DPP v Nationwide Towing & Transport Pty Ltd [2011] VSCA 291

1 The Director of Public Prosecutions appeals sentence in an industrial accident on the sole ground of manifest inadequacy. The sentencing judge described the circumstances of the accident as follows:[1]

The defendant is a large transport company. Part of its business is delivery to work sites of industrial machinery such as exoff excavators by prime mover and trailer. On 2 January 2007, one of its drivers transported a 20 tonne steel track excavator from Carrum Downs to a building site at Narre Warren North. The excavator was sourced from the firm named Peninsula Prestige Development. A Peninsula Prestige operator; Damien Des Barres, drove the excavator onto the trailer and was to drive it off at the building site. The trailer utilised by the defendant was a mega tilt MK3 tilt-trailer. The attempted unloading of the excavator is detailed at paragraphs 3 to 8 of the Crown Opening. In short, the chains holding the excavator were removed and the trailer fully tilted. The land sloped across into the rear of the trailer. Damien Des Barres entered the cabin of the excavator, it moved a short distance under power, and then lost traction on the steel surface and the combing rails of the trailer. It slid in the direction of the slope, and off the trailer. Mr Des Barres was killed by crushing injury.

2 The respondent, Nationwide, pleaded guilty to one count of failing to maintain a safe working environment under s 21 of the Occupational Health & Safety Act 2004 ('the Act') and one count of failing to ensure that persons other than employees were not exposed to risk to health and safety under s 23 of the Act. The maximum penalty for each offence was 9,000 penalty units. At current value, the maximum penalty was approximately $966,000.

3 On the plea it was agreed that the critical aspect of Nationwide's offending was that the subject trailer was inappropriate for the machinery of that type and size. The Crown acknowledged an early plea.

4 The learned sentencing judge accepted that Nationwide, through its directors and management, expressed their remorse and noted that it had consented to orders of compensation.

5 In September 2005, a similar incident occurred when an excavator on the same or similar trailer slipped and rolled down an embankment. On the plea, the Crown stated in opening:[2]

An incident very similar to that described above had previously occurred on 5 September 2005. On that day, an excavator was being unloaded from a Nationwide MK3 Megalift trailer at 170 Belgrave-Gembrook Road, Selby. The metal tracks of the excavator were wider than the trailer and sat on combing rails. When the excavator was being driven off the trailer, which was in full tilt position, it slipped forward and to the left and rolled down an embankment. At that time there had been no risk or hazard assessment done in relation to the unload of excavators and there had been no training or instructional material provided by Nationwide.

6 It was the Crown case that prohibition notices issued in September 2005 were withdrawn when Nationwide undertook henceforth to use 'spread deck' trailers or modified steel deck tilt trailers and rubber matting when loading and unloading excavators, and to put in place a system of site assessment. These things were not done.

7 Following this, no hazard or risk assessment was undertaken. No satisfactory instructional material was produced, nor were drivers trained to adopt the agreed procedures which were the subject of the undertaking. The system for site assessment was not introduced.

8 Approximately a month after the 2005 incident, Nationwide commenced to use an instructional DVD which depicted an excavator being loaded on to a steel deck tilt trailer, however, the DVD did not cover the agreed procedures.

9 It was also the Crown case on the plea that the factors which contributed most significantly to the accident were:

(a) The provision of a trailer can was wholly inappropriate for the task for which it was provided, most importantly it was too narrow and its surface was unsuitable.

(b) The failure to provide adequate training to the driver or to make instructions available to the driver and excavator operator alerting them to the dangers which should have been identified earlier. These included that:

1. the trailer was too narrow for use with the excavator in question;
2. there was considerable potential for metal on metal slippage occurring;
3. it was dangerous to move the boom of the excavator beyond the surface of the trailer, especially when the trailer was tilted, changing balance and points of inertia;
4. it was dangerous to have the excavator on the trailer operating with the cabin rotated and the operating conventions reversed.

10 His Honour, the sentencing judge, heard and accepted evidence of Anthony Williamson, a dispatch manager of Nationwide, that after the 2005 incident, the respondent made changes to the system of accepting and allocating jobs, but the changes failed.

