Orbit Drilling Pty Ltd v The Queen; Smith v The Queen [2012] VSCA 82

CRIMINAL LAW - Appeal - Sentence - Occupational health and safety - Company breached duty to provide and maintain safe workplace - Failure to provide and maintain safe system of work - Company's breaches attributable to director's failure to take reasonable care - Director fined $120,000 - Very serious example of offence - Sentence not manifestly excessive - Appeal dismissed - Occupational Health and Safety Act 2004 (Vic) ss 21(1), 21(2)(a), 144(1).

CRIMINAL LAW - Appeal - Sentence - Guilty plea - Adequacy of discount - Discount not examinable for specific error - Relevant only to manifest excess ground - Discounts in other cases of no assistance - R v Burke [2009] VSCA 60; (2009) 21 VR 471, Scerri v The Queen [2010] VSCA 287 applied.

1 On 9 December 2006, Bradley Alford was killed while he was at work. He was just 21. He died when the Mack truck he was driving went out of control on a steep slope, became airborne, bounced several times and overturned. Mr Alford was thrown out of the truck as it rolled, and was killed on impact. He had been working for the appellant, Orbit Drilling Pty Ltd ('Orbit'), for just over a week.

2 The truck was heavily loaded when Mr Alford was instructed by Maurice Barton, Orbit's site manager, to park it on a drill pad, near where Orbit was to perform drilling works for a mining company (Agincourt). For this purpose, the vehicle had to be driven over the crest of a hill, then down a steep slope, before stopping and reversing up on to the drill pad. According to the expert evidence, a qualified and properly-trained driver, driving a properly-maintained Mack truck, would have been capable of performing this task. Tragically, however, Mr Alford was effectively untrained, and the truck was unroadworthy. Its brakes were defective.

The defect in the rear brakes was of such severity that the truck no longer had the capacity to stop, or control its speed by use of its brakes on a slope of the steepness of the one Mr Alford was directed to drive on. That is, the operating brakes were inadequate to stop the truck on that slope.

Bradley Alford drove the truck slowly down the hill as directed but he was unable to stop the truck below the drill pad because of the defective brakes. The truck continued to head down the hill gathering speed as it went. He was unable to maintain control over it. It hit rougher ground in a gully at the bottom of the hill and overturned. Bradley Alford was thrown from the truck as it rolled. He was killed on impact.[1]

4 Orbit pleaded guilty to a breach of s 32 of the Occupational Health and Safety Act 2004 (Vic) (the 'Act'), thereby admitting that it had recklessly engaged in conduct which placed Mr Alford in danger of serious injury. The company was fined $750,000. Martin Smith, the managing director of Orbit, pleaded guilty to a breach of s 144(1) of the Act, thereby admitting that the company had breached its safety duties under s 21 of the Act because of his failure to take reasonable care. Mr Smith was fined $120,000.

5 Both Orbit and Mr Smith have appealed (by leave) against the sentences respectively imposed on them. For reasons which follow, both appeals will be dismissed.

6 As noted, Orbit pleaded guilty to a contravention of s 32, which is concerned with reckless endangerment. Mr Smith pleaded guilty to a breach of s 144(1), which is an accessorial liability provision. It applies when:

(a) a company contravenes a provision of the Act (or the regulations); and

(b) that contravention is attributable to the failure of the relevant company officer to take reasonable care.

7 Ordinarily, it would be expected that an accessory charge against a company officer would be linked to the contravention of which the company itself had been convicted (although s 144(4) makes clear that a conviction of the company is not a pre-condition to the conviction of the officer). In the present case, however, the charge against Mr Smith did not relate to Orbit's breach of s 32. Rather, as the presentment made clear, his breach of s 144(1) was referable to a different contravention by the company, namely, breach of its obligation under s 21(1) of the Act to provide and maintain for its employees 'a working environment that is safe and without risks to health'. Specifically, it was alleged that the company had contravened s 21(1) because of its failure to do that which was required by s 21(2)(a), namely, to

provide [and] maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health.

8 As a result, the sentencing judge had to consider two separate contraventions of the Act by the company. The first, for which the company itself was to be sentenced, was reckless endangerment. That offence is only established by proof of the requisite state of mind on the part of the offender. In this case, the company admitted recklessness, accepting that the reckless conduct of the drill crew supervisor (Barton) was, for the purposes of s 32, conduct of the company.

9 The company's second contravention, the breach of s 21, had to be considered not for the purposes of imposing a penalty on the company but for the purposes of sentencing Mr Smith, who was (by his plea of guilty) admitting that the company's contravention was attributable to his lack of reasonable care. By contrast with s 32, contraventions of s 21 do not involve proof of state of mind. The provision is one of absolute liability, as defence counsel correctly pointed out to the sentencing judge.[2]

10 The written case for Mr Smith draws attention to the following passage from the sentencing reasons:

In my view his death is a direct consequence of directing him to drive down that slope in the circumstances of your failure, Mr Smith, to ensure that the company complied with its obligations to ensure the safety of workers in a workplace, and the company's reckless conduct in placing him at risk by having him drive the truck in the circumstance in which he did.[3]

The complaint is that the judge 'has actually assessed the culpability [of Mr Smith] as a failure to prevent Orbit's recklessness.'

11 We disagree. It is perfectly clear from the sentencing reasons that the judge correctly understood the difference between the company's breach, on the one hand, and the director's breach on the other. Dealing with the company's liability under s 32, her Honour correctly pointed out that the gravity of that offence was to be assessed by reference to the company's state of mind. She specifically noted, however, that Mr Smith was not said to have been aware of the relevant circumstances.

