CRIMINAL LAW – Appeal – Sentence – Occupational health and safety - Recklessly engaging in conduct placing a person at a workplace in danger of serious injury – Employer fined $750,000 – Foresight of probable danger of serious injury – Judge erred in attributing to defendant foresight of probability of serious injury – Crown concession – High culpability offence – Defendant’s culpability very high – Liability and offences of company and director separate and distinct – No double punishment – No different sentence should be imposed – Appeal dismissed – Occupational Health and Safety Act2004 (Vic) s 32, Criminal Procedure Act 2009 (Vic) s 281(1).
CRIMINAL LAW – Appeal – Sentence – Occupational health and safety – Company breached duty to provide and maintain safe workplace – Failure to provide and maintain safe system of work – Company’s breaches attributable to director’s failure to take reasonable care – Director fined $120,000 – Very serious example of offence – Sentence not manifestly excessive – Appeal dismissed – Occupational Health and Safety Act2004 (Vic) ss 21(1), 21(2)(a), 144(1).
CRIMINAL LAW – Appeal – Sentence – Guilty plea – Adequacy of discount – Discount not examinable for specific error – Relevant only to manifest excess ground – Discounts in other cases of no assistance – R v Burke (2009) 21 VR 471, Scerri v The Queen [2010] VSCA 287 applied.
---
APPEARANCES:
Counsel
Solicitors
For the Appellants
Mr M J Croucher SC with Mr R W Taylor
Baker & McKenzie
For the Crown
Mr P Rose SC with Mr C Carr
Mr C Hyland, Solicitor for Public Prosecutions
---
MAXWELL P BONGIORNO JA KYROU AJA:
On 9 December 2006, Bradley Alford was killed while he was at work. He was just 21. He died when the Mack truck he was driving went out of control on a steep slope, became airborne, bounced several times and overturned. Mr Alford was thrown out of the truck as it rolled, and was killed on impact. He had been working for the appellant, Orbit Drilling Pty Ltd (‘Orbit’), for just over a week.
The truck was heavily loaded when Mr Alford was instructed by Maurice Barton, Orbit’s site manager, to park it on a drill pad, near where Orbit was to perform drilling works for a mining company (Agincourt). For this purpose, the vehicle had to be driven over the crest of a hill, then down a steep slope, before stopping and reversing up…
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 Orbit Drilling v The Queen
Sign in free to access the full text
Details
AGLC
Orbit Drilling Pty Ltd v The Queen [2012] VSCA 82
Case
[2012] VSCA 82
Decision Date
CaseChat Overview and Summary
Orbit Drilling appealed against its conviction and sentence for an occupational health and safety offence under the Occupational Health and Safety Act 2004 (Vic). The company had pleaded guilty to recklessly engaging in conduct placing a person at a workplace in danger of serious injury, resulting in a fine of $750,000. The appeal focused on the sentence imposed, arguing that the judge had erred in attributing foresight of the probable danger of serious injury to the defendant and that the sentence was manifestly excessive. Additionally, the appeal contested the adequacy of the discount applied to the fine for the guilty plea.
The court had to determine whether the sentence was manifestly excessive and if the judge had correctly attributed foresight of probable danger of serious injury to the defendant. The appeal also raised the issue of whether the director, who had been fined $120,000, should have received a different sentence given that the company and director's liabilities and offences were separate and distinct. The appeal considered whether the director's culpability warranted a different sentence, despite the high culpability of the offence.
The Court of Appeal found that the judge had correctly attributed foresight of probable danger of serious injury to the defendant, as the evidence supported such a finding. The court held that the sentence was not manifestly excessive, considering the high culpability of the offence. The appeal also dismissed the argument that the director should receive a different sentence, as the liabilities and offences of the company and director were separate and distinct, and there was no double punishment. The Court of Appeal dismissed the appeal, confirming the fines imposed on both the company and the director.
The court's final order was that the appeal against the sentence imposed on Orbit Drilling and the director be dismissed. The fines of $750,000 for the company and $120,000 for the director remained in place. The court's reasoning focused on the proper attribution of foresight of probable danger, the high culpability of the offence, and the separation of the company's and director's liabilities. The court concluded that the sentences were appropriate and not manifestly excessive.