THE QUEEN v ORBIT DRILLING PTY LTD

County Court of Victoria|2010-04-28

1 In December 2006, Bradley Alford was 21 years old. He wanted to work in the mining industry. He had obtained his heavy rigger driver's licence on 23 November 2006. He had had 11 one-hour lessons over the previous three months, and had failed in two previous attempts to get his licence before 23 November. He had not, before getting his licence, been given any instruction on operating heavy vehicles off-road, and in particular on steep slopes off-road.

2 Within a week of obtaining his licence he had secured employment with Orbit Drilling Pty Ltd ("Orbit"), and had been flown from his home in Western Australian to Clonbinane in Victoria to work on an exploratory drilling operation on a rural property.

4 Whatever induction he had been given by Orbit, his employer, it did not include any instruction in driving heavy vehicles off-road and in particular down steep off-road slopes.

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

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

7 Bradley Alford drove the truck slowly down the hill as directed but he was unable to stop the truck below the drill pad because of the defective brakes. The truck continued to head down the hill gathering speed as it went. He was unable to maintain control over it. It hit rougher ground in a gully at the bottom of the hill and overturned. Bradley Alford was thrown from the truck as it rolled. He was killed on impact. It is this that leads to Orbit pleading guilty to one count of recklessly engaging in conduct that places another person at a workplace in danger of serious injury, and Martin John Smith, the managing director of Orbit, pleading guilty to one count of being the officer of a company which breached its obligations to provide or maintain for employees plant and systems of work that were so far as reasonably practicable safe and without risks to health, and whose breach of its obligations was attributable to him as the responsible officer failing to take reasonable care.

8 Both offences are serious and unusual. I am told that this is the first case of a charge of reckless conduct brought against an employer. Usually employers are charged with an offence under s.21 of the Occupational Health and Safety Act 2004 (Vic) of failing to provide or maintain a safe workplace (or in the circumstances of this case failing to provide or maintain for employees plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health). That is a strict liability offence. And if not the first case, it is rare that a director is charged with a breach of director's duties or officer of a company's duties in respect of a company's failure to comply with its obligations to provide or maintain safe plant and systems of work.

9 The maximum penalty for the count of reckless conduct is 9,000 penalty units or $966,870. Somewhat curiously it is the same maximum penalty as for a breach of the strict liability provisions of s.21, the failure to provide so far as is reasonably practicable, a safe work place.

10 The maximum penalty for the count of breach of director's obligations or director's liability in respect of a company's breach of failing to take reasonable care to ensure the company complies with its obligations to provide a safe workplace under s.21, is 1,800 penalty units or $193,374.

11 The comprehensive brief of evidence and the comprehensive summary provided by Mr Papas S.C. in the course of the plea revealed serious and systemic failures by the employer company Orbit which resulted in Bradley Alford's death. A company acts through its officers, managers and employees, and the failures of Orbit in respect of its obligations to Mr Alford resulted from the actions or inactions of its principals including in this case you, Mr Smith, the managing director.

12 The failures fall into two categories. First, in respect to the grossly inadequate induction training and supervision of Mr Alford, and secondly, the culpable failure to properly maintain the Mack truck or to ensure it was safe and fit to use in the conditions in which it was to be used.

13 In addition, so far as Orbit is concerned, there is the reckless conduct, that is the continued use of the truck and the direction to Mr Alford to drive it in its defective state knowing the brakes were defective.

14 Dealing with first with the defects in induction training and supervision of Mr Alford, I have already detailed the very limited nature of his training and experience in driving heavy vehicles, having had his licence for less than two weeks, only having had 11 hours of instruction, and twice failing before getting his licence. Unsurprisingly Mr Alford's training before he was employed was limited to driving on roads. He had no instruction in off-road driving of such vehicles. The evidence before me indicates that that is a specialist skill required in particular areas of activity such as mining operations.