Your liabilities are that of the director of the company, the managing director with responsibility for the operations of the company. You bear responsibility for the combination of events which led to that situation where an untrained, unsupervised and an inexperienced driver could be directed by his supervisor, the person responsible for the company's operation at that site, to drive a heavy vehicle which had not been properly maintained, with a known defect to its brakes in such dangerous circumstances, namely, down an off road slope too steep for those defective brakes to slow or stop it.[4]

13 The impugned passage does no more than draw these threads together. Her Honour concluded, as she was entitled to do, that Mr Alford's death was a direct consequence of the two separate breaches, namely:

(a) Smith's failure 'to ensure that the company complied with its obligations to ensure the safety of workers in a workplace'; and

(b) the company's reckless conduct in 'placing him at risk by having him drive the truck in the circumstance in which he did'.

14 On this view, the judge was not attributing the company's recklessness to Mr Smith. On the contrary, she was making the correct point that it was Mr Smith's lack of reasonable care which meant that, contrary to s 21 (and s 21(2)(a) in particular), the company had failed to maintain a safe working environment and had failed to provide safe equipment and a safe system of work. Plainly enough, it was those failures by the company (and Mr Smith's lack of care resulting in those failures) which created the situation in which a death could occur in the circumstances in which it did. And it was the company's recklessness in the particular circumstances which exposed Mr Alford to grave risk.

15 Mr Smith's first ground of appeal must be rejected. The remaining ground in his appeal, and the sole ground in the company's appeal, is manifest excess. First, however, we must deal with a Crown concession on a different point.

16 Section 32 of the Act provides as follows:

A person who, without lawful excuse, recklessly engages in conduct that places or may place another person who is at a workplace in danger of serious injury is guilty of an indictable offence and liable to-

(a) in the case of a natural person, a term of imprisonment not exceeding 5 years, or a fine not exceeding 1800 penalty units, or both; and

(b) in the case of a body corporate, a fine not exceeding 9000 penalty units.

17 Several points should be made about this provision. First, it had no equivalent in the predecessor Act, the Occupational Health and Safety Act 1985 (Vic). Nor was any such provision recommended by the 2004 Review of the 1985 Act.[5] There is, however, a reckless endangerment provision in the corresponding New South Wales Act.[6]

18 Secondly, s 32 is an anomalous provision in a legislative scheme which otherwise creates offences of absolute liability.[7] Unlike a breach of s 21, for example, an offence under s 32 involves the mental element of recklessness. This means - again in contradistinction to other offences under the Act - that proving a breach of s 32 by a body corporate calls for rules of attribution. It is necessary to identify the person(s) whose recklessness is to be attributed to the company for this purpose. That issue does not arise in the present case since, as noted earlier, the company accepted that the recklessness of the drill crew supervisor was, for the purposes of s 32, the company's recklessness.

19 Finally, it is to be noted that, where s 32 is breached by a natural person, the available penalties include imprisonment for a maximum term of 5 years. The 1985 Act made no provision for custodial penalties for breaches of the safety duties (except for repeat offenders).[8] While not proposing a recklessness offence, the 2004 Review did recommend that a custodial sentence should be available to a court sentencing an offender for a breach of a general duty which involves high level culpability.[9]

20 As noted above, an offence is committed under s 32 where a person without lawful excuse

recklessly engages in conduct that places or may place another person who is at a workplace in danger of serious injury.

In other words, what is to be punished is conduct - whether by act or omission - which exposes another person to a danger of serious injury for another person. As the Attorney-General said in the Second Reading Speech, this provision 'applies the same standards, tests and penalty as s 23 of the Crimes Act 1958'.[10]

21 Recklessness is a concept well known to the criminal law. As the Court of Criminal Appeal said in R v Nuri,[11] conduct is reckless if

there is foresight on the part of an accused of the probable consequences of his actions and he displays indifference as to whether or not those consequences occur.[12]

22 As counsel for the Director pointed out on this appeal, it is necessary to pay careful attention to the relevant 'probable consequences' as defined in s 32. The offence under s 32 involves foresight on the part of the offender that the conduct (to be) engaged in will probably have the consequence that another person at the workplace is placed, or may be placed, in danger of serious injury. The provision is thus importantly different from s 17 of the Crimes Act 1958, which creates the offence of recklessly causing serious injury. That offence is committed where the offender is aware that his/her actions will probably cause serious injury and goes ahead regardless of that probability.[13]

23 The distinction, in the context of recklessness offences, between conduct which will probably cause serious injury and conduct which will probably create a danger of serious injury was the basis of this Court's decision in R v Abdul-Rasool.[14] In that case, the appellant had been convicted of a breach of s 22 of the Crimes Act 1958, which is relevantly identical to s 32 save that the danger created is the danger of death, rather than the danger of serious injury.

24 Redlich JA (with whom Chernov JA and King AJA agreed) cited with approval the following statement by Mandie J in Muteneri v Cheeseman:[15]

[T]he language of the section dictates that the probable consequences to be realised or foreseen but disregarded under the rubric 'recklessly' are the precise consequences referred to or indicated in the section.

