CRIMINAL LAW - Appeal - Conviction - Occupational health and safety - Failing to provide and maintain a safe working environment for employees by failure to provide and maintain necessary systems of work - Prosecutor's reference in final address to checklist - Checklist not opened - Checklist not a particular of charge - Whether reference to checklist expanded prosecution case - Leave to appeal refused.

CRIMINAL LAW - Appeal - Conviction - Occupational health and safety - Failing to provide and maintain a safe working environment for employees - Jury question during deliberations as to whether 'process and procedures that ensure a safe system of work need to be documented' - Whether trial judge's answer 'no' erroneous - Leave to appeal refused.

CRIMINAL LAW - Appeal - Sentence - Occupational health and safety - Failing to provide and maintain a safe working environment for employees and failing to ensure that persons other than employees were not exposed to risks to health and safety - Without conviction fined $275,000 on each charge (total $550,000) - Whether judge erred in assessing gravity of offending - Whether sentence manifestly excessive - Leave to appeal refused.

1. An indictment filed in the County Court charged the applicant, Supagas Pty Ltd ('Supagas'), with failing to provide and maintain a safe working environment for employees (two charges - charges 1 and 2) and failing to ensure that persons other than employees were not exposed to risks to health and safety (one charge - charge 3).
2. Each charge on the indictment was laid under s 21 or s 23 of the Occupational Health and Safety Act 2004 ('the Act'). Thus, charge 1 was laid under ss 21(1) and (2)(a); charge 2 was laid under ss 21(1) and (2)(e); and charge 3 was laid under s 23(1). So far as is relevant, those sections provide:

21 Duties of employers to employees

(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.

Penalty: 1800 penalty units for a natural person; 9000 penalty units for a body corporate.

(2) Without limiting subsection (1), an employer contravenes that subsection if the employer fails to do any of the following -

(a) provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;

...

(e) provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.

23 Duties of employers to other persons

(1) An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.

Penalty: 1800 penalty units for a natural person; 9000 penalty units for a body corporate.

1. Section 20 is concerned with the concept of health and safety, and, for the purposes of ss 21 and 23, sets out the extent of the duties of an employer such as Supagas to eliminate or reduce risks to health and safety:
   1. The concept of ensuring health and safety

(1) To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person -

(a) to eliminate risks to health and safety so far as is reasonably practicable; and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.

(2) To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety -

(a) the likelihood of the hazard or risk concerned eventuating;

(b) the degree of harm that would result if the hazard or risk eventuated;

(c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;

(d) the availability and suitability of ways to eliminate or reduce the hazard or risk;

(e) the cost of eliminating or reducing the hazard or risk.

1. On 20 July 2022, a jury empanelled to try Supagas found it guilty of the first charge (failing to provide and maintain a safe working environment for employees) and the third charge (failing to ensure that persons other than employees were not exposed to risks to health and safety), but acquitted it on the second charge.
2. Following a plea in mitigation, the trial judge fined Supagas - without conviction - $275,000 on each charge (a total of $550,000).[1]
3. Supagas now seeks leave to appeal against both conviction and sentence.
4. With respect to conviction, Supagas relies on three proposed grounds, formulated as follows:

1. There was a substantial miscarriage of justice in that the verdict of not guilty on charge 2 was inconsistent with the verdict of guilty on charges 1 and 3. 2. A substantial miscarriage of justice arose from the prosecutor introducing in his closing address reference to a checklist as a means of complying with the accused's duty to provide a safe system of work, which was:

1. not opened; and 2. outside the particulars of the charges.

1. There was a substantial miscarriage of justice arising from the aggregation of errors in the trial, including:

1. the errors identified in grounds 1 and 2; and 2. the judge's answer to a jury question as to whether there was any legal requirement for a system of work to be documented.
2. As to the sentence, Supagas relies upon two grounds:
   1. The sentencing judge erred in failing to properly apply the principles from Dotmar EPP Pty Ltd v The Queen [2015] VSCA 241 and DPP v Frewstal Pty Ltd [2015] VSCA 266; (2015) 47 VR 660 when assessing the gravity of the offending as a serious breach of statutory duty which constituted a significant departure from the standard required.
   2. In all the circumstances the sentence imposed on charges 1 and 3 on the indictment are manifestly excessive.
3. In our view, both applications for leave to appeal should be refused. Our reasons follow.

