TriCal Australia Pty Ltd (TriCal), through its counsel, pleaded guilty to an offence under s 11 of the Dangerous Substances Act 1979 (the DS Act), that was alleged to have occurred on or about 2 February 2023. It is accepted that it did so at the earliest opportunity for the purposes of s 39(4) of the Sentencing Act 2017 (the Sentencing Act). I must now determine what sentence should be imposed in connection with that plea.
Amongst other things, TriCal is involved in the supply of agrochemical, fumigation equipment, fumigation services and consultancy to the agricultural industry. It is licensed under the DS Act to keep substances that are "dangerous substances" for the purposes of the DS Act, and part of its operations include blending such substances. One such substance is dichloropropene. It is a toxic flammable liquid that is used as a pesticide.
Inspectors for SafeWork SA attended TriCal's premises at Wilkins Road, Wingfield on or about 2 February 2023, and observed that within the workplace there were two ISO containers, one of which was on the tray of a flat bed truck that had a capacity of 26,000 litres, the other laying on the ground, with a capacity of 21,000 litres. The two containers were next to each other and were connected by a hose affixed to the valve outlets at the bottom of each container. They were connected to enable the transfer of dichloropropene from the larger container to the smaller container by gravity and pressure applied through a nitrogen pack in a process known as decanting.
The inspectors formed the view that the decanting may have been performed in an unsafe manner and a prohibition notice was issued pending further investigation. Their concern lay in the fact that dichloropropene is a prescribed dangerous substance pursuant to reg 19 of Dangerous Substances (General) Regulations 2017. It is toxic to humans and to aquatic life, with long lasting effects. The prohibition notice prohibited TriCal from decanting dichloropropene without proper controls in place; required it to ensure that all ISO containers containing dangerous substances were correctly labelled during transport and storage; to undertake a risk assessment for the storage of bulk containers of dangerous goods; to implement various safety measures for the storage of ISO containers; and to provide evidence that unlabelled ISO containers were empty and purged of their contents. All of the matters raised by the prohibition notice were satisfactorily addressed by TriCal.
Following the investigation the informant laid an information and summons that alleged that TriCal had contravened s 11 of the DS Act by not taking such precautions and exercising such care as was reasonable in the circumstances to avoid endangering the health or safety of a person and prevent the risk of environmental harm.
Section 11 of the DS Act imposes a duty upon a person who is keeping, handling, conveying, using or disposing of a dangerous substance, or in transporting dangerous goods, to take appropriate precautions and exercise reasonable care so as to avoid endangering the health or safety of any person (including himself or herself), or the safety of property and to prevent the risk of environmental harm. The section provides that a breach of this duty is an offence. Where the offence does not result in death or serious injury, in the case of a body corporate, a breach is punishable by maximum penalty of $250,000. In the case of any other entity, it is punishable by a maximum penalty of $50,000 or imprisonment for two years, or both.
The particulars within the information alleged that:
There was no level indicator on the dichloropropene ISO containers to determining the volume being transferred from one to the other (and therefore no means to prevent overfilling).
The tanks containing dichloropropene were not adequately labelled with emergency information panels documenting their contents.
Decanting of dichloropropene was conducted outside of a bunded area, and with no spillage containment system.
In support of the plea, an affidavit sworn by Ross Mayfield was tendered. Mr Mayfield is the General Manager of TriCal. He advised that TriCal originated in California in the United States in 1961 and that it operates in 30 countries and enjoys a reputation of being a global leader in agricultural soil fumigation and pest control solutions.
Within Australia, TriCal specialises in agricultural fumigation ranging from soil fumigation to post-harvest fumigation and quarantine fumigation. As of the date of the offending, it was transitioning from industrial premises at Wingfield to a new site at Edinburgh. It then employed 36 employees which has since reduced to 32.
Through Mr Mayfield evidence has been placed before this Court that establishes that TriCal had, and continues to have, extensive policies and procedures in connection with protecting the health and safety of its employees and the environment more generally. It is not necessary for me to elaborate upon them except to say that they are comprehensive and impressive.
Although TriCal concedes that at the time of the incident there was no level indicator on the dichloropropene ISO containers to determining the volume being transferred from one to the other, and that potentially created a risk if the receiving container had insufficient capacity to receive the dichloropropene being transferred, it was in possession of information from the bill of lading that established that the volume in the container that was being decanted was less than the capacity of the container that was receiving the dichloropropene. As such, there was little, if any risk of spillage, but through its plea, it accepts that the method of transfer did not reflect best practice.
TriCal accepts that the ISO containers were not labelled with emergency information panels that identified dichloropropene as a toxic class 6 substance.