Perhaps any confusion which exists has stemmed to a considerable extent from the juxtaposition of the accepted meaning of recklessness with the phrase 'in danger of death'. Recklessness involves acting with indifference towards or in disregard of what is realised or foreseen to be the probable consequences of the relevant conduct ... Because danger of itself carries the notion of chance or risk, this aspect of chance or risk may tend to be equated or conflated with the notion of chance or risk involved in the 'probability' of harm which, it is said, must be foreseen or realised by the reckless accused. This confusion may lead to the conclusion that acting recklessly under this section involves the realisation or foresight of the probability of the other person's death whereas, as I have said, I consider that the section is concerned with the realisation or foresight of the probability of the other person's exposure to the risk of death. I should add that I would respectfully agree that danger of death in this context means an 'appreciable risk' of death.

In order to avoid conflating the chance involved in recklessness with the chance involved in danger, at one stage some authorities advocated that the subjective element required foresight of death itself. However, subsequent decisions of this court have preferred the approach taken by Mandie J. As the law stands it requires the applicant only to have foresight of the probability of a danger of death.[16]

25 At the commencement of the appeal hearing, counsel for the Director drew attention to passages from the sentencing reasons which, counsel said, disclosed error in this regard. This was exemplary conduct on the part of the Crown, as no such question had been raised by either of the appellants. As will appear, we consider that her Honour did fall into error in this respect, and that the Crown's concession was properly made.

26 Referring to s 32, her Honour said:

[T]he gravity of the offence to which Orbit has pleaded guilty is assessed not by reference to the imposition of strict liability on an employer but rather by reference to a particular state of mind. That is knowledge attributable to the company that serious injury would probably result from the conduct of the company through the agency of its site manager ...[17]

27 No submissions were advanced on the plea as to the proper construction of s 32 and, as we have said, the error was not identified in the grounds of appeal. It is clear, nevertheless, in the light of Abdul-Rasool that her Honour here misdirected herself as to the effect of Orbit's plea of guilty. The company had admitted only that it was aware that its conduct would probably expose Mr Alford to a risk of serious injury.

28 Having drawn the Court's attention to the error, counsel for the Director submitted that the Orbit appeal should nevertheless be dismissed, on the ground that no different sentence should be imposed.[18] We will return to that question after considering what the evidence showed about the conduct of Orbit and of Mr Smith.

29 Central to the company's recklessness was its admitted knowledge, at the time Mr Alford was required to drive the truck, that its brakes were defective. Her Honour's unchallenged finding was in these terms:

The Mack truck he was instructed to drive had defective brakes. Maurice Barton, Orbit's site manager at Clonbinane and Mr Alford's direct supervisor, knew this. That morning at an onsite meeting between Mr Barton and an Agincourt onsite geologist, the works that Orbit was to perform that day were outlined, and Mr Barton provided a pre-mobilisation form to the Agincourt geologist which recorded that the truck had no park brake operating. The mechanism that operates the park brake also controls the rear brakes. This meant that the truck had no rear brakes working properly either.[19]

30 There was before the court uncontested expert evidence from Mr Peter Essig, a professional engineer, and Mr Henry Bleeck, an expert in the mechanics and maintenance of heavy vehicles, in particular Mack trucks, and in the training of drivers for such vehicles. Both experts concluded that the brakes on the truck were inadequate. Crucially, as the judge noted, the known defect in the park brakes meant that the rear service brakes were also defective.

Observations during inspection of the brakes show that the rear brakes were so far out of adjustment that the brakes would be inadequate to stop the truck. Witness statements indicate that the driver effectively applied the brakes multiple times during the incident, locked up the front wheels but still could not arrest the acceleration of the truck.

Site records indicate that the supervising personnel were aware that the parking brakes of the vehicle were defective. It is apparent from the inspection of the truck that this was due to the slack adjustors being outside the acceptable range of adjustment. Critically, this adjustment affects both the rear service and emergency (park) brakes of the truck to an equal extent.[20]

The investigation of the incident indicates that the most probable cause of the driver being unable to stop the truck was due to the brakes not being adjusted adequately. The lack of adjustment of the brakes resulted in the braking force generated by depressing the brake pedal or by application of the spring brakes being inadequate to stop the vehicle on the slope at the site.

The evidence indicates that the odometer and brakes were observed to be defective for some time prior to the incident and that the brakes were not adequately maintained.

The evidence also indicates that the vehicle was used to tow a trailer that was well in excess of its rated weight capacity. This excessive loading contributed to excessive wear of the brakes.

The park/emergency brakes were not working on the vehicle involved in the incident. Weekly inspection and daily reports record that the park/ emergency brakes had not been working since at least 1 December 2006. ... When the park/emergency brakes are not working, it indicates that the service brakes are also faulty, since they both use the same brake linings.[21]

34 Mr Bleeck pointed out that the truck was also fitted with a Dynatard engine brake, which 'when activated, converts the engine into an air compressor (retarding the engine) and slows the vehicle down.' The engine brake on this truck was, however, disconnected and provided no braking at all. Mr Bleeck also referred to the Power Divider on the vehicle which, if engaged, locks the two drive axles to provide traction to the ground for two sets of wheels. In Mr Bleeck's opinion, engagement of the Power Divider is essential when descending hills on unmade roads. Once again, the Power Divider on this truck was not engaged at the time of the accident. The necessary gear selection and section instruction information was missing, altered or not working on the dashboard of the vehicle. If properly maintained, the dash would have provided the driver with vital information on the gear selections available and their operation.