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

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

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

18 The prosecution summary, which was not contested either by Orbit or Mr Smith, details an employer's obligations in respect of the training of new employees who are required to drive heavy vehicles. Those obligations include these:

• Introducing the employee to the particular vehicle and the work environment in which she or he was required to operate it.

• Conducting an assessment of the employee's capabilities and experience in respect to the particular vehicle and the environment in which she or he is required to operate it.

• Providing adequate training and supervision to ensure the driver can safely operate the vehicle in the conditions.

19 In general terms, the less experience a driver has, the more assessment training and supervision is required. Off-road driving requires drivers to learn new skills to those on-road. They must be taught an understanding of the vehicle's capabilities off-road and proper terrain appreciation. This determines the correct gear and range selection for off-road conditions.

20 In addition, drivers need to personally ensure that a vehicle is fully functional before starting any task. This means they need to know how to check properly that the vehicle is fully functional. This is particularly critical according to the expert's opinions when driving off-road. According to the agreed summary the general practice of the truck industry is not to put new employees straight into heavy trucks or specialist equipment, particularly so when a new employee is an inexperienced operator. There should first be induction training in the organisation which should include safety training. Drivers should work their way up from light or medium trucks under supervision until they have been assessed as having acquired the skills necessary to operate heavy vehicles. Clearly none of these things that I have catalogued operated for Mr Alford.

21 Dealing now with the pre-accident condition of the Mack truck. The truck had not been serviced since May 2006. It was in generally poor condition. The brakes were defective and the supervisor Mr Barton was aware that the parking brakes were not working. Examination after the accident revealed that the nature of the defect, maladjustment of the slack adjusters, equally affected the rear brakes and the park brake. The rear brakes were so far out of adjustment that they were inadequate to stop the truck on the slope. The brakes in particular as well as the truck generally had not been adequately maintained. In addition to the defective brakes a post event inspection of the truck revealed other defects. In particular, the Dynatard or engine braking device was inoperative, there was inadequate information on the dash and the odometer was not working. These suggest some of these defects at least had existed before the day Mr Alford was directed to drive the truck at Clonbinane.

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

23 The prosecution summary contained the following proposition in respect of that. If the truck had been in proper working order, and in the hands of a fully qualified driver, there would have been no reason why the task being performed on 9 December by Mr Alford could not have been safely conducted. In my view this is a shocking indictment of the conduct of Orbit and of its managing director Mr Smith. The evidence makes it quite clear that had basic and fundamental steps been followed in respect of induction, training and supervision of Mr Alford and the use of the Mack truck on that site, and in respect of the proper inspection and maintenance of the truck, that the task that Mr Alford was instructed to do would have been able to have been performed safely and without risk to him. Instead, an untrained and inexperienced driver was directed to drive a poorly maintained heavy truck with a known defect to its brakes down a steep off-road slope. As a direct result of those failures Mr Alford died.

24 Generally, employers who fail to provide a safe working environment, that is safe and without risk to health, are charged under s.21 of the Occupational Health and Safety Act 2004. That is a provision that imposes strict liability on employers in respect of provision of a safe working environment so far as is reasonably practicable. As I have already said, this is the first time an employer has faced a charge of reckless conduct endangering another at a workplace under s.32 of the Occupational Health and Safety Act 2004. Thus the gravity of the offence to which Orbit has pleaded guilty is assessed not by reference to the imposition of strict liability on an employer but rather by reference to a particular state of mind. That is, knowledge attributable to the company that serious injury would probably result from the conduct of the company through the agency of its site manager in directing an untrained, unsupervised and inexperienced driver to drive an inadequately maintained heavy vehicle known to have defective brakes down an off-road slope too steep to permit the defective brakes to slow or stop it. That is the way I characterise Orbit's culpability.

25 Mr Smith, so far as your liability is concerned, the prosecution does not put it that you were aware of the circumstances to which I have referred. Your liabilities are that of the director of the company, the managing director with responsibility for the operations of the company. You bear responsibility for the combination of events which led to that situation where an untrained, unsupervised and inexperienced driver could be directed by his supervisor, the person responsible for the company's operations at that site, to drive a heavy vehicle which had not been properly maintained, with a known defect to its brakes in such dangerous circumstances, namely down an off-road slope too steep to permit those defective brakes to slow or stop it.