1. So as to understand the issues raised by the present applications, it is necessary to say something of the alleged offending, as revealed by the evidence at the applicant's trial.
2. Supagas has been a supplier of industrial gases, including acetylene gas cylinders, since 1968. It held a hazard facility license at its primary site in Dandenong, and, in December 2017, operated sites across Victoria. At its site at Mountain Highway, Bayswater, it supplied gas cylinders to trade and industry participants and to the general public.
3. On 1 December 2017, John Portelli was employed through a labour hire company, Galaxy Personnel Pty Ltd, to work as a driver (and in other roles) for New Sector Engineering Pty Ltd ('New Sector'), a business which performed maintenance and project work in the food and industrial sector. Shortly after 8.00 am that day, Mr Portelli went to the Supagas Bayswater site in a Toyota utility owned by New Sector, in order to collect an 'E size' acetylene cylinder and an oxygen cylinder. (E size cylinders contain approximately four cubic metres of gas.) A chemical engineer, William Hunt, gave evidence that such cylinders should be transported in the open air or a ventilated space, properly secured and upright. Since the New Sector utility had a modified toolbox on the tray which was fully enclosed and airtight, it was unsuitable to transport E size acetylene gas cylinders.
4. When he arrived at the Supagas site, Mr Portelli asked the shop assistant, Johnathan Dunks, for a bottle of oxygen and acetylene. Mr Dunks then gave Mr Portelli a ticket, and Mr Portelli left the shop area. Mr Portelli then drove the utility to the dock area and parked so that his left-hand side toolbox was next to the dock. He gave dock worker, Adam Sanders, the ticket, indicating that he would be collecting an E size oxygen and an E size acetylene cylinder. Mr Sanders then collected the tanks from storage, carried them to the edge of the landing and scanned them. Mr Portelli then lifted the cylinders into the back of the utility, and left the Supagas premises.
5. Mr Dunks' evidence was that he observed Mr Portelli's utility from inside the shop. He described it as a two-door ute with two metal boxes either side of the tray, with a gap between. Mr Sanders gave evidence that he observed the left side of Mr Portelli's ute when it pulled up to the loading dock. He saw that there was a toolbox on the back of the ute, and he thought that there was a gap on the other side of the toolbox. Notwithstanding the evidence of Mr Dunks and Mr Sanders, however, it was common ground between the parties at trial that their observations concerning Mr Portelli's utility were faulty, since the utility had a tool box covering the whole of its tray. It was also common ground between the parties that Mr Portelli left the Supagas depot carrying an oxygen and acetylene cylinder in the enclosed tool box.
6. After Mr Portelli left the Supagas site and travelled several kilometres along Mountain Highway, Bayswater, there was a large explosion originating in the utility's tray. Expert evidence at trial was that the likely cause of the explosion was the ignition of acetylene vapour and air mixture within the enclosed utility's tool box, although the source of the ignition was unknown. The explosion very seriously injured Mr Portelli and caused damage to housing and similar over a considerable area.
7. Evidence at trial established that the Supagas employees were experienced and aware of the risk (including explosion) associated with the use, handling, and transportation of industrial gases, including acetylene.
8. Mr Dunks gave evidence that he was aware of the dangers of flammable gases and had received specific training to only put flammable dangerous goods in open air vehicles. He recalled such information and training being provided through 'toolbox meetings' and specific documents regarding flammables in enclosed vehicles.
9. Mr Sanders gave evidence of his experience working with acetylene, including its manufacture, filling cylinders and testing and calibrating equipment, at the Supagas Major Hazard Facility in Dandenong, prior to working at the Bayswater site. He knew the risks associated with the use, handling and transportation of acetylene and had trained other operators on those processes at the Dandenong site. When he commenced working at Bayswater he was 'buddied' with Jason Smirl and worked under his direct supervision. Jason Smirl was a supervisor of over 10 years' experience and provided Mr Sanders with handbooks and pamphlets as part of his training. Mr Sanders was instructed to read the material which set out appropriate and safe systems for using and transporting acetylene cylinders. In the month preceding the incident, Mr Sanders said, he had refused to supply gas to customers with vehicles unsuited to its transportation. He had also supplied tie-downs to a customer whose tie-downs were inadequate.
10. Mr Dunks, Mr Sanders and another Supagas employee, Simon Sanders, gave evidence concerning the documentary information that was available to them and customers setting out the risks and hazards associated with acetylene, including the Supagas green 'Cylinder Transport Brochure'; posters and signage around the dock and in the shop; training documents, including 'Load Restraint for Transporting Cylinders and Work Instruction'; and the safety sticker affixed to the cylinder; providing instructions on the safe means of using, handling, and transporting acetylene cylinders. Each spoke of the 'Golden Rules' when transporting acetylene cylinders: cylinders were required to always be transported in an open vehicle, secured and upright. Mr Sanders said that over the course of his nine years with Supagas these rules were 'drilled into him'. Both Mr Dunks and Mr Sanders gave evidence that if they did refuse to supply gas to a customer, they would offer the customer an alternative of free delivery. This occurred regularly.

1. Charges 1 and 2 on the indictment alleged that Supagas, an employer, failed in the duties it owed to employees; and charge 3 alleged that it failed in the duties it owed to persons other than employees. In précis form, the charges were as follows:[2]
   • charge 1, laid under ss 21(1) and 21(2)(a) of the Act, alleged that Supagas 'failed, so far as was reasonably practicable, to provide and maintain for employees a working environment that was safe and without risks to health, in that it failed to provide and maintain such systems of work, so far as was reasonably practicable, to enable those persons to perform their work in a way that was safe and without risks to health';
   • charge 2, laid under ss 21(1) and 21(2)(e), alleged that Supagas 'failed, so far as was reasonably practicable, to provide and maintain for employees a working environment that was safe and without risks to health, in that it failed to provide such information, instruction or training to employees as was necessary to enable those persons to perform their work in a way that was safe and without risks to health'; and
   • charge 3, laid under s 23, alleged that Supagas, so far as reasonably practicable, 'failed to ensure ... that persons other than employees were not exposed to risks to their health and safety arising from the conduct of [its] undertaking'.
2. Although there were some similarities in the way in which charges 1 and 2 were particularised, there were also some important differences.
3. Charge 1, based on an alleged failure to provide and maintain systems of work for employees that were safe and without risks to health, was accompanied by five particulars, three of which were:[3]

1. There was a risk to the health and safety of employees working in the vicinity of a loading dock at the workplace, that they could be seriously injured or killed by an explosion, if acetylene gas cylinder bottles were supplied to and loaded into a customer's vehicle that was not suitable to transport acetylene gas cylinder bottles. 2. Supagas Pty Ltd failed to provide and maintain systems of work that were, so far as was reasonably practicable, safe and without risks to health. 3. It was reasonably practicable for Supagas Pty Ltd to have reduced or eliminated that risk by providing and maintaining a system of work which required:

1. Visual inspection of a customer's vehicle prior to supplying acetylene gas cylinder bottles onto the vehicle, specifically to ensure so far as was reasonably practicable that:

1. the vehicle was adequately ventilated; and 2. the gas cylinder bottles were able to be adequately secured in the vehicle; and 3. the gas cylinder bottles were able to be transported in an upright position;

1. Refusal to supply the acetylene gas cylinder bottles to the customer if the customer's vehicle did not satisfy the visual inspection; 2. Provision of other options to customers, including arranging for the delivery of the acetylene gas cylinder bottles to the customer's workplace, if the customer's vehicle did not satisfy the visual inspection; 3. Provision of instructions on the loading and transport of the acetylene gas cylinder bottles to the driver of the vehicle.
2. Five particulars were also subjoined to charge 2, which alleged a failure to provide to employees such information, instruction or training as was necessary to enable those persons to perform their work in a way that was safe and without risks to health. Three of those particulars were:

1. There was a risk to the health and safety of employees working in the vicinity of a loading dock at the workplace, that they could be seriously injured or killed by an explosion, if acetylene gas cylinder bottles were supplied to and loaded into a customer's vehicle that was not suitable to transport acetylene gas cylinder bottles. 2. Supagas Pty Ltd failed to provide employees with information, instruction and training as was necessary to enable those persons to perform their work in a way that was safe and without risks to health. 3. It was necessary for Supagas Pty Ltd to have reduced or eliminated that risk by providing to its employees:

1. Information about the risks and hazards associated with the supply and loading of acetylene gas cylinder bottles onto customer's vehicles, including the risk of explosion. 2. Instruction and training to undertake a visual inspection of customer vehicles before supplying acetylene gas cylinder bottles onto the vehicle, specifically to ensure that:

1. the vehicle was adequately ventilated; and 2. the gas cylinder bottles were able to be adequately secured in the vehicle; and 3. the gas cylinder bottles were able to be transported in an upright position; 4. Instruction and training to refuse to supply the acetylene gas cylinder bottles to the customer if the customer's vehicle did not satisfy the visual inspection.

