R v Barro Group Pty Limited
[2009] VCC 1623
•30 November 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
| AT MELBOURNE CRIMINAL DIVISION | |
| THE QUEEN v BARRO GROUP PTY LIMITED |
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| JUDGE: | HIS HONOUR JUDGE COISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 30 November 2009 |
| CASE MAY BE CITED AS: | R v. Barro Group Pty Limited |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1623 |
REASONS FOR SENTENCE
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Catchwords:
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N. Papas SC | |
| For the Accused | Mr R. Ray QC | |
| HIS HONOUR: |
1 Barro Group Pty Ltd, which I shall hereafter refer to as Barro, has been found guilty by a jury of one count of failing to provide a safe system of work, Count 1, one count of failing to make arrangements in connection with the use of plant, Count 2, and one count of failing to provide adequate instruction, training or supervision, Count 3. These offences carry the maximum penalty of a fine of 9000 penalty units, which is approximately $900,000 per offence.
2 Barro pleaded not guilty and conducted a trial, which is its right. It is not to be punished in any way for doing so, however equally it cannot expect the benefit that would attach to a plea of guilty or indication of remorse that such a plea of guilty may have demonstrated.
3 The general circumstances surrounding these offences are as follows. Barro operated a number of quarries in Victoria and interstate. In late 2003 Barro purchased a C12 mobile rock crusher from Extec Sales and Distribution Australia Pty Ltd for use at Barro's Donnybrook quarry. The C12 crushes rocks. The rocks are loaded into the crusher box and they are then crushed between a fixed jaw and a moveable jaw, the swing stock jaw. These jaws are on opposite sides of the crusher box. Each jaw is covered by a corrugated liner or wear plate. The removal and replacement of the liner is a routine maintenance task which must be performed on the C12. As the liners wear more at the bottom than the top they are usually removed, rotated and replaced.
4 When the C12 was purchased Barro did not undertake any hazard identification or risk assessment of that machine. This was in contravention of its own health and safety policy in respect of the purchasing of new plant. See Exhibit 5.
5 In late 2003 and early 2004 Felice Stocco, the Donnybrook quarry manager, arranged for Mark Russell, Extec's sales representative, to attend at the Donnybrook quarry and explain the operation of the C12 to Barro's employees and contractors. Mark Russell gave evidence that he attended at Donnybrook on two occasions and instructed the Barro employees and contractors on the operation of the C12. He said that this instruction and training included a description of the system for changing the fixed jaw liner on the C12. The C12 had a unique system for the rotation or changing of the fixed jaw liner. This involved the use of red lifting hooks, which were supplied with the C12 and a pneumatic ram. This method was different to the traditional method of changing liners which involved welding a lug to the liner and lifting the liner using this lug.
6 In July 2005 there was a problem with a bearing on the swing stock and accordingly it was removed from the C12 for repair. After the swing stock was removed, Emmanuel Houllis, the quarry supervisor, and Jason Bucks, a welder and maintenance fitter, decided to remove and rotate the fixed jaw liner. This was the first time that this task had been undertaken. It was the Crown case that Barro failed to undertake an adequate hazard identification and risk assessment in respect of the rotation or changing of the fixed jaw liner, and failed to devise and implement an adequate system of work for the safe rotation or changing of the fixed jaw liner.
7 Felice Stocco gave evidence that he did a visual hazard identification and risk assessment of the C12, however he acknowledged that he was not aware of the existence of the red lifting hooks and the pneumatic push ram and accordingly was not aware of the unique system for rotation or changing of the fixed jaw liner on the C12.
8 Whilst Barro had developed a safe work procedure for other machines, I find that there was no specific safe work procedure developed for the C12.
9 Houllis and Bucks attempted to remove the fixed jaw liner, however the liner was stuck. On 15 July 2005, Bucks, together with Stephen Hoare, a plant operator at the Donnybrook quarry, continued to attempt to remove the fixed jaw liner. The C12 manual was consulted, however the men could not work out why the liner could not be removed. Bucks and Hoare attempted to use the red lifting hooks, however whenever load was applied to the hooks they popped out of the bolt holes. Bucks instructed Hoare to activate the hydraulic push off ran. Hoare activated the ram. He then heard a dull thump. He went to investigate and discovered the liner had come off its mounts and fallen onto Bucks. Bucks was in the liner box trapped under the liner. He died as a result of his injuries.