35 The service brakes are the brakes used during the normal operation of the vehicle and are activated using the foot pedal. Mr Bleeck reported as follows:

The service brakes are individually adjusted on a regular basis by a competent person. When new brake linings are fitted to heavy vehicles, the brake drums are usually replaced as well, then the brakes are adjusted after they have bedded in, normally a day or two later. There are no records of brakes being adjusted since May 2006 in Western Australia.

Adjustment and maintenance of the service brakes can vary from daily to monthly, as dictated by the truck's tasking and the driver's skills. If a vehicle is operating in shifts, or in dirty conditions, steep terrain or wet conditions, the brake adjustments should be done more frequently than on a vehicle operating on sealed and flatter roads. Driver skills also affect brake wear and the brakes need to be adjusted more frequently if a driver uses the vehicle service brakes excessively.

In the vehicle involved in the incident, the brakes on the four rear wheels were badly out of adjustment and provided little, if any, braking. When only the front brakes work and lock up, steering control is lost and the vehicle will tend to go straight ahead in a skid. Skidding is usually caused by acceleration, braking or changing direction suddenly or forcibly, which creates forces more powerful than the grip between the tyres and the road surface.[22]

36 Mr Bleeck highlighted the importance of daily maintenance of a truck:

A proper daily maintenance regime would include a prestart check at the beginning of each shift, and if faults are found they need to be rectified prior to using the truck. During truck operations, the vehicle should be physically checked at regular intervals; a simple walk around looking for any tyre damage, leaks etc A check at the end of a shift is also required, so if a problem is identified maintenance and repairs can be carried out before the next shift. Weekly and monthly maintenance checks and servicing should also be performed in accordance with the manufacturer's requirements.

...

From the company's records and the unroadworthy condition of the truck involved in the incident, it appears that maintenance and servicing on that truck was virtually non-existent.[23]

37 In Mr Bleeck's view, the driving task given to Mr Alford could never have been safely undertaken using that particular truck:

It is my opinion that given the poor condition of the truck involved in the incident, no driver should have been assigned to the task of driving the truck down any hill.

The experts who examined the truck Mr Alford was killed in concluded what may in hindsight sound obvious. Poorly maintained trucks lead inevitably to poor vehicle condition. As a result a truck cannot reasonably be expected to perform the task it was designed for if it is poorly maintained. In addition, the maintenance regime in respect to the truck was poor. As a direct result of the failure to properly maintain the truck it was in a condition on the day of Mr Alford's death where it was not safe, and it was not without risk to the health of people using it or likely to be in its path.[24]

Inadequate instruction, training and supervision

39 Mr Bleeck's report included a detailed description of the training required for a new driver like Mr Alford.

General training requires that, at a minimum, drivers be fully familiar with the truck they are to drive. Introduction to the mechanically sound vehicle, and training in all its functions, is essential. This can be achieved by having an instructor drive the vehicle with the new driver as a passenger, explaining functions during the drive. This training should include explanations of all brake systems, their purposes and how they function.

As new drivers become more competent and their skills develop, more difficult driving is introduced, such as driving in the rain, heavy traffic, city traffic, off-road conditions and on different roads and surfaces. The drivers need to practise under instructions until they are competent.

Training can be delivered in various ways and can include formal courses and on-the-job training. The latter should be delivered by a person with the necessary skills and knowledge of the tasks required.

Once the driver has obtained a Heavy Rigid licence and finds employment as a truck driver, he/she needs to be introduced to the vehicle and the work environment in which their employer requires them to operate. Each time the driver is introduced to another truck or work area, further training should be provided.[25]

...

Off-road driving also requires drivers to learn new skills. They especially need to understand the vehicle's capabilities and proper terrain appreciation, as this will determine the correct gear and range selection for off-road conditions. They should also be taught that when driving on a steep hill, the general rule is to select the same gear for the descent as for the ascent.

Drivers need to ensure that a vehicle is fully functional before starting any task and need to know how to properly check that the vehicle is fully functional. This is especially critical when driving off-road.

The general practice in the truck industry is that an employee would not be permitted to drive a heavy truck or specialist equipment when they're initially employed. All new drivers should first attend induction training in the organisation, which includes safety training. The driver would then begin work in light or medium trucks under supervision and would build up the skills essential to operating heavy vehicles. During this period of the on-the-job training, the driver would gain skills and knowledge of any special requirements associated with their employment.[26]

40 Mr Bleeck's report recounted Mr Alford's lack of experience and training as follows:

• his driving history before being employed by Orbit was all on urban roads;
• there was no evidence of his having driven light or medium rigid trucks prior to obtaining his Heavy Rigid licence;
• there was no record of his having received any training for a heavy truck and trailer combination, or that he had driven such a combination on public roads before driving to the drill site; and
• there was no evidence of his having had any training in the emergency stopping of heavy rigid vehicles, or in driving heavy vehicles off-road.

41 In Mr Bleeck's opinion, both the lack of training and the consequent serious safety risk should have been readily apparent to Orbit's managers:

Any competent supervisor and employer should have known a Heavy Combination licence, adequate training, supervision and experience were essential for operating a truck and trailer combination which has a trailer mass in excess of 9 tonne. They should also have known that the truck and trailer combinations need to be in proper condition for any tasking.

A competent supervisor that has been involved in the drilling industry for many years and holds appropriate qualifications should have the experience and knowledge to recognise when a driver does not have the appropriate qualifications or experience. [They] should know that [they] must provide the necessary training to the driver for the driver to safely carry out tasks such as driving heavy rigid truck and trailer combinations on public roads.[27]

It is my view that any competent manager or supervisor should know that an employee with very little heavy rigid truck driver training or experience would require additional training and proper supervision in order to safely perform the tasks required. The trucks and equipment used for this training should also have been in proper condition. There is no evidence of Mr Alford receiving the required training to properly operate the truck involved in the incident.