1. Instruction and training to provide other options to customers, including arranging for the delivery of the acetylene gas cylinder bottles to the customers workplace, if the customer's vehicle did not satisfy the visual inspection. 2. Instruction and training to provide instructions on the loading and transport of acetylene gas cylinder bottles to the driver of the vehicle.

1. Under cover of the first ground as formulated, Supagas contended that the verdict of not guilty on charge 2 is inconsistent with the verdicts of guilty on charges 1 and 3, so that the convictions are unsafe and unsatisfactory.[4]
2. In support of the contention that the verdicts are inconsistent, counsel for Supagas submitted in writing that the particulars of each charge on the indictment set out the measures that the prosecution alleged Supagas could have taken to reduce or eliminate risks to the health and safety of its employees (charges 1 and 2) and persons other than its employees (charge 3). Counsel submitted those measures, as particularised in each charge, were 'substantially identical'. The gravamen of the prosecution case, counsel submitted, was that Supagas had breached the duties it owed under the Act by failing to have a system of work that contained certain specified measures, and had failed to instruct and train its employees in that system, thereby exposing employees and non-employees to risk to health and safety. Put another way, counsel submitted, the acts or omissions said to constitute the offence on each charge were 'substantially identical'. In oral submissions, relying heavily on Kirk,[5] senior counsel for the applicant contended that the particulars of charge 1 did not identify any failure to provide or maintain systems of work that were safe and without risks to health beyond specifying a failure to provide information, instruction and training; that is, there was no system other than information, instruction and training that was specified.
3. Counsel for Supagas contended that, as a matter of logic, the verdict of acquittal on charge 2 cannot stand with the convictions on charges 1 and 3. In acquitting on charge 2, counsel submitted, the jury must not have been satisfied beyond reasonable doubt that Supagas had failed to provide to its employees necessary information, instruction, and training about a system requiring the measures contained in the relevant particulars. At the same time, however, the jury convicted Supagas on charge 1, which required all of those same measures, the two measures in charge 3 being the same. Put another way, counsel submitted, the jury concluded that Supagas provided necessary instruction and training in a system of work that it did not provide.
4. Citing MacKenzie,[6] counsel for Supagas ultimately submitted that the asserted inconsistent verdicts strongly suggest misapprehension on the part of the jury as to the legal basis upon which the charges had to be determined and confusion in the judicial instruction on the applicable law. Part of that misapprehension resulted from the prosecutor's suggestion in his final address that the relevant system of work should have been documented (a matter dealt with under ground 2).[7]

1. Contending that there is no inconsistency in the jury's verdicts, the respondent's counsel submitted that charges 1, 2 and 3 were conceptually distinct. Section 21(2) of the Act sets out five ways in which an employer can contravene its duty to employees. While there can be factual overlap, counsel submitted, each is a distinct type of failure. Hence, s 21(2)(a) relates to failures to provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health; and s 21(2)(e) relates to failures to provide information, instruction, training or supervision that are necessary to enable employees to perform their work in a way that is safe and without risk to health.
2. Counsel for the respondent submitted that charges 1 and 2 were laid respectively under ss 21(2)(a) and (e), so that the two charges relied on distinct, but overlapping, concepts: reasonable practicability and necessity. Although particular 2 of both charges alleged the same risk, and the measures listed in particular 4 of both charges are based on the 'golden rules' (so-called) for transporting acetylene cylinders - the cylinders are upright, secured and well-ventilated - each charge alleged a distinct failing: first, charge 1 alleged a failure to provide and maintain a reasonably practicable system of work that required those measures; and, secondly, charge 2 alleged a failure to provide necessary information, instruction and training in both the risk and the measures to eliminate or reduce the relevant risk.
3. The respondent's counsel submitted that, although charge 3 alleged a failure to provide and maintain the same reasonably practicable system of work as charge 1, the two charges differed as to who was exposed to risk: charge 1, brought under s 21, alleged a risk to employees, whilst charge 3, brought under s 23, alleged a risk to persons other than employees. There was, therefore, no legal inconsistency in the jury reaching a different conclusion on charge 2 on the one hand, and charges 1 and 3 on the other.
4. Moreover, counsel submitted, no factual inconsistency arises. Charge 2 was factually different to charges 1 and 3, in that it required the jury to consider whether Supagas had failed to provide such information, instruction and training to employees as was necessary to enable them to perform their work in a way that was safe and without risks to health, and alleged several necessary measures that Supagas should have provided to reduce or eliminate that risk. It did not, however, require the jury to consider whether Supagas failed to provide instruction and training in the system of work that required those measures.
5. Counsel for the respondent submitted that it was likely that the jury's verdict on charge 2 was informed by the evidence of Supagas employees that they understood the risks associated with acetylene gas and knew the golden rules. That consistency did not extend, however, to the employees' evidence about the system of work. The cumulative effect of the evidence was that, while Supagas may have provided its employees with the necessary information, instruction and training about the risks associated with transporting acetylene cylinders and the measures needed to reduce those risks, it nevertheless failed to provide and maintain a system of work that ensured that those measures were followed. Thus, for example, while employees understood that a cylinder should not be transported in an enclosed vehicle, there was no common understanding as to which employees were responsible for inspecting a vehicle, and no system for ensuring that an inspection actually occurred.
6. Furthermore, the respondent's counsel submitted that there was an additional basis upon which the jury might have treated charge 2 differently to charge 1. In his closing address to the jury, senior counsel for Supagas relied on the failure of the prosecution to call a witness, Jason Smirl - who had been responsible for providing instruction and training to employees - to found an inference that his evidence would not have assisted the prosecution case on the issue of employee training. The applicant's counsel then sought a direction under s 43 of the Jury Directions Act 2015, and the prosecutor conceded such a direction should be given. As a result, in his charge the trial judge directed the jury that Mr Smirl could have given particular evidence about training, and that the jury might conclude from the failure to call him that his evidence would not have assisted the prosecution case. Counsel submitted that, in acquitting Supagas on charge 2, the jury may simply have been acting in accordance with the arguments advanced by defence counsel concerning the prosecution's failure to elicit evidence from Mr Smirl on the important issue of training.