10 Apart from the initial training sessions undertaken by Mark Russel of Extec in late 2003 and early 2004, there had been no further requests for information from Extec in respect of the system for removal of the fixed jaw liner, nor had there been any further information, instruction or training provided to Barro employees in relation to the system for removal of the fixed jaw liner from the C12.
11 It was not the prosecution case at trial that Barro's acts or omissions had caused Bucks' death, rather the circumstances in which he died indicated that this was a particularly unsafe work environment with a significant hazard or risk. The hazard was the process of changing the C12 fixed jaw liner and the risk was the risk of bodily injury through the jaw liner falling or moving in an unexpected way.
12 Count 1, failure to provide a safe system of work, contrary to s.21(1), and s.21(2)(a) of the Occupational Heath and Safety Act 2004, contained two particulars: (a) failed to undertake an adequate hazard identification and risk assessment in respect of the rotation or changing of the fixed jaw liner of the Extec C12 crusher; (b) failed to devise and implement an adequate system of work for the safe rotation or changing of the fixed jaw liner."
13 Count 2, failure to make arrangements in connection with the use of plant contrary to ss.21(1) and 21(2)(b) contains three particulars: (a) failed to undertake an adequate hazard identification and risk assessment in respect of the rotation or changing of the fixed jaw liner; (b) failed to request adequate information from the manufacturer or supplier of the Extec C12 crusher in respect of the working mechanisms, operation and maintenance of the crusher, relevantly the mounting system of the fixed jaw liner, the method for use of the red lifting hooks, and the operation of the push off ram; (c) failed to request adequate information from the manufacturer or supplier of the Extec C12 crusher in respect of the risks associated with the rotation or changing of the fixed jaw liner."
14 Particular (a) in respect of both Counts 1 and 2 is identical. There was no dispute that this particular was capable of constituting both a breach of s.21(2)(a) and 21(2)(b). In these circumstances it was submitted on behalf of the defence that to convict and sentence Barro on both Counts 1 and 2 would constitute double punishment as it cannot be established beyond reasonable doubt that the jury were not satisfied beyond reasonable doubt as to Count 1 particular (a) and Count 2 particular (a).
15 Both parties provided very helpful written submissions on this issue. I accept the defence submission that it is not appropriate to punish Barro in respect of both Counts 1 and 2 for these reasons. (1) The principles governing double punishment are clearly expressed by the High Court in Pearce v. R (1998) 194 CLR 610, pp.621-624. The following comments by McHugh, Hayne and Callahan JJ at p.623 are in my opinion relevant:
"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. The identification of a single act as common to two offences may not always be straightforward. It should, however, be emphasised that the enquiry is not to be attended by 'excessive subtleties and refinements', it should be approached as a matter of common sense, not as a matter of semantics."
16 (2) These principles have been consistently applied by the Court of Appeal, recent examples from other areas of criminal law are R v. Bacac. Nguyen Vu (2009) VSCA 231, offences of dishonesty, R v. Timothy Vuadreu (2009) VSCA 262, offences involving handling stolen goods and firearms, and R v. Chin Pott Tan (2005) VSCA 54, drug offences. (3) Section 51 of the Interpretation of Legislation Act 1984 is relevant. (4) I must determine the facts relevant to sentencing and the view of the facts I adopt must be consistent with the jury verdict. In this case verdicts were taken in respect of each count only, therefore apart from concluding that the jury must have been satisfied beyond reasonable doubt as to at least one of the particulars and the elements of the offence in respect of Counts 1 and 2 I cannot gain any further assistance in this regard from the jury verdicts.
17 It is clear that a significant part of the Crown case concerned the alleged failure on the part of Barro to undertake an adequate hazard identification and risk assessment in respect of the rotation or changing of the C12 fixed jaw liner.
