DPP v Pipecon Pty Ltd [2021] VCC 1808

3 A detailed account of the facts giving rise to the contravention, and the tragic consequences that followed are set out in the Summary of Prosecution Opening for Sentencing Hearing dated 8 October 2021 (Exhibit A). I was also provided with a folder of materials that included photographs of the scene, plans, safety documentation and other relevant information. I was taken to the relevant parts of this material so as to enable a better understanding of the site and works to be carried out, by the learned prosecutor (Exhibit B).

4 By way of background, on 14 February 2018 Pipecon started work at the site to construct a main trunk sewer system (the project). The project included trenching, pipe laying and manhole installation. There were associated and preparatory works that required Pipecon's employees to work in and around excavated trenches and manhole pits. This was undoubtedly high- risk work, given the potential for a trench collapsing. (Details of the work, risks and safety measures adopted by Pipecon are set out in paras 8-20 of Exhibit A).

5 On 21 March 2018, at the beginning of the shift, it was anticipated that Mr Howkins, Mr Brownlee and Mr Douglas (the excavator operator) would prepare manhole 8, whilst Mr Shaun Maher (the site supervisor) and another employee would continue working at the top end of the site, near manholes 21 and 22. The distance between the top site or manholes 21 and 22, and the bottom site or manhole 8 was more than half a kilometre. The terrain between the two locations was hilly or undulating. Perusal of photographs of the site and plans in respect of the drainage of the site reveal the nature of the work to be undertaken and the surrounding circumstances (see photographs in Tab 3 and plans in Tab 11 of the jury folder). There were specific issues or conditions in respect of this area around manhole 8 on the site.

6 At about 7 am when work commenced, Mr Brownlee and the excavator operator went to the bottom site to prepare manhole 8. They were later joined by Mr Howkins, who had been directed by the site supervisor to assist them. He was told to come and grab the manhole cage when it was needed as the cages and trench shields were all located at the top site. However, the site supervisor did not see Mr Howkins take a manhole cage with him.

7 The excavator operator moved between the top and bottom sites conducting works as required at both sites, including the branch trench at manhole 8 during the morning. At about 10 am, all of the crew who were working at the top site, including the excavator operator, met for smoko. Mr Brownlee and Mr Howkins did not meet up with these other crew members, though the fact they did not join them was not unusual.

8 When a subcontractor arrived at the bottom site at approximately 11 am, he saw that at manhole 8, the branch trench had collapsed. Mr Brownlee was in the trench, with only his head and one arm visible, saying "Get me out". Mr Howkins was in the trench though was not moving and was unresponsive. Despite efforts of all the crew on the site to dig them out of the trench, the task required the assistance of emergency services. Mr Brownlee was eventually dug out from the trench, alive. He was transferred to the Alfred Hospital by ambulance helicopter with significant crush injuries, which ultimately led to his death on 22 March 2018. Mr Howkins died from head injuries sustained in the trench collapse.

9 The site supervisor must have been aware, if he had turned his mind to it, that the excavator operator had completed works at the bottom site that morning, but that neither a manhole cage or trench shield had been taken to that area. As noted, the excavator operator had been moving between sites that morning. Given the nature of the work, the site supervisor ought to have been aware that high-risk work was either being carried out, or was about to be carried out, without a manhole cage or trench shield being in place. Despite this, at no point during the morning of 21 March 2018 did the site supervisor either check how the work at the bottom site was being carried out or ensure that a manhole cage and/or a trench shield had been installed in the excavation before any high-risk work commenced.

10 In determining the objective serious of the offending, and consistent with the policy of legislation, the gravity of the breach of the duty to keep employees safe is important. The result or consequences of the breach, in this instance the tragic death of two men, does not of itself make the offending more serious. As noted by Justice Priest in Dotmar Epp P/L v the Queen [2015] VSCA 241 at [22]:

11 '... . Put another way, .... the gravity or seriousness of a breach is to be measured by reference to the potential consequences of the breach; the extent of the evidenced disregard for the safety of employees; and the risk of the potential consequences of the breach materialising.'

12 As indicated in the authorities, any safety system and procedures adopted by a company will only be effective if it is pro-actively implemented and constantly monitored by the employer. Further, an employer must take into account contingencies such as human error of employees, whether inadvertent or deliberate, in both the creation and maintenance of a safe system of work, including adequate supervision.

13 It was not disputed that Pipecon had in place various safety measures or systems. The matters set out in defence submissions on this aspect were conceded (see paras 16-58 of the defence submissions). That submission focused on the safety planning and systems that were in place, the training and experience of the site manager and other employees, adequacy of instruction and signed acknowledgements by employees and level of supervision. However, it is necessary to consider the level of risk of a trench collapsing, without the utmost strict compliance to that safety system, including adequate supervision, was high. This kind of work was so obviously and inherently dangerous, it was important that there was meticulous compliance. Pipecon, given its experience in undertaking this kind of trenching work, was well aware of the likelihood of failure to adequately supervise such work being conducted, would result in a trench collapsing endangering the safety of employees and the gravity of consequences that occurred.

14 As noted in Pipecon submissions, 'the site manager had a line of site to the general location where Mr Howkins' crew was working, although it is acknowledged and conceded it was from some distance away and the ground was undulating [1855].'

