DPP v Max Scaff Pty Ltd & Anor [2025] VCC 315

1. This proceeding concerns two entities that have pleaded guilty to the offence of failing to ensure that persons other than employees were not exposed to risks to their health or safety arising from the conduct of an employer's undertaking, contrary to section 23 of the Occupational Health and Safety Act 2004.
2. The first entity, Camillo Builders Pty Ltd, was the principal contractor at a housing development located between McPherson and Thomas Streets in Moonee Ponds. The second entity, Max Scaff Pty Ltd, had been engaged by Camillo to erect and maintain scaffolding works at that site.
3. A third entity, Done Rite Carpentry Pty Ltd, was contracted by Camillo to perform carpentry works at the site.
4. Robert Agostino was an employee of Done Rite. On 2 August 2021, Mr Agostino along with his brother Frank and Alex Di Blasi went to the site to do carpentry works as directed by their employer Done Rite.
5. At about 10:30 that morning Robert Agostino went to get a ladder. A few minutes later another worker at the site found him unconscious on the ground. He was lying below the scaffolding facing McPherson St in an area where people would not normally walk.
6. There was a plank missing from the scaffolding in a position above where Mr Agostino's body had been found. A 'tie bar', which would normally have kept the plank in place, was lying near his body.[1]
7. An ambulance attended, however Mr Agostino died later in hospital. The cause of death was attributed to a head injury consistent with a fall from height.
8. The platform or 'hop up' attached to the scaffolding from which Mr Agostino appeared to have fallen had been assessed as being intact that morning by two Camillo employees. They had conducted a safety inspection of the site between 7.50 and 10.15am.
9. Later in these reasons I will attempt to describe something of the impact Robert Agostino's death has had on his family and friends.
10. Following that incident, WorkSafe investigators attended at the site and commenced an investigation. The precise circumstances in which Robert Agostino fell to the ground could not be determined. Nor could it be determined how the tie bar and plank had become dislodged.
11. WorkSafe inspectors did however identify an occupational health and safety offence committed by each of Max Scaff and Camillo over the previous month - that is between 4 June and 2 July 2021. It is those offences that are the subject of this proceeding.

1. The relevant particulars of the charge to which Max Scaff pleaded guilty alleges that:

(a) There was a risk of death or serious injury to persons working on or near the scaffolding due to interference with or unauthorised alterations to the scaffolding causing persons to fall from the scaffolding at height or the scaffolding to collapse.

(b) Between approximately 4 June 2021 and 2 July 2021, Max Scaff failed to ensure that persons other than employees were not exposed to risks to their health and safety arising from the conduct of their undertaking by failing to:

(i) Shut off all levels of scaffold on the part of the scaffold when interference or unauthorised alterations had been detected until after it had been inspected by a qualified scaffolder.

(c) It was reasonably practicable to take that measure.

(d) The persons other than employees who were exposed to risks to their health and safety included, but were not limited to, Robert Agostino.

13 The relevant particulars of the charge to which Camillo pleaded guilty alleges that:

(a) The building work at the workplace involved people working at height on scaffolding installed at the workplace.

(b) There was a risk of death or serious injury to persons working on or near the scaffolding due to interference with or unauthorised alterations to the scaffolding causing persons to fall from the scaffolding at height or the scaffolding to collapse.

(c) Between approximately 4 June 2021 and 2 July 2021, Camillo failed to ensure the health and safety of persons other than employees in that it failed to take the following steps to prevent or remedy interference with or unauthorised alterations to the scaffolding:

(i) Shutting off all levels of scaffold on the part of the scaffold where interference or unauthorised alterations had been detected until after it had been inspected by a qualified scaffolder, or directing a sub-contractor to do so;

(ii) When interference or unauthorised alterations have been detected, conducting an investigation including an incident report with recommendations for corrective action.

(d) It was reasonably practicable to take those steps.

(e) The persons other than employees who were exposed to risks to their health and safety included, but were not limited to, Robert Agostino.

