DPP v Cool Dynamics Refrigeration Pty Ltd [2015] VCC 1882

(iii) Failing to ensure that non-employees were not exposed to health and safety risks contrary to ss23(1) and (2) of the Act. The maximum penalty for that offence is also a fine of 9,000 penalty units.

2 It is necessary to set out the procedural history of the matter to provide the context in which I have taken the pleas of guilty into account in mitigation of sentence.

3 On 12 December 2011 the incident giving rise to the investigation of the charges before the court took place. I will summarise the relevant facts below in these reasons. A complex investigation was thereafter undertaken, and the accused was charged with the offences before the court on 6 May 2013. Committal proceedings concluded on 1 April 2014, at which time the accused pleaded not guilty. The matter was listed for trial in this court on 25 May 2015 but was not reached, having been in the reserve list for three days.

4 On 13 May 2015 and 19 May 2015 the accused indicated its intention to plead guilty to the charges then before the court, but the parties were not able to agree on a factual basis for the conduct of the plea hearing, and a contested plea commenced on 19 October 2015.

5 The central factual issue to be determined on the contested plea was whether I could be satisfied to the criminal standard that the breaches of the Act admitted by the accused caused the death of its employee, Mr Joey Cosentino. On 26 October 2015 I indicated that I could not be so satisfied. Whilst this issue was determined in favour of the accused, it also disputed that a number of the particulars in each charge could be made out and that specific items of evidence were not admissible on the plea. Following the conclusion of legal and factual submissions, I made the following determinations:

(i) I could not be satisfied that the breaches of the Act the accused had pleaded guilty to were an operative cause of Mr Cosentino's death;

(ii) The evidence of post-incident remedial measures taken by the accused were admissible in proof of particulars (v) to (x) in respect of charges 1 and 2, and particulars (ii) to (viii) in respect of charge 3;

(iii) Particulars (v) to (x) in respect of charges 1 and 2, and particulars (ii) to (viii) in respect of charge 3, were made out. These findings do not alter my conclusion regarding causation, which, as I will explain below, was arrived at on the basis that the prosecution could not prove to the requisite standard the source of the flammable gas that had ignited in Mr Cosentino's vehicle;

(iv) The evidence of the ignition of the flammable gas in the vehicle (the explosion) was admissible on the hearing of the plea for the purpose of evidencing the factual setting in which the breaches of the Act were discovered;

(v) A body of opinion evidence contained in a witness statement of Barry Pratt was not admissible; and

(vi) By reason of my findings in respect of causation, the deponents of a number of victim impact statements were not victims for the purposes of the Sentencing Act 1991.

6 In this context, whilst it is clear that the pleas of guilty were not entered at the earliest opportunity, the prosecution submitted that the plea should be regarded as an early one, and I have taken it into account on that basis in the accused's favour in mitigation of sentence.

7 The accused has no prior convictions, subsequent convictions, or outstanding charges.

8 Following my findings the prosecution opening was finalised, read to the court, and tendered in evidence. The accused filed a defence response in respect of the amended prosecution opening, setting out that it disputed a number of matters consistently with its conduct of the contested plea hearing.

9 The offending the subject of the charges may be summarised as follows -

10 The accused is a corporation that installs and services commercial refrigeration equipment. As at 12 December 2011 it employed seventeen fulltime staff and was managed by two directors. It supplied a number of work vans to its refrigeration mechanics which contained equipment necessary to complete the work the mechanics undertook. The vans contained various flammable gases, including acetylene, which is a highly combustible gas composed of carbon and hydrogen. Leakage from an acetylene cylinder may readily create an explosive atmosphere which can be ignited by a range of ignition sources in a vehicle. Other highly flammable gases were also used by the employees of the accused in the course of their employment, including MAP gas. In response to the known risk posed by acetylene gas, the accused provided airtight vented cabinets in each van for the storage and transport of acetylene.

11 At approximately 6.25am on Monday, 12 December 2011, Joey Cosentino, an employee of the accused, was seen to approach the passenger side of his work van which was parked outside the residence that he shared with his parents. Moments after Mr Cosentino approached his van it exploded, destroying it and causing extensive damage to adjacent properties. Debris was projected into a number of adjoining houses. Mr Cosentino was thrown approximately five metres from the van, and suffered catastrophic injuries resulting in his death at approximately 9.30 that morning.

