPP, is necessarily limited given the differing circumstances of the offending and of the finances of the offenders in those cases.

Decision

In order to succeed, the DPP must satisfy this Court that there is an error in the sentence first imposed and that a different sentence should be imposed.[67] As to the first element, the DPP did not identify any specific error but sought to establish that the sentence imposed was manifestly inadequate. If established, the DPP establishes a species of error.[68] But to do so, the DPP must satisfy the Court that the sentence was wholly outside the permissible range of sentences that were open to the judge in the sound exercise of the sentencing discretion. That hurdle, which the authorities show is high one, will not be overcome merely because this Court considers the sentence to be lenient or that it would have imposed a more severe sentence.
[67]CPA, s 289(1).
[68]Karazisis, (2010) 31 VR 634, 662–3 [124]–[128] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350; Dinsdale (2000) 202 CLR 321, 324–5 [6] (Gleeson CJ and Hayne J); [2000] HCA 54; Carroll v The Queen (2009) 83 ALJR 579, 581 [7]–[8] (The Court); [2009] HCA 13.
For the reasons explained in Karazisis, the court must be astute to enforce the stringency of this test.[69] Beyond doing so, however, in our view there is no warrant to further overlay the consideration of whether the sentence was or was not wholly outside the permissible range of sentences with descriptors such as ‘egregious’. If the error is that the sentence is wholly outside of the permissible range of sentences open in the sound exercise of sentencing discretion, an ‘error’ is established and the Court must allow the appeal if it is also of the view that a ‘different sentence should be imposed’.[70]
[69]Karazisis (2010) 31 VR 634, 663 [128] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350.
[70]CPA, s 289(1)(b); Dalgleish (2017) 262 CLR 428, 448–9 [62]–[63] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41.
As noted by Priest JA,[71] there was no reliance placed by the respondent in this Court upon the ‘residual discretion’ which, as his Honour noted, survived the abolition of double jeopardy[72] as a matter to be taken into account in determining whether to allow a Crown appeal against sentence or in any re-sentencing consequent upon allowing an appeal. We approach this appeal on that basis.
[71]Above at [14].
[72]CPA, ss 289(2) and 290(3).
The respondent was found guilty of a charge under s 23 of the OHSA. Section 23(1) of the OHSA imposes a duty on an employer to ensure that persons other than its employees are not exposed to risk to their health or safety arising from the conduct of the undertaking of the employer.
In order to place an offence under s 23 in its proper context it is necessary to refer, as the judge did, to some provisions of the OHSA and to the relevant principles that must be applied. The objects include:[73]
(a)to secure the health, safety and welfare of employees and other persons at work; and
(b)to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work; and
(c)to ensure that the health and safety of members of the public is not placed at risk by the conduct of undertakings by employers and self-employed persons.
[73]OHSA, s 2.
As noted by the judge, s 4 of the OHSA relevantly provides:
(1)The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.
(2)Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.
(3)Employers … should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.
(4)Employers and employees should exchange information and ideas about risks to health and safety and measures that can be taken to eliminate or reduce those risks.
Section 20 of the OHSA provides:
(1) To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person—
(a) to eliminate risks to health and safety so far as is reasonably practicable; and
(b) if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.
(2) To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—
(a) the likelihood of the hazard or risk concerned eventuating;
(b) the degree of harm that would result if the hazard or risk eventuated;
(c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk, and any ways of eliminating or reducing the hazard or risk;
(d) the availability and suitability of ways to eliminate or reduce the hazard or risk;
(e) the cost of eliminating or reducing the hazard or risk.
In Frewstal, Priest and Kaye JJA set out the principles to be applied in assessing the gravity of a contravention of the OHSA. Like this case, Frewstal arose in a context where the breach of the duty had fatal consequences. A critical point made in Frewstal is that the offence focuses on the nature and extent of the breach of the duty and not the consequences that might ultimately flow from that breach. Their Honours said:[74]
• 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 [Act], 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.
[74]Frewstal (2015) 47 VR 660, 686 [127]; [2015] VSCA 266 (citations omitted).
In Frewstal, the joint reasons explain that the gravity of the offence is assessed by reference to two factors: the degree or extent by which the person has departed from their duty and the nature of the risk that the departure from duty entailed. The risk is viewed both in terms of the probability and seriousness of the risk eventuating.
Like many taxonomies, the two factors are not always entirely distinct. The identification of what is reasonably practicable will be informed by the nature of the undertaking and the type of risks that might result in a failure to discharge the duty. In this case, the duty to ensure, as far as was reasonably practicable, that persons were not exposed to a risk to their health or safety arose in a context where the purpose of the undertaking was to service heavy vehicles in order to maintain them in a safe and roadworthy state. The respondent was retained to service and maintain the vehicle because of the skill and knowledge of its employees.
In our view, there was a significant departure from the duty in s 23. Self-evidently, the integrity of the coupling was critical to the safe operation of the truck and trailer. That was both obvious and well understood by the respondent. Because of the catastrophic consequences that would likely flow from a failure of the coupling and because the respondent was retained for its expertise in heavy vehicle maintenance there was a high burden on the respondent to understand the potential risks posed by an unsafe coupling and the means by which that risk could be identified and assessed.
Although the respondent took some steps to assess the integrity of the connection through the use of the tug test, and the mechanics who utilised that test believed those steps to be adequate, they were not sufficient to detect and address the risk of malfunction. As the judge identified, a problem with the tug test as employed by the respondent was that it could not detect small amounts of movement or the extent to which there may have already been damage to the pin and coupling over time.