43 As the judge found, Orbit took none of the necessary steps before requiring Mr Alford to undertake the fatal task. Her Honour made the following unchallenged findings:

The evidence before me reveals that Mr Alford did not receive any effective training or induction in relation to his duties, and in particular in regard to the use of the Mack truck on the terrain on which it was to be used. No enquiry was made of him about the extent of his experience in driving such vehicles or driving them in the conditions in which he was required to drive them, namely off-road on an exploration site with a steep slope. No assessment of his expertise in driving such vehicles generally or off-road on an exploration site such as the one he was required to work on was conducted, either before he was offered employment or after he was employed but before he was deployed to the operation at Clonbinane.

He was given no instruction by his employer in respect of operating such a vehicle in the conditions in which he was required to operate it at Clonbinane, and no site specific enquiry, assessment, instruction or training was conducted at Clonbinane by Mr Barton or anyone else on behalf of the employer.

There is no evidence before me to suggest that there was any system for individual drivers to inspect their trucks before starting to use them, or that Mr Alford knew how to inspect the truck for defects before driving it. There is no evidence he knew the park brake was not working or that the defect in the park brake affected the rear braking capacity of the truck, rendering it unsafe to use in the circumstances in which he was directed to use it.[28]

The company's breach of s 32

1"> 44 Notwithstanding our conclusion that the Crown correctly conceded sentencing error, the company's appeal must be dismissed unless we are satisfied that a different sentence should be imposed.[29] For the following reasons, we are not so satisfied.

45 By its plea of guilty the company admitted that, at the time the site manager required Mr Alford to drive the truck on the steep slope, the company was aware that requiring him to do so would probably place him in danger of serious injury. Despite being aware of that risk, the company nevertheless proceeded to require him to carry out that task, indifferent to the probable danger. Put simply, the company recklessly disregarded a known risk of serious injury to its employee.

46 It must be recalled that the object of the Act is to eliminate risks to the health and safety of employees.[30] Moreover, the administration of the Act is to be guided by the following 'principles of health and safety protection', set out in s 4:

The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.

Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.

Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.[31]

47 More particularly, Orbit as an employer had - as every employer does - the obligation to

provide and maintain for employees ... a working environment that is safe and without risks to health.[32]

The company was well aware of its obligations, having previously won awards for OHS compliance.

48 In the circumstances, it almost defies belief that Orbit could knowingly have exposed one of its employees to a risk of serious injury. It is not surprising that the Attorney-General characterised the offence created by s 32 as 'a high culpability offence'.[33] What is puzzling, as defence counsel noted on the plea, is that the s 32 offence carries the same maximum penalty as a breach of the general safety duty under s 21(1). We return to this issue later in these reasons.[34]

49 On ordinary principles, the degree of culpability of an offender who contravenes s 32 will depend on what is established regarding the offender's awareness of:

(a) the degree of probability that the worker would be placed in danger of serious injury; and

(b) the nature of the probable danger thus foreseen.

As senior counsel for the appellants conceded in argument, the approach to assessing the seriousness of a particular instance of recklessly causing serious injury[35] can be applied by analogy, although - as noted earlier - the relevant state of mind is awareness of the probability of exposure to danger of serious injury, rather than awareness of the probability of serious injury. Assessing the (probable) danger of which the offender was aware will therefore involve considering both the likelihood that serious injury would result, and the degree of seriousness of the injury that would be suffered if the risk eventuated.

50 In the present case, these considerations compel the conclusion that Orbit's culpability was very high indeed. When the company required Mr Alford to undertake the driving task, it was aware that:

(c) the task required Mr Alford to drive the (loaded) truck down, and then back up, a steep slope.

51 As we have said, the company has admitted that it was aware of the probability that to require Mr Alford to perform this task would place him in danger of serious injury. Each of the matters of which the company was aware - regarding the capability of the driver, the suitability of the truck and the difficulty of the task - heightened the danger to which the company was exposing its employee. It follows, in our view, that the company was aware that it was placing Mr Alford at grave risk, that there was a high likelihood that the danger would eventuate and that, if it did, Mr Alford would be very seriously injured.

52 These are not findings which the judge made. As already discussed, her Honour made the - even more adverse - finding that the company had been aware that serious injury would probably result if Mr Alford were required to perform the driving task.[36] As the Crown has pointed out, that finding was based on a misconstruction of s 32. What is important for present purposes is that the judge's finding was not challenged by Orbit on this appeal. That is, Orbit was content to have its appeal against sentence, and its sole ground of manifest excess, considered on the basis that her Honour had accurately described its state of mind at the time. By reason of the error, the appeal must instead be approached on the basis of the (lesser) findings which we have made as to the company's state of mind.

53 Orbit was fined $750,000. At the time, the maximum penalty for an offence under s 32 was $966,870.[37] The sentencing judge declared that, but for the plea of guilty, she would have imposed a fine of $900,000.