1. Camillo as the principal contractor was, to an extent, responsible for the management and control of the workplace. That included the building work and the erection, variations to and maintenance of the scaffolding. It was also responsible for who were permitted to work at the site and for giving general directions as to health and safety.
2. Camillo's site safety representative provided tradespeople with site inductions. As part of that induction process various safety directions were given including that scaffold was not to be interfered with and that any request for a variation of scaffold was to be directed to the Camillo site team. That team would, in turn, request the expert scaffolders from Max Scaff to make the variation if it was appropriate. Safe work method statements submitted by tradespeople were reviewed and approved by Camillo.

1. Max Scaff (Max) was engaged by Camillo to supply, install, inspect and maintain the scaffold on the building site. Max was to provide full scaffolding services ranging from setting up to dismantling the scaffold. It was Max that had the management and control of the scaffolding works at the site. It worked from a set of scaffolding plans for the workplace.

1. A hop up can be attached to the scaffold and planks are placed into it to create a platform. A tie bar is then inserted next to the last plank to hold the hop up together and secure the planks. If the tie bar is removed the sides of the hop up can separate and the planks, together with anyone on them, can fall through.
2. Once the scaffolding reaches a certain height stability is maintained using 'ties' which connect the scaffolding to the structure of the building and prevent it toppling over.[2]
3. When an authorised variation or change was made to the scaffolding, the following steps needed to be carried out:

(a) Max would record the changes on its build plans;

(b) It would record variations in the variation book;

(c) Its employees would update the scaffolding tag located at the entrance to the scaffold which was signed by the person taking responsibility for the change; and,

(d) Max would then inform Camillo who would authorise the relevant trades people to commence work in that area.

1. Max's employees explained to investigators that there is a known safety risk within the building industry arising from workers on construction sites interfering with scaffolding or making unauthorised alterations. More specifically, if the components of the structure on which the scaffold's stability depends are not properly installed or they are altered or removed, there is risk scaffolding will collapse. If parts such as deck planks, railings or tie bars are removed there will be a risk of death or serious injury resulting from persons falling from height.
2. At this workplace there were specific instances where a risk of interference with the scaffolding was identified as having occurred between 4 June 2021 and 2 July 2021. According to the Summary of Prosecution Opening they were as follows:

(a) Christopher Jacob da Costa, a qualified scaffolder and employee of Max, told investigators that he came across an area in the middle of the buildings, by the driveway, where a lot of the ties had been removed from the scaffolding, and not replaced. He shut off access to the scaffold, reported the matter to site management, then inspected and rectified the scaffold before re-signing the scaffold tag.

(b) Joel Pangbourne, another employee of Max, observed plasterers taking out handrails right in front of him. These were internal handrails facing the building. He reported the incident to Camillo's site safety representative.

(c) Jace Thompson, a casual labourer employed by Max at the time, told investigators that he noticed a handrail lying on the floor that had been removed. He reinstated the handrail and reported the matter to Camillo.

(d) Camillo's site safety representative stated that he was notified of three incidents of unauthorised interference of scaffolding occurring at the worksite, the last of which occurred on 17 June 2021 when it was reported that window installers had removed handrails.

Exposure to the risk from unauthorised interference

1. If unauthorised changes or variations were identified, they were reported by Max's employees to Camillo. In response Camillo would raise the unauthorised interference at the next toolbox talk. On 17 June 2021, Max invoiced Camillo for works described as "put tie [bar] back in that had been removed by window fitter" and "reinstated several handrails hop ups etc that had been altered by other trades".
2. In response, Camillo conducted an investigation, interviewed the window installers, and gave a first and final warning that if further interference with scaffolding occurred again, they would be removed from site.
3. In relation to the unauthorised alterations set out in paragraphs 21(b) and (c), and on 17 June 2021 under paragraph 21(d), neither Camillo nor Max shut off all levels of scaffold on the part of the scaffold where interference or the unauthorised alterations had been detected until after it had been inspected by a qualified scaffolder. Nor did Camillo direct Max to do so.
4. In relation to the unauthorised alterations set out in paragraphs 21(a), (b) and (c) Camillo did not conduct an investigation, nor did it compile an incident report with recommendations for corrective action.