1. The gist of the submissions made by counsel for Supagas under cover of ground 1 appeared to be that, since the acts or omissions said to constitute the offence on each charge were essentially identical, there was factual inconsistency between the verdicts on charges 1 and 2 (and charges 2 and 3).
2. We cannot agree. In our view, the verdicts may easily be reconciled. We consider that, rather than indicating a jury labouring under a misapprehension as to the legal basis upon which the charges had to be determined and confusion as to the applicable law, the verdicts reflect the jury having taken a careful, principled approach to the evidence capable of supporting each charge when giving them separate consideration.
3. As we have indicated, the thrust of the applicant's case on this ground appears to be one of alleged factual inconsistency. Factually inconsistent verdicts render convictions unsafe and unsatisfactory.[8] So much is plain from MacKenzie, in which Gaudron, Gummow and Kirby JJ distilled the previous learning on inconsistent verdicts into six convenient propositions.[9] Drawing on the six MacKenzie propositions, it is sufficient for present purposes to observe that the obligation of establishing inconsistency between verdicts rests with the applicant. Given that the supposed inconsistency arises in the jury's verdicts on different charges in the indictment, the applicable test is one of logic and reasonableness. If there is a proper way by which the verdicts may be reconciled, and there is some evidence to support the verdicts said to be inconsistent, it is not the role of an appellate court to substitute its own opinion of the facts for one which was open to the jury. It must be borne in mind that the jury may simply have followed the judge's instruction to consider each charge separately; or, alternatively, this court might conclude that the jury took a 'merciful' view of the facts upon a charge.
4. To risk repetition, the gravamen of charge 2 (which resulted in a verdict of acquittal) was the alleged failure to provide information, instruction or training to employees; whilst the gravamen of charge 1 (which resulted in conviction) was the alleged failure to provide and maintain systems of work. Indeed, contrary to the contentions advanced by the applicant's counsel,[10] we consider that charge 1 plainly alleged a failure to have a system - in addition to information, instruction and training - that required a visual inspection.[11] That was sufficient to distinguish it from charge 2. Moreover, there was evidence to support the distinction.[12] The reliance of the applicant's counsel on Kirk did not advance their submissions.[13]
5. In our view, it was well-open to the jury to conclude that Supagas had provided its employees with such information, instruction and training to employees as was necessary to enable them to perform their work in a way that was safe and without risks to health (or, more properly, not be satisfied beyond reasonable doubt that Supagas had failed to do so), yet at the same time be satisfied to the requisite standard that - notwithstanding that it had provided the necessary information, instruction or training - Supagas had failed, so far as was reasonably practicable, to provide and maintain systems of work for its employees that were safe and without risks to health.
6. Given the evidence of Johnathan Dunks, Adam Sanders and Simon Sanders summarised above,[14] the jury may well have concluded that Supagas had indeed provided to its employees the information, instruction or training that was necessary to enable them to perform their work in a way that was safe and without risks to health (or, at least, fail to be satisfied beyond reasonable doubt that Supagas had failed to do so). To briefly recapitulate, Mr Dunks' evidence was that he was aware of the dangers of flammable gases. He had received specific training to only put flammable dangerous goods in open air vehicles, and recalled that such information and training had been provided in 'toolbox meetings' and in relevant documents. Adam Sanders gave evidence (among other things) that he had trained other employees at the Dandenong site in the use, handling and transportation of acetylene, and had 'buddied' with Jason Smirl and worked under his direct supervision. Mr Smirl, who was a supervisor with more than 10 years' experience, had provided him with handbooks and pamphlets - which he was instructed to read - setting out safe systems for using and transporting acetylene cylinders, as part of his training. Mr Dunks, Adam Sanders and another employee, Simon Sanders, gave evidence concerning the documentary information that was available to them (and customers) setting out the risks and hazards associated with acetylene. The three spoke of the 'Golden Rules' when transporting acetylene cylinders, the evidence being that these rules were 'drilled' into them.
7. On the other hand, there was evidence capable of satisfying the jury beyond reasonable doubt that, despite Supagas having provided its employees with the necessary information, instruction and training to enable them to perform their work in a way that was safe and without risks to health, it had nonetheless failed to provide and maintain a system of work that was safe and without risks to health.
8. Brief reference to some further evidence sufficiently illustrates the point. In December 2017, Simon Sanders was the branch manager for Supagas at Bayswater. He gave evidence that Supagas employees were taught to transport acetylene cylinders in non-enclosed vehicles, restrained in a vertically upright position. There was then the following passage of evidence concerned with customers:[15]

[PROSECUTOR]: ... What was the safety system in place on the dock to make sure that that also applied to customers?---We had, um, signs up or notices up.

Yes. What about instructions to employees working on the dock about what they should do?---So the - the guys in the shop, um, if they - if they thought - so someone would come in - they would ask them if they were in an open vehicle when they picked up a cylinder, um.

The guy in the shop would answer that question?---Yeah.

HIS HONOUR: This is the shop assistant, is it?---Yeah.

They'd ask whether it was an open vehicle.

[PROSECUTOR]: And if the person said 'no, it's not', what would happen? What were they trained to make sure happened?---Oh, they would tell them they couldn't take the cylinder.

Was the shop assistant in a position to see the vehicle, always, from their position in the shop?---Um, depending on how many vehicles were in there, no, not always.

And what about the person on the dock? What were they trained to do?---I - I guess that depends on the buddy that was training them. I can't say for definite that he would know that.

HIS HONOUR: Can't say for definite that he - is that the person that - - -?--- He would know - other person that was on the dock would know those rules.

Meaning about enclosed - - -?---M'mm.

As opposed to open? Yep. I - my assumption would be there that he was trained up with the person who trained him, but I - I can't - I - you'd have to ask the person that - - -

[PROSECUTOR]: Trained him?---That train - yeah.

HIS HONOUR: You can't say with 100 per cent?---No, I can't.

1. Simon Sanders also gave evidence that he could not say that shop assistants would ask a customer 'every time' whether they were in an open or enclosed vehicle, and said that there was 'no system in place to ensure that they asked it every time'.
2. In light of this evidence, the jury may have considered that Supagas had provided its employees with the necessary information, instruction, training or supervision concerning the risks associated with the transportation of acetylene cylinders to enable them to perform their work in a way that was safe and without risks to health - or, at least, not be satisfied beyond reasonable doubt that it had not - yet at the same time had failed to provide and maintain a system of work that was safe and without risks to health. So much would explain the conviction on charge 1 vis-à-vis the acquittal on charge 2.
3. Further, there is some substance in the respondent's submission that the jury's conclusions on charge 2 may well have been influenced by the prosecution's failure to call Jason Smirl. In his final address, senior counsel for Supagas had sought to attach a deal of significance to that failure. Given that the evidence revealed that Mr Smirl had been a supervisor for a decade, and had provided employees with information and training in the handling of acetylene, the jury may well have concluded that the prosecution had failed to call Mr Smirl because any evidence he could give would not have advanced its case on charge 2, that Supagas had not provided its employees with the necessary information, instruction, training or supervision. As to that, the judge directed the jury as follows:

The evidence was that the informant, or WorkSafe, did not interview Jason Smirl. He spoke to a number of customers. There was the explanation that those he spoke to had no relevant recall or could not give relevant evidence. Now, I direct you, as to Jason Smirl, there was a reasonable expectation that he be interviewed and called as a witness. You would expect that he could speak to Supagas safety system generally and, more particularly, could give evidence about training.

