DPP v Van Dyck Pty Ltd [2025] VCC 972

1. These flyrocks, as they are called, were caused by an explosion which went very badly wrong. The explosion was conducted by the respondent, Van Dyck Pty Ltd which faced a charge under section 37 of the Dangerous Goods Act 1985 (Vic) ('DGA'). The charge alleged that on 16 January 2023, the respondent had negligently or carelessly prepared for use and detonated explosives so as to endanger the life of a person and the safety of any property.
2. The particulars appended to the charge identified the life endangered as that of Mrs Liliana Talevska.
3. On 4 February 2025, the respondent pleaded guilty, was fined $6,000 without conviction and was ordered to pay the prosecution's costs in the sum of $9,223 by the Heidelberg Magistrates' Court.
4. A director of the company, Hans Van Dyck also pleaded guilty to a charge under the DGA.
5. Having concluded that it is in the public interest to do so, the Director of Public Prosecutions appealed against the order made in respect of the company to this Court pursuant to section 257 of the Criminal Procedure Act 2009 (Vic) ('CPA') on the ground that the sentence is inadequate.[1] There is no appeal against the orders made against Mr Van Dyck personally.
6. Such an appeal proceeds by way of rehearing.[2] On the hearing of the appeal, this Court:

(a) Must set aside the sentence of the Magistrates' Court;

(b) May impose any sentence which the court considers appropriate and which the Magistrates' Court imposed or could have imposed; and

(c) Must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court otherwise would consider appropriate.[3]

1. The appeal was heard on 3 June 2025 and the court reserved its decision.
2. The issues raised on the appeal are:

(a) What is the applicable maximum penalty?

(b) What is the appropriate penalty?

(c) Should that penalty imposed by the court be with or without conviction?

1. Before answering those questions, it is necessary to summarise the factual circumstances of the offending.

1. An agreed and detailed Statement of Material Facts was read to the Court. The following summary is based on that document.
2. In late 2022, Symon Bros Constructions (Vic) Pty Ltd was the principal contractor at a development site known as the Mason Quarter Estate, located at the end of Deltora Road, Wollert ('the workplace').
3. Califam Constructions Pty Ltd ('Califam') was engaged by Symon Bros to undertake sewer and drainage works at the workplace.
4. Van Dyck Pty Ltd ('Van Dyck'), trading as Drilling Equipment, conducts drilling and blasting operations. Hans Van Dyck ('Hans') and Judith Dorothy Van Dyck are Company Directors.
5. Califam engaged Van Dyck to conduct pre-blasting of a trench at the workplace to enable installation of a sewer line.
6. In preparation for the trench blast on 16 January 2023 at the workplace, Van Dyck:

(a) Developed a Blast Management Plan dated 16 January 2023 ('the BMP');

(b) Prepared a Safe Work Method Statement for 'Blasting' work at the workplace dated 16 January 2023 ('the SWMS'); and

(c) Obtained a Blasting Permit from the City of Whittlesea provided by way of letter dated 9 January 2023. In accordance with the Blasting Permit, Van Dyck were required to use explosives 'only in circumstances where it is safe to do so' and to keep certain records of the blast.

1. The BMP identified Hans as the person responsible for the blast under a Use Blasting Explosives (UBE) Licence. A 'Blast Crew' consisting of Gerard, Forsyth, Allen and Clint Buckingham, were tasked with assisting with the placement of explosives.
2. The BMP set out the blast design and details of explosives/charging as follows:

(a) Up to 400 blastholes were to be pre-drilled, 89mm wide, 'up to 4 metres deep' and placed 1.6 metres apart in a staggered drill pattern;

(b) Each blasthole was to be filled with up to 10kgs of an 'ES Emulsion' explosive and a net quantity of up to 5000 kgs of ES Emulsion explosive was to be used;

(c) Nearby residences were 180 metres away and an exclusion zone of 150 metres was to be established. The shotfirer was to be 200 metres or more from the blast site and the nearest public access was 150 metres away; and

(d) The height of 'stemming' material was to be 2.5 metres.