Available measures to eliminate or reduce the risk from unauthorised interference

1. The prosecution case is that, given that the risk of death or serious injury to people working on or near the scaffolding arising from interference was well known, there were measures available to both Max and Camillo, that were suitable and available to eliminate or reduce that risk.
2. In respect of Camillo, it was reasonably practicable for it to provide and maintain a system of work which included shutting off all levels of scaffold on the part of the scaffold where interference or unauthorised alterations had been detected until after it had been inspected by a qualified scaffolder, or directing a contractor to do so.
3. It was also reasonably practicable for Camillo to conduct an investigation including compiling an incident report with recommendations for corrective action when an interference or unauthorised alteration had been detected.
4. Between 4 June 2021 and 2 July 2021 Camillo failed to implement and maintain these measures.
5. In respect of Max, it was reasonably practicable to provide a system where it shut off all levels of scaffold on the part of the scaffold where interference had been detected until after it had been inspected by a qualified scaffolder.
6. Between June 2021 and 2 July 2021, Max failed to implement and maintain that measure.

The relevance of the incident in which Robert Agostino lost his life

1. As to that incident in which Robert Agostino lost his life the Summary of Prosecution Opening states:

Although this incident occurred approximately one month after the charged period, the evidence is relevant and probative to an assessment of the gravity of the consequences should the risk eventuate. Here the evidence demonstrates that if a worker falls from a height greater than two metres there was a risk of death.[3]

The impact of Robert Agostino's death on family and friends

1. The parties accept that s 5(2)(daa), (da) and (db) of the Sentencing Act 1991, are not engaged given that those provisions deal with impact, loss and damage flowing directly from the offence. The incident in which Robert Agostino lost his life cannot therefore bear directly on the seriousness of the offending.
2. Nevertheless, Mr Agostino's death forms part of the context in which these offences were detected and prosecuted. It also illustrates the nature of the risk with which these charges are concerned. Consistent with the dicta expressed by Vincent JA in DJK [4] as to the way in which social rehabilitation may aid the recovery of those who have sustained loss, it was appropriate to consider how Mr Agostino's death affected those close to him.
3. Accepting the limited use that might be made of such material, I therefore permitted the receipt of 27 victim impact statements.
4. During the plea hearing Samuel Agostino, Robert's father, read his statement to the court as did Robert's sister Stephanie. The statements of his mother Emma, and brother Luke were read to the Court by Mr Carr SC. I have taken those statements into account. I have also read and taken into account the 23 further victim impact statements.
5. When Robert lost his life he was only 23 years of age with, as his mother said, his whole life in front of him. His passing has devastated the lives of many. Aside from his parents and three siblings, Robert was a nephew to 22 uncles and aunts, a cousin to 63, and had many friends. His loss has been deeply and widely felt.
6. A consistent theme amongst the statements submitted is the wish that his death not be in vain - that the lesson for workplace safety is well learnt and that what happened to Robert should not be allowed to happen again.

1. Mr Carr SC, who appeared with Mr D Chisolm, submitted that general deterrence is the primary sentencing consideration in fixing penalty in respect of both defendants. Specific deterrence should also assume some prominence so as to "ensure that insufficient diligence is not seen as an economically viable option in the future".
2. The offending was "quite serious".
3. The risk of interference to scaffolding was a risk that was well known within the industry as were the measures to control that risk.
4. Over the course of the time frame of the charges (about one month) three incidents of interference were reported to Camillo. Both entities were specifically aware that interference was a problem that was recurring at the site. Accordingly, both entities "persistently" allowed the risk to arise. It was submitted that there was a high risk that if a worker had interfered with scaffolding to suit their convenience, they would do so again. Telling people not to interfere with the scaffolding at toolbox meetings was an inadequate control measure.
5. An obvious measure to take where interference was detected was to close off that part of the scaffold until after it had been inspected by a qualified scaffolder.
6. In the case of Camillo it should have, in addition, conducted an investigation which included an incident report with recommendations for corrective action to ensure it did not happen again. Camillo's breach was therefore all the more serious.
7. Even though those measures could have been readily implemented they were not. As a result persons at the site were unnecessarily exposed to what was submitted to be a "protracted and known risk of death". The failure of the defendants to respond as they should have over what was a lengthy period "represents a high degree of culpability" and constituted a serious departure from the duty not to expose persons to the risk inherent in working at height on scaffolding.
8. As the evidence makes clear, interference was inherently dangerous and likely to cause either a fall or collapse of the scaffolding. The likelihood of such an event was far from remote. The consequences of such an event were self-evidently grave.