It accepts that best practice would require the decanting process to be undertaken in a bunded area.
It accepts that these constituted a departure from the high standards that it had set itself through its risk management policy and that collectively they constituted a breach of s 11 of the DS Act.
The expert evidence that was placed before this Court establishes that using the atmospheric conditions as they were on the date of the incident, in the case of a release of dichloropropene, the worst case modelling indicated that the spread of vapours of up to a distance of 50 metres that would disperse rapidly, such that the actual risk was very low.
Since 2019, TriCal has invested $3.5 million to develop its Edinburgh facility. The security and safety measures that it has implemented in respect of this new plant include the installation of boom gates, alarms, closed circuit surveillance and security systems, a major bunded and unloading area, flameproofing, and a filling centre that is under a canopy that allows ventilation. It asserted, and it was not contested, that these measures represents the gold standard for chemical manufacture and handling.
Following the incident TriCal has undergone significant change in its leadership team that included Mr Mayfield's appointment as General Manager. It has engaged an Operations Manager to assume responsibility for the day-to-day implementation of safety and it has engaged a Safety, Quality and Environment Specialist to drive compliance with all relevant safety, quality and environmental policies and to conduct training and awareness campaigns and programs promoting workplace safety.
Apart from this incident, in the forty years that TriCal has operated in Australia, it has never been the subject of any prohibition notice or safety prosecution.
The Informant submitted that Tri Cal's offending is within the low range of objective seriousness for offending of this type. The Informant accepted that in light of TriCal's early plea, the Court may reduce the sentence which would otherwise have been imposed by up to 40%. It added that TriCal was not entitled as of right to receive the maximum reduction available, but rather, the power to reduce must be exercised judicially. That said it acknowledges that TriCal was contrite, it fully cooperated with the investigation, it complied with all of the requirements of the prohibition notice, and that it has addressed all of the issues raised by the inspectors.
The Informant submitted that the Court is also entitled to take into account the size and scope of TriCal's operations in recognition of the fact that a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation.
The Informant referred me to Hillman v Astec Paints Australasia Pty Ltd,[1] being a case involving sentence for offences under the DS Act decided by the predecessor of this Court, the Industrial Relations Court of South Australia. That case concerned a family owned paint manufacturer which was prosecuted following a serious workplace incident. An employee of Astec Paints Australasia Pty Ltd (Astec Paints) was engaged in creating a solvent-based solution, Rivett, through the mixing of various substances such as Toluene, Xylene and Deglan, when an electrostatic discharge caused the solution to ignite. The resulting fire caused burns to the employee's face and hands. It also resulted in the destruction of the premises in which Astec Paints operated out of, thereby causing it to suffer significant loss. Astec Paints was charged with offences under the DS Act of failing to ensure a safe working environment for its employees, and failing to hold a licence for storage of a prescribed dangerous substance on premises. It pleaded guilty on both counts.
In passing sentence, Ardlie IM noted that Astec Paints had cooperated with the investigation. He accepted that it had demonstrated appropriate contrition and concern for its employees through its actions, with particular concern to the employee who sustained burns because of the fire. He proceeded on the understanding that the new premises that Astec Paints constructed following the destruction of the former premises, went well beyond the relevant safety requirements of the applicable Australian Standard. He noted that the required rebuild of the premises and temporary re-location of production would have likely caused Astec Paints to have incurred a huge financial loss, therefore indicating that any fine imposed would significantly impact it. After applying a 15% discount for the guilty pleas entered, which was the full extent of the discount available, he fined Astec Paints all up $46,236.25, including the Victim of Crimes Levy
[2]
I recently had cause to consider the proper approach to sentencing in connection with an offence under the DS Act in Glenn Farrell v TRG Transport Pty Ltd ,[2] and noted that in determining the sentence to be imposed the Court must have the principles espoused in the Sentencing Act2017 firmly in mind. I stated:
[3]
Section 3 of that Act provides that "the primary purpose for sentencing a defendant for an offence is to protect the safety of the community (whether as individuals or in general)." Section 4 sets out the secondary purposes. These relevantly include ensuring that the defendant is punished for the offending behaviour, is held accountable to the community for the offending behaviour, and promoting the defendant's rehabilitation. Other considerations include publicly denouncing the offending behaviour and publicly recognising the harm done to the community and to any victim of the offending behaviour. Section 10 requires a court to apply principles of proportionality, parity and totality. Section 11 relevantly requires the court to take into account the nature, circumstances and seriousness of the offence, the extent of any injury, emotional harm, loss or damage resulting from the offence or any significant risk or danger created by the offence, the defendant's character, general background and offending history, the likelihood of the defendant re-offending, the extent of the defendant's remorse for the offence, and the defendant's prospects of rehabilitation.[3]
[4]
Because these offences concern public and environmental safety, consideration must be given to the foreseeable risk of harm to the public and to the environment by commission of the offences. This in turn requires a consideration of the likelihood of the risk materialising, and the consequences that would flow if that risk materialised.