1. 'Stemming' is the process of backfilling a blasthole with material such as crushed rock. This is required to trap blast gases in the blasthole. Poor stemming or a total lack of it will result in 'flyrock', which is defined as 'the undesirable projection of rock as a result of a blast'.

1. Van Dyck engaged Orica Australia Pty Ltd to provide an 'ES Emulsion' explosive known as Centra Gold ES.
2. Centra Gold ES is an explosive specifically designed for small diameter quarry and construction blasting, in both wet and dry conditions.
3. It is delivered in bulk and pumped directly into the blastholes from a Mobile Manufacturing Unit (MMU).
4. To deliver the explosives, Orica employed Brenton Reid as a Senior MMU Operator. Justin Webb and Carsten Schwarm were employed as trainee MMU Operators.

1. On 16 January 2023, Hans, Gerard, Allen and Forsyth attended the workplace and commenced placing packaged explosives and detonators into pre-drilled blastholes.
2. At 8:00am, Reid, Webb and Schwarm attended the workplace in an MMU. Forsyth met with them and they each signed onto the SWMS.
3. Forsyth verbally informed Reid of the job, including the average hole depth, the bulk explosive product required was 'ES', the density of the product and the hole diameter. Reid wrote this information on a whiteboard on the MMU and commenced setting up the MMU.
4. The average depth of the blastholes was 5 metres and the stem height they were directed to fill the holes to was 2.2 metres.
5. To deliver the explosives, Reid operated the MMU while Webb and Schwarm operated two hoses. They would signal to Reid when to turn the hose on or off as the explosive was pumped into each blasthole.
6. When filling the holes, Webb and Schwarm identified that some of the holes were short, as little as 2 metres deep. For these so-called 'short holes', Hans directed Orica to only place product that covered the booster. To do so, the MMU pump would be turned on and straight off, pumping only 1-2kg of explosive into that 'short' blasthole.
7. Approximately 45 minutes after the holes were filled with explosives, Hans, Gerard, Allen and Forsyth started placing stemming materials into each blast hole. They were not observed to check the height of the explosives.
8. After the explosives had been loaded into the blastholes, Reid provided the delivery docket to Van Dyck and it was signed as received by Forsyth. The Orica employees then left the workplace.
9. I have earlier described what occurred when the explosives were detonated.

1. On 18 January 2023, having been informed about the incident two days earlier, WorkSafe Inspector Christopher Bull attended the workplace. He met with Hans, Allen, and representatives from Califam and Symons Bros.
2. Inspector Bull was advised by Hans:

(a) To undertake the blasting works, 348 holes were drilled to an approximate depth of 4 metres;

(b) It was calculated that 10.5kg of ES Emulsion would be needed for each hole, with a total of 3.7 tonnes of ES Emulsion needed to complete the blast successfully;

(c) The depth allowed for a calculated 2.2m for stemming;

(d) Orica have depth indicators on the hoses to allow personnel to fill the blast holes to the required depth;

(e) Prior to the blast taking place a 150m exclusion zone was set up;

(f) It was estimated that material was identified on the streets of a neighbouring housing estate more than 200 metres from the blast site; and

(g) After the blast it was identified that 5 tonnes of ES Emulsion was pumped into the blast holes by Orica.

1. Allen advised Inspector Bull that some of the blast holes were checked for correct depth, however not all were. Since the incident, a procedure had been developed and implemented in the BMP to ensure overfilling of blast holes does not occur.

1. Following his enquiries, Inspector Bull issued an improvement notice to Van Dyck in accordance with section 17C of the DGA on the basis of Inspector Bull's belief that regulation 131 of the Dangerous Goods (Explosives) Regulations 2022 (Vic) had been contravened, as a blast management plan had not been developed in accordance with AS 2187.2.[4]
2. On 23 January 2023, Inspector Bull received an email from Forsyth with an updated blast management plan that included the following procedure:

(a) 'Shot firer is to cross check with the operator several times during the loading of the holes on how much explosive is been [sic] used and if the holes are been [sic] loaded to his instructions'; and

(b) '[o]nly the shotfirer can sign the delivery docket'.