54 Orbit submitted that the fine of $750,000 was manifestly excessive. Although that issue does not now fall for decision, the arguments advanced remain relevant to our consideration of the appropriateness of the sentence. Thus, Orbit relied on the sentencing judge's findings that it had entered its plea of guilty at the earliest reasonable opportunity; was to be treated as a first offender; and had taken 'very significant steps' to remedy the safety shortfalls subsequent to the incident. Her Honour accepted that

comprehensive steps have been taken to introduce and implement ongoing systems designed to ensure continued compliance with occupational health and safety requirements and the protection of the safety of workers. That included investing a substantial amount of money in upgraded plant and equipment and employing a dedicated occupational health and safety manager whose responsibilities included carrying out the comprehensive review which has now been completed, re-writing the occupational health and safety procedures and conducting comprehensive employee occupational health and safety training for existing as well as new employees.

55 Quite properly, however, her Honour concluded that the company's response to the tragedy demonstrated how easily it could have been prevented:[38]

It is clear from all of this that there has been a comprehensive review and overhaul of the occupational health and safety procedures and a much greater system designed to ensure compliance and continued compliance and continued training. It is also clear that there has been a substantial investment as well in equipment upgrades. That is very much to the credit both of Orbit and Mr Smith, it is a demonstrating of the commitment both of the company and of Mr Smith personally to introduce, implement and enforce appropriate procedures for all employees now and in the future. It also clearly demonstrates how woefully inadequate the procedures that were in place at the time of Mr Alford's death were. And also how with the application of time and money how easy it was to implement the steps necessary to ensure the safety of employees recruited to do what Mr Alford was recruited to do.

It is not only very much to the credit of Orbit and Mr Smith that this has already happened, because it demonstrates an acceptance of responsibility, I also consider that it is the company's credit and to Mr Smith's credit to have presented this in the plea in the manner in which they did. As was frankly acknowledged by [defence counsel] the material was presented in full knowledge that although it demonstrates acceptance of responsibility and capacity and commitment to change, it also demonstrates that such processes could and should have been in place before Mr Alford's death and had they been he would not have been placed at risk. These measures graphically demonstrate too that the company had the means to implement appropriate safety measures to replace old or unsafe plant and equipment and to maintain plant and equipment properly.

As [defence counsel] so frankly acknowledged the more impressive the evidence of the steps taken to remedy the wrongs after the event, the more inexplicable and inexcusable the failure of system and failure to maintain the truck at the time are. And as [the prosecutor] said in the course of the plea submissions, these steps appear tragically to reflect that what has now been done is no more than the reasonably practicable steps that should have been taken in the first place, and which if they had been in place at the time would most likely have meant that the death of Mr Alford could have been avoided.[39]

56 Her Honour also made findings regarding Orbit's past performance in relation to workplace safety. She said:

In the early days of Orbit's operations it was awarded certificates in recognition of the quality of its occupational health and safety procedures. And that, [defence counsel, submitted demonstrated that there was from the start a commitment to occupational health and safety and therefore Orbit's breach and Mr Smith's breach should be seen as a commitment which fell away as the company became more successful and expanded by reason of growth rather than this being a company and an individual behind it who had from the start had a cavalier disregard for workers' safety.

I accept that it is clear on the material before me that Orbit did start with good procedures in respect of occupational health and safety, but it is also abundantly clear that that became less of a priority and that the attention devoted to the expansion of the company and its operations was diverted there rather than also directed towards the continued maintaining and upgrading of occupational health and safety requirements.

It goes without saying in one sense but it needs to be spelt out in a case such as this in my view, that the more a company expands, the bigger its operations, the more it works on remote sites and the more remote sites it operates from in the one time, the more it becomes reliant on site managers and decentralised control, the more it needs to ensure that it has systems, processes, training and accountability that are not dependent on one individual but rather dependent on processes which exist and which are properly and rigidly enforced.[40]

57 As to the plea of guilty, Orbit submitted that the plea had saved what would have been a long and complex trial and that the plea of guilty therefore 'required a substantial discount'. The discount declared by the judge represented 16.7 per cent. It was submitted that this was 'manifestly too little for a plea of guilty of the character entered in this case'. Assistance was sought to be drawn from other first instance decisions under the Act, where discounts of between 20 per cent and 36 per cent had been declared.

58 Finally, reliance was placed on what was said to be the 'significant community commitment' of Orbit, undertaken through the activities of Mr Smith. On the plea, defence counsel had listed Mr Smith's numerous charitable contributions, as follows:

(d) $1,200 to the Northern Physiotherapy Centre for a wheelchair;

(e) $1,000 to the Judo Association of Western Australia;

(g) between $1,000 and $4,000 per year to a local cricket club; and

59 Reckless endangerment is - by definition, as well as by express intent[41] - a high culpability offence. For the reasons already given, this was a very serious example of the offence. This company knowingly exposed its newly-recruited and untrained employee to grave danger, reckless as to the consequences of doing so.

60 It may be accepted that, given the company's post-offence conduct and lack of prior convictions, specific deterrence was not of particular importance. But, for offending of this kind, general deterrence is a consideration of great importance. We respectfully agree with the view of the Industrial Commission of New South Wales in Court Session, that

the fundamental duty of the Court in this important area of public concern ... [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace.[42]

61 This Court has also endorsed the view, expressed by the Full Bench of that Commission in Court Session in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales,[43] that:

[T]he primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH&S Act, subjective factors, such as a plea of guilty, cooperation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in the determination of penalty to the gravity of the offence itself. While the court must keep in mind not only facts which establish the seriousness of the offence, but also those which tend to mitigate that seriousness or exculpate the offender ..., the presence of the subjective factors referred to should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence.[44]

62 With OHS offences of the conventional risk-based kind, the consequences of the company's safety breach are generally viewed as of little relevance to the assessment of objective seriousness. When an accident occurs, it is not the accident itself which constitutes the offence but, rather, the failure of the employer to ensure (so far as reasonably practicable) that its employees were not exposed to risk.[45] It is the extent of that failure which determines the gravity of the offence. The occurrence of an accident, and the sustaining of injuries by an employee, may nevertheless provide relevant evidence of the existence of the risk to health and safety, and of the seriousness of that risk.[46] In the present case, what happened to Mr Alford highlights the gravity of the danger to which the company exposed him and, hence, the high degree of culpability attaching to its reckless conduct.

