to assess the culpability of the offender's conduct in relation to the particular incident viewed as a whole, and to fix an appropriate penalty having regard to the maximum set by the legislation.[15]

a subtle but important difference when sentencing on a 'rolled-up' count as contemplated by the common law, and one made pursuant to s 33. Sentencing on a rolled-up count recognises that several different offences are contained in one count, whereas s 33 permits the court to deal with the totality of what is in reality a single offence with different component parts.

32 In our view, this submission should be upheld. The term 'rolled-up count' is a term of art with an accepted meaning in the criminal law.[16] Usually, a rolled-up count includes a number of discrete offences committed on different occasions. While an indictment alleging a breach of s 21(1) based on more than one of the sub-paragraphs of s 21(2) has something of the same character, the use of the term 'rolled-up count' is apt to mislead and should be avoided in this context.

33 By its plea of guilty, Coates admitted that it had contravened both ss 21(2)(a) and 21(2)(e), as particularised in the indictment. The company's culpability had to be assessed by reference to each of the ways in which it had admitted failing to fulfil its safety obligations. As is clear from the statement of the charge, these comprehended both the failure to provide and maintain a safe system of work and the failure to provide the information, instruction, training and supervision necessary to ensure that the work of loading and unloading equipment could be carried out safely and without risks to health.

34 It follows that the Director has no need to amend the notice of appeal. Just as the sentencing judge had to consider both contraventions in fixing the sentence for the offence, so it is necessary for this Court to consider both of them in determining whether, as the Director contends, the sentence is manifestly inadequate.

Previous enforcement action about safety procedures

35 In the present case, the company's contravention of s 21(2)(e) - by failing to provide appropriate information, training and supervision to Redline and its employees regarding the safe loading procedure - was the more serious because Coates had previously been the subject of specific enforcement action by WorkSafe[17] in relation to the issue of training for contract drivers.

36 The Crown opening referred to two improvement notices issued in March 2004 by a WorkSafe inspector, Paul Mackin, under s 43(1) of the predecessor Act, the Occupational Health and Safety Act 1985 (Vic). According to the Crown opening, Inspector Mackin attended the Coates depot at Dandenong on 24 February 2004

in response to an incident involving an injury to a DHH employee sustained while he was winching a forklift onto a DHH transport vehicle. After making further enquiries, on 3 March 2004 Inspector Mackin served DHH with an improvement notice recording his opinion that the health and safety of employees at the site was at risk because of inadequate training associated with the safe loading and unloading of plant machinery, in particular 'the standard operating procedures for winching plant on and off the transport vehicle'.

37 On the same day, Inspector Mackin issued an improvement notice to Coates. That notice stated that, in the inspector's opinion, Coates was in contravention of ss 21(1) and 21(2)(e) of the 1985 Act.[18] The reasons for his opinion were stated in the notice as follows:

Health and safety of employees at this workplace are at risk because of inadequate training associated with the safe loading and unloading of plant and machinery, in particular the standard operating procedures for winching plant on and off the transport vehicle as covered in the Induction Program.

The notice directed Coates to 'provide training for employees' concerning the safe loading and unloading of plant and machinery.

38 As appears from the extract from the Crown opening set out in paragraph 36 above, this was not a case of failing to attach the winch when equipment was being loaded. Rather, the injury was sustained in the course of winching the forklift. Moreover, as Coates emphasised on the appeal, the training steps which Coates took subsequently were sufficient to satisfy the inspector that the notice had been complied with.

39 Contrary to Coates's appeal submission, however, the episode was relevant to the present sentencing task. As the prosecutor pointed out on the plea, these events made Coates aware of 'the risks associated with the loading and unloading of plant'. The notice highlighted for Coates the importance of proper training of employees - and contract drivers in particular - in 'the safe loading and unloading of plant and machinery, in particular the standard operating procedures for winching plant on and off the transport vehicle'. Coates was also aware that, as at the date of issue of the notice, its failure to provide adequate training for employees in safe loading procedures was - in the inspector's opinion - a breach of its safety obligations under the 1985 Act.

40 As noted earlier, the judge found that for some time before Mr Todd's death, Coates and its subcontractors 'had systematically failed to adhere' to the safety procedures for loading and unloading equipment. It is necessary to examine the evidence which underpinned this finding.