15 The inadequacy of supervision in carrying out high risk or trench work at the site was due to a number of factors:

1. there was inadequate or low staffing levels. The site supervisor was caught up with other duties on the site including operating machinery rather than supervising;

2. Mr Brownlee and the excavator operator were inexperienced and had only been working for Pipecon for a relatively short period of time;

3. the site supervisor was some distance away from the bottom site, and was, in practical terms, unable to supervise employees carrying out high risk work in a different area on the site and;

4. the distance between work locations or the top and bottom sites, and the fact that the trench shields and manhole cages were often needed at the location where the main trenching activity was occurring, created an environment in which an employee might undertake high-risk work without first installing a trench shield or manhole cage.

16 Adequate supervision was a reasonably practicable step that could have been taken to reduce the risk of an employee not complying with the safety system whilst engaged in trench work. In addition to the high level of risk and significant potential harm, Pipecon were experienced in carrying out this kind of trench work and ought reasonably to have known the dangers associated with it, ways to eliminate or reduce those risks to protect their employees and their safety including adequately supervising the work, without incurring prohibitive cost. It is noted that since this incident, Pipecon has made certain changes as outlined in defence submissions (see paragraphs 96-99).

17 The work safety system put in place by Pipecon was for the protection of employees and needed to be strictly adhered to. It failed these 2 men. I accept the prosecution submission that the objective seriousness of this breach was relatively high.

18 I was provided with a significant amount of material by families and friends of both men which gave an insight into the kind of people that they were and, importantly for sentencing purposes, the impact that this offence has had on their families. Quite clearly there have been major consequences. Although an offence under the workplace safety legislation is not made more serious by the fact that in this case, the risk of death to two employees eventuated, the sentencing court is nevertheless required to take into account the impact of the offending by Pipecon on those affected by it.

19 A number of victim impact statements were prepared by family and friends of both Mr Brownlee and Mr Howkins. Understandably their deaths have had a significant impact on each of those who were close to them. Many of the family members and friends were able to attend court and either read their own statement or had the contents read by the learned prosecutor. The understandable grief, pain and anger that were eloquently expressed by each of them, reveal what can only be described as the absolutely devastating impact on the families because of the deaths of these two men. Mr Brownlee was a loved son, brother with a great future. Mr Howkins, similarly, a loved son, husband, brother and father to two young children. All have described the shocking and soul-destroying impact upon them and their families because of the deaths. In cases like this, it is natural that that the family members and friends of a person who have lost their life will focus primarily on the fact of death. Nothing this court can do will bring either of them back, but I have taken into account the impact on others of each of their deaths in sentencing Pipecon.

20 It is well established that general deterrence is of particular importance in offending of this kind. This is so even though in the absence, as in this case, for the need for specific deterrence. The sentences imposed need to draw attention to the importance of workplace safety, and to send a message to employers that failure to eliminate or mitigate safety risks, including the provision of adequate supervision when high risk work is being undertaken, will attract significant punishment. Companies must be ever vigilant in providing a safe workplace for its most important asset, its people. Workplace deaths are a preventable and an all too common tragic occurrence. The sentence imposed must deter other employers from providing inadequate supervision when there is inherent danger in the type of work involved and potentially drastic consequences. Further, just punishment and denunciation are relevant sentencing considerations.

Current circumstances and history of Pipecon.

21 Pipecon is a Ballarat company that has been in business in some form since 1993 and currently has 46 employees. Mr Andrew Maher has always been involved in Pipecon's operations. I was provided with a number of documents or material from Pipecon regarding:

1. details of compliance with relevant occupational health and safety systems and relevant certificates;

2. the steps taken by it, at its own expense, to remedy the failure to provide adequate supervision to ensure a similar event such as this does not happen again.

3. I also was provided material regarding Pipecon's involvement in the Ballarat community and status as a good corporate citizen.

22 None of this material was in dispute. I accept Pipecon have not had any issues regarding safety in conducting their business prior to this and that Pipecon has no prior convictions.

24 I take into account that Pipecon pleaded guilty to this offence and has facilitated the course of justice. There is clearly a utilitarian value to the plea, which is more enhanced given the COVID situation. There has been a significant delay in finalising this matter, some of which was not attributable to Pipecon related to the COVID situation and effect on the operation of the courts. After this matter was necessarily adjourned due to a "snap" lockdown, I actively encouraged the parties to attempt to resolve this matter conscious that I was unable to provide a date for a trial to proceed and of the impact that delays were having on all of the parties involved.

25 The plea was entered to a single charge on a fresh indictment on 30 August 2021. Pipecon's plea has saved the traumatic experience of a trial for all involved and is also of significant value to the administration of criminal justice in this state due to COVID.

26 I accept that Pipecon is remorseful and that Mr Andrew Maher was also traumatised by the events on 21 March 2018. Further, although it was not an early plea, it is consistent with remorse. Remedial action by Pipecon to address the issue of supervision of trench work augers well for the future of Pipecon and is indicative of an assumption of responsibility and remorse for this incident.

27 Reference was made to the impact of media coverage of this incident on the business and impact on Pipecon's reputation in the community and status as a preferred contractor. It was not submitted that I should impose a non-conviction penalty and I take into account a conviction may impact on Pipecon's prosperity and on prospective contracts, particularly in government work in the future.

Sentencing submissions

28 Both parties provided detailed sentencing submissions (Exhibit C and 1) and I take them into account. These included a reference to current sentencing practices and cases which counsel argued were comparative to those currently before me. I have read and considered those decisions, though of course each case depends on its own facts. They provide some guidance to the court as to an appropriate penalty.

29 Mr Maher, if you could please stand. Mr Maher, as the authorised representative of Pipecon in respect of the charge before me, Pipecon is convicted and fined $550,000.

30 Pursuant to s6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have imposed a sentence of $700,000.