DPP v Rapid Roller Co Pty Ltd - [2011] VSCA 17

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 699 of 2009

DIRECTOR OF PUBLIC PROSECUTIONS
	v
RAPID ROLLER CO PTY LTD

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JUDGES:	NETTLE, NEAVE JJA and KYROU AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 February 2011
DATE OF JUDGMENT:	2 February 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 17

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CRIMINAL LAW – Factories, shops and industrial safety – Crown appeal – Sentence – Respondent pleaded guilty to four counts of failing to provide and maintain a working environment that is safe and without risks to health contrary to s 21(1) of the Occupational Health and Safety Act 2004 – Stated purpose of appeal to obtain guidance on sentencing range given alleged absence of sentencing practice – No increase to sentences imposed sought – Appeal amounted to seeking of advisory opinion – Appeal dismissed – No point of general principle.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr J W Rapke QC with Mrs C M Quin	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson QC	Tony Hargreaves & Partners

NETTLE JA:

I invite Neave JA to deliver the first judgment.

NEAVE JA:

This is a Director’s appeal against fines imposed on the respondent, Rapid Roller Co Pty Ltd (‘Rapid Roller’), which pleaded guilty in the County Court to four offences under s 21 of the Occupational Health and Safety Act 2004 (the ‘Act’). Counts 1 and 4 related to the respondent’s failure to maintain plant and systems of work that were, so far as reasonably practicable, safe and without risks to health,[1] and counts 2 and 5 concerned the failure to provide such information, instruction, training or supervision to employees as was necessary to enable them to perform their work in a way that was safe and without risks to health.[2]
[1]Contrary to s 21 (2)(a).
[2]Contrary to s 21 (2)(e)

The offences arose out of two separate incidents. In the first incident an employee, Mr Scott Dunlop, suffered a serious injury to his right hand, after it was pulled into a roller. There was no emergency stop button on the roller.

In the second incident, an employee, Mr Robin Power, was fatally injured when he was drawn into a rotating lathe. The probable cause of Mr Power’s tragic death was that his clothing became entangled on a protruding bolt. For reasons which I will explain, it is unnecessary to describe the circumstances of these accidents or the mitigating factors relied upon by the respondent in any greater detail.

After hearing a plea in mitigation of sentence, the learned sentencing judge imposed the following fines:

· count 1: $18,000

· count 2: $28,000

· count 4: $145,000

· count 5 $155,000

At the time of offending, the maximum penalty for each count was $943,290.

The Director appealed against the fines imposed on the ground that they were manifestly inadequate. The particulars to this ground of appeal were that:

In imposing a fine of $18,000.00 on count 1, $28,000.00 on count 2,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Rapid Roller Co Pty Ltd

Details

AGLC: Director of Public Prosecutions v Rapid Roller Co Pty Ltd [2011] VSCA 17
Case: [2011] VSCA 17
Decision Date: 2 February 2011

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions versus Rapid Roller Co Pty Ltd, the issue was brought before the court as a Crown appeal. The respondent company had previously pleaded guilty to four counts of failing to provide and maintain a safe working environment, contravening section 21(1) of the Occupational Health and Safety Act 2004. The Director of Public Prosecutions sought an appeal not to increase the sentences imposed on the respondent but to obtain guidance on the appropriate sentencing range, given the absence of established sentencing practices for similar offences.

The legal issues before the court centred on whether the appeal was valid as a request for an advisory opinion, which is generally not permitted, and if the case presented a point of general principle that warranted judicial consideration. The court needed to determine if the appeal was within the bounds of what is allowable under the law and if there was any broader legal principle that needed to be addressed.

The court found that the appeal did not seek an increase in the sentences but rather guidance on sentencing, effectively amounting to an advisory opinion. Such requests are not within the scope of a valid appeal. Furthermore, the court determined that the case did not present a point of general principle that would benefit from judicial consideration. Consequently, the appeal was dismissed, as it did not meet the criteria for an appropriate appeal under the law.

No further orders were made as the appeal was dismissed on the basis of it being an improper request for an advisory opinion and the absence of a point of general principle. The court's decision reinforced the boundaries of what constitutes a valid appeal and upheld the principle that courts should not provide advisory opinions.

Orders