Next, the offender's state of mind and the reasons for the offending must be considered. Was it deliberate or inadvertent? If deliberate, was it motivated by a sense of necessity, reckless indifference, contumacious defiance, or a calculated decision to save money? If inadvertent, was the ignorance or mistake understandable, or is it the case that the offender should have known better?
Issues of general and personal deterrence also need to be considered. So too do aggravating and mitigating factors.
Finally, having reached a view as to the appropriate sentence, the potential discount on account of an early plea must be considered, noting that although not automatic, the general expectation is that the discount allowed by the Sentencing Act for an early plea will apply.
The DS Act is plainly intended to afford the public and the environment, protection from the harmful impact of dangerous substances. Section 11 of the DS Act plays an important role in achieving this, by imposing obligations upon those who keep, handle, convey, use or dispose of dangerous substances, or who transportdangerous goods, and by creating an offence punishing those who do not meet those obligations. An offence under s11 of the DS Act directly offends, and undermines the objectives of that Act. The maximum penalty for the offence under s 11 of the DS Act by a body corporate is $250,000. An offence by an individual carries with it a maximum two year term of imprisonment. These are heavy penalties. For all of these reasons, an offence under s 11 of the DS Act must be viewed objectively as a very serious offence.[4] (Footnotes omitted)
[5]
With these matters in mind I now turn to consider what sentence should be imposed.
I commence by observing that I did not find the decision in Hillman v Astec Paints Australasia Pty Ltd to be particularly instructive. Unlike that case, here, not only did the risk of harm not materialise, based on the evidence placed before the Court, the likelihood of it materialising and causing harm was relatively small.
I approach the task of sentencing in this case from the premise that this was not a flagrant or deliberate breach of the relevant provision. The offending was not motivated by greed. It occurred because TriCal fell marginally short of the high standards that it had set for itself and its obligations under the DS Act.
I am satisfied that TriCal has experienced genuine remorse, it fully cooperated with the regulatory authority, and it has shown a commendable commitment to improving and maintaining safety at its worksites. Thus the need for personal deterrence is not significant.
Whilst I do not for a moment resile from the observation that I made in Glenn Farrell v TRG Transport Pty Ltd about the importance of general deterrence in connection with sentencing for these types of environmental offences,[5] I must also recognise that when the nature of the offending is very much at the lower end of the scale, this consideration must be given less weight than what would otherwise be the case. The Informant very fairly and appropriately acknowledged that this offending was at the lower end of the scale.
The size of TriCal is not a matter that is relevant to sentencing in this case.
There are no aggravating factors to be considered. On a positive note, TriCal comes before this Court with a long and unblemished record of compliance with its safety obligations.
TriCal entered a plea at the earliest available opportunity. There is no reason not to apply the full discount that an early plea can warrant.
In summary, this is a relatively technical breach of the DS Act that caused no harm and which was unlikely to cause serious harm. It was committed by a corporate entity that has a long unblemished record of compliance, that has taken substantial steps to ensure future compliance with its safety obligations. It is therefore appropriate for the Court to treat TriCal with considerable leniency. I wish to emphasis that the modest penalty that the Court is about to impose reflects the unique circumstances of this case, and should not be regarded as the norm. Those involved in the in the keeping, handling, conveying, using or disposing of a dangerous substance, or in transportingdangerous goods, should be under no illusions that this Court expects them to take their obligations to take appropriate precautions and exercise reasonable care so as to avoid endangering the health or safety of any person, or the safety of property and to prevent the risk of environmental harm, very seriously, that if not met, will usually result in the imposition of substantial fines.
[6]
*** Taking all of these matters into account but for TriCal's early plea, in addition to imposing a conviction, I would have imposed a penalty of $12,500. Having regard to s 39(4) of the Sentencing Act 2017, I am satisfied that it is appropriate to apply the full discount that the early plea permits. I therefore reduce the notional penalty by 40%. TriCal is convicted of an offence under s 11 of the DS Act and is fined $7,500.
I direct TriCal to pay the costs of the prosecution fixed at $1,215.
I direct TriCal to pay the Victims of Crime Levy of $424.**