It is not satisfactorily explained why he was not interviewed and called. In such circumstances, you may conclude ... that he would not have assisted the prosecution case if called. Now, it is for you to decide on that. You must not speculate on what he would have said. You must act on the evidence that has been called.

1. Finally, we consider that there is no inconsistency between the acquittal on charge 2 and the conviction on charge 3. As we have indicated, there was a proper basis upon which the jury could have been satisfied beyond reasonable doubt that Supagas had failed to provide and maintain systems of work for its employees that were safe and without risks to health, whilst at the same time failing to be satisfied that Supagas had failed to provide its employees with the necessary information, instruction or training. For the purposes of charge 3, the jury may have concluded that, despite the fact that its employees had received the necessary information, instruction and training, by failing to maintain a system of work that ensured that customers' vehicles were always subjected to a proper check, Supagas had failed to ensure (so far as reasonably practicable) that persons other than its employees were not exposed to risks to their health and safety arising from the conduct of its undertaking.
2. For these reasons, the first ground cannot succeed.

Conviction ground 2: Expansion of the prosecution case?

1. Ground 2 asserts that a substantial miscarriage of justice arose as a result of the prosecutor, in his final address to the jury, introducing reference to a 'checklist' as a means of complying with the applicant's duty to provide a safe system of work, in circumstances where the possible use of a checklist was not opened by the prosecution and was outside the particulars of the charges.

1. In support of ground 2, counsel for Supagas submitted that, for the purposes of both charges 1 and 2, particular 2 of the charge alleged that the risk to the health and safety of employees working in the vicinity of the loading dock was that 'they could be seriously injured or killed by an explosion if acetylene gas cylinder bottles were supplied to and loaded into a customer's vehicle that was not suitable to transport acetylene gas cylinder bottles'.[16] To establish these charges, the prosecution was required to prove that the applicant had failed to reduce or eliminate the risk identified in particular 2 by failing to implement the reasonably practicable measures set out in particular 4.
2. Counsel for Supagas submitted that its 'defence' to all three charges on the indictment was that it had complied with its duties because it had a system of work in place that included the measures set out in particular 4, and contended that the evidence adduced at trial from Supagas employees demonstrated that this was so. Rather than abandoning the charges on the face of the evidence, counsel submitted, the prosecutor instead changed his case in his closing address to assert that all of the charges were proved because it was reasonably practicable for the applicant to document that system in the form of a checklist. The suggestion that the applicant's system of work should have included a checklist (or been otherwise documented) did not form part of the prosecution case as opened.
3. After the prosecutor's final address, counsel for Supagas had asked that the judge give the jury a corrective direction. Although the judge did give a direction, the direction was, counsel submitted, 'apt to confuse'. Counsel submitted that a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.[17] The measures the prosecution alleged that Supagas should have had as part of its system of work, and which founded the charges, were stated clearly in particular 4 to charges 1 and 3. It was no part of the case as pleaded and opened that the applicant's system of work should have been documented by a checklist (or otherwise). The trial judge erred by failing to direct the jury that it could not find the charges proven by reason of any failure to have documented the system of work (be it in a checklist or other form).

1. The respondent's counsel agreed that the prosecutor's opening did not include any reference to a checklist. But it was not required to. The argument advanced by the prosecutor in his final address was not a departure from the prosecution case as particularised in the indictment and opened. It was simply an argument, by way of example, concerning the ease with which Supagas could have implemented the particularised system of work.
2. But even should this Court conclude that the prosecutor should not have made the criticised argument, there has been no substantial miscarriage of justice. Counsel for Supagas took immediate objection after the prosecutor's final address. The trial judge asked defence counsel if the discharge of the jury was sought. Senior counsel said he did not. Significantly, senior counsel confirmed that he merely sought a corrective direction, and asked that such a direction be given prior to his closing address, rather than during the charge. There was then extensive discussion about the contents of the proposed direction, culminating in the trial judge giving the direction in advance of the defence final address.
3. Counsel for the respondent submitted that counsel for Supagas in this Court contended that the trial judge should have directed the jury that it could not find the charges proven by reason of any failure to have documented the system of work, be it in checklist form or otherwise. But, the respondent's counsel submitted, that is exactly how the judge directed the jury. There is no reason to infer, based on either the judge's direction or the jury's verdict, that the jury was confused by the direction. Any possible prejudice that could have arisen from the prosecutor's argument - the respondent's counsel did not concede there was any - would have been cured by the judge's direction.

1. In our view, senior counsel for the prosecution did not expand the prosecution case in his final address. He submitted in essence that it was up to Supagas how it implemented the requisite safe system of work, and referred to a docket checklist merely as an example of how that might have been accomplished. The passage extracted below from his final address illustrates the point:[18]

Prosecution submits to you that what was happening at Supagas was that everyone was aware of what was safe, in general terms, about how you use acetylene. But there wasn't a system which applied it to this specific instance. The employer has to ensure that that system is there. So those are the steps that we say should have been in place as a system of work. We don't have to demonstrate to you how Supagas should have done that process, but, the precise detail of that system - that's up to the employer. We just say the system should have had those elements. But for instance, the docket comes out of the shop with he wants an acetylene cylinder, here's his account number. It gets given to the guy on the loading dock.

Now, how about ventilated - tick. Can be secured - tick. Upright - tick. There's system, there's the checks on the docket, puts it on the thing, and you've got a record of it - was it a bulldog clip, I think he said. That doesn't have to be the detail of it. There are other ways to ensure that that system is in place, and it's up to Supagas to articulate or to put in place that system, in whatever way it thinks is appropriate.

Lastly, was it reasonably practicable to provide and maintain that system of work. Well, our submission to you is that the Supagas defence is that they already had it in place, so, on their case it seems to be there's no issue about that. It must be reasonably practicable if they say it was already there. But those are the measures that we say should have been there. And we have to prove that they're reasonably practicable, so, I need to just take you through what those step might be.