18 For the purpose of the double punishment submission, it is not in my opinion necessary for me to make a finding beyond reasonable doubt on this particular (a) as I agree with the defence submission that on the evidence the possibility cannot be excluded that the jury was satisfied beyond reasonable doubt of particular (a) in respect of both Counts 1 and 2. However, if I am wrong in this conclusion, I do state that I find beyond reasonable doubt that Barro did fail to undertake an adequate hazard identification and risk assessment in respect of the rotation or changing of the C12 fixed jaw liner.
19 (5) I agree with the defence submission that in the circumstances it is not appropriate to use s.51 of the Sentencing Act to impose an aggregate fine as this may involve punishing Barro twice for the same conduct.
20 In my opinion, guilty verdicts having been entered on Counts 1, 2 and 3, it is only appropriate to convict and sentence on Counts 1 and 3. There should be no further order made in respect of Count 2.
21 It was submitted on behalf of the prosecution that whilst this offending ought not be described as the most serious type of offending of this nature, this was an example of offending at the higher end of the range, thus the level of culpability of Barro could be described as being quite high. In support of this submission the learned prosecutor relied upon the general circumstances in the workplace at the time at which Bucks was killed in the industrial accident. There was a failure on the part of Barro to undertake any or any adequate hazard identification and risk assessment in respect of the rotation or changing of the fixed jaw liner and accordingly there was no specific safe system of work.
22 It was submitted that the steps that could have been taken by the company to make the workplace safer were relatively simple and did not involve great cost or complexity. Barro had in place procedures to ensure health and safety in relation to new plant and equipment, however it was submitted that their approach to compliance with these procedures was lax to say the least. Barro had demonstrated that it was capable of developing specific safe work procedures for other rock crushers. It was submitted that had an adequate hazard identification and risk assessment been undertaken there could have been an appropriate safe work procedure developed before the workers attempted to change the C12 fixed jaw liner. In view of the nature of the task being undertaken, the movement of a heavy piece of equipment on a large industrial machine, there were inherent risks, and it was incumbent upon Barro to comply with its obvious and clear statutory obligations.
23 It was submitted on behalf of Barro that its culpability ought be assessed as being in the low to mid range in terms of offending of this nature. In support of this submission the defence relied upon the following factors: (1) Barro had in place appropriate health and safety policies and procedures; (2) there was no cause or connection between the breaches of duties owed pursuant to the Occupational Health and Safety Act and the death of Bucks; (3) there was in place a system to identify hazards and assess risks. There was no subjective knowledge of the particular risk in this case. It was accepted that there was knowledge of the general risk, which was that movement of jaw liners is dangerous and there is a risk of such liners falling or moving unexpectedly therefore they must be properly secured at all times; (4) Barro had relied upon the suppler Extec, a company with experience and expertise in rock crushers; (5) Barro relied upon the C12 manual provided by Extec which was plainly deficient and misleading; (6) the reliance placed by Barro upon the expertise of Extec was reasonable given Extec's specialist knowledge of its own machinery; (7) there were a number of hidden design traps or faults which could not have been discovered by the quarry manager or workers; (8) the workers had been able to successfully remove the swing stock liner in accordance with instructions therefore this engendered a sense of false confidence in the manual; (9) Mark Russell from Extec had commissioned a large number of C10s and C12s and had never received any complaints in relation to the level of information or training he had provided. Mark Russell was unaware of any complaint concerning the provision of inadequate information; (10) the deceased worker was well trained, well regarded, careful, thorough and thoughtful, and had participated in various safety audits. He was also trained in the safe work procedure for changing jaw liners on the granulator; (11) the failure of Barro on this occasion ought be characterised as one oversight; (12) the company had an excellent history of compliance with occupational health and safety requirements thus this conduct was not consistent or typical of its past conduct or approach to occupational health and safety.
24 The defence also made a number of submissions in respect of each count upon which it had been found guilty. It was submitted with respect to Count 1 that whilst Barro did not comply with its requirement to conduct a hazard identification and risk assessment at the time of delivery of the Extec C12, there was no evidence that suggested that if this had been complied with it would have identified the specific issues with the red Extec lifting hooks. Felice Stocco did conduct a hazard identification and risk assessment as to the general function of the crusher, and his assessment would never have revealed the fault in the liner change process. While it is possible that this would have put Barro on notice to make a further enquiry, there is no evidence that any other user identified the problem with red lifting hooks prior to 15 July 2005 and there is therefore no evidence that further enquiries would have revealed the knowledge that Barro did not have.
