R v Vetro Pty Ltd and R v Alexander Kola

The Saw

1. As at May 2017, located in the cutting area of the workshop, was a docked drop saw (Mitre Chop OMGA AL159 300 Series 2, manufactured in 2003) ('the drop saw'). The drop saw was owned and controlled by Vetro and was used to cut extruded aluminium and other materials in the process of making wardrobe doors and shower screens.
2. The drop saw's design incorporated the following safety features:

• A return spring whereby force is required to bring the saw down to cut material. Once the saw is released, a properly functioning return spring causes the saw to retract back to its raised position.
• A retractable guard which covers the blade. When the saw is pulled down, the guard withdraws, exposing the blade.
• Pneumatic clamps which, when attached to the workbench, operate to hold the material to be cut in place so that workers do not have to hold the material in place with their hands. The pneumatic clamps are synchronised so that they extend out and hold the material in place when the drop saw descends.

1. Prior to 23 May 2017, the drop saw was mostly operated by Mr I Pirwani.

The Incident

1. On 23 May 2017, Mr I Pirwani started work at the site at approximately 5:30am. Mr I Pirwani was using the drop saw to cut small sections of aluminium. Mr I Pirwani was holding the aluminium pieces in his left hand and was using his right hand to operate the drop saw.
2. In the process of cutting the material, Mr I Pirwani raised the drop saw with his right hand and, as he let go of the handle of the saw, it dropped and partially severed his left hand just above the wrist.
3. Mr Inayat Pirwani was conveyed to hospital and underwent surgery, micro vascular replantations, to reattach his left hand. Mr Pirwani has undergone approximately 10 surgeries on his left hand and requires ongoing physiotherapy and psychological counselling.
4. After the incident, an investigation of the drop saw undertaken by SafeWork Inspector Leonie Ball revealed the following:

• The return spring of the drop saw was not functioning properly in that the saw did not return to its home position. The return spring was extracted from the saw and found to be broken and intertwined.
• The retractable guard was damaged, with chips to the guard and pieces missing, though this damage to the guard did not interfere with its safe operation.
• The pneumatic clamps were not attached to the saw bench, but were placed on a shelf directly underneath the bench.

1. Immediately after the incident, Vetro replaced the return spring and the drop saw was taken for inspection and service by Luna Machinery (NSW) Pty Limited.

Systems of Work before the Incident

1. Prior to the incident, Vetro had a documented health and safety management plan which identified risks and controls associated with installing joinery and shower screens. Kola was noted as the author of the document. However, the document did not apply to work undertaken in the workshop, including operating the drop saw.
2. A risk assessment had not been undertaken on the drop saw that would have identified potential risks and measures to ensure safe operation. Vetro had not developed or implemented a safe operating procedure for use of the drop saw. Vetro was in possession of the Operations and Maintenance Manual for the drop saw though it was not made available to the workers that used the saw.
3. Vetro did not undertake safety meetings or toolbox talks nor did it provide any or any adequate information, instruction or training to workers on the safe operation of the drop saw. Mr Inayat Pirwani was not adequately trained or instructed to use the pneumatic clamps at all times. Mr Blackburn, who also operated the saws at the site, was not provided with any instruction or training in relation to the use of pneumatic clamps. Vetro did not review its workers' understanding of the safety features of the drop saw or assess their competency to use the drop saw safely.
4. Vetro did not provide adequate supervision to the workers operating the drop saw to ensure they were operating the saw safely, including using the pneumatic clamps.
5. Vetro did not have a system of undertaking regular inspections or maintenance of plant and equipment at the site, including the drop saw, and adopted a 'break/fix' policy: It did not inspect the saws at the site on a regular basis but only when a problem was raised by an operator. Vetro did not have a system in place to inspect the drop saw prior to use, to ensure the that return spring, retractable guard and pneumatic clamps were fitted, secure and functional and did not prohibit use of the drop saw when those safety features were not fitted, secure and functional.
6. Kola had changed the blade of the saw and the return spring himself on a previous occasion. He estimated that he had changed the return spring once or twice in the 15 years prior to the incident.
7. Vetro, by way of Kola and Mr A Pirwani, the supervisors of the site, knew that the workers, including Mr I Pirwani, would remove the pneumatic guards of the drop saw from time to time. However, neither Vetro nor Kola (directly or through Mr A Pirwani) took appropriate steps, such as taking appropriate disciplinary action, issuing formal warnings, or directing workers to undertake alternative duties, to ensure that workers did not operate the drop saw without all the safety features fitted, secure and functional.