1. Mr Oldfield who appeared on behalf of Max Scaff submitted that some of the general statements of principle relied on by the prosecution needed to be put in context. In particular, he relied on the principle perhaps best expressed in Frewstal[5] to the following effect:

... a very serious breach of the OHSA, involving clear disregard of the safety of workers, might result in only a minor injury - or no injury at all, if the breach were detected before an accident occurred. Conversely, a relatively minor breach can result in a death, in circumstances which could not reasonably have been anticipated. In both cases, the touchstone for sentencing is the gravity of the breach of the OHSA, not the gravity of the consequence.[6]

1. Likewise, it was submitted here that the focus should be on the seriousness of the breach more so than its potential consequence. The breach here was not in blatant disregard of worker safety. On the contrary there was much about what Max did that demonstrated it was vigilant as to safety. The gravity of its breach thus fell to the lower end.
2. It was also suggested that the principles relied on by the Crown in sentencing needed to be balanced by what was practicable, as Harper J said in Holmes v R. E. Spence:

The Act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The courts will best assist the attainment of this end by looking at the facts of each case as practical people would look at them: not with the benefit of hindsight, or with the wisdom of Solomon, but nevertheless remembering that one of the chief responsibilities of all employers is the safety of those who work for them.[7]

1. It was in that more realistic context that employers were required to take the active and flexible approach in discharging their responsibilities relied on by the prosecution.
2. This, it was argued, was not a case where Max had demonstrated a clear disregard of its obligations towards the safety of workers. It was not part of its undertaking for Max to supervise the trades who were performing the works on the scaffold and to ensure they did not interfere with it. Nevertheless, its employees were vigilant about that risk indeed each of the three occurrences identified in the particulars of the charge were identified by Max employees.
3. Mr De Costa came across an area between the buildings where ties had been removed from the scaffold. He shut off the area, reported it to the site safety manager and inspected and rectified the scaffold and then updated the scaffolding tag. What was done in that instance was as it should be.
4. Both Mr Pangborne and Mr Thompson observed the interference, rectified and reported it. However, they did not take the further step taken by Mr De Costa in shutting off the scaffold. It is that failure which constitutes the breach. Counsel submitted that it is that failure to which general deterrence should be directed rather than the broader industry risk posed by unauthorised interference.
5. Whilst Max, it was submitted, was vigilant - in two of the three instances particularised it did not go far enough in carrying out its OHSA obligations. Its breach was not therefore as serious as it might otherwise have been.
6. Max Scaff is in liquidation and in the process of being wound up. It has no prior convictions. It was submitted that any monetary penalty should be imposed without conviction.

1. Mr Stafford, who appeared for Camillo, first described the well-known principles to be derived from Frewstal,[8] for assessing the seriousness of his client's breaches:

(a) The extent to which the defendant departed from its duty and failed to take all reasonably practicable steps to reduce the risk;

(b) The likelihood of a risk materialising; and,

(c) The potential consequences if it did.

1. As to the first of those principles it was submitted that the systems that Camillo had in place were significant. For example, specific directions not to interfere were given at toolbox meetings and the health and safety representative walked the site daily. Moreover, it had contracted specialist scaffolders in Max to be available on site to vary the scaffolding once authorised by Camillo.
2. The breach arose, it was said, not from a failure to have systems in place at all but rather from a failure to instigate the relevant measures. Seen in that light Camillo's failures were less serious than might otherwise have been the case.
3. It was accepted that the potential consequences of the breach materialising were death or serious injury. However, it was submitted that the likelihood of that breach materialising was put too highly by the prosecution. It was overstating the matter to suggest that Camillo had allowed the risk to "persistently" arise during the month in question. The instances relied on were limited to the particulars. Certainly, there was a risk of interference, but it was not as high as the prosecution would have it.
4. Camillo had otherwise cooperated and had pleaded guilty after charges had been withdrawn so the plea had been entered as soon as was practicable. Importantly it had avoided the cost, expense and emotional toll on Mr Agostino's family likely to have flowed from what would have been a lengthy and complex trial.
5. Camillo was incorporated in 2017 and is part of a family construction business that was established in 1952. Camillo delivers design and construction services on smaller construction projects. It has 24 employees and is socially active in its sponsorship of junior sporting clubs and charity. It has no prior convictions.
6. Camillo, together with the union, arranged a GoFundMe page to assist with costs for the deceased's family. It committed to matching the amount raised by union members. Over $15,820 was raised and provided. Mr Agostino's family declined to accept Camillo's contribution and requested that money be donated to the Intensive Care Unit at the Royal Melbourne Hospital. That was done.
7. It was also submitted on behalf of Camillo that any money penalty imposed should be without conviction.