25 It was submitted that there was a system of work in place for the granulator crusher which contained three steps namely welding on lifting lugs, not entering the crusher box and locking and tagging the C12 which, if implemented, would have prevented the incident involving Bucks from happening. Whilst it was acknowledged that this system of work was not specific to the C12 it was submitted that there was no evidence that the risk that was created by the red lifting hooks was known.
26 It was submitted with respect to Count 3 that information, instruction and training were provided.
27 In DPP v. Amcor Packaging Australia Pty Limited (2005) 11 VR 557 at 565, the Court of Appeal stated:
"When determining the appropriate penalty in the case of the breach of a statutory duty imposed for the purpose of protecting the lives and wellbeing of those who may be affected by the breach, the foreseeable potential consequences must be taken into account, as it is the avoidance of those consequences which, when considering the objective seriousness of the offence, constitutes the raison d'etre for the establishment of the legislative regime in the first place. To a substantial extent the seriousness of a breach must be assessed by reference to those potential consequences and the measure of evidenced disregard concerning the safety of employees in the circumstances."
28 In my opinion, the level of culpability of Barro in this matter in respect of Counts 1 and 3 was high. I make this finding for the following reasons. The task to be performed, namely the removal and rotation of the fixed jaw liner, was inherently dangerous. The fixed jaw liner was a heavy piece of equipment on a large piece of machinery. There were clearly significant risks associated with work upon such a piece of the equipment of the C12. It was accepted that there was a clear hazard and risk associated with the removal and rotation of fixed jaw liners in rock crushers generally. It was obviously necessary to properly secure the fixed jaw liner at all times. The traditional method of doing this was to weld a lug to the fixed jaw liner, then attach to it to a crane by the use of chains.
29 The C12 had a system for removal and rotation of its fixed jaw liner which was radically different to the traditional system. It came with its own red lifting hooks and a pneumatic ram. Any proper hazard identification and risk assessment in respect of this task on the C12 would have involved recognition of this new system, and accordingly, in my opinion, this would necessarily involve a re-assessment of the safe work procedure which had been developed for other rock crushers such as the granulator.
30 In my opinion the failure on the part of Felice Stocco to know of the existence of the C12's unique system was a glaring oversight or omission. There was clear evidence of a failure to undertake an adequate hazard identification and risk assessment. I find that Barro failed to implement an adequate system of work for this machine.
31 The information, instruction and training provided to employees was inadequate. There was confusion in respect of the information conveyed by Mark Russell. Some employees were aware of the unique Extec system for rotation or change of the fixed jaw liner after Mark Russell's training sessions, whereas Felice Stocco did not have any recollection of Mark Russell providing information on the C12 system for rotation or change of the fixed jaw liner. Barro did nothing further in relation to information, instruction and training. Whilst it is relevant that Barro relied upon Extec, and Extec failed to provide adequate information, this did not relieve Barro of its obligations to comply with the Occupational Health and Safety Act.
32 During the course of the plea reference was made on a number of occasions to the fact that the deceased worker was in the crusher box. This was also referred to on numerous occasions throughout the trial. Whilst it was clearly inappropriate for a worker to be in the crusher box the circumstance here was peculiar in that the swing stock had been removed. Dr Price stated that in this circumstance a worker may be in the crusher box. It is also relevant that in complying with its obligation to provide a safe system of work an employer must have regard to the risk that an employee will act inadvertently or without taking reasonable care for his own safety, or carelessly, or make mistakes. The employer must have regard to the risk of an employee acting in this manner.
33 In my opinion the foreseeable potential consequences of breach of duty were grave indeed and there was a significant disregard for the safety of employees in all the circumstances.
34 I have taken into account the following matters in mitigation of sentence. Barro has no prior convictions nor have there been any prior prosecutions of it. Barro was established in the 1940s. It is a large and successful company. It is genuinely committed to the community and to its employees. It has approximately 500 employees, approximately 50 contractors, and a large number of contractor drivers. Approximately 150 of its employees have been employed by it for over ten years.