63 The distinctive character of the offence of reckless endangerment may mean that closer attention should be paid in sentencing to the actual consequences of the offence. As already discussed, the offence under s 32 involves the knowing exposure of a particular person (or persons) to a probable risk of serious injury. As with other risk-based offences, the offence is committed at the point when the employee is knowingly exposed to the risk, and the fact that no injury is suffered in no way lessens its gravity. But, where the employer's reckless conduct does cause actual harm, the extent of the harm might be thought to be relevant to penalty, at least where what occurred was within the scope of the danger foreseen. It might be said, for example, that the reckless exposure of an employee to risk would be viewed more seriously when it resulted in the employee's death than when it resulted in serious injury. The point was not argued, however, and we need say nothing further about it in the context of the present appeal.

64 Much was made in argument of the fact that the fine imposed exceeded 75 per cent of the maximum.[47] The company submitted that such a high penalty must, necessarily, be outside the available range for a first offender which had pleaded guilty. Otherwise, it was said, there would simply be insufficient scope for higher sentences to be imposed in worse cases - for example, where the offender had relevant prior convictions or was not entitled to a discount for pleading guilty. There is force in that submission but, in the end, we are not persuaded that the fine was outside the range. This was a very bad instance of a very serious offence. There is, we think, adequate scope for sentencing judges to impose higher sentences than this, should the circumstances of a future case require it.

65 The sentencing judge noted in her reasons that s 32 offences carry the same maximum penalty (9000 penalty units) as offences under s 21. In our view, that is an anomalous situation given the stated intention of creating - in s 32 - a 'high culpability offence'. Offences under s 21, on the other hand, will cover the full range of degrees of culpability, from very low to very high. In the event, her Honour concluded - correctly - that she must 'make an assessment of the objective seriousness of the offence... measured against the penalty scale available for it.'[48]

66 We recommend that the adequacy of the maximum under s 32 be examined as a matter of urgency, to ensure that it accurately reflects the seriousness of the offence as Parliament conceived of it.[49] We note that the corresponding provision in New South Wales (which includes, in addition, reckless exposure to a danger of death) carries a maximum fine of $3 million.[50]

67 The submission regarding the s 6AAA discount may be disposed of shortly. Just as the stated discount for a plea of guilty is not examinable for specific error, so the attempt to rely on comparisons with discounts declared in other cases must necessarily fail - and for the same reason. As this Court has said on several occasions, an appeal court does not - cannot - assess the guilty plea discount in isolation. On the contrary, the task for the Court is to determine whether the sentence imposed was within the range reasonably open, appropriate weight having been given to all relevant sentencing considerations including the plea of guilty.[51] Plainly enough, the view which another judge took, in other circumstances, about the significance of a particular plea of guilty cannot assist with that task.

68 There is one final matter. Counsel for Orbit drew attention to the fact that Mr Smith had founded Orbit and was its sole director. It was said on the plea that Mr Smith 'is Orbit Drilling'. On appeal, this was relied on to support the proposition that 'all fines would ultimately be met from the same source'. In this way, it was said, fining both the company and Mr Smith had the effect of imposing a 'double penalty'.

69 This argument must be rejected. Apart from the fundamental distinction between Mr Smith's personal liability and Orbit's corporate liability, the offences were quite distinct, as we explained earlier. Orbit was to be punished for its act of recklessness in requiring Mr Alford to drive the unsafe truck. Mr Smith, on the other hand, was to be punished for his own lack of reasonable care in failing to ensure that the company established and maintained safe systems of work.

70 It is notable, moreover, that no such submission was advanced on the plea. On the contrary, defence counsel told the sentencing judge:

I am not putting the company or Mr Smith's financial circumstances in issue. My very plain instructions are that ... the company continues to trade and it is fully expected that whatever the consequences of today those consequences will be met both by Mr Smith and by Orbit.

71 The fine imposed on Mr Smith was $120,000, which represented 62 per cent of the maximum penalty of $193,374 applicable at the date of the offence.[52] The judge declared pursuant to s 6AAA that, but for the plea of guilty, she would have fined him the sum of $150,000, which represented a declared discount for the plea of guilty of 20 per cent.

72 The ground of manifest excess was supported by essentially the same arguments as were advanced in support of the like ground concerning Orbit. Reliance was placed in particular on:

(b) the absence of relevant prior convictions, 'particularly given Orbit's substantial exposure to risk';

(d) his 'substantial and positive past record' in relation to occupational health and safety;

(e) the absence of the need for specific deterrence; and

(f) his significant community support of activities and general good character.

As in the Orbit appeal, the discount for the plea of guilty was said to be 'manifestly too little' when regard was had to other individual cases.

73 In our view, the sentence imposed on Mr Smith was not manifestly excessive. We have reached this conclusion for essentially the same reasons as we have given in relation to the sentence imposed on the company. The offence was, of course, separate and distinct from the company's recklessness, but the company's breach of s 21 - for which Mr Smith accepted personal responsibility under s 144(1) - was also very serious.