Work Health and Safety Regulation 2011

1. Vetro was required, under Clauses 34 to 38 of the Work Health and Safety Regulation 2011 ('the Regulation'), to:

• Identify reasonably foreseeable hazards that could give rise to a risk to health and safety;
• Eliminate identified risks so far as is reasonably practicable;
• If it is not reasonably practicable to eliminate the risk, then minimise the risk so far is as reasonably practicable by implementing control measures in accordance with the hierarchy of control;
• Maintain implemented control measures so that they remained effective; and
• Review, and if necessary, revise, risk control measures so as to maintain, so far as is reasonably practicable, a work environment that was without risks to health and safety.

1. Vetro was required, under Clause 39 of the Regulation, to ensure that information, training and instruction provided to a worker was suitable and adequate, having regard to:

• The nature of the work carried out by the worker;
• The nature of the risks associated with the work at the time the information, training or instruction is provided, and
• The control measures implemented.

1. Vetro was required, under Clauses 205 to 206 of the Regulation, to:

• So far as is reasonably practicable, prevent unauthorised alterations to or interference with the drop saw (such as removal or the pneumatic clamps); and
• Take all reasonable steps to ensure that all safety features of the drop saw were used in accordance with instructions and information provided.

1. Vetro was also required, under Clause 213(1) of the Regulation, to ensure that the maintenance, inspection and, if necessary, testing of the plant was carried out by a competent person. The maintenance, inspection and testing must be carried out or in accordance with the manufacturer's recommendations, or in the absence of such recommendations, in accordance with a competent person's recommendations (Clause 213(2) of the Regulation). Luna Machinery (NSW) Pty Limited, the company that serviced the drop saw after the incident, recommended that the drop saw be reviewed every six to twelve months.

Code of Practice - Managing the Risk of Plant in the Workspace

1. Prior to the incident, the SafeWork NSW Code of Practice Managing the Risk of Plant in the Workplace (July 2014) ('the Code of Practice') was available to Vetro and Kola. The Code provides guidance on the elimination or minimisation of risks of working with plant - including machinery - and the maintenance of a safe system or work to duty holders who have management or control of plant in the workplace. The Code of Practice provides the following:

• Before plant is used in the workplace, workers must be provided with information, training, instruction or supervision that is necessary to protect them from risks arising from the use of plant;
• Information may be supported with safe work procedures that include instruction on the correct use of control measures, how to safely operate the plant and how to carry out inspections, repair and maintenance;
• Workers who operate plant should be competent or suitably supervised during training so that they do not put themselves or others at risk;
• It is important to retain all operating manuals and instruction material provided by the manufacturer in order to correctly operate and maintain the plant once it is in the workplace;
• Inspection of plant should be conducted in accordance with a regular maintenance system to identify any deficiencies in the plant associated with use, such as wear and tear or damage, and any inadequacies in the control measures that have been previously implemented;
• Inspections of associated work processes should be conducted regularly to identify any unsafe work practices associated with use of the plant;
• Any control measures implemented, such as the guard on the drop saw, must be regularly inspected and tested to ensure they remain effective;
• Plant must be maintained and repaired according to the manufacturer's specifications or in the absence of such specifications, in accordance with a competent person's recommendations;
• Plant should be inspected in accordance with the regular maintenance system to identify any inadequacies in the control measures that have been previously implemented; and
• It is good practice to keep records of plant and the type of records that may be kept include manufacturer's manuals, results of inspections, information on maintenance and repairs carried out, results of risk assessments, information, instruction and training provided to workers, and competencies of operators.

Drop Saw Operations and Maintenance Manual

1. Vetro had in its possession the Operations and Maintenance Manual for the drop saw ('the manual'). The manual contained information on the safe use of the drop saw and in particular the use of the safety features. The manual provided as follows: 'Safety and Hygiene Rules …

12. Never use the machine unless all protections are in correct order. 13) DO NOT REMOVE NEITHER MODIFY THE EXISTENT PROTECTION FOR ANY REASON. Do not consider any of the protections as useless! Time and use will teach you to appreciate them under all aspects. 14) If you wish to strengthen those ones already present, according to your need, do it with no problems but please WITHOUT modifying or REPLACING those ones you do have. 15) Serious accidents and damage may occur during machine operation if the correct operating procedures are not respected. 16) Please do not try to operate the machine until you have read and learnt the operating and adjusting procedures as described in this manual. … 23) Never put your hands under the clamp. 24) Do not put your hands under the blade when it is cut.'