12 Following an investigation of the incident, it was determined by WorkSafe investigators that the gas cabinet in Mr Cosentino's vehicle was not vented, and the gas cabinet in another employee's vehicle was also not vented. These were the breaches of the Act admitted to by the accused.

13 Mr Cosentino had used his van in his employment with the accused for a period of two years, and for a further two years prior to that it had been used by another employee. Accordingly, the gas cabinet in Mr Cosentino's van was unvented for a period of approximately four years. The evidence does not disclose the period of time for which the other van was not vented.

14 The expert evidence contained in the Depositions disclosed that the explosion was caused by the ignition of flammable gas that had collected in Mr Cosentino's work van. The evidence identified 3 possible flammable gases; namely, acetylene, MAP gas or vapours produced by vehicle fuel, coolant and brake fluid. The precise mode of ignition of the flammable gas was also not precisely identified. It was therefore not open to me to make a finding as how the explosion occurred.

15 Following the explosion, the accused implemented a number of post-incident remedial measures to ensure that the risk of an accumulation of flammable gas in employee work vehicles was eliminated or controlled. In my opinion it was clearly reasonably practicable for the accused to have implemented these measures prior to the discovery that Mr Cosentino's van was not vented and the other employee's van that was also not vented.

16 It is also clear that the accused's failure to ensure that Mr Cosentino's vehicle was fitted with a gas-tight cabinet vented to the outside of the van, and the further particulars set out in charge 3, exposed persons other than employees of the accused to risks to their health and safety on 12 December 2011.

17 In my opinion the breaches of the Act in this instance are serious. The accused was aware of the hazard and risks associated with the storage and transportation of acetylene, and, whilst I accept that the likelihood of that risk eventuating was relatively low, the potential gravity of a flammable gas explosion in these circumstances was extremely high. I do, however, accept that this is not a case concerning a gross or flagrant breach of the Act, and nor had any near miss or near misses not been responded to.

18 The sentencing principles applicable in a case such as this are well known. The purposes of the Act are clear, and general deterrence is an important consideration in the achievement of those purposes.

19 I have been furnished with a number of sentencing decisions in the Magistrates' Court and in the County Court, together with a number of decisions of the Court of Appeal, in relation to sentences imposed for breaches of the Act. I have had regard to those decisions in arriving at what, in my opinion, is an appropriate proportionate penalty in the circumstances of this case.

20 It was submitted on behalf of counsel for the accused that I ought to impose an aggregate fine in this case, as the conduct relied upon is the same in respect of the proof of the three charges on the indictment. I do not accept that this is an appropriate case for the imposition of an aggregate fine. Whilst there is a high degree of overlap between charges 1 and 2, and much of the conduct relied upon in respect of those charges is also relied upon in proof of charge 3, in my opinion it is appropriate that each charge be the subject of an individual penalty.

21 I accept that the directors of the accused are themselves remorseful for the circumstances in which Mr Cosentino's death took place, and that they believed that the accused was operated in a safety-conscious manner. Furthermore, I accept that the accused is a well-run and progressive company supplying important equipment to the agricultural sector. In the financial year 2014 the accused had a gross annual turnover of approximately $6m, and its cash at bank amounted to $220,000. It also had significant liabilities. It is clear that the accused is able to pay a significant fine.

22 Having regard to the potential gravity of the eventuation of the risk or hazard of the accumulation of flammable gas in Mr Cosentino's vehicle in Stadium Circuit, Mulgrave, on 12 December 2011, I accept that charge 3 on the indictment is the most serious of the charges before the court.

23 In the result, the sentence of the court is as follows:

24 On charge 1, the accused is convicted and fined $100,000.

25 On charge 2, the accused is convicted and fined $55,000.

26 On charge 3, the accused is convicted and fined $130,000.

27 This makes for a total effective fine of $285,000.

28 I order a stay of two months in relation to the payment of the fines.

29 But for the accused's plea of guilty I would have imposed total effective fines of $385,000.