1. But even if the impugned argument was apt to add a new element to the prosecution case, we consider any prejudice to the applicant was remedied by the judge's directions.
2. At the close of the prosecutor's final address, senior counsel for Supagas informed the judge that there was a 'serious matter' he wanted to raise arising from the prosecution's final address. He submitted that the argument about a docket with a tick box is 'something which is not in the particulars', yet it is 'clearly a measure which is prone now to be relied on by the jury as a basis for conviction'. Counsel submitted that 'Kirk[[19]] makes it abundantly clear that the measures relied on by the prosecution must be specified and articulated ... [b]ecause they are the central aspects of the case'. Asked specifically by the judge, however, whether he sought a discharge of the jury, senior counsel for Supagas said that he did not. Senior counsel for the prosecution did not resist the giving of a direction if the judge considered 'that is the way to maintain fairness to the defence'. There was then a deal of discussion between the trial judge and counsel concerning the content of the direction.
3. In the result, the judge then told the jury he needed to give them a direction, arising from the prosecution's argument about 'a tick box or check box document at the loading dock', in order to make plain to the jury 'what has to be proven in this case, so [they] properly understand it'. He provided the jury with a copy of the indictment and directed the jury as to the elements that needed to be proved beyond reasonable doubt. The judge then took the jury to the particulars, with specific attention to particular 4,[20] and gave the following directions:

So, another way to put it, referring to what I need to specifically or particularly deal with, in what I'm saying to you now; another way of putting it is this: 'The case to be made by the Crown and to be met by the defendant is stated by those Particulars; those identified measures in the indictment.'

Particular 4 on Charge 1: 'Therefore [and I need to make clear to you] the specific failure to provide a tick box document', you note, is not such a particular. Therefore, you cannot convict by simply finding that Supagas did not provide or use such a document, such a check box document. You need to be very clear on that.

Now, the argument put to you, seemed to me, rather to be this: 'On Charge 1 or Charge 1 alleges a system of work which fails to take those measures in Particular 4', and it was being put to you, it was put to you on the basis of some leave, and it's in the case, I'm referring in particular to Mr Hunt[[21]] now, that documents or documentation should be a significant part of such a system. In order, for example, to ensure that each measure is met; known and met within the company. Now, so the argument went. This tick box document is an example of what could be done which was reasonably practicable.

Now, there are two problems with the argument. One is what I've already said to you. It cannot be seen as asking for or enabling you to convict simply because there was no such check box document in the system. Also, secondly, it needs to be pointed out that the tick box document is a product of [senior counsel for the prosecution]. Not a product of evidence in the case. For example, or what I mean is, it was not specifically put to witnesses ... and to the employees who had experience of the system. I'm talking about Simon Sanders, Adam Sanders, Jonathon Dunks. Not put to them for their consideration, and possible explanation or rejection of the practicability of it in their system. So, you need to bear that in mind.

Now, I raise this now, and will likely return to it when I deal with counsel's arguments. Be clear on this, it's not a criticism of [senior counsel for the prosecution], it's simply that you need to be made aware, very clearly, very clearly, what has to be proven in this case. ...

1. As we have said, in this Court counsel for Supagas submitted that the directions set out immediately above were 'apt to confuse'. We disagree. When the directions are read fairly and in context, it is plain that the jury would have understood that they could not use the applicant's failure to have a 'check box' as part of its system of work as a basis for convicting Supagas. In our view, any possible prejudice that may have arisen from the prosecution's final address was effectively neutralised by these directions.
2. Our opinion that the judge's directions were effective to negate any prejudice is fortified by the fact that experienced senior counsel for Supagas neither sought further directions, nor sought the jury's discharge. Had he considered that the prejudice to his client had not been nullified by the judge's directions, presumably he would have done so.
3. The second ground must fail.

Conviction ground 3: An aggregation of errors?

1. Ground 3 complains that a substantial miscarriage of justice arose from the asserted errors founding grounds 1 and 2, and from the judge's answer to a question from the jury.
2. During their deliberations, the jury asked two questions, the first of which was as follows:[22]

Legally does the process and procedures that ensure a safe system of work need to be documented?

1. When the trial judge first raised the question with counsel, he said he would 'hear submissions about it but [his] immediate or initial response is that - the brutally short answer is no'. Prosecution counsel agreed that the answer was 'no', but added that it had to be put in the 'factual context'. Ultimately, counsel for the applicant also submitted that 'the short answer should be no' and nothing more than that.
2. The judge then said to counsel (in the absence of the jury):

All right. After reading the questions out, as to Question 1, 'The brutally short answer is no'. Your question, I presume, derives from evidence that safety procedure [emphasising that] should be documented. However, training as to that is not necessary and may be oral. That is evidence that you must consider and assess together with all of the evidence on the relevant trial issues. The defence pointed to evidence of documentation in Supagas operations. I have taken you to the evidence in the case and to arguments about it and I don't think it will be helpful to return to that.

'To answer your question in the short way again, it is a question of fact for you, not of law.' ...

That's what I propose saying. Do you want to say anything about that?

1. After the jury returned to court, the judge answered the first question in the following way:

Can I deal with the first question which deals with whether or not documentation is legally required. The brutally short answer is no. To attempt to help you a little more, I would say this. Your question, I presume, derives from evidence that you've heard that safety procedure should be documented. However, training as to that is not necessary. It may be oral. Now, that is evidence before you that you must consider and assess together with all of the evidence on the trial issues. The defence pointed to evidence of documentation in Supagas operations in argument. I have taken you to the evidence in the case and to the addresses and I don't think it'll [be] helpful for me to do that again. To answer you again in that broader quicker way, what you've raised here is a question of fact for you, not of law.

1. In this Court, counsel for Supagas submitted that the trial judge should simply have answered the first question 'no', and further directed the jury that they could not find the charges proven on any failure to have the system documented because that was not part of the prosecution case as particularised. Counsel submitted that the trial judge initially correctly identified the answer to the question as being 'no', but then obscured and confused the issue by suggesting, first, that the evidence was that safety procedures should be documented, but training need not be, it could be oral; and, secondly, by stating that what the jury had raised was a question of fact, and leaving it open to the jury to convict on the basis that the safe system of work should have been documented. The jury were plainly asking whether there was any direct requirement of documentation of a system of work. Counsel submitted that the judge was wrong to instruct the jury that it was a question of fact, not law. It was a question of law and should have been answered 'no'. Further, the jury should have been directed that it could not find any of the charges proven on the basis that the system was not documented, since that was not part of the prosecution case. Counsel contended that the trial judge's failure to so direct resulted in a substantial miscarriage of justice.

1. The respondent's counsel submitted that if grounds 1 and 2 are not made out, ground 3 should also fail. The additional complaint about the judge's answer to the jury's question does not - either on its own, or in combination with the alleged errors in grounds 1 and 2 - justify a conclusion that there has been a substantial miscarriage of justice. Counsel for the respondent submitted that the judge had given the direction he had foreshadowed, telling the jury that the 'brutally short answer is no', referring very briefly to some of the evidence (including evidence relied on by the applicant), and finishing by saying that 'what you've raised is a question of fact for you, not law'. That there was no error in the direction is demonstrated by the fact that the applicant's counsel did not take any exception to the direction.

1. In our view, the directions that the judge gave to the jury in answer to their first question were correct. Giving the judge's directions in answer to the jury's question a fair reading, the jury would have understood that, whether Supagas had provided and maintained systems of work that were (so far as reasonably practicable) safe and without risks to health, was a question of fact for them, not law. The jury would also have understood that, as a matter of law, 'the process and procedures that ensure a safe system of work' did not have to be 'documented'. None of this betrayed error.
2. Insofar as other aspects of ground 3 depended on the applicant making good the contentions advanced under cover of the first and second ground, no aspect of ground 3 has been made out. It must fail.

Sentence ground 1: Error in assessing the gravity of the offences?

1. On the plea, counsel for Supagas submitted that the gravity of a breach of the Act is informed by the extent to which the convicted company has departed from its statutory duty; the likelihood of a risk materialising; and the potential consequences if it did. The consequence of a risk-based offence, in any given case, is relevant only in so far as it can demonstrate the potential seriousness of a risk if it materialises. Counsel submitted that the fact that an injury resulted is only relevant to the extent it demonstrates the degree of seriousness of the risk. In this case, the objective seriousness of the breach under s 21 of the Act is at the 'low end' of such a contravention.
2. The prosecution submitted on the plea that the applicant's departure from its statutory duty was 'significant'; the likelihood of the risk eventuating as a result of that departure was 'very high'; and the potential consequences were very 'serious'.

1. In his reasons for sentence, the judge said (in a passage impugned by the applicant):[23]

The impact of the explosion upon John Portelli has been devastating. It is relevant to and reflects the nature, likelihood and level of the risk entailed in handling such gas cylinders as here.

1. The judge observed that there is and was 'a high risk of very serious consequences in handling and transport of such volatile gases as acetylene'. Supagas 'must be seen as well aware of the particular dangers and safeguards necessary to reduce them'. The judge said that, consistently with the jury verdicts, he would find that the relevant Supagas employee 'failed to observe the unsuitable nature of the [Mr Portelli's] Toyota's toolbox'. In the judge's view, the 'gravamen of the offending on both charges is that the [applicant's] system in place failed to ensure, albeit as far as reasonably practicable, requisite safety for employees and for non-employees'. Supagas 'failed to take necessary steps to ensure that there was consistent sufficient inspection, for example, of the vehicles presenting for collection as to their suitability for such dangerous cylinders as the E size acetylene'. Finally, the judge said:

The offending must be seen in the objective sense (for example, bearing in mind a high level of risk and the nature of risk) as a serious example of this offending. There must be a fine proportionately reflecting that and the earlier stated relevant sentencing purposes. However, culpability must also be measured by the extent of the failure. Here the [applicant's] failure was not in the realm of disregard. It had a number of measures in place to address safety. However, the system failed to sufficiently provide, maintain and ensure that.

1. Supagas contended under cover of the first ground with respect to sentence that the judge erred assessing the gravity of the offending 'as a serious breach of statutory duty which constituted a significant departure from the standard required', incorrectly applying the principles in Dotmar[24] and Frewstal.[25] Counsel for Supagas submitted that, in the passage set out above,[26] the judge erred in assessing the likelihood of risk of explosion by conflating it with the extent of harm that did materialise. The likelihood of explosion from the supply and transportation of acetylene in vehicles, counsel submitted, is 'exceedingly low'. Counsel submitted that the judge misdirected himself on the likelihood of risk - being a risk of an explosion if acetylene cylinder bottles were supplied and loaded into an enclosed vehicle - by reference to injury if an explosion occurred. Further, focussing on part of the judge's sentencing remarks,[27] counsel submitted that the basis for the sentencing judge's conclusion that the applicant's system was insufficient was not disclosed. He did not identify the measure that should have been taken.
2. The respondent accepted that the likelihood of an explosion from the transport of acetylene is low if done safely. In the present case, however, the applicant's breach was a failure to provide and maintain a system of work aimed at ensuring that the 'golden rules' of transporting acetylene cylinders were followed; that is, that the cylinders are upright, secured and well-ventilated. It is adherence to the golden rules that keeps the incidence of explosion to a low level. The respondent's counsel submitted that it was therefore open to the judge to find that the risk of an explosion if the applicant failed to ensure that the golden rules were followed was 'high', and to find that the potential consequences of such an event were 'very serious'. With respect to the applicant's assertion that the judge did not disclose the basis for his conclusion that the applicant's system was insufficient, or identify the measure that should have been taken, counsel for the respondent submitted that there was no need for the judge to do so. He said he would sentence consistently with the jury's verdicts. By their verdicts, the jury found that Supagas had failed to provide and maintain the system of work set out in particular 4 of charges 1 and 3.

1. Frewstal involved a fatal accident, resulting in conviction of three charges under s 23 of the Act. In discussing the effect on penalty if death or serious injury has resulted from the relevant breach of the Act, Priest and Kaye JJA said:[28]

In our opinion, sentencing judges should be guided by the following principles:

• First, unlike cases of unlawful homicide, the occurrence of death or serious injury is not an element of the offences charged. An accused is punished according to the gravity of the breach of duty owed under the OHSA, not according to the result or consequences of the breach.

• Secondly, the gravity of the breach is measured by two factors - the seriousness of the breach itself (that is, the extent to which the defendant has departed from its statutory duty); and, the extent of the risk of death or serious injury which might result from the breach.

• Thirdly, an assessment of the extent of the risk itself involves consideration of two factors - the likelihood of the occurrence of an event as a result of the breach (such as the event that occurred in the particular case) endangering the safety of employees or others; and, the potential gravity of the consequence of such an event (in particular, whether there is a risk of death or serious injury).

• Fourthly, the fact that the breach in the particular case resulted in death is relevant only in the sense that it might manifest or demonstrate the degree of seriousness of the relevant threat to health or safety resulting from the breach.[29]

1. In our opinion, the judge sentenced in accordance with these principles. Thus, when he referred to the devastating impact of the explosion on Mr Portelli - the very serious injuries that he had suffered - as reflecting the 'level of risk' entailed in handling acetylene cylinders, the judge should be taken as doing no more (or less) than acknowledging the potential gravity the consequences of a breach of the applicant's duties under the Act. We consider that there is no force in the suggestion that the judge in effect conflated risk and result.[30]
2. Moreover, we see no error manifested in the judge's observation that there is and was 'a high risk of very serious consequences in handling and transport of such volatile gases as acetylene'. It may be that the risk of explosion resulting from the handling of acetylene cylinders generally is relatively small; but, as the respondent submitted, that must be so only if the 'golden rules' are followed. Clearly, the likelihood of the occurrence of an event as a result of the breach of the golden rules - an explosion caused by the ignition of volatile gases - will increase if the cylinder is transported in a vehicle that is insufficiently ventilated. That, in our view, is what the judge was endeavouring to convey when he observed that there is 'a high risk of very serious consequences in handling and transport of such volatile gases as acetylene'. And there can be no doubt that, given its longstanding participation in the relevant industry, Supagas must be seen as well aware of the particular dangers of handling and transporting acetylene gas cylinders, and of the safeguards necessary to reduce them.
3. Furthermore, the basis upon which the judge concluded that the applicant's system is insufficient is made sufficiently plain in his reasons. The judge made it clear that he would sentence in a way that was consistent with the jury's verdict, in circumstances where the gravamen of the relevant breach of duty found proven by the jury on charges 1 and 3 was the failure of any Supagas employee to observe the unsuitable nature of Mr Portelli's vehicle to transport acetylene gas cylinders. The measure that the judge considered should have been taken was, for example, taking necessary steps 'to ensure that there was consistent sufficient inspection ... of the vehicles presenting for collection as to their suitability for such dangerous cylinders as the E size acetylene'.
4. None of the criticisms levelled under this ground have substance. The first ground touching sentence cannot be sustained.

Sentence ground 2: A manifestly excessive sentence?

1. Ground 2 contends that the fine of $275,000 imposed without conviction on each charge is manifestly excessive.
2. We do not agree.
3. While the gravity of the applicant's offending did not depend on whether death or injury had been caused, nonetheless the impact of the offending on Mr Portelli was a matter that the judge was required to take into account. Mr Portelli suffered very serious injuries, including brain injury and multiple fractures. He spent four months in hospital, and continues to suffer ongoing problems. As was said in Vibro-Pile:[31]

The provisions of the Sentencing Act 1991 are quite clear. The sentencing court is obliged to consider the impact of the offending on victims, that is, on persons who suffer loss and damage as a 'direct result' of the offending. For these purposes, it makes no difference whether the duty breached is a duty owed to employees (ss 21 and 22) or to others (s 23).

1. The potential gravity of the consequences of the applicant's breach were serious, and could have been ameliorated by the simple expedient of checking Mr Portelli's vehicle to ensure that it was suitable for the transportation of acetylene gas cylinders. Furthermore, although Supagas was not to be punished for its failure to plead guilty, it did not have available to it the mitigating influence on sentence that would have flown from a plea of guilty. Notwithstanding these features - and being cognisant of the need to avoid naïve fractions - the total sentence imposed on the applicant represents less than 20 per cent of the available maximum.
2. Importantly, by not imposing a conviction, the judge extended significant leniency to the applicant. It is generally recognised that the mere recording of a conviction is a significant punishment.[32] The judge did not impose a conviction, accepting that imposing a conviction will, or will have the real potential, to adversely affect the applicant, including 'impacts upon business reputation and relationships, contractual arrangements, future tenders for contract and future application and maintenance of hazardous goods or facility licenses'. In not imposing a conviction the judge also took account of the applicant's 'character and past history in the sense of safety record as being particularly good ... in the context of long engagement in a business of handling, storage, supply and transport of volatile, dangerous goods'.
3. In Leimonitis, it was observed:[33]

As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[34] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[35] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[36] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[37]

1. We consider that the fine imposed on each of charges 1 and 3 was well within the range of sentences open to the judge in the sound exercise of the sentencing discretion. Although, as the judge observed, the charges 'are very closely aligned, essentially arising out of the same events', the potential victims of the risk to which each charge related are different. The judge was entitled to form the view that the two charges were of equal seriousness, and to impose fines of the same order.
2. Ground 2 is not made out.
3. For completeness, we would make two final observations. First, so far as the principle of parity is concerned, we note that Mr Portelli's employer was fined $175,000 on a rolled-up charge under s 21 of the Act, and $125,000 on a charge under s 23 (a total of $300,000),[38] but that, unlike the applicant, it had pleaded guilty (and, in any event, did not receive the benefit of a non-conviction disposition). Secondly, none of the factual circumstances of the 'comparative' sentencing cases relied upon by Supagas were truly comparable to the circumstances of this case.

[1] On each charge, the maximum fine available was 9000 penalty units ($1,427,130).

[4] Despite its drafting, presumably the ground is meant to convey that the convictions on charges 1 and 3 are inconsistent with the acquittal on charge 2.

[5] Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 ('Kirk').

[6] MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 368 ('MacKenzie').

[7] See [47] et seq below.

[10] See [25] above.

[11] See [22] above.

[12] See, e.g., the evidence referred to at [17]-[19] above, and [39]-[41] below.

[13] See Greater Shepparton Council v Magistrates' Court of Victoria & Anor [2025] VSCA 33, [41]-[42], [50] (Niall CJ, Emerton P and Gray AJA).

[14] See [17]-[19].

[16] See [22] and [23] above.

[17] Counsel cited Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 489 (Dixon J).

[18] Emphasis added to this and following passages.

[19] Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531.

[20] See [22] and [23] above.

[21] William Hunt was a chemical engineer who (among other things) gave evidence in the prosecution case concerning the safe handling of acetylene.

[24] Dotmar EPP Pty Ltd v The Queen [2015] VSCA 241 ('Dotmar').

[25] DPP v Frewstal Pty Ltd [2015] VSCA 266; (2015) 47 VR 660 ('Frewstal').

[27] See the passage extracted at [73] above.

[28] Frewstal, 686 [127]. See also DPP v LH Holding Management Pty Ltd; DPP v Hanna [2025] VSCA 75, [62] (Priest and McLeish JJA) ('LH Holding').

[29] Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610, 650 [95].

[31] DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55; (2016) 49 VR 676, 723 [195]. See Sentencing Act 1991, s 5(2)(daa) and (db).

[32] See R v Sessions [1998] 2 VR 304, 313 (Hayne JA).

[33] Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA).

[34] R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12] (Priest JA); Allen v R [2013] VSCA 44; (2013) 36 VR 565, 573 [51]-[52] (Priest JA).

[35] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6] (Gleeson CJ and Hayne J).

[37] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-672 [15].

[38] DPP v New Sector Engineering Pty Ltd [2020] VCC 400.