41 Mr Bill Deans was the Occupational Health and Safety Manager for Coates. He was also responsible for quality assurance and training. In September 2006, Mr Deans was approached by Mr Hickson and another Coates supervisor, Rodney Newton, and the transport coordinator for DHH, Roy Page, regarding what were said to be 'differences of opinion with the restraint of plant and equipment on trucks and general loading practices'.

42 Mr Deans organised a meeting for these issues to be discussed. It was held on 28 September 2006. Senior employees of Coates and DHH were present. According to evidence given by Mr Deans, there was pressure from DHH for a change of loading procedure. DHH were 'looking for efficiencies':

During the discussion it was raised whether we should be driving mobile plant up/down the tilted trays or other type of trucks instead of winching and free-wheeling the plant. DHH were looking for efficiencies and we were concerned as to what can or cannot be done. Diesel driven four-wheel drive boom lifts have better gradient capabilities than two-wheel drive and electric driven boom lifts, but just because they have the capability all conditions needs to be assessed.

43 In evidence at the committal, Mr Deans explained that

the DHH fellows wanted to drive them directly on to the vehicles because of ... probably it's quicker and the like. The yard people, that was Rodney [Newton] and Steve Hickson, disagreed with some of those aspects and so I tried to get all of the parties together, including the transport manager, which was David Biviano, so we could just work out what the best practices were and make those recommendations.

44 A further meeting on the loading issue was held on 16 October 2006, at which (so the judge found):

it became apparent that the drivers who were being utilised by Coates did not have, and had not been provided by Coates with, the necessary tools to freewheel the equipment [with the winch attached] even if they wanted to do so. Indeed, Mr Deans, as the Safety and Assurance Officer ... was totally unaware of this position.

...

As to this meeting of 16 October 2006, Mr Deans said in his statement that nothing further happened in regard to such issue because Mr Deans went on holiday and the Christmas busy season arrived. Hence the systematic practice at the Coates yard as at 2 February 2007 continued in direct conflict with the safety procedures designated by Coates from at least 2002.[19]

45 As his Honour here noted, Mr Deans knew as at September/October 2006 that the winching requirement was not being complied with, yet did nothing to enforce compliance. The sentencing judge was taken to the following exchange, which took place in the course of Mr Deans' evidence at the committal under questioning by counsel for the company. It shows that Mr Deans knew that the non-compliance extended to the loading of EWPs:

Q: You as safety manager knew as at 28 September 2006 that EWPs were being driven on to the back of tilt tray trucks, is that right?

A: Yes, that's right.

Q: Were you conversant ... with the contents of the Safe Work Method Statement?

A: That Safe Work Method Statement for tilt trays vehicles? Yes, yes.

Q: Were you aware that that required winching?

A: That's exactly right.

Q: Tell me, I suppose you immediately left that meeting and ensured, did you, that all of these EWPs were winched?

A: No I didn't, but I discussed it at the meeting.

Q: Did you?

A: Yes.

Q: Why didn't you as safety manager go out and ensure that these things were winched when you knew it was a practice that they were being driven on to the tilt trays?

A: Well it's, I can't answer that, I don't know why I didn't do that.

Q. Haven't you thought about it?

1. Well, I didn't think that it was a common practice, to tell you the truth. It was just that something that was brought up was the fact that, you know, changes were being made to the procedures and, you know, there was disagreement between the drivers and that's why we tried to get together and enforce the practices that were in place. Now like I had to induct all drivers and give them the drivers' manual and that was where instructions were from.
2. Let's go back a step and make sure that we completely understand each other. You say, do you, that you became aware on 28 September 2006 that EWPs were being driven on to tilt trays?
3. Yes.
4. You are saying, are you, that you are aware as at 28 September 2006 they were being driven onto tilt trays in apparent breach of the Safe Work Method Statement?
5. Yes.
6. Are you saying that, despite that, you as safety officer did nothing to ensure that the practice didn't continue?
7. Well, we just spoke about it at the meeting and, you know, like it was made clear that these procedures were being reviewed, everything that we were going to do was going to be presented, we must maintain or stick to what our procedures are, that's what was discussed.

46 At this point in the plea hearing, the following exchange took place between the sentencing judge and counsel for Coates:

HIS HONOUR: His position is such that he is really in a position where he's, I'm not too sure what you are submitting, but it seems to me he is very much up the chain, isn't he?

COUNSEL: He is, Your Honour.

HIS HONOUR: He is the safety manager for the yard.

COUNSEL: Yes, he is.