1. On 25 January 2023, Inspector Bull determined that there was compliance with his improvement notice.

1. Inspector Christopher Walschott, a WorkSafe Inspector and licensed shotfirer, and Noel Pickering, a trainer and assessor at the Box Hill Institute of Tafe, each provided statements to SI Anderton during the course of WorkSafe's investigation.
2. Pickering states that 'if the risk of fly rock is not reduced the rock can be very dangerous to property and people in the area of the blast resulting in people getting seriously injured or killed'.
3. He further states there is no excuse for fly rock events in urban areas, as control measures will eliminate such events if properly implemented.
4. Pickering and Walschott each set out their opinions as to industry practice and available control measures to control the risk of flyrock. The measures include:

(a) Checking blastholes to ensure they have been drilled to correct specification;

(b) The shotfirer will provide a written load sheet to the person supplying the explosive;

(c) If the net explosive quantity is different from the blast management plan, the site will need to be re-examined and altered as required to prevent any uncontrolled blast;

(d) If there is too much explosive in the hole or over-charging, the usual process would be to check the level to ensure correct stemming is applied and then top up or extract the product as required; and

(e) burden might need to be added on top of the stemming or blast mats used with soil beneath them.

1. An expert opinion was obtained from Peter Duniam[5] in relation to the incident and its root cause. Duniam forms the opinion that the generation of flyrock was foreseeable given the manner in which the blast was executed, specifically the lack of control over the charging process and the presence of many short holes.
2. Duniam states that there was an overall failure in the duty of care of the shotfirer to execute the drill and blast process in a safe manner, the key failures of which were to:

(a) Assess drilling results and deliver a safe charge design;

(b) Comply with the documented blast management plan concerning blast parameters;

(c) Provide adequate direction to the explosives supplier about charge loading requirements for short holes; and

(d) Assess charge height prior to stemming holes.

1. To manage the risk of flyrock, the following measures should have been adopted:

(a) The blast design should have covered the expected range of hole depths, and the hole depths should have been confirmed prior to loading with explosives. This was a safety critical step and was omitted;

(b) Where gassed explosives are used, as was the situation here, they expand vertically in the blasthole. Checking the charge height is a 'basic industry wide standard practice' which requires only a tape measure to implement and was omitted; and

(c) The net quantity of explosives used was not checked and was excessive for a sensitive blast, which would lead to increased risk of flyrock.

1. Duniam sets out that, in his view, the blast did not conform with a number of applicable sections of AS 2187.2, including failures to:

(a) Inspect the workplace prior to the blast process proceeding and identify and assess variations to the blast management plan (5.1);

(b) Prior to loading each blasthole with explosive, check each blasthole for its location, depth, diameter, angle and presence of water and where variances from the blast management plan are discovered, assessing the effects and mitigating any unacceptable risks (6.1.7);

(c) Provide a clear method of communication for loading requirements, especially for blastholes requiring special treatment such as those that have partially or fully collapsed (6.1.7(d)); and

(d) Implement controls to ensure overfilling of the blasthole does not occur (7.4.5(d)).

1. The objective gravity of an offence against section 37 of the DGA is to be assessed in light of all relevant circumstances including:

(a) The degree of carelessness or negligence involved; and

(b) The extent to which life, the safety of property, or both was endangered.

1. Ms Brown, who appeared for the Director, submitted that the offending was serious as it 'constituted a significant departure from acceptable safety standards in the undertaking of an inherently dangerous activity'.[6] In comprehensive written submissions, Ms Brown contended that this is because:

(a) The use of explosive substances is inherently dangerous;

(b) The risks associated with fly rock are well known and are able to be eliminated if control measures are properly implemented;

(c) The respondent failed to manage the use of explosives safely in a residential area; and

(d) The offending resulted in actual injury to Mrs Talevska and the potential consequences were far more serious.[7]

1. Mr Carolan, who appeared for the respondent company also submitted that the offending is 'not objectively serious' as the 'departures from industry practice were not significant'.[8]
2. I accept the prosecution submissions. Essentially for the reasons advanced by Ms Brown, I consider that this is a moderately grave example of the offence against section 37. Contrary to the defence submissions, the departure from good industry practice was significant. As the prosecution expert Mr Duniam stated, checking the charge height of explosives is a 'basic industry wide standard practice' which could have been achieved with a tape measure. Further, 'the net quantity of explosives used was not checked'.
3. The degree of endangerment was considerable. It takes little imagination to conclude that it was purely good fortune that the injuries sustained by Mrs Talevska were not far more serious or even fatal.