1. Section 5(2)(b) of the Sentencing Act 1991 requires regard be had to current sentencing practice. As was noted in Frewstal[9] cases used to discern that practice should be materially similar or instructively different.
2. A number of cases dealt with summarily were put forward by Camillo[10] and Max[11] as relevant comparators. Whilst those cases provide a sense of sentencing practice in the Magistrates' Court, I do not regard them as influential in the sentence to be imposed in this instance. They do not accord with sentencing practice in this Court or the Court of Appeal.
3. The Crown provided a number of decisions from this Court which in my view better assists in identifying the relevant current sentencing practice. They were DPP v Concord Group Pty Ltd,__[12] DPP v Montague Pty Ltd,__[13] DPP v Seascape Constructions Pty Ltd,__[14] DPP v D&A Martin Transport Pty Ltd,__[15] DPP v Melbourne Health,__[16] DPP v Ourarchi Pty Ltd,[17] and DPP v Misz Pty Ltd.__[18] With the exception of Melbourne Health and Misz the risks in each of those cases arose from working at height and save for Concord each entity pleaded guilty.
4. In all of those cases the risks were readily foreseeable, the likelihood of the risk eventuating was high and the consequence of the risk materialising was either death or serious injury. The combination of those features in each of those cases provides a reasonable basis for useful comparison.
5. All of the County Court cases referred to, except for Misz, involve the death of a worker.[19] As I have already made clear, sentencing in this area is directed to the gravity of the breach of duty owed not to the consequences of that breach. Generally, a workplace death will be relevant in assessing the existence of a risk and the nature and seriousness of that risk. The impact of the death on those who were close to the deceased is also relevant.
6. However, a point of distinction between this case and the comparators is that whilst Mr Agostino's death illustrates the risk, it occurred outside the time frame of the charges. It follows, that the relevance of the impact the death has had on those close to Mr Agostino is necessarily more restricted. That is so because, as I have explained, the statutory factors bearing upon victim impact to which a sentencing court must have regard, and to which regard was had in the comparators, are not engaged in this instance.[20]
7. That said, a factor tending in the other direction which is not present in the comparators is that this breach occurred over a longer duration (approximately one month) and was not isolated.
8. As to penalty, even allowing for the gradual increase in the maximum penalty commensurate with the increase in the value of penalty units, save for Seascape and to a lesser extent Misz, the penalties imposed in the comparators fit within a relatively narrow range. Although they provide some limited guidance, it is well established that the range of sentences revealed by those cases cannot be treated as being necessarily correct or as providing upper or lower limits of the sentence.[21] Nor can they in any way be determinative of the sentence to be imposed in this case.

1. The maximum penalty for each offender's offence is $1,486,980.
2. The legislative framework which creates that offence provides for a series of objectives[22] and principles[23] which inform the sentencing exercise. Of particular relevance in this instance, is the principle that persons in the workplace be given the highest level of protection against risks to their health and safety that is reasonably practicable[24] and that those responsible for the workplace should be proactive in affording that protection.[25]
3. In my view the failure which constitutes the offence of each these offenders fell well short of that objective.
4. As indicated in summarising Camillo's submissions, the framework for assessing the seriousness of this offending is well understood.[26] They bear repetition. A sentencing court is to assess -

(a) The extent to which an offender departed from its statutory duty and failed to take all reasonably practicable steps to reduce the risk;

(b) The likelihood of a risk materialising; and,

(c) The potential consequences if it did.