HIS HONOUR: That's the company, isn't it?

COUNSEL: That's it.

It was at this point that counsel for Coates made the submission (discussed below) that the company had been 'let down' by Mr Deans.[20]

47 The failure of Mr Deans to enforce the safety requirement, when he knew it was being breached, was inexplicable. So too was his ignorance of the fact that contract drivers had not been given the necessary tools to enable equipment to be 'freewheeled' once the winch was attached.

48 Subsequent to the September discussions, Coates's Dandenong Plant Manager, Mr Biviano, instructed David May, a yardman at Dandenong, to leave it to the contract drivers to decide for themselves how to load equipment. As set out in the Crown opening, Mr May's evidence was that he had never been instructed to make sure that drivers and contractors followed Coates safety procedures. He said:

In fact, after I had discussions with some DHH drivers regarding the way in which they secured their loads, I was instructed by David Biviano - who was my boss at Dandenong - 'not to upset the drivers' and 'let them do the job the way they want to do it'.

49 Thus, only a matter of months before Mr Todd died, one of Coates's senior managers - the person with operational responsibility for the Dandenong depot - gave an express instruction that the winching requirement was not to be enforced. The company was effectively abdicating responsibility for the safety of contract drivers in this respect. The position apparently taken by Coates's plant manager was that the contract drivers were to be left to decide for themselves how to deal with the hazards of loading and unloading equipment.

50 The sentencing judge accepted the prosecutor's submission that the culpability of Coates should be assessed in accordance with the approach laid down by this Court in Director of Public Prosecutions (Vic) v Amcor Packaging Pty Ltd,[22] as follows:

When determining the appropriate penalty in a case of the breach of a statutory duty imposed for the purpose of protecting the lives and well being 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'être for the establishment of the legislated 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.[23]

Such has always been, and is the appropriate way to assess the gravity of such offence. That two stage process involves the Court in looking at the foreseeable potential consequences and considering the evidenced disregard of the safety of the defendant's employees by the employer.

The process involved in the loading and unloading of EWPs is obviously a matter where there are grave dangers and risks to the safety of employees. Such is patent. However, in disregard of their own Safe Work Methods Statements, actual experience had been to the effect that to do a load in such a manner was, on the surface not unsafe, albeit in the main with different machines to the machine that Mr Todd was driving on the day of his death.

On this particular day, Coates allocated to Mr Todd the transportation of a machine which had inherent problems. One of the reasons I find why such problems had not been detected was Coates' own failure to conduct safety audits of its own Safe Work Methods Statements. I find that such a disregard of its own Safe Work Methods Statements and a failure to conduct an audit of such Safe Work Methods Statements led to an evidenced disregard of the safety of its workers.

While such disregard does not equate to the gross disregard shown in Amcor or in C I C G, the disregard by Coates I find was marked. I have no doubt that the failure by Coates to adhere to its own safety procedures was a cause of the death of Mr Todd. Such consequence of the criminality of Coates is to be taken into account when assessing the gravity of the offence.[24]

52 After referring to the fact that Mr Hickson had known, but not reported, the particular risk associated with the M600, his Honour said:

Whatever the practice and failure of individuals of the yard, the real failure I find is to be sheeted home to Coates, that is, in systematically allowing its own safety procedures to be disregarded.[25]

His Honour cited the following passage from the decision of this Court in C I C G:[26]

As this case illustrates, the formal adoption of a satisfactory safety management system will not have the beneficial effects intended unless it is accompanied by the employer's active implementation of the system in the workplace. The employer's duty will not be discharged simply by creating a safe system of work. The obligation requires the employer to ensure 'that procedures and instructions [are] actively and positively complied with by employees'. Not only must employees be appropriately trained but there must be ongoing supervision and compliance audits, to ensure that the system is being applied in practice. Employee compliance with the safe system of work must be constantly monitored by the employer. [27]

As was found in C I C G, equally is the position in this case. There had been no such active undertaking by Coates at all.[28]

The gravity indeed of Coates' breach is intensified owing to the failure of the company, that is the company having supervising authority at the site, allowing workers to act in direct contravention to its designated procedures and its officers, who should have been ensuring that such did not occur, simply failing to take action, that is the Designated Safety Officer at Dandenong, Mr Deans, the Plant Controller for Dandenong, Mr Biviano, and the Service Manager for Dandenong, Mr Anderson.[29]