Shortly described, changes were made to the system of taking and allocating jobs and therefore, the particular prime mover and trailer to be used. That system was computerised. It was sought to prevent selection and use of this type of unsuitable trailer for this type of machinery. Selection of the mega tilt mark MK3 would not produce pricing details and therefore, the job would not be confirmed. There were meetings of management about this and relevant staff were advised of the changes, and their significance. The tendered computer screen dumps and emails within the depositions are relevant to this. That system failed on this occasion. The job was allocated to the wrong type of trailer. The evidence was that this was caused by, and I quote: "human carelessness." The failure, in my view, included that inadequate steps were taken, for example, by way of further instruction, training, supervision and enforcement, to ensure that the system and employees would not select the wrong type. Mr Williamson, who presented to me personally as a competent and responsible man, realised on the occasion that a mistake had been made. He rang the driver, but the excavator had already been loaded and was in transport. He told the driver to be careful. Sadly, tragedy followed.

12 His Honour gave careful consideration to the level of risk created by the offending and the impact of the death of Mr Des Barres on his family. The judge also noted Nationwide's good record and remedial action taken by it since the accident.

13 It was acknowledged and agreed on the plea that Count 2 was the more significant offence and that there was an overlap between the counts. His Honour resolved to impose an aggregate fine on both counts but regarded Count 2 as the more relevant. The aggregate fine imposed was $450,000.

14 For the purposes of s 6AAA of the Sentencing Act 1991, but for the guilty plea, his Honour would have imposed an aggregate fine of $600,000.

15 The Director has appealed the quantum of the aggregate fine imposed upon Nationwide on the ground that it was manifestly inadequate. The Director submits that the fine failed to punish Nationwide sufficiently, failed to provide specific and general deterrence which ensured the provision of safe work places by the respondent and other employers, failed to recognise and denounce the respondent's culpability, failed to have regard to the maximum penalty, failed to have sufficient regard to the nature and gravity of the offences in light of the degree of harm that would result if an accident of this kind occurred, the likelihood of such an incident occurring and Nationwide's knowledge of that likelihood by reason of a similar accident having already occurred in 2005.

16 The Director further submits that the sentencing judge gave too much weight to mitigating factors and that fine imposed did not have sufficient regard to a number of aggregating factors. These include Nationwide's failure to comply with an undertaking made following the 2005 incident, its failure to undertake risk assessment and its failure to train its drivers satisfactorily, including using an instructional DVD which failed to cover procedures agreed to in the undertaking.

17 Under the ground of manifest inadequacy, the Director also alleged, as particular (h), that the learned sentencing judge 'inappropriately aggregated the penalties into a single penalty for both offences and failed to provide adequate reasons' for doing so. An allegation by the Director that a sentence passed was manifestly inadequate is not an allegation of specific error. Quite properly in the course of submissions, counsel for the Director abandoned that particular.

18 On the plea, the Crown submitted that the appropriate range of sentence for the offending was a fine in the vicinity of 800,000 to $1 million, with the more serious offending being in respect of Count 2. On the appeal that range was maintained.

19 The essence of the Director's position was that in light of the prior history and the attached risk which would have been ameliorated, the heavier sentence was warranted.

20 I note that on the plea the respondent urged a range of fine of $200,000 to $300,000.

21 The position of the Director on this appeal is clear. He was bound[4] to be informed by the principles in Clarke[5] and Bright.[6] For the Court, we must be persuaded first that there is error, secondly, that a different sentence should be imposed.[7]

22 The Director relied upon the following matters to demonstrate the seriousness of breach in this case:

(a) Nationwide, by virtue of the previous incident, knew the dangers of trying to transport this size of excavator on a narrow trailer;

(b) the deficiencies in the trailer provided was within industry knowledge;

(c) the dangers of operating the excavator when on the trailer were wellknown;

(d) a safe system for transporting this machinery was within the knowledge of the respondent and within its capabilities to provide; and

(e) the risks of failing to comply with a safe system involving death was a very serious injury.

23 It is apparent from his Honour's reasons that he found that the accident occurred due to a failed and inadequate system as distinct from a failure to address the risk at all. The learned sentencing judge accepted the evidence of Mr Williamson as to what had occurred following the 2005 incident and as to how the subject accident occurred in 2007.

24 The system installed post 2005 failed because of, 'human carelessness' and inadequate features of the system. Nationwide installed a computer system whereby an excavator job involving an unsuitable trailer would effectively be rejected by the system. There the relevant staff had been alerted to this prospect. The only way an excavator would be accepted as a booking on to the system would be if that excavator was matched with what was known as a 'spread deck' trailer. However, the system failed because an individual dispatcher overrode or disregarded the system. As a consequence, the excavator was sent out with an unsafe trailer.

25 Mr Williamson accepted in his evidence that drivers, as distinct from dispatchers, had not been sufficiently briefed. He accepted that this should have occurred.