1. Turning to the first consideration, the risk posed by working at heights is self-evidently grave. The risk posed by unauthorised interference was that it could cause either a fall or the collapse of the scaffolding. That risk was well known.
2. Each of these companies knew that the risk posed by unauthorised interference was occurring within their workplace over the time frame of the charge. They also knew that there was a way of controlling and reducing that risk by shutting off all levels of the scaffold when interference was detected and having it inspected by a qualified scaffolder. In addition, in the case of Camillo, it knew it should have conducted an investigation with a view to ensuring that interference did not reoccur.
3. To so conclude is not to utilise hindsight reasoning or an impractical/unrealistic assessment of what should have been done to address the risk. It is to do little more than state the factual basis for each defendant's plea as expressed in the particulars of the charges.
4. I accept that it was not part of Max's undertaking to supervise the tradespeople and that it was to some extent vigilant in that it detected three of the instances the subject of the charge. In that sense it went some way to fulfilling its duty.
5. Nevertheless, in assessing the extent of the departure from Max's duty I do not think it says a great deal to point to the absence of aggravating features that might be seen in other cases. This case has its own aggravation not least of which was the failure to properly address not just one instance of unauthorised interference but rather continuing unauthorised interference over a reasonably lengthy period of time.
6. With the exception of the first incident involving Mr da Costa, the steps taken were clearly inadequate to deal with the risk which was allowed to persist. Max's response, or more accurately its lack of response, fell well short of what was reasonably practicable to ensure safety.
7. With respect to Camillo, it is to be accepted that it had systems in place to address unauthorised interference such that its breach arises from a failure to implement measures rather than not having measures in place at all. What was plain however is that its systems were not adequately addressing the risk.
8. Directions given at toolbox meetings or inductions did not deter continuing interference. Camillo was acutely aware that interference was a persistent problem and its failure to take the necessary and readily available measures to address it in those circumstances elevates its culpability.
9. In those circumstances I accept the Crown submission that the failure of each defendant constituted a serious departure from the duty not to expose persons to the risk inherent in working at height on scaffolding.
10. I reject the contention put forward by Camillo, that it was overstating the matter to say the risk "persistently" arose. The risk did not arise as an isolated event. On the evidence gathered in this investigation it was clear that trades people were interfering with scaffolding and the risk they would continue to do so was part of the risk that needed to be addressed. It is no exaggeration to say that the risk persisted. The additional failure to investigate interferences further elevates Camillo's culpability.
11. Turning to the likelihood of the risk materialising, the particularised risk accepted by each offender through their plea of guilty is the risk of death or serious injury to persons on or near the scaffolding due to interference or unauthorised alterations causing persons to fall from height or the scaffolding to collapse. The sheer number of summary and indictable cases to which I was referred for comparative purposes, and which concern such a risk either materialising or very nearly materialising, in itself suggests a degree of prevalence. That prevalence, in turn, attracts emphasis on general deterrence.
12. The notoriety of the risk within the industry also, I think, speaks to the likelihood of the risk materialising. That said it is difficult to quantify the likelihood any further on the available material. It seems fair however to adopt the Crown characterisation that the likelihood of the risk materialising was "far from remote".
13. The third consideration - the potential consequences of the risk materialising - have been well and truly brought home by the incident in which Robert Agostino lost his life.
14. Overall this offending was, as the prosecution submitted, "quite serious".
15. Whilst each offender sought to avoid conviction, I am not persuaded that is appropriate in either case. The seriousness of the offending coupled with the lack of non-speculative evidence demonstrating an adverse impact on the economic or social well-being[27] of either offender, grounds that conclusion.
16. That said, each of the defendants have pleaded guilty and their pleas merit a substantial reduction in the sentence that would otherwise be imposed.
17. The fact that Max has gone into liquidation will not impact the penalty to be imposed on that entity. I will take the approach adopted by Teague J in R v Denbo Pty Ltd[28] where the penalty imposed was that which was appropriate had the company remained viable.
18. Finally, whilst general deterrence must assume vital importance in the sentence imposed, I take the view that the lack of prior convictions of each defendant, their pleas and, in Camillo's case, its good character, it is not necessary to emphasise specific deterrence to the degree contended by the Crown. Specific deterrence must play some role but the matters to which I have referred militate against substantial emphasis.