35 The company's activities involve a significant and diverse exposure to risk. It undertakes concreting work, quarrying work, and provides builders' supplies. It operates a large number of work sites in Victoria and Queensland. The concrete division has 14 sites in Victoria and three in Queensland. There are ten quarries in Victoria and three in Queensland, and eight building supply sites in Victoria. There is therefore significant and diverse exposure to risk.
36 There have been no past fatalities of any employees or contractors. I accept that Barro is genuinely committed to health and safety. The corporate structure reflects this commitment to health and safety. Approximately ten years ago Barry engaged Cruise Partnerships to assist with health and safety management. Barro has been constantly reviewing its health and safety procedures since implementing a 1999 corporate safety manual. There have been continuous reviews and development of the manual audit systems and various safe work procedures. This has culminated in a 2004 policy and a 2005 corporate management system manual.
37 The Donnybrook site was purchased in October 2003. It was a small quarry and was quite derelict, however there have been significant improvements made at this work site. Before this accident on 15 July 2005 there had been no recorded time lost as a result of injuries at the Donnybrook quarry.
38 Barro's general reputation as a leader in workplace safety was acknowledged in 2004 when it was awarded a Worksafe Victoria Award for its occupational health and safety management strategy. It had developed an innovative risk management solution system.
39 I accept that Barro has reacted responsibly to this incident. It has provided great support to family and work colleagues of the deceased. This has included personal visits to the family by the directors of Barro and counselling to all staff, directors and contractors. Since this accident Barro has undertaken a comprehensive review of all health and safety systems. There has been risk assessment and hazard identification undertaken on the C12 in order to develop a safe work procedure which is specific to the C12. The company has reviewed its procedures in respect of health and safety issues, in particular compliance with health and safety requirements in relation to the purchasing of new plant and equipment. It has acknowledged that some safe work procedures may have been too generic and it has sought to rectify this defect. It has sought to ensure that there is a presence by either management or a second in command on site at all times. All staff at Donnybrook have been re-inducted. There has been a review of all resources at workshops. Various action plans and training modules have been implemented. I therefore accept that there has been a very significant shake- up and that this has been undertaken at the express direction of senior management. The company has also implemented an intranet safety system.
40 The company has a budget of approximately $500,000 per annum dedicated to safety.
41 I accept that Barro has been a good corporate citizen. It has supported employees joining relevant professional bodies and has contributed to state organisations and instrumentalities such as VicRoads and various standards associations. The company also has a commitment to assist with relevant industry associations. The directors of the company have devoted much time, effort and money to assist in various philanthropic and charitable works.
42 Against these matters in mitigation I am of the opinion that Barro's actions were very serious indeed. I am satisfied that this was a serious example of a failure to provide a safe system of work and provide adequate instruction, training or supervision.
43 As well as the matters to which I have referred, I must also take into account general and specific deterrence. Specific deterrence is less relevant in view of Barro's good past record and subsequent conduct. General deterrence is of considerable importance in a case such as this. Superior courts have consistently emphasised the importance of general deterrence in cases involving breaches of occupational health and safety legislation.
44 I am called upon by the Sentencing Act to manifest the community's denunciation of the conduct of Barro and generally to impose a just punishment.
45 It is relevant that there was a significant increase in the maximum penalty shortly prior to these offences. I have had regard to the authorities from a different context relied on by the Crown in respect of current sentencing practices and maximum penalties. DPP v. CPD (2009) VSCA 114, DPP v. DDJ (2009) VSCA 115. I have also taken into account the very helpful folder provided by the defence containing many authorities and sentencing remarks on occupational health and safety prosecutions.
46 I consider Count 1 to be the more serious of the two counts upon which I shall impose sentence.
47 Having regard to all relevant facts and appropriate sentencing principles, I sentence Barro as follows: Count 1, convicted and fined $400,000; Count 3, convicted and fined $250,000. The total is $650,000. Subject to hearing from the parties, I propose to grant a stay on payment of three months.
48 MR RAY: That is the time we would have sought, Your Honour, so we're grateful.
49 HIS HONOUR: Thank you. Nothing further, Mr Papas?
50 MR PAPAS: There's no objection to that, if it please Your Honour.
51 HIS HONOUR: No other matters from either of you?
52 COUNSEL: No, Your Honour.
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