1. Although the manual was on site, it was not made available to the workers who used the drop saw and prior to the incident, neither Mr Pirwani nor Mr Ahmer Pirwani had seen the manual.

Vetro

1. Following the incident, Vetro made immediate modifications to the drop saw by replacing the broken return spring.
2. Vetro developed and implemented a safe operating procedure for the drop saw which provides the following information and instructions:

• It identifies the potential hazard of contract with the blade of the saw at the point of operation;
• It requires that the drop saw is not to be used unless a worker has received instruction in its safe use and operation and has been given permission to use the drop saw;
• It provides that prior to operation, the drop saw is to be checked, ensuring that all safety guards, the return spring, and pneumatic clamps were in position and operational and that faulty equipment must not be used. The faulty equipment must be immediately reported; and
• In respect of the safe use of the drop saw, it provides that workers are not to cut 'freehand' (without pneumatic clamps), are to ensure that the workpiece is securely clamped before cutting, and the cutting of any workpieces that were unsupported and not clamped is forbidden.

1. The safe operating procedure was posted directly above the drop saw.
2. Vetro implemented a system whereby workers were only permitted to use the drop saw if they had been inducted by the Production Manager in the safe use of the saw and had acknowledged in writing that they read and understood the safe operating procedure. Vetro increased the supervision required of workers operating the saws, implemented a rule that a worker would be immediately issued with a warning if they were found using a saw without the necessary safety features, and created a training procedure for all saws at the workplace.
3. Vetro purchased a new drop saw, the Luna KD350/400 Mitre Saw and developed a safe operating procedure for that saw. It outsourced the inspection and maintenance of the drop saw to Luna Machinery (NSW) Pty Limited and implemented a system to record maintenance of all machines, induction training for saw and machine operators, and has regular discussions with machine operators to check for hazards and ensure they are following safe work procedures.

Kola

1. Kola's duty under s 27(1) of the Act required him to:

• Ensure that Vetro had available for use, and used, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as a part of the conduct of the business or undertaking (s 27(1)(c) of the Act);
• Ensure that Vetro had, and implemented, processes for complying with any duty or obligation of Vetro under the Act, such as ensuring the provision of training and instruction to workers about work health and safety (s 27(1)(e) of the Act); and
• Verify the provision and use of the resources and processes (s 27(1)(f) of the Act).

1. The Code of Practice provides that officers have a duty to exercise due diligence to ensure that the business or undertaking complies with the Act and Regulations, including to take reasonable steps to ensure that the business or undertaking has and uses appropriate resources and processes to eliminate of minimise risks that arise from plant used in the workplace.
2. Kola did not provide sufficient resources and processes to Vetro to ensure that it was able to comply with its duty under s 19(1) of the Act. No risk assessment had been undertaken in relation to the drop saw in order to identify risks associated with its use and corresponding control measures. Kola neither conducted a risk assessment himself nor verified that it had been conducted on behalf of the company.
3. Vetro did not have a process by which plant was inspected regularly and maintained to ensure that all safety features were fitted, secure and functional at all times. Kola failed to develop such a process and failed to verify that Vetro had such a process in place which was implemented and used by workers.
4. Kola did not develop, implement or enforce a safe system of work for the use of the drop saw. He did not verify that the company had in place and enforced a safe system of work by making enquiries or inspecting documentation.
5. Kola did not verify that the company had provided workers with information and training and instruction in relation to:

• A system of regular inspections and maintenance regarding all plant and equipment at the site, including the drop saw;
• A safe work procedure for operation of the drop saw; and/or
• The risks associated with the use of the drop saw.

1. Kola did not verify the competency of workers operating the drop saw, by conducting a visual assessment of the workers, by making enquiries, or by inspecting documents to ensure they knew how to operate the plant safely. After the incident Kola personally trained Mr Joseph Johnson, the new drop saw operator, on safe operation of the saw including use of the pneumatic clamps.
2. Kola failed to enforce a prohibition on using plant without all the safety features fitted by conducting a visual inspection of the site, giving clear instruction to the workers not to use plant unless all the safety features were fitted, secure and functional, and taking disciplinary action against any worker using plant without all of the safety features in place.
3. Kola failed to supervise, or adequately supervise, workers including Mr Pirwani or to verify that the company had a process in place for supervision and implement that process.

