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:

1. I invite Neave JA to deliver the first judgment.

NEAVE JA:

1. 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)

1. 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.

1. 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.

1. 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. 

1. 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, $145,000.00 on count 3 and $155,000.00 [on] count 4, the sentencing Judge —

(a)failed to sufficiently punish the offender to an extent which is just in all of the circumstances;

(b)failed to sufficiently deter the offender or other persons from committing offences of the same or a similar character;

(c)failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged;

(d)failed to have sufficient regard to the maximum penalty prescribed for the offences;

(e)failed to have sufficient regard to the nature and gravity of the offences;

(f)failed to have sufficient regard to the offender’s culpability and degree of responsibility for the offences;

(g)failed to have sufficient regard to the impact of the offences on the victims;

(h)failed to have sufficient regard to aggravating features of the offending and in particular —

·the failure of remedial steps to prevent a re-occurrence of an accident,

·the failure to address safe work practices in general following the first accident, and

·the failure to enforce instructions in relation to not wearing loose garments and a failure to provide protective clothing;

(i)gave too much weight to mitigating factors concerning the offender, in particular

·the early plea of guilty,

·the co-operation with WorkSafe authorities,

·the expenditure on safety measures following the second accident,

·the absence of prior convictions,

·remorse, including the financial support in relation to the funeral of the deceased and the decision to not wind up the company despite trading at a loss in order to meet the penalty imposed by the Court,

·the effort to assist other employees to find alternative employment following the closure of the Rapid Roller work site in Fairfield, and

·the relinquished opportunity to enter a joint venture to export to China.

1. Despite these particulars, the written submissions made on behalf of the Director did not seek any increase in the sentences imposed on Rapid Roller.  It was submitted that Rapid Roller had taken a ‘responsible attitude’ following the incidents, in that it had not sought to avoid the payment of fines by winding up the company.  The managing director of Rapid Roller had indicated that, although the company was running at a loss, Rapid Roller would, if necessary, meet its obligations with assistance from directors and proceeds from the sale of assets of a family trust.

1. Nevertheless, the Director submitted that the Court should hear the appeal in order to provide guidance on the range of sentences to be imposed for offences involving breaches of the Act.

1. The written submission argued that such guidance was necessary for two reasons. First, although s 5(2)(b) of the Sentencing Act 1991 requires ‘current sentencing practices’ to be taken into account in sentencing an offender, no discernible sentencing practices could be identified from recent sentences imposed in the County Court for breaches of the Act. In support of that submission, reference was made to the Judicial College of Victoria Sentencing Manual, which states that ‘[n]o uniform practice may be established in this area’ although that statement is qualified by a further comment that judges must ‘consider other similar decisions that demonstrate current sentencing practices’. The Court was also provided with a Table showing sentences imposed in the County Court in cases involving breaches of the Act. The Table compares the fines actually imposed with the maximum fine in cases involving guilty and not guilty pleas between 2007 and 2010 where there was a fatality or risk of a fatality. The proportion of the maximum fine ranged from 1 per cent of the maximum in a case where an offender had pleaded guilty to a breach of mid range seriousness[3] to 66 per cent of the maximum in a case where the offender pleaded guilty to a serious breach of the provisions.[4]  The Court was not provided with copies of the reasons in these cases, nor with further details of the nature of the offences or of any mitigating factors.

   [3]R v Evisan Grain Pty Ltd (Unreported, County Court, Judge Murphy, 6 June 2008).

   [4]R v Hajel Pty Ltd (Unreported, County Court, Judge Allen, 11 November 2009).  The offender in this case also pleaded guilty to a further breach, for which it was fined $150,000, or 16 per cent of the maximum.  A fine of 66 per cent of the maximum was also imposed in R v AAA Auscarts Imports Pty Ltd (Unreported, County Court, Judge Allen, 12 April 2009), where the offender pleaded not guilty. The Table did not indicate the seriousness of the offence

1. Secondly, the written submission relied on the fact that the fine for breaches of s 21 of the Act was 9,000 penalty units, which was a considerable increase from the maximum fine of 2,500 penalty units which applied under the Occupational Health and Safety Act 1985.  Reliance was placed on R v AB (No 2)[5] in which this Court (Warren CJ, Maxwell P and Redlich JA) cited the decision of Nettle JA in Director of Public Prosecutions v Arney,[6] a case in which his Honour held that the increase by Parliament of the maximum sentence for manslaughter required a departure from previous sentencing practices and an increase in the sentences to be imposed.[7]  In R v AB (No 2), the Court held that the increase in the maximum conflicted with the guidance provided by sentencing practices established when a lower maximum applied.  In those circumstances, the sentencing judge was not fettered by the previous pattern of sentencing, but was obliged to give effect to Parliament’s decision to increase the maximum penalty.[8]

   [5](2008) 18 VR 391.

   [6][2007] VSCA 126.

   [7]Ibid [13]-[15].

   [8](2008) 18 VR 391, 405. See also DPP v CPD [2009] VSCA 114.

1. In this case the Director did not seek any increase in the actual sentences imposed on Rapid Roller.  This Director’s appeal is governed by s 567A of the

Crimes Act 1958.[9]  Section 567A(4) provided that, on a Director’s appeal the Court of Appeal shall, if it thinks a different sentence should be passed, quash the sentence and impose a different sentence.  But, as I have said, the Director did not submit that different sentences should be imposed on Rapid Roller.

[9]See now Div 3 of Pt 6.3 of the Criminal Procedure Act 2009.

1. R v Clarke,[10] which sets out the purposes for which it may be proper for the Director to appeal against a sentence, is not authority for the proposition that the Court should embark on a hypothetical process of determining the adequacy of current sentencing practices in a case where the sentence imposed is not actually challenged.  Once that problem had been identified at the hearing of the appeal, the Director sought to recast the appeal to convert it into an appeal against sentence and to have the Court set aside the sentences imposed below and re-sentence Rapid Roller.

   [10][1996] 2 VR 520.

1. Counsel for Rapid Roller submitted that to permit the Director to do so would be unfair to Rapid Roller and that, at the least, further time should be given to both parties to file further material and make additional submissions.

1. The Director conceded that, in the circumstances of the case, it would be unfair to pursue the appeal.  When it is recalled that two years have passed since the sentences were imposed, I would accept the submission that it would be unfair to do so and would dismiss the appeal.

NETTLE JA:

1. I agree.  I wish only to add that, as it appears to me from the Director’s outline of argument, sentencing practice in cases of this kind are in need of appellate consideration.  But for the form of this appeal, the deficiencies to which my sister Neave has referred, I consider that this case may well have provided an opportunity for this Court to give some guidance to sentencing judges as to the adequacy of the current sentencing practices.

1. Perhaps the difficulties with this appeal could have been overcome by allowing an adjournment and an opportunity for the Director to reformulate argument, and for the respondent to have time in which to respond to that reformulation.  But as the Director ultimately, properly and very fairly conceded, if the Court took the view, as we have, that it is inappropriate to entertain the appeal in its present form, it is proper for the appeal to be dismissed.

KYROU AJA:

1. I agree with Neave JA and the additional observations of Nettle JA.

NETTLE JA:

1. The order of the Court is that the appeal is dismissed.

(Submissions re indemnity certificate).

1. A certificate will be granted.

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