DPP v Amcor Packaging Pty Ltd [2005] VSCA 219

DPP v Amcor Packaging Pty Ltd [2005] VSCA 219 - VSCA 2005 case summary — Zoe

1 This is an appeal by the Director of Public Prosecutions against the sentences imposed upon the respondent in the County Court, at Melbourne, on 28 October 2004, on two counts of failing to provide and maintain, as far as practicable, a safe working environment for its employees, contrary to section 21 of the Occupational Health and Safety Act 1985 [1].

2 The respondent, a company that has operated in Australia for many years was, on 25 March 2003, engaged in the manufacture of paper products from pulp at premises in Fairfield, Victoria. At about 3.30 p.m., on that day, one of its employees, Darren Moon, was working, in the ordinary course of his duties, in close proximity to a set of very large unguarded rollers on a paper manufacturing machine, when he was drawn against them and fatally injured. The machine, which was capable of manufacturing a number of different grades of paper, was extremely large and occupied the entire floor of the building. The base material used in the process was passed into it as a liquid pulp, and then taken through a series of supported rollers where it was drained, pressed, dried out and eventually rolled onto a reel and cut according to client specifications. When manufacturing light paper, the machine would process at 470 metres of material per minute. Heavier product would pass through it at between 160 and 200 metres per minute.[2] Mr Moon was working at a part of the machine known as the fourth dryer section. One of his duties was to ensure that the material being processed, which was described at the particular stage of the operation as a "tail", was positioned so that, guided by felt and ropes, it passed properly between the rollers. Sometimes, in order to achieve this, operators would use an air hose, the nozzle of which would be manually held very close to the rollers. Mr Moon was performing this duty when he was caught and drawn against them.

3 Surprisingly, the machine, which had been in use since 1966, had never been fitted with a relevant guard and it is, as we understand the position, accepted that there was little, if any, meaningful instruction or supervision of employees designed to address what, to an external viewer, would be regarded as an obvious and long standing risk of injury. The training of operators, such as it was, was predominantly conducted "on the job", with the process of achieving competency being documented in the company's training records. However there was no safety manual for the machine, nor was there any documented standard operating procedure.

4 Two risk assessments had been undertaken covering the fourth dryer section. The first was conducted in 1998 by Paul Moon (the father of the deceased) and Phillip Edwards, both of whom were long term employees of the respondent. That assessment identified entanglement, crushing, shearing, striking and ergonomic risks, amongst others. The second, a plant risk assessment, identified the nip points of the rollers as presenting entanglement risks. An associated work sheet stated that, because operators at one section needed to hand feed paper tail into a nip point, this presented obvious entanglement hazards. It also contained the statement that some operators, in retrieving 'broke' (torn product) attempted to reach into the moving machine. This was recognised as creating an obvious hazard and it was pointed out that if they were to be caught, crushing and/or shearing injuries could result. The next recorded comment was 'History would suggest however that this is a remote possibility, hence the low [risk] rating.' In the 'current risk control' column of the report it was stated that 'it is felt that the entanglement risk is also very prevalent when the machine is on crawl' and recommended that this be incorporated in the calculations. An additional note was made, however, that, 'Justification score card suggests automatic feed for the machine is of doubtful value.'

5 An incident report form relating to an occurrence on 14 July 2002 tendered before the sentencing judge contained the following passage:

[26]

22 In support of this contention, Mr McArdle placed emphasis on the failure to provide an appropriate guard. Had that been done, he submitted, the risk of injury to Mr Moon would have been almost completely eliminated.

23 Mr Walters, who appeared for the company, responded to each of these assertions.

24 First he submitted that his Honour was correct in referring to the prior appearances of the respondent before the Court as possessing a minimal relevance in the context of this case. It defies common sense and legal principle, he contended, to assert that the size and character of the respondent's operations were of no consequence. He pointed out that the prosecutor in the Court below accepted that the offence under the Environment Protection Act could possess little, if any, significance. The other offence, which might appear to be relevant, involved interstate operations, had arisen some time before, resulted in no injury to any employee and was obviously not serious in as much as a relatively small fine was imposed.

25 We agree. Prior convictions (or their absence for that matter) can assume relevance in the sentencing process in a number of different ways upon which it is not necessary to dwell. Clearly the offender's background in this respect can assist (inter alia) in the determination of their level of culpability, the weight that can be attributed to the offender's protestations of remorse and whether the need for specific deterrence should be taken into account. Setting to one side the finding of guilt made against the respondent for an offence under the Environmental Protection Act as possessing minimal, if any, significance in the present context, the company has been proved to have accrued only one conviction during its years of operation, and that for what appears from the "penalty" imposed to have been regarded as an isolated breach. The respondent was a large corporation conducting a wide range of operations in different parts of the country. It had only one relevant breach of the law and there was nothing in the material generally, or arising from the fact of this earlier conviction, that suggests that specific deterrence assumed importance as a sentencing consideration.