1. Taking all relevant matters in to account Max Scaff Pty Ltd will be sentenced as follows:
2. On the one charge of failing to ensure that persons other than employees were not exposed to risks to their health or safety arising from the conduct of an employer's undertaking it will be convicted and sentenced to pay a fine of $160,000.
3. I will declare pursuant to s 6AAA of the Sentencing Act 1991 that but for its plea of guilty Max Scaff would have been convicted and sentenced to pay a fine of $240,000.

1. Taking all relevant matters in to account Camillo Builders Pty Ltd will be sentenced as follows:
2. On the one charge of failing to ensure that persons other than employees were not exposed to risks to their health or safety arising from the conduct of an employer's undertaking it will be convicted and sentenced to pay a fine of $240,000.
3. I will declare pursuant to s 6AAA of the Sentencing Act 1991 that but for its plea of guilty Camillo would have been convicted and sentenced to pay a fine of $320,000.

[1] Summary of Prosecution Opening 4 November 2024 [31].

[2] A scaffold can be three times as high as it is wide before it becomes unstable.

[3] Summary of Prosecution Opening [49].

[4] DPP v DJK [2003] VSCA 109 at [17] & [18]

[5] DPP v Frewstal Pty Ltd [2015] VSCA 266 [48].

[7] Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119 [35].

[9] Frewstal at [49], per Maxwell P.

[10] Prosam Building Services Pty Ltd; (Magistrates' Court of Victoria, 8 February 2024). Convicted with aggregate fine $80,000); Link Building Solutions Pty Ltd; (Magistrates' Court of Victoria, 4 May 2022). Without conviction fined $12,500; Kamata Homes Pty Ltd; (Magistrates' Court of Victoria, 14 November 2018). Without conviction fined $45,000; Reborn Projects Pty Ltd; (Magistrates' Court of Victoria, 3 September 2018_)._ On a Director's appeal to the County Court convicted and fined $15,000.

[11] Victorian Property Care Pty Ltd; (Magistrates' Court of Victoria, 28 May 2024). Without conviction fined $15,000); B & P Builders Geelong Pty Ltd; (Magistrates' Court of Victoria, 19 April 2024). Without conviction fined $12,000); Gal Gowers Homes Pty Ltd; (Magistrates' Court of Victoria, 2 April 2024). Without conviction fined $10,000); Electribuild Pty Ltd; (Magistrates' Court of Victoria, 19 January 2024). Without conviction fined $9,000; Oricon Group Pty Ltd; (Magistrates' Court of Victoria, 5 April 2023). Without conviction adjourned undertaking; Sanli Scaffolding Pty Ltd; (Magistrates' Court of Victoria, 2 February 2023). Without conviction fined $12,000; Southern Cross Scaffolding Hire Pty Ltd; (Magistrates' Court of Victoria, 11 October 2022). Without conviction fined $2,000.

[12] [2019] VCC 1846. Convicted and fined $350,000 on each of two offences.

[13] [2018] VCC 1553. Fined $380,000.

[14] [2020] VCC 1132. Convicted and fined $850,000.

[15] [2024]VCC 1355. Convicted and fined $350,000.

[16] [2021] VCC 407. Convicted and fined $340,000.

[17] [2023] VCC 884. Convicted and fined $370,000.

[18] [2024] VCC 1449. Convicted and fined $160,000.

[19] Misz involved a serious breach in a setting where, fortunately, there was no death or serious injury.

[20] See paragraphs [33] - [35] of these reasons.

[21] Midfield Meat International Pty Ltd v The King [2023] VSCA 106 [204].

[22] Occupational Health and Safety Act 2004 (Vic) s 2.

[23] Ibid s 4.

[24] Ibid s 4(1).

[25] Ibid s 4(3).

[26] Frewstal [2015] VSCA 266.

[27] Sentencing Act 1991 s 8(1)(c).

[28] R v Denbo Pty Ltd (1994) 6 VIR 157.