THE NATURE OF THE DUTY

1. The nature of Vetro's duty under s 19(1) of the WHS Act was to ensure as far as reasonably practicable the health and safety of workers at the workplace. The duty requires the identification of risks in the workplace and the adoption of measures to eliminate or minimise them (WorkCover Authority (NSW) (Inspector Egan) v Atco Controls Pty Ltd (1988) 82 IR 80 per Hill J at [85]).
2. The 'reasonably practicable' measures that Vetro admits it should have taken to secure safety are set out at paragraph 11 of the Summons.
3. Kola's failure was that as the sole director of Vetro, he failed to exercise due diligence to ensure that the business complied with its duty under s 19(1) of the WHS Act. His duty was to take 'reasonable steps' to ensure the business had, and implemented, processes for complying with its duty (see s 27(5) of the Act). Kola failed to take reasonable steps to identify and manage the risk.
4. The notion of reasonable practicability is informed by the considerations found in s 17 of the Act. The defendants, by their pleas of guilty, have admitted that the measures to ensure safety pressed by the prosecutor would have been reasonably practicable.

SENTENCING PRINCIPLES

1. The penalties imposed must give overall effect to the intention of the WHS Act, in particular, protecting workers against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work.
2. I must be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 ('CSP Act') including; 1. Section 3A which sets out purposes of sentencing; 2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and 3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.

OBJECTIVE SERIOUSNESS OF THE OFFENCE

1. The duties of Vetro and Kola require that they ensure the health and safety of workers as far as reasonably practicable. As the defendants have pleaded guilty, it has admitted that the measures to ensure safety would have been reasonably practicable. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.
2. The primary sentencing consideration requires a determination of the objective seriousness of the offence. The objective seriousness of the offence is to be assessed by reference to the nature of the offending and not to matters personal to a defendant (see Muldrock v The Queen (2011) 244 CLR 120 at [27]).
3. Although the gravity of the risk, degree of foreseeability of the risk and the ease of implementation of remedial measures are relevant to the assessment of objective seriousness, I am not limited to taking in to account such factors.
4. In Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 (Silver City) at [34] Basten JA observed: 'The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than to guard against the occurrence of which is extremely unlikely. However the truth of that proposition depends upon other considerations including: (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk; and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.'
5. His Honour further observed at [42]: 'The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.'
6. The more obvious the risk, the ease with which it can be controlled or eliminated and the more serious the consequences of the offence, when considered together, will point to a higher degree of objective seriousness.
7. The risk to be assessed is not the risk of the consequence to the extent that Mr Pirwani was in fact injured, but the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. In Silver City (supra) Basten JA said the seriousness of the risk of injury cannot be discounted by reference to the unlikelihood of injury occurring. The conduct to be assessed is the failure to respond to a risk of injury. The conduct will be more serious, the more serious the potential injuries, whether or not they are likely to materialise (Silver City at [53]).
8. The factors relevant to the determination of culpability of Vetro and Kola are as follows: 1. The risk of a worker being seriously injured as a result of a body part coming into contact with the rotating blade of a bench saw was obvious and foreseeable; 2. The likelihood of the risk of a worker coming into contact with the blade of the drop saw was high in the circumstances where there was no system of regular inspection or maintenance of the equipment at the site, no Safe Operating Procedure ('SOP') for the saw and the workers were not prohibited from using the saw clamps without an important safeguard fitted, or the pneumatic rams. Vetro's steps to ensure the safety of employees were quite limited (see Kola's Affidavit sworn 6 March 2020, paragraph 11); 3. The gravity of the risk was significant. There was the potential for a serious amputation injury, which materialised on 23 May 2017; 4. No risk assessment was undertaken, which would have enabled the risk to be minimised by identifying the appropriate controls; 5. It is obvious that mechanical equipment, such as drop saws, should be subject to a regular maintenance system and not reactive "break/fix" policy (see Agreed Facts paragraph 18). The failure to implement any adequate preventative inspection and maintenance program increased the likelihood of the risk occurring; 6. Relevant information with regard to safe systems of work and maintenance of plant and equipment was readily available in the Code of Practice for Managing the Risk of Plant in the Workplace ('the Code'). 7. Prior to the incident there was a lack of any general systems to address workplace safety at the premises. Although Vetro had a documented safety management plan, the document did not apply to work undertaken at its Wetherill Park site. I find it difficult to understand why Vetro did not implement the plan at its premises where the manufacturing took place and where mechanical equipment was used; 8. Vetro did not undertake safety meetings or toolbox talks. It did not have a system of undertaking regular inspection of equipment or assess the competency of workers operating the saw; 9. A relevant factor that to my mind elevates the seriousness of the offences is that both Vetro and Kola knew that workers, including Mr Pirwani, would remove the pneumatic guards from time to time but did not take appropriate steps to prohibit this practice. This inherently increased the likelihood of the risk of injury coming home; 10. The burden or inconvenience in undertaking 'reasonable steps' as set out in the Summonses was small. After the incident, Vetro took a number of steps to manage the risk, including developing and implementing a SOP. The costs of the installation of a new return spring and service thereof was negligible; 11. Kola had used the saw on many occasions, however I note he concedes that he should not have simply relied upon the operator to ensure safety, and he ought to have taken more steps to try and minimise the risk of an injury occurring; 12. Mr I Pirwani suffered serious injuries to his hand and wrist as a result of the defendants' failures. Mr Pirwani has undergone 10 surgical procedures, with the most recent being about 6 months ago. Dr Bradshaw, in his report dated 11 February 2020 that formed part of Exhibit B, opined that due to the severity of the injuries Mr Pirwani sustained, he may require further surgery. These surgeries have impacted other parts of his body where nerve and bone grafts were taken. His pain management specialist, Dr Nazar, has suggested a spinal cord stimulator be implanted to address his continuing pain. He has seen a psychiatrist and a psychologist attest to the significant psychological difficulties he has experienced, and believes that he will need lifelong treatment for these issues. It has also had a dramatic impact on Mr Pirwani, and is also now impacting on his family, and he remains unemployable. The impact on his life has been extreme and devastating. 13. These factors point to a mid-range offence.