54 His Honour identified the following factors as bearing upon his assessment of Coates's culpability:

Firstly, for many years all parties had failed to adhere to the designated procedures laid down by Coates. Secondly, there was a strong trade or professional opinion that Coates' designated procedures were not necessary when you were working with EWPs, which have their own four-wheel drives. Thirdly, the practice in regard to the EWPs driven at the site had 'evidenced' that it was in fact 'safe' to drive those EWPs on to a tilted tray. Fourthly, the EWP Association had issued an Australian Standard AS2550.10 of 2006 which allowed for the driving up on a grading and surface of a tilt truck which was well within the mechanical capacity of the machine being driven by Mr Todd on this day. Fifthy, people such as Mr Somdecerff, the managing director of Redline, considered such procedures quite safe.[30]

On the other hand, his Honour said, Coates was 'aware that it had half a dozen two-wheel type vehicles similar to the vehicle being used by Mr Todd on this day, described as JLG M600s ... '.[31]

55 The truck being driven by Mr Todd when the accident occurred was a 'super tilt' tray truck. On the appeal, Coates pointed out that neither the Safety Statement nor Safety Alert No 27 referred specifically to loading onto 'super tilt trays'. According to the submission, the 'super tilt' truck has 'a gradient of 9.9 degrees, which is well within the capacity of the EWP (16.7 degrees).' This had been confirmed in evidence by a representative of the EWP Association. We return to this issue below.[32]

56 His Honour addressed the defence submission that the specific danger inherent in the M600 EWP was not highlighted by the manufacturer and was unknown to the managers at Coates. His Honour said:

Certainly workers such as Mr Hickson had been aware of those characteristics, albeit as [defence counsel] said that he failed to pass it on. However insofar as assessing the culpability of the company, the fact is that there was no safety audit conducted at the site to ensure compliance with the [Safety Statement] and because of the absence of such a process, I find this considerably reduced the capacity of Coates to detect these very defects which its own worker, Mr Hickson, had noticed. Indeed the Quality Assurance and Safety Officer, Mr Deans, said that an audit of the [Safety Statement] was simply not part of the quality assurance program conducted by the company at that time.[33]

57 In the course of the plea, the judge remarked that the Safety Manager, Mr Deans, did not appear to have been enforcing the specific requirement in the Safety Statement that the winch cable must be connected whenever equipment was being loaded onto or unloaded from a tilt tray truck. Counsel for Coates responded in these terms:

No, well he wasn't and I'm going to take you to that. Your Honour, the company is liable and the plea of guilty demonstrates that the company accepts liability for what occurred. However it's relevant to look at, in assessing its culpability, the conduct of those persons in whose hands compliance with health and safety rested, and unhappily to some extent the company was let down.

The fact that the company had been 'let down' in this way was said to be a mitigating factor.

58 This submission was said to derive support from the decision of this Court in C I C G. [34] In fact, as the prosecutor pointed out to the judge in reply, what the Court said in C I C G was to the opposite effect. The Court was there dealing with a similar argument by the employer company, to the effect that the seriousness of its breach was mitigated by the fact that the failure to comply with safety procedures was that of a supervisor 'who was actually charged with ensuring that the safety management system was properly carried out.'

[W]hen the employee in question is the person with supervisory responsibilities, including responsibility for ensuring safety at the site, the gravity of the company's breach is increased, not reduced.[35]

On the plea in the present case, the prosecutor submitted that the same analysis was applicable with even more force to the present case. He pointed out that Mr Deans had occupied a more senior position within Coates than the supervisor under consideration in C I C G. That submission was correct, in our view.

60 Here, as in C I C G, the gravity of the company's breach was increased by the fact that it was the very person responsible for ensuring safety at the depot who knowingly allowed the safety requirement to be disregarded. Mr Deans was 'very much up the chain', as defence counsel properly conceded.[36]

61 The notion of a corporate dutyholder under the Act being 'let down' by management reflects a misapprehension of what is required of an employer in order to fulfil its obligations under the Act to ensure a safe workplace. Of necessity, a company acts through its managers. It is for the managers to ensure, so far as their respective powers and duties allow, that the company complies with its safety obligations under the Act.

62 This proposition is given statutory recognition in s 144(1) of the Act, which renders a company officer liable to prosecution if the company contravenes the Act and the 'contravention is attributable to [that] officer ... failing to take reasonable care'.[37] On conviction, the officer is liable to a fine up to the maximum which would apply had it been a natural person who contravened the Act.

