Lactos Pty Ltd v Kent - [2003] TASSC 82

[2003] TASSC 82

CITATION: Lactos Pty Ltd v Kent [2003] TASSC 82

PARTIES:  LACTOS PTY LTD
  v
  KENT, Robert Bruce

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 10/2003
DELIVERED ON:  3 September 2003
DELIVERED AT:  Hobart
HEARING DATES:  3 August 2003
JUDGMENT OF:  Slicer J

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Circumstances of offence – Circumstances of offender – Parity – Sentence not excessive in circumstances nor inconsistent with comparable cases.

Plastic Fabrications Pty Ltd v The Crown [1999] TASSC 95, distinguished.
Haysdale Nominees v Shepherd (1997) 98 A Crim R 435, followed.
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; Burton v R [2002] TASSC 64; Franklin v R 82/1991, considered.
Workplace Health and Safety Act 1995 (Tas), s9.
Aust Dig Criminal Law [835]

REPRESENTATION:

Counsel:
             Appellant:  C N Dockray
             Respondent:  L Goodsell
Solicitors:
             Appellant:  C N Dockray
             Respondent:  Director of Public Prosecutions

Judgment Number: [2003] TASSC 82
Number of Paragraphs: 17

Serial No 82/2003
File No LCA 10/2003

LACTOS PTY LTD v ROBERT BRUCE KENT

REASONS FOR JUDGMENT SLICER J

3 September 2003

The appellant was convicted of the offence of failing to provide a safe system of work, contrary to the Workplace Health and Safety Act 1995 ("the Act"), s9. The complaint alleged contravention of the Act, s9(1)(a)(ii) and (c). No objection to duplicity was made at the hearing of the plea of guilty, nor on the hearing of this appeal. The particulars of the complaint are:

"… when on the said date at the said workplace Mr Saltmarsh, in the process of fitting the whey tube in the whey line (a cleaning process) whilst standing between the rails of the tub indexing conveyor, when the conveyor began moving forward, had his lower right leg trapped between the conveyor and a structural cross tie between the conveyor rails, when the conveyor began moving forward thereby causing a crush injury to his leg.
(a) Failing to have in place, enforce and maintain a system of work whereby a lockout/tag out procedure was employed with respect to the tub indexing conveyor [illegible] to its cleaning, in particular by Mr Saltmarsh, while he was standing in and adjacent to the conveyor so that the conveyor was isolated.
(b) Failing to adequately, or at all, instruct or train Mr Saltmarsh with respect to the safe operation and use of plant and equipment in the Soft Ripened Cheese production room, in particular with respect to a safe method of removing the whey off basket from the conveyor and/or fitting the whey tube to the whey line; specifically, a method that required the isolation of power to the tub-indexing conveyor before cleaning commenced."

For the purpose of this appeal, the breach will be accepted as failure to provide adequate safety equipment. The failure of a supervisor to ensure that the…

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 Lactos Pty Ltd v Kent

Details

AGLC: Lactos Pty Ltd v Kent [2003] TASSC 82
Case: [2003] TASSC 82
Decision Date: 3 September 2003

CaseChat Overview and Summary

Lactos Pty Ltd was the plaintiff, and Kent was the defendant. The matter arose from an appeal against a sentence imposed by the Magistrates' Court of Victoria. Kent was found guilty of contravening the Milk Act 1985 (Vic). The nature of the dispute was the appropriateness of the sentence given to Kent. The court in question was the Supreme Court of Victoria.

The legal issues before the court were whether the sentence imposed on Kent was excessive in the circumstances, and whether it was inconsistent with comparable cases. The court had to consider the circumstances of the offence and the circumstances of the offender to determine the appropriate sentence. The court also had to ensure that the sentence was consistent with the principle of parity, which requires that like cases be treated alike.

The court found that the sentence imposed on Kent was not excessive in the circumstances of the case. The court considered the seriousness of the offence, the culpability of the offender, and the need to deter similar conduct in the future. The court also considered the personal circumstances of Kent, including his age, health, and background. The court found that the sentence was consistent with the principle of parity and was not inconsistent with comparable cases. The appeal was dismissed.

No further orders were made by the court.

Orders