26 Mr Walters submitted that it was not disputed before the sentencing judge that none of the machines of the particular kind, in Australia, were equipped with guards prior to the death of Mr Moon. It was accepted that the respondent had breached the Act, but the background of industry practice and the fact that machines, of the type involved, had been operated for many years in this country without any such incident having occurred mitigated the culpability attached to this failure. He rejected any suggestion that the respondent had demonstrated its disregard for the safety and welfare of its employees at any stage. At worst, he said, there was a failure to recognize the degree of risk posed. The level of culpability of the respondent could not properly be viewed as high in those circumstances. With regard to the contention that rectification was relatively simple, Mr Walters drew attention to a number of considerations:

[28]

27 To argue that this process was simple or easy was, he submitted, "facile".

28 It was also appropriate, Mr Walters argued, for his Honour to have regard to the conduct of the respondent from the time of the incident, contending that the company could be seen to have behaved in an exemplary fashion once the unfortunate death of Mr Moon occurred. Appropriate steps were taken to guard the machine, a plea of guilty was entered at the first opportunity, and there was full co-operation by the respondent in a Victorian Work Cover investigation. The significance of such mitigatory considerations in cases of this kind is a matter to which we shall return.

29 When regard is had to all of these considerations the penalties imposed by the sentencing judge could not be regarded as falling outside the range available to him, Mr Walters submitted.

30 Those submissions are not persuasive. Indeed, rather than operate in favour of the respondent, the matters identified by Mr Walters significantly increase the sense of unease which arises from the circumstances in which the deceased met his death. Despite the assertions advanced on behalf of the respondent about its concern for the safety of its workforce, and despite the claimed difficulties in fitting a guard, the fact is that a guard was able to be fitted within a very short time of the occurrence of a serious accident. Furthermore, while the cost of installation was plainly substantial, the factor which seems to have been of greatest importance to the respondent was that installation of the guard and the adoption of safe working practices significantly increased the costs of operating the machine and otherwise conducting the respondent's operations.

31 Contrastingly, there is a great deal of force in the Crown contention that each of the sentences imposed upon the respondent was so inadequate as to indicate a serious departure from principle.

32 It would seem clearly beyond dispute that Mr Moon and his fellow employees were so accustomed to performing their duties in an unsafe environment, that they, and presumably their employer, barely saw the danger to which they were exposed. No effective action was taken in response to the limited warning given by the risk assessment report, which in turn was prepared without the engagement of independent properly qualified persons nor was it regarded as necessary to undertaken preventative action as a consequence of the earlier incidents. It is equally clear that there was no adequate instruction or supervision of the deceased concerning the performance of the task that he was undertaking at the time that he was drawn against the rollers.

33 In our opinion, the inference is irresistible that the respondent approached the situation from the viewpoint that as little untoward had happened over a long period of operation, it could be assumed that nothing ever would and therefore that the substantial expenditure and increased operating costs involved in the removal of the danger were not regarded as justified. A degree of complacency based upon the acceptance of that assumption can be seen to have contributed to the death of one of its employees.

34 Section 21 of the Occupational Health and Safety Act 1958 is directed to ensuring that employees are not subject to unnecessary risks to health in their working environment. Responsibility to take reasonable measures to prevent such exposure has been placed squarely on their employers. It must not be forgotten in this context that the risk to the employer is essentially economic whilst those to which the worker is exposed directly concern their physical or mental well being or, as in this case, life. As Harper, J. stated in Holmes v. R. E. Spence:

[39]

40 Mr McArdle submitted that the notion of double jeopardy was directed essentially to the situation confronted by individuals exposed to the possibility of the imposition of a heavier sentence on appeal. More specifically, he asserted that there is recognition by the courts of the personal impact of the protraction of proceedings, and the revival of understandable apprehensions concerning the outcome, upon those who are subject to the prospect of increased punishment. The feelings of mental anguish, personal distress and possible loss of reputation which lie at the core of this approach could not, he contended, be sensibly attributed to a corporation. Accordingly, the principle of restraint which has been developed in order to take such considerations into account could have no application to an entity of that kind.

41 Obviously, as Mr McArdle asserted, the position of a corporation cannot be equated with that of a human offender. But as a matter of principle we see no good reason, allowing for necessary modification, for the total rejection of the notion of double jeopardy in the case of a corporate offender. Presumably, the notion of double jeopardy would ordinarily assume less significance in the case of a corporate offender than in the case of a human offender and, sometimes, it might reasonably be regarded as inconsequential when determining whether any and what measure of intervention would be justified in the circumstances. But the very institution of an appeal could well impact adversely upon the standing of a corporate offender and those associated with it. Corporations can and do develop reputations, and on occasion the damage to an corporation's capacity to trade and to the value of its shares sustained in consequence of the successful prosecution of an appeal could be very severe. While therefore the matter is not free from doubt, we consider that such considerations are factors to which an appellate court should have regard and can appropriately be viewed as constituting additional adverse consequences to which mitigatory effect should be given.

42 In the present case, however, there is nothing in the material before the Court that suggests that the respondent has incurred or may incur any significant damage to its business or general standing as a corporation as a consequence of the institution of this appeal or that, save for the additional penalty imposed, is likely to incur any other adverse consequences. Consequently, in our view, the weight to be attributed to the principle of double jeopardy in the present case would have to be regarded as very limited.

43 Whilst, as Mr McArdle submitted, the presence of a guard even in the absence of instruction or supervision would have prevented Mr Moon being caught by the rollers, the failure to provide that instruction and supervision also constituted a serious breach by the respondent of its statutory obligation. There is no need to discriminate between the offences on this basis. We propose to substitute a fine of $180,000 for each of them.

At a glance

Court

Decision date

Before

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Judgment (44 paragraphs)

Parties