1. Although causing injury is not an element of the offence, where a person is injured as a result of a contravention of section 37 of the DGA, they will be a 'victim' as that word is defined in the Sentencing Act 1991 (Vic) ('Sentencing Act'). It is therefore mandatory for a sentencing court to take into account the effect of the offending on any victim.[9]
2. In a victim impact statement dated 14 October 2024, Mrs Talevska eloquently describes the impact on her of the events of 16 January 2023. After being struck in the face, she thought she was going to die and feared for the lives of her family. She suffered pain and 'quite significant musculoskeletal injuries' for which she was briefly treated in hospital.
3. She has consulted a psychologist and has been provided with a mental health plan as have other family members. She still feels numbness around her chin and suffers from nightmares.
4. I have taken into account the impact of the offending on Mrs Talevska.

1. Van Dyck Pty Ltd was registered in 2000. It is a family company and is operated by its director Hans Van Dyck who has operated in the drilling and construction industry for approximately 50 years. The company trades as 'Drilling Equipment', a business name which was registered in 1978.
2. Both Hans and the company have operated without incident for several decades. Both are recognised as experts in the field.
3. Four character references were provided to the court. They each refer to the high regard in which both Hans and the company are held in the industry.
4. For example, Andrew Story, director, Novel Group Pty Ltd, in a letter dated 1 June 2025, informs the court that he has extensive industry experience and has worked with Hans for over 35 years. While he was surprised to hear of the incident, Mr Story states that both Hans and the company are very safety conscious and he will continue to work with them in the future.

1. Section 5(2)(a) of the Sentencing Act provides that the first matter[10] to which a sentencing court 'must have regard' is the 'maximum penalty prescribed for the offence'. In Markarian v The Queen, a majority of the High Court explained that, for a sentencing Judge:

Careful attention to maximum penalties will almost always be required first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.[11]

1. A sentence based upon an incorrect view of the maximum penalty will generally warrant the intervention of an appellate court.[12]
2. As had apparently been the case in the Magistrates' Court, the parties were initially unable to agree on the maximum penalty available to the court.
3. The dispute turned on the applicability of sections 39 and 45 of the DGA to the facts. Those sections relevantly provide:

Additional penalties for offences involving explosives

(2) Notwithstanding the provisions of section 45 and of any provision of this Act which prescribes a specific penalty for an offence, a person who is guilty of an offence under this Act in relation to any explosives is liable, in addition to or in lieu of any other penalty to which the person is liable under this Act, to a penalty not exceeding 1 penalty unit for every kilogram or part of a kilogram of the explosives and the penalty imposed under this section shall be no less than 5 penalty units.

1. (1) A person who contravenes any provision of this Act (other than a provision in Part II, VII or VIII) is guilty of an offence.

(2) A person who is guilty of an offence against this Act for which no penalty is expressly provided is liable -

(a) in the case of a body corporate - to a penalty of not more than 500 penalty units and to a further penalty of not more than 50 penalty units for each day on which the offence continues after conviction; or

(b) in any other case - to a penalty of not more than 100 penalty units and to a further penalty of not more than 10 penalty units for each day on which the offence continues after conviction.

1. It is common ground that section 37 of the DGA, which is found in Part VI, creates an offence and does not specify a penalty. It is also common ground that the offence before the court is an offence 'in relation to any explosives'. The question is whether the maximum penalty is that provided for by section 45, as argued by defence, or whether it is to be calculated in accordance with section 39 as (initially) submitted by the Director.
2. Section 39 of the DGA is curiously worded. First, it is unclear how a court is to choose between imposing the additional penalty 'in addition to' or 'in lieu of' any other penalty to which the person is liable. The former approach would necessarily result in a higher maximum penalty than the latter.
3. Secondly, as this case demonstrates, it may not be possible in a particular case, to determine to the criminal standard how many kilograms of 'the explosives' were involved in the offence. In this matter, the parties were unable to reach agreement about this and, as discussed later in these reasons, the facts before the court do not enable me to make this assessment with the degree of certainty required to apply a penalty provision.
4. Thirdly, the uncertainty associated with the application of section 39 makes classification of an offence involving explosives as either indictable or summary uncertain. This is because section 112 of the Sentencing Act provides that the distinction is informed by the maximum fine available.
5. Turning then to the evidence before the court about the number of kilograms of explosives involved in the offence. The agreed facts reveal that, at the planning stage:

(a) Under the BMP, there were to be 'up to 400 blastholes' which were up to 4 metres deep; and

(b) Each blasthole was to be filled with 'up to 10 kgs' of explosives and a net quantity of 'up to 5000 kgs ... was to be used'.[13]

(a) 348 blastholes were drilled but 'some'[14] or 'many'[15] were only 2 metres deep ('short holes');

(b) In these short holes, only 1-2 kilograms of explosives was poured; and

(c) In the remaining holes, 10 kg of explosives was poured.

1. In these circumstances, all that can be ascertained with any certainty is that the quantity of explosives used on the day was less than 3,480 kg. How much less is pure speculation.
2. In these circumstances, as was ultimately conceded by the Director, section 39 of the DGA cannot be applied because 'no penalty is expressly provided'.[16] The maximum penalty available to the court is therefore as set out in s 45 of the DGA - 500 penalty units. At the relevant time, a penalty unit was valued at $184.92. The maximum fine is therefore $92,460.

1. In determining the appropriate penalty for an offence against the DGA, the principal consideration is the objective gravity of the offending. As is the case under the cognate enactment, the Occupational Health and Safety Act 2004 (Vic),[17] considerations personal to an offender 'must play a subsidiary role in the determination of the penalty to the gravity of the offence itself'.[18]
2. As discussed earlier in these reasons, the objective gravity of the offence is considerable. Further, the extensive experience of the company and Mr Van Dyck himself, taken together with the well known dangers associated with flyrock, mean that the moral culpability of the company is high.
3. The predominant sentencing consideration is general deterrence. In light of the lengthy unblemished record of the company, I accept that specific deterrence is of little weight.
4. Mr Carolan referred to a number of mitigatory considerations. The first and most important of these is the guilty plea. This is an acceptance of responsibility and considered with the character references before the court, is weighty evidence of genuine remorse. The plea has a high utilitarian value as a contested hearing would have been lengthy and complex as several experts would have been called. The stress for the Talevski family would have been considerable. The company is therefore entitled to a considerable discount on sentence.
5. Other matters of mitigation which I have taken into account include the company's good character and its co-operation with the authorities. There has also been some delay associated with the finalisation of the matter. During that time there has been no further offending.
6. I have also taken into account the costs order made in favour of the prosecution.
7. I note the cases to which the court was referred by Mr Carolan. As Ms Brown submitted these are of limited assistance. Both involved employees and the circumstances were quite different to the present case.

1. As noted earlier, Hans Van Dyck, a director of the company, who played a hands on role in the events of the day in question, also faced a charge under section 37 of the DGA to which he pleaded guilty. The maximum penalty that he faced was a fine of $18,492. He was fined $2,000 without conviction.
2. Counsel for the company submitted that, as no appeal was brought against the sentence imposed on Mr Van Dyck, '... care needs to be taken to ensure that [the company] is not subjected to a disproportionately high sentence'.[19] I have taken this to be a reference to the principle of parity under which like offenders must be sentenced in a like manner.
3. The application of parity in this appeal is not a simple matter. While it is correct that there is no appeal against the sentence imposed on Mr Van Dyck, that does not mean that it is to be used as a starting point in the determination of this appeal. As the Court of Appeal explained in the case of DPP (Cth) v Gregory:

The principle of parity does not extend so far as to permit the imposition of a sentence which is inadequate and outside the range because a co-offender has been sentenced to an inappropriately low sentence.[20]