The failure to adopt a more rigorous testing regime for the coupling was made more serious by the obvious signs of wear on the fitting which was both readily observable and attributable to movement within the fitting. While apparently the product of an honestly held belief, it was a seriously deficient response to the observation of signs of wear on the block to pass it off as ‘old wear’ without, more proactively, making further investigations to verify whether that conclusion was justified. The assumption of its correctness took on an ever increasing burden of risk with each additional service of the 26 services that the respondent undertook. Not only should the respondent have ensured that its processes for testing couplings of this kind were generally adequate, the signs of wear and tear on the block ought to have reinforced the need for a higher level of scrutiny in this particular case.
In assessing the extent of the departure from the duty imposed by the OHSA, it is important to note that there were reasonable steps that could have been taken to detect wear and tear on the coupling. The trailer could have been detached from the truck to enable a better inspection of the components and allow for bar testing by which a bar could be inserted into the tow eye and pressure applied to see whether there was any movement within the block. A visual inspection and bar testing was an inexpensive and easy way to inspect the coupling. Further, the replacement of a suspect coupling was inexpensive and not particularly time consuming.
Another important feature of the breach was that the respondent had multiple opportunities to detect the problem and the longer the period of time, the more opportunity there was for the coupling to break on the open road.
The risks associated with the failure of the coupling were extremely grave. Whether it could be said, as the respondent submitted, that a failure over time was inevitable, may be doubted but it cannot be disputed that the risk of failure was very high and the consequences of any failure extremely grave.
Without detection of any unseen wear, the continued use of the combined truck and trailer meant that the pin would continue to move during operation and the risk of failure was high. In the event that the coupling failed, there was a very high risk that the trailer would become detached. The risk of failure under the stress experienced during driving meant that there was an increased risk that the failure would occur when the truck was in motion and this necessarily meant that there was an appreciable risk to other road users in the vicinity.
An obvious feature of a detached trailer travelling at speed is that there are no other mechanisms that the driver of the truck can employ to control the trailer once it becomes free. In that way, a distinction might be drawn to other failures that might still enable the driver to take action such as steering in a way that avoids a collision or minimises impact. A freewheeling trailer is entirely uncontrollable and more dangerous for that reason.
In Vibro-Pile,[75] this Court noted the somewhat elusive distinction between not taking into account the fatal consequences in assessing the objective gravity of the offending but taking into account the impact that the collision had on family members as victims of the offence. It is certainly true that the tragic consequences highlight the nature of the risks that are associated with the repair and maintenance of heavy road vehicles.
[75]DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676; [2016] VSCA 55 (‘Vibro-Pile’).
In short, we are of the view that this was a serious example of the offence.
The respondent was able to rely on a number of features that were relevant to moderate the sentence. It had a good history, there was inordinate delay in finalising the charges and had suffered a loss of work as a result of the incident. Of course, the respondent pleaded not guilty and could not rely on evidence or remorse, acceptance of responsibly or any utilitarian value that would follow a plea of guilty.
It was inevitable that the judge would impose a fine for the offence. Section 52 of the Sentencing Act 1991 required the judge to take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose. The judge accepted that the respondent is of modest size and profits, and that the imposition of a significant fine will create financial hardship for the company. The financial evidence showed that there was fluctuation in the respondent’s profit and, for the three years ending 30 June 2019 to 30 June 2021, the net profit was $79,960, $186,355 and $172,206.
It is plain from the judge’s reasons that the financial position of the respondent was a relatively significant matter in the size of the fine imposed.
The judge was correct to have regard to current sentencing practice. The cases in this Court in relation to offences under the OHSA consistently highlight the importance of general deterrence. Outcomes in particular cases are not precedents, and a comparison with other cases risks ignoring the differences and the individual features of each case. Before the sentencing judge, the DPP relied on three decisions as evidence of current sentencing practice. Total effective sentences imposed in those cases were $1.4 million, $750,000 and $388,650.[76] The respondent relied on five decisions, in which the total effective sentences imposed were $600,000, $300,000, $250,000, $230,000 and $150,000,[77] all but the first of which followed a plea of guilty.
[76]AAA Auscarts (County Court, Judge Allen, 12 May 2009); Orbit (2012) 35 VR 399; [2012] VSCA 82; Tomlin (Magistrates’ Court, Magistrate L Hill, 2 October 2020).
[77]Thiess [2015] VCC 1954; New Sector Engineering [2020] VCC 400; Grampians Free Range Poultry (County Court, Judge Taft, 4 July 2018); Frewstal (2015) 47 VR 660; [2015] VSCA 266; De Kort [2019] VCC 291.

We have had regard to them, but the individual outcomes have not been of much utility in resolving the DPP’s appeal.
We are persuaded that the offending was serious and the need for general deterrence was high. Indeed, in Vibro-Pile this Court emphasised the particular importance of general deterrence as a sentencing objective in offences of this kind.[78] This latter aspect meant that the individual circumstances of the respondent including its financial position, while clearly relevant, had less force than they otherwise might have had. The sentence imposed does not adequately reflect either the seriousness of the offending or the particular importance of general deterrence for this offending. Indeed, in our view, the sentence is starkly disproportionate to the seriousness of the offending even taking into account all of the proper matters in favour of the respondent, including the factor of delay, which we regard as particularly significant. Bringing all of the matters together, we are persuaded that the sentence imposed was manifestly inadequate. We are also persuaded that a different sentence should be imposed. We would set the sentence aside and resentence the respondent.
[78]Vibro-Pile (2016) 49 VR 676, 731 [233] (Maxwell P, Redlich and Whelan JJA); [2016] VSCA 55.
We would impose a fine of $350,000.

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[2023] VSCA 69

3 April 2023