74 As her Honour said, the evidence 'revealed serious and systemic failures by ... Orbit which resulted in Bradley Alford's death'. Her Honour referred specifically to:

(a) 'the grossly inadequate induction training and supervision of Mr Alford'; and

(b) 'the culpable failure to properly maintain the Mack truck or to ensure it was safe and fit to use in the conditions in which it was to be used.'[53]

75 We have already set out at length the expert evidence which described how grave these systemic deficiencies were. They reflect gross negligence on the part of Mr Smith, that is, a very great falling short of the standard of care required of him as the sole director and chief executive of the company. The point was made eloquently by Mr Alford's mother in her victim impact statement, when she said:

At first I was not angry with Orbit Drilling, believing it was an accident, but as I learnt of the way they failed to look after my son properly I became very angry. I trusted his employers to keep him safe. How can they be so negligent with my boy's life.

76 Mr Smith's culpability is the greater by virtue of the fact that these deficiencies were capable of straightforward and low-cost rectification. To expect a company like Orbit to ensure that a new driver was appropriately trained and supervised, and that its trucks were maintained in a safe and roadworthy condition, is to do no more than state the minimum conditions for the safe conduct of this business. These were, plainly enough, 'reasonably practicable' steps (within the meaning of s 21), which the company was dutybound to take in order to ensure that tasks such as those given to Mr Alford could be carried out safely and without risks to health.

A case such as this is a stark reminder that behind every procedure designed to ensure plant and systems of work are safe and without risk to health for workers is a real person, somebody's child, parent, spouse, sibling or friend whose safety and well-being should be at all times a paramount concern of the employer. That is one of the reasons why failure to do what is reasonably practicable to provide a safe and healthy working environment for employees is a strict liability criminal offence and not simply something that gives rise to civil liability if negligence be proven.[54]

[1] DPP v Orbit Drilling Pty Ltd [2010] VCC 417 (28 April 2010), [6]-[7] ('Reasons').

[2] See R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; (2006) 14 VR 321, 326 [24] ('CICG'); see also ABC Developmental Learning Centres v Wallace [2007] VSCA 138; (2007) 16 VR 409, 412 [14] ('ABC') .

[5] Chris Maxwell, Occupational Health and Safety Act Review, State of Victoria (2004).

[6] Work Health and Safety Act 2011 (NSW) s 31.

[7] CICG [2006] VSCA 181; (2006) 14 VR 321, 326 [24]; ABC [2007] VSCA 138; (2007) 16 VR 409, 412 [14].

[8] Occupational Health and Safety Act 1985 (Vic) s 53.

[9] Chris Maxwell, Occupational Health and Safety Act Review, State of Victoria (2004) [1821], [1827].

[10] Victoria, Parliamentary Debates, Legislative Assembly, 18 November 2004, 1764 (Rob Hulls, Attorney-General).

[11] [1990] VicRp 55; [1990] VR 641, 643.

[12] See also Winch v The Queen (2010) 27 VR 658 ('Winch').

[14] [2008] VSCA 13; (2008) 18 VR 586 ('Abdul-Rasool').

[15] [1998] 4 VR 484, 490-1.

[16] Abdul-Rasool [2008] VSCA 13; (2008) 18 VR 586, 601 [60]-[61].

[18] Criminal Procedure Act 2009 (Vic) s 281(1).

[22] Report, [21]-[23] (emphasis added).

[25] Report of Mr Bleeck, [36]-[39].

[29] Criminal Procedure Act 2009 (Vic) ss 281(1), (2).

[30] Section 2(1)(b).

[31] Sections 4(1), (2) and (3).

[32] Section 21(1).

[33] Victoria, Parliamentary Debates, Legislative Assembly, 18 November 2004, 1764 (Rob Hulls, Attorney-General).

[34] See [65]-[66] below.

[35] Winch (2010) 27 VR 658, 665 [36].

[36] See [26] above.

[37] That being the monetary equivalent of 9,000 penalty units as at the date of the offence.

[38] See Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, 377 [38].

[39] Reasons, [41]-[43] (emphasis added).

[41] See fn 33 above.

[42] Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384, 388; Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 643-4. See also DPP v Amcor Packaging Australia Pty Ltd [2005] VSCA 219; (2005) 11 VR 557, 565 [36].

[43] [1999] NSWIRComm 343; (1999) 90 IR 464, 474-5.

[44] See WorkCover Authority (NSW) v Profab Industries Pty Ltd [2000] NSWIRComm 142; (2000) 49 NSWLR 700, 714, cited with approval in DPP v Amcor Packaging Australia Pty Ltd [2005] VSCA 219; (2005) 11 VR 557, 565 [35].

[45] Drake Personnel Limited v WorkCover Authority of New South Wales (1999) 90 IR 432, 453.

[46] Tangerine Confectionery Ltd v The Queen [2011] EWCA 2015, [14], [17].

[47] It was 77.6 per cent of the maximum.

[49] R v A B (No 2) [2008] VSCA 39; (2008) 18 VR 391, 403 [40].

[50] Work Health and Safety Act 2011 (NSW) s 31(1).

[51] R v Burke [2009] VSCA 60; (2009) 21 VR 471, 477; Scerri v The Queen [2010] VSCA 287, [24]; Yang v The Queen [2011] VSCA 161, [30].

[52] That was the equivalent of 1800 penalty units as at the relevant date: see ss 144(1), 21(1).