63 When - as here - an employer's appointed safety manager allows a known disregard of safety procedures to continue, it is the employer which has let its employees (and contractors) down, not the other way round. As his Honour correctly found, the 'real failure' was that of Coates itself, in 'systematically allowing its own safety procedures to be disregarded.'

64 The Court in Amcor[38] adopted the views expressed by the Industrial Relations Commission of New South Wales in Court Session in WorkCover Authority of New South Wales v Profab Industries Pty Ltd,[39] as follows:

[T]he primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH&S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in the determination of penalty to the gravity of the offence itself. While the court must keep in mind not only facts which establish the seriousness of the offence, but also those which tend to mitigate that seriousness or exculpate the offender, the presence of the subjective factors referred to should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence.

65 As set out earlier,[40] his Honour concluded that Coates had shown a 'disregard of the safety of its workers'. There was no challenge to this finding on the appeal. Plainly enough, it is a most serious finding, especially given what the judge described as the 'grave dangers and risks to the safety of employees' involved in loading and unloading EWPs. This was not a case where an employer had tried but failed to meet the statutory standard of care, that is, to do everything that was 'reasonably practicable' to ensure the safety of workers at the Dandenong yard. Rather, this employer had disregarded employee safety.

66 There was ample foundation for the judge's finding. The company's own safety documents spelt out very clearly - in 2002 and twice in 2006 - what was necessary to ensure that the loading of equipment onto tray trucks did not put employees at risk. The safety measure was straightforward and, if observed, would have eliminated the risk altogether. All that was required was that the winch be attached whenever equipment was being loaded (or unloaded).

67 The company well knew that non-compliance with the winching requirement created a safety risk. As noted earlier, the incident which had prompted Coates to issue Safety Alert 27 occurred almost exactly a year before Mr Todd's fatal accident. On that occasion a Coates employee was injured as a result of the very hazard which the winching procedure was established to prevent - the sliding of equipment (in that case, a forklift) off the back of a tray truck while it was being unloaded. In the circumstances, it mattered little that Mr Hickson had not reported his own experience of the hazard with the loading of an M600. The company was well aware of the risks associated with equipment being loaded without the winch having been attached.

68 In the circumstances, the fact that a Coates employee was killed as a result of the very danger which the safety procedure was designed to eliminate makes Coates's 'disregard of employee safety' a matter of very high culpability, in our view.

69 As senior counsel for the Director submitted on the appeal, the conduct of Coates in the period leading up to Mr Todd's death 'came close' to reckless disregard of a known risk. The company had known, since March 2004 (when the improvement notice was issued), that inadequate training in the use of the winching procedure put the 'health and safety of employees at this workplace ... at risk'. It had known, since the incident which prompted the issue of Safety Alert No 27 in January 2006, that there was a serious risk of injury if the winch was not attached. Yet, as at September 2006:

• the company's Safety Manager, Mr Deans, knew that this safety requirement was being ignored, and did nothing to enforce compliance; and
• the company's Dandenong Plant Manager, Mr Biviano, instructed the yardman, Mr May, not to enforce the requirement.

70 It is immaterial that Coates management were unaware of the particular risk associated with the M600. The hazard to which the safety requirement was directed was generic. As the Safety Statement declared, winching was necessary to eliminate the risk of 'equipment sliding off [an] inclined tray in an uncontrolled manner.' The safety requirement was absolute. All equipment had to be winched. The peculiarities of particular equipment were irrelevant.

71 Moreover, the ignorance of management about the M600 was the product of the very disregard of safety to which the judge referred. As his Honour found, if the company had been monitoring compliance with the safety instructions, as it was obliged to do in order to ensure a safe system of work,[41] the incident involving Mr Hickson and the M600 would inevitably have come to light.

72 Nor did it matter that the particular truck which Mr Todd was driving was a 'super tilt' tray truck. As we have emphasised, this was a 'no exceptions' policy. It applied to all equipment and all tray trucks. The position might have been different if, after satisfying itself that there would be no risk to safety, Coates had decided to exempt 'super tilt' trucks from the mandatory winching requirement. But there is no suggestion that any such process was ever contemplated.

73 More fundamentally, an employer's duty under the Act is to ensure that employees are not exposed to risks, rather than to prevent a particular accident.[42] As Harper J said in Holmes v R E Spence & Co Pty Ltd:[43]

[T]he question in cases such as the present is not whether the detail of what happened was foreseeable, but whether accidents of some class or other might conceivably happen, and whether there is a practicable means of avoiding injury as a result. Here, such a practicable means of avoidance was available.