1. Giving full weight to the matters of mitigation raised on his behalf in the court below, I consider that the fine imposed on Mr Van Dyck was clearly inadequate having regard to both the objective seriousness of his offending and his senior role within the company as the shot-firer. The fine of $2,000 represents less than 10% of the available maximum. Additional leniency was accorded Mr Van Dyck by the fine being imposed without conviction.[21]
2. The principle of parity will be accorded less weight than usual as between co-offenders in such circumstances. The correct approach in these circumstances was explained in Farrugia v The Queen:

... where one co-offender has been given a manifestly inadequate sentence, that sentence cannot be ignored for the purpose of sentencing the other co-offender, but it should only be given such weight as is appropriate in the circumstances.[22]

1. The duty of this court remains 'to impose a sentence which is appropriate and just to the offence found and the offender before the court'.[23] I have given limited weight to the sentence imposed on Mr Van Dyck.
2. Having regard to the maximum penalty and all other relevant considerations, I have determined that the appropriate fine for the company in this case is $18,000.
3. Mr Carolan made no submission about the respondent's ability to pay a fine.[24]

1. Mr Carolan submitted that any fine should be imposed without conviction.
2. Section 8 of the Sentencing Act relevantly provides:

In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including -

(b) the character and past history of the offender; and

(c) the impact of the recording of a conviction on the offender's

economic or social well‑being or on his or her employment prospect

1. Having regard to these considerations, and the objective gravity of the offending which I have discussed earlier, I consider that a conviction should be imposed. A conviction in such a case is an appropriate reflection of the court's denunciation of conduct that endangered the life of a member of the community. The community rightly expects the court to denounce offending such as this. This was an entirely preventable incident. Further, there is no evidence to suggest a conviction would be harmful to the company's economic or social well-being.

(a) Set aside the sentence imposed by the Magistrates' Court pursuant to section 259(2)(a) of the Criminal Procedure Act;

(b) In its place, on the charge under section 37 of the DGA, the respondent is convicted and fined $18,000;

(c) The respondent is to pay costs of $9223.

1. Pursuant to section 6AAA of the Sentencing Act, had you pleaded not guilty, the court would have imposed a $25,000 fine.

[1] Criminal Procedure Act 2009 (Vic) s 257(1) ('CPA').

[2] Ibid s 259(1).

[3] Ibid s 259(2) and (3).

[4] Standards Australia, Australian Standard - Explosives - Storage and Use (AS 2187.2 - 2006, 2 February 2006).

[5] Mr Duniam holds a Bachelor of Engineering (Mining) and has 39 years' experience in the mining industry and in drill and blast mining.

[6] Morgan Brown, 'Submissions for the Appellant', Submissions in Director of Public Prosecutions v Van Dyck Pty Ltd, AP-25-0224, 02 June 2025, [13].

[8] David Carolan, 'Respondent's Outline of Submissions on Sentence Appeal', Submissions in Director of Public Prosecutions v Van Dyck Pty Ltd, AP-25-0224, 02 June 2025, 7 [27]-[28] ('Respondent's Submissions').

[9] Sentencing Act 1991 (Vic) s 5(2)(daa).

[10] It is a matter of significance that the maximum penalty is the first of the mandatory considerations listed in s 5(2) Sentencing Act, see DPP v Aydin and Kirsch [2005] VSCA 86, 7 [10].

[12] R v Beary [2004] VSCA 229, 11 [21].

[13] Statement of Material Facts, 19-20 [9].

[16] Dangerous Goods Act 1985 (Vic) s 45(2).

[17] On the relationship between the two enactments, see generally DPP v Bradbury Industrial Services Pty Ltd (in liquidation) [2023] VCC 1029, 19 [83].

[18] DPP v Amcor Packaging Australia Pty Ltd [2005] VSCA 219; (2005) 11 VR 557, 12-3 [35].

[19] Respondent's Submissions (n 8) 6 [26].

[20] [2011] VSCA 145, 13 [37].

[21] Supagas Pty Ltd v R [2025] VSCA 106, 24 [85].

[22] [2011] VSCA 24, 11-2 [31].

[23] DPP (Cth) v Gregory [2011] VSCA 145, 13 [37]

[24] See Sentencing Act 1991 (Vic) s 52.