DETERRENCE

1. In fixing a penalty in relation to this offence, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the CSP Act. The approach to be adopted is set out in Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 (2000) 49 NSWLR 610 at 644 at [74]: 'Both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be some exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.'
2. The Court of Criminal Appeal in Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 ('Bulga') reaffirmed the principle that both aspects of deterrence are matters which should be normally given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule: 'It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, WorkCover Authority (NSW) (Inspector Page) v. Walco Hoist Rentals Pty Ltd (No. 2) [2000] NSWIRComm 39 at 40-43), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. …' 'Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence; see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.'
3. In relation to specific deterrence, the attitude of the defendants to questions of workplace safety and any steps taken to improve the safety following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.
4. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all factors.
5. In Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Walton J observed at [241]-[242]: 'There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety (McDonald's) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); WorkCover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) [2002] NSWIRComm 27; (2002) 112 IR 312; WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and WorkCover Authority (NSW) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316.'
6. The issue of general deterrence is important, and must be approached in the context of the industry in which the defendants are engaged, as the types of duties and the broader hazards and risks associated with the industry are significant. The risks associated with the use of plant, such as bench saws, are common risks, and injuries sustained from unsafe plant and equipment are major causes of workplace death and injury in Australia. In my view it is important to send a message to the industry that plant and equipment should be properly serviced and maintained and that safe work practices must be developed and implemented.
7. With regard to specific deterrence, I note that Vetro is no longer operating, and thus the need for specific deterrence is minimal.

AGGRAVATING FACTORS

1. The significant physical and emotional injuries sustained by Mr Pirwani are aggravating factors.

MITIGATING FACTORS

1. The defendant entered a plea of guilty at an early stage and is entitled to a discount of 25% based on the utilitarian value of the plea (s 21A(3)(e) of the CSP Act).
2. The defendant does not have any antecedents (s 21A(3)(e) of the CSP Act).
3. The defendant co-operated with the SafeWork investigation (s 21A(3)(m) of the CSP Act).
4. The defendant through its director and Kola himself has shown remorse and I accept that as genuine (s 21A(3) of the CSP Act).
5. I accept that the defendant was of good character prior to the incident (s21A(3)(f) of the CSP Act).
6. The company no longer operates and it is anticipated that it will shortly go into liquidation.
7. Kola is 64 years old and is employed by the company that bought Vetro's business as a consultant to maintain continuity with clients and suppliers, but he is no longer a driving force for the business, and thus is unlikely to re-offend. He currently earns about $1,035 per week net and is employed on a month to month basis.

PENALTY

1. I make the following orders: 1. The defendants are convicted. 2. The appropriate fine for Vetro would be $100,000.00 and that will be reduced by 25% to reflect a plea of guilty. 3. I accordingly order Vetro to pay a fine of $75,000.00. 4. The appropriate fine for Alexander Kola would be $10,000.00 and that will be reduced by 25% to reflect the plea of guilty. 5. I accordingly order Alexander Kola to pay a fine of $7,500.00. 6. 50% of the fines imposed are to be paid to the prosecutor. 7. The defendants are to pay the prosecutors costs as agreed in the sum of $43,900.00.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 April 2020