74 Following the death of Mr Todd, Coates made extensive changes to its procedures, to ensure proper monitoring of risks and the enforcement of its work guidelines. An on-line contractor induction system was introduced, together with driver examinations. Photographs were tendered on the plea which showed 'the profound change at the site', as his Honour described it, the employment of extra yardmen and the segregation of bays to ensure safety.

75 In addition, Coates has appointed an operational manager (Group Health and Safety Services), has increased the size of its health and safety team from five to 15, allocated a budget in the sum of $8 million and reviewed the health and safety system of the company. These were all very positive steps, as the judge recognised.

76 Reliance was also placed on the remorse which Coates had expressed. This was said to have been evidenced by the plea of guilty, by the company's cooperation, by the prompt issue on 7 February 2007 of a Group Safety Directive and a far more detailed Safe Work Methods Statement in May 2007.

77 In our view, specific deterrence still had a role to play in the sentencing of Coates, notwithstanding these pro-safety initiatives. The disregard of safety which resulted in Mr Todd's death had to be seen against the background of the company's two prior convictions for breaches of occupational health and safety law. In 2001, the company was convicted of failing to provide a safe working environment and fined $10,000. In 2003, it was convicted of failing to ensure a safe workplace and was fined $22,000.

78 The size of the fines indicates that these breaches were very much at the low end of seriousness. But what matters for present purposes is that, having been prosecuted twice for workplace safety breaches, Coates should thereafter have been doubly vigilant to ensure that no further breach occurred. There was, moreover, the 2004 enforcement action by WorkSafe, when the inspector told Coates that it was in breach of the Act by reason of inadequate training for safe loading and unloading of equipment.

79 For offending of this kind, general deterrence is also a consideration of great importance. In Orbit Drilling,[44] this Court endorsed the view of the Industrial Commission of New South Wales in Court Session, that

the fundamental duty of the Court in this important area of public concern ... [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace.[45]

80 The sentencing judge was obliged to have regard to current sentencing practices.[46] He was also obliged to have regard to the maximum penalty for a breach of s 21(1) of the Act. The maximum is 9,000 penalty units which, at the time, equated to $966,870.

81 Consideration of comparable cases is a necessary and appropriate step in the ascertainment of current sentencing practices.[47] It is also a necessary part of ensuring consistency of sentencing, as the High Court confirmed recently in Hili v The Queen.[48] The Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said:

[I]n seeking consistency, sentencing judges must have regard to what has been done in other cases. ... Care must be taken, however, in using what has been done in other cases.[49]

Their Honours cited with approval statements of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa.[50] Their Honours said:

Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence'. When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'.[51]

82 It was common ground that the recent decision of this Court in Director of Public Prosecutions v Nationwide Towing & Transport Pty Ltd[52] provided a useful point of comparison. In that case, a steel track excavator was being unloaded from a fully tilted trailer when the excavator lost traction and slid off the trailer. The driver of the excavator was killed by a crushing injury. It was agreed on the plea that the critical aspect of Nationwide's offending was that the trailer in question was inappropriate for machinery of that type and size.

83 A similar accident had occurred some 16 months earlier, when an excavator on a similar trailer slipped and rolled down an embankment. At that time, there had been no risk or hazard assessment done in relation to the unloading of excavators, and there had been no training or instructional material provided by Nationwide. Prohibition notices had been issued to Nationwide under s 112 of the Act.

84 The company pleaded guilty to one count of failing to maintain a safe working environment under s 21(1), and one count of failing to ensure that persons other than employees were not exposed to risk and to health and safety, under s 23. A fine of $450,000 was imposed. An appeal by the Director against the fine, on the ground of manifest inadequacy, was dismissed.

85 The Chief Justice (with whom Nettle and Ashley JJA agreed) noted that, after the previous incident, Nationwide had made changes to its system for accepting and allocating jobs. A computer system had been installed, whereby an excavator job involving an unsuitable trailer would effectively be rejected by the system. On this particular occasion, however, the system failed because 'an individual dispatcher overrode or disregarded the system'. As a consequence, the particular excavator was sent out with an unsafe trailer. As her Honour noted, the sentencing judge 'accepted the contributing factor of human error'.[53]

86 In our opinion, the breach to which Coates pleaded guilty was in a more serious category. Nationwide had instituted a system which (but for human error) would have prevented the fatal accident, whereas Coates - through its senior management - acquiesced in the systematic disregard of safety procedures which the company knew were necessary to ensure the safe loading and unloading of equipment. To have failed to enforce the winching requirement in the wake of the 2006 incident, and in the knowledge that it was not being complied with, was inexcusable. As this case demonstrates, there is no utility in having safety procedures if those responsible for enforcing them choose not to do so.