26 The critical aspect of the appeal is whether it was open to the sentencing judge to treat the two counts together and impose an aggregate sentence. Count 1 was concerned with protection of employees through education, training and supervision and protective arrangements for employees with the transport of plant. Count 2 was concerned with the protection of non employees, the public, from exposure to risk in the course of its employer activities.

27 The High Court in Pearce v R made it plain that it was wrong in the absence of contrary legislative intention to punish an offender twice for two offences that have common elements.[8] The plurality observed that:[9]

The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the inquiry is not to be attended by "excessive subtleties and refinements". It should be approached as a matter of common sense, not as a matter of semantics.

28 Here, in my view, commonsense dictates that both counts were concerned with safety by employers in the conduct of employment activities, namely the transport of plant and the prevention of exposure from risk arising from those activities. The overlap is apparent from the particulars to the two counts. The particulars for Count 2 were identical to the particulars for Count 1, save for the addition of one extra particular.

29 Ultimately, the distinction between Counts 1 and 2 lay in the classes to be protected. That said, it was the core element of the activities of the employer that lay at the heart of both counts. The reality was that Count 1 added little, if anything.

30 In my view, it was open to the sentencing judge to treat the two counts as largely overlapping. However, I observe the reasons for his Honour's approach may well have benefited from the type of analysis embarked on in my reasons.

31 Further, his Honour acted upon the basis that Count 2 was the more significant. It was open to him to do so. Plainly the risk for persons, that is the public, whether an employee or not, was paramount and thus encompassed the risk in Count 1. Whilst his Honour may have articulated more as to the rationale for treating Count 2 as the relevant count, nonetheless his Honour doubtlessly acted on the basis of the agreement between the parties.

32 I turn then to the subject sentence. The Director referred the Court to a range of penalties imposed in cases under the Act where fatalities had occurred. The exercise was devoted to demonstrating current sentencing practices. I see this exercise as being of limited utility in this case. While other sentences will go part way to establishing a range, what they may also do is establish the relativity of the sentence. Each case will need to be decided on its own facts because of the myriad of circumstances that will arise in the industrial environment.

33 Here the sentence, when allowance is made for the focus on Count 2, fell in the middle of the range. Despite the Director's urging, I would be most reluctant to declare the range for a purported exemplar set of circumstances. It would be tantamount to a guideline judgment, albeit in disguise.

34 The aggregate sentence imposed by the sentencing judge in my view was not unduly light and was, in any event, within the range of fines imposed in cases involving a fatality. The sentence demonstrated sufficient adherence to deterrence. The judge took into account the mitigating circumstances. Ultimately his Honour accepted the contributing factor of human error. Nationwide pleaded guilty, accepted responsibility and was remorseful. The case is quite different from the gravity of the circumstances in cases such as Fosters[10]and Amcor.[11] Indeed, quite properly, so much was conceded by counsel for the Director.

35 Summarily then, in my view, no error was demonstrated and I would dismiss the appeal.

36 I agree. The judge in this case described the respondent's culpability as being 'significantly high'. 'Significantly high' is a protean conception although, for present purposes, it may be accepted. It does not follow, however, that this case was in the worst category of cases or even in what counsel for the Crown described as the 'median upper range'.

37 Given the nature and gravity of the offending, to which the Chief Justice has referred; the fact that the maximum penalty on each count was approximately $966,000; the near to total overlap between the criminal offending which comprised each count; and the discount on penalty to which the respondent was entitled by reason of pleading guilty, I am far from satisfied that the sentence imposed was manifestly inadequate.

38 I also agree, for the reasons given by the Chief Justice and my brother Nettle, that the appeal should be dismissed.

39 For my part, the sentence imposed was by no means to be characterised as manifestly inadequate.

42 The certificate is granted under s 15 of the Appeal Costs Act 1998.

[1] DPP v Nationwide Towing & Transport Pty Ltd [2010] VCC 1171, [8] ('Sentence').

[2] Prosecution Opening, [22] (footnote omitted).

[4] DPP v Karazisis [2010] VSCA 350, [58] ('Karazisis').

[5] R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522-3.

[6] DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 542-3.

[7] Karazisis [2010] VSCA 350, [71].

[8] (1998) 194 CLR 610, 623 [40] (McHugh, Hayne and Callinan JJ).

[10] R v Fosters Australia [2005] VCC 902.

[11] DPP v Amcor Packaging Australia Pty Ltd [2005] VSCA 219; (2005) 11 VR 557.