26 Had Orbit and Mr Smith complied with their obligations under the Occupational Health and Safety Act 2004 Mr Alford would not have been placed at risk in the manner in which he was. In my view his death is a direct consequence of directing him to drive down that slope in the circumstances of your failure, Mr Smith, to ensure that the company complied with its obligations to ensure the safety of workers in a work place, and the company's reckless conduct in placing him at risk by having him drive the truck in the circumstance in which he did.

27 Mr Papas submitted and Mr Taylor acknowledged that in cases involving work place safety, protection of the worker is paramount and general deterrence normally assumes considerable significance. Mr Papas further submitted that there were here, assessed objectively, very serious breaches of the occupational health and safety obligations, and in such circumstances subjective features connected with the offender were of less significance.

28 He submitted that in assessing the seriousness of the breach the foreseeable, potential consequences had to be taken into account. As a result, Mr Papas submitted, correctly in my view, that these were very serious examples of their sort and that the penalties for both Orbit and you, Mr Smith, fell at the high end of the range.

29 As I understood the thrust of his submissions, Mr Taylor did not disagree with the general tenor of what Mr Papas put in that regard. In particular, he did not suggest that these were not serious examples of their sort, although on the actual figures submitted by Mr Papas as the range of fine available to me or range of fine that I should impose, Mr Taylor submitted that the range identified by the prosecution was too high and particularly did not allow sufficiently for both the pleas of guilty and the other mitigating features relied upon.

30 Making my own assessment of the objective seriousness of the breaches of the Act as I must do, I too am of the view that the objective indicators of seriousness that I have identified make it clear this is for both accused high end offending.

31 Before dealing with the mitigating features relied upon by Mr Taylor in the course of his careful and comprehensive plea, and the weight to give to them, I want to deal with Mr Taylor's submission that the Crown range put to me was too high on the basis that if one assessed it as allowing a 25 per cent reduction for a plea of guilty it did not allow any weight to be given for the other mitigating factors. That was because the range that was put by Mr Papas was about 75 per cent of the maximum..

32 As I said to Mr Taylor in the course of the plea submissions, that seemed to me to be a wrong approach because it suggested a tiered approach to sentencing, whereas intuitive synthesis means that the sentence ultimately I must arrive at is a single sentence which factors in all matters including objective seriousness, any aggravating features and any mitigating features. I take the view that in the circumstances of this case were I to attempt to make a s.6AAA Sentencing Act 1991 (Vic) declaration allowing simply for the bare plea of guilty but not taking into account the other factors relied upon linked with the plea of guilty, and which operated to mitigate the sentence which would otherwise be appropriate, that it would be to take a two tiered approach. In my view the linking of the mitigatory factors relied on to the plea of guilty means that the s.6AAA declaration that I must make of the sentence that I would have imposed but for the pleas of guilty is one which is a more complex or nuanced declaration taking into account the general mitigating features as well as the bare plea of guilty.

33 Mr Taylor's submissions in this case concerned in particular the considered decision by Mr Smith and Orbit to continue trading. The remedial steps taken by Orbit and Mr Smith were very much linked to the fact of the plea of guilty and were the main mitigating features relied upon. It would be artificial to separate them out and as I understand it I think Mr Taylor ultimately conceded that in argument.

34 Before coming to the mitigatory features let me just deal with the victim impact statements that were provided by Mr Alford's mother, father and surviving brother and sister. His mother and sister were present in court during the hearing of the plea and his family are present by video link today for the sentence. Their presence on both days and the contents of their statements is eloquent testament to their grief at the loss of their son and brother. Mr Alford's mother spoke too of the compounding of her grief by the anger she felt when she realised that her son's death was an avoidable death. As she pointed out he was a young man with his future ahead of him.

35 It is far too easy to rail against what sometimes appear to be unnecessary time wasting or expensive measures which Acts or Regulations require employers to put into place in order to ensure the health and safety of people in work places. A case such as this is a stark reminder that behind every procedure designed to ensure plant and systems of work are safe and without risk to health for workers is a real person, somebody's child, parent, spouse, sibling or friend whose safety and well-being should be at all times a paramount concern of the employer. That is one of the reasons why failure to do what is reasonably practicable to provide a safe and healthy working environment for employees is a strict liability criminal offence and not simply something that gives rise to civil liability if negligence to be proven. It is also one of the reasons why the Occupational Health and Safety Act 2004 now creates a separate offence of recklessly endangering a worker.

36 It is also clear from the material presented before me on the plea, that Orbit and Mr Smith have accepted that there were serious and systemic failures in respect to the induction, training and supervision of employees and maintenance of plant and equipment which led to Mr Alford's death. A very considerable body of material was put before me to demonstrate that acceptance of responsibility after the event by the company and Mr Smith, and to show the significant steps they have now taken to ensure that plant is safe and properly maintained and that systems of work have been implemented to ensure as much as is practicable that employees are in a safe working environment.

37 The materials placed before me by Mr Taylor indicate that a comprehensive review of the existing plant has occurred and that has resulted, amongst other things, in replacement of the truck and the rig that were used at Clonbinane. New systems for induction, training and supervision of employees, and in particular for assessing the safety of tasks to be performed in the course of the company's enterprise have been introduced.

38 I accept that these very significant steps that have been taken since Mr Alford's death, and have been taken to remedy the shortfalls which led to his death and that comprehensive steps have been taken to introduce and implement ongoing systems designed to ensure continued compliance with occupational health and safety requirements and the protection of the safety of workers. That included investing a substantial amount of money in upgraded plant and equipment and employing a dedicated occupational health and safety manager whose responsibilities included carrying out the comprehensive review which has now been completed, re-writing the occupational health and safety procedures and conducting comprehensive employee occupational health and safety training for existing as well as new employees.

39 Although most of the material presented to me in the folders tendered on the plea was the product of work introduced following the employment of the current occupational health and safety manager Mr Girman in 2009, I was told that this was the culmination of steps which had been underway since Mr Alford's death and I accept that.

40 I was taken through two large folders which set out the newly rewritten procedures manual which is presented by way of slide slow at induction to all new employees and then provided to them in hardcopy. I was taken to examples of the manner in which the processes for ensuring occupational health and safety on a daily basis were conducted. Those folders included job safety and analyses, hazard and risk identification procedures, check lists for vehicle safety and maintenance and daily inspections and detailed procedures for performing tasks and safety assessments in respect of all tasks to be undertaken in the course of the company's enterprise. And I was shown photographs of the new truck and drill rig purchased to replace the truck and rig used by the company at Clonbinane.

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

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

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

44 In addition to the reliance on the steps taken since the death of Mr Alford to remedy the breaches and failings which gave rise to his death, the following matters were also relied upon. The history of Orbit and the background and circumstances of Mr Smith; the effect on Mr Smith personally of the death of Mr Alford and the significance of that to the commitment he has made to the steps that he and the company have taken to remedy the defects which led to the death; the significance of delay between the events of December 2006 and the hearing of the plea in April 2010 on Mr Smith and on the company; the significance of the pleas of guilty and the stage at which they were entered and the significance to the sentencing of the company of the fact that the penalty for the offence to which it has pleaded guilty is the same as the maximum penalty for the strict liability offence under s.21.

45 Dealing with those in turn. So far as the history of Orbit, and the background and circumstances of Mr Smith and the effect on him personally and the significance of that to the steps taken to remedy the defects are concerned, the evidence before me indicates that Mr Smith built Orbit up from scratch after he himself started out as a young man working in the mining industry as an offsider on a drill rig in Kalgoorlie in days that were, I was told, or in times I was told were much less conscious of health and safety in mining work places.

46 In the 15 years since Mr Smith started Orbit he has built a very successful business and