87 The fine of $250,000 which the sentencing judge imposed was, in our view, manifestly inadequate. That is, it was outside the range reasonably open,[54] given that the gravity of the offending had to be the primary factor in the fixing of the penalty and given the importance of specific as well as general deterrence.

88 As the prosecutor submitted on the plea, the culpability of Coates was 'considerably higher' than that of Redline, Mr Todd's employer. Redline had earlier been fined $130,000 by the same judge. There were, moreover, material differences between the position of Coates and that of Redline. In sentencing Redline, his Honour had identified as mitigating factors the fact that Redline had no prior convictions; the Director of Redline had agreed to give evidence at the trials of Coates and DHH; and Redline was 'essentially a small one man company in a precarious financial position.'

89 We would allow the appeal, set aside the sentence and impose a fine of $500,000. But for the company's plea of guilty, the fine would have been $600,000.

[1] Emphasis in original: see [17] below.

[3] R v Coates Hire Operations Pty Ltd (Unreported, County Court of Victoria, Judge McInerney, 13 December 2010), [7] ('Reasons').

[5] See [24]-[26] below.

[10] [2006] VSCA 181; (2006) 14 VR 321 ('C I C G').

[11] Occupational Health and Safety Act 1985 (Vic) s 21(2)(e) (the '1985 Act').

[12] C I C G [2006] VSCA 181; (2006) 14 VR 321, 331 [44].

[13] See [48] below.

[14] Maxwell, Chris Occupational Health and Safety Act Review, State of Victoria, March 2004, [1854].

[16] See, for example, R v Jones [2004] VSCA 68, [13]; R v Beary [2004] VSCA 229; (2004) 11 VR 151, [11]-[14]; R v Samia [2009] VSCA 5, [12].

[17] The name under which the Victorian WorkCover Authority administers the Act.

[18] Under s 43(1) of the 1985 Act, an inspector had power to issue an improvement notice to a person who, in the inspector's opinion, was contravening a provision of the Act or regulations. See now s 111 of the 2004 Act, which is in substantially the same terms.

[19] Reasons, [11]-[12] (emphasis added).

[20] See [57]-[63] below.

[22] [2005] VSCA 219; (2005) 11 VR 557 ('Amcor').

[24] Reasons, [26]-[29] (emphasis added).

[26] [2006] VSCA 181; (2006) 14 VR 321.

[27] Ibid 331-2 [48] (citations omitted).

[32] See [72] below.

[34] [2006] VSCA 181; (2006) 14 VR 321.

[36] See [46] above.

[37] See Orbit Drilling Pty Ltd v The Queen [2012] VSCA 82, [6]-[7] ('Orbit Drilling').

[38] [2005] VSCA 219; (2005) 11 VR 557, 565 [35].

[39] [2000] NSWIRComm 142; (2000) 49 NSWLR 700, 714 [31].

[40] See [51] above.

[41] C I C G [2006] VSCA 181; (2006) 14 VR 321, 331-2 [48]; Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143, [16].

[42] Drake Personnel Ltd v WorkCover Authority of New South Wales (1999) 90 IR 432, 453.

[43] (1992) 5 VIR 119, 126.

[44] [2012] VSCA 82, [60].

[45] Fisher v Samara Industries Pty Ltd (1996) 82 IR 384, 388.

[46] Sentencing Act 1991 (Vic) s 5(2)(b).

[47] Hudson v The Queen [2010] VSCA 32; (2010) 205 A Crim R 199.

[48] [2010] HCA 45; (2010) 242 CLR 520, 536-7.

[50] [2010] NSWCCA 194; (2010) 243 FLR 28.

[51] [2010] HCA 45; (2010) 242 CLR 520, 537 [54] (emphasis in original, citations omitted).

[52] [2011] VSCA 291.

[54] DPP (Vic) v Karazisis [2010] VSCA 350; (2010) 206 A Crim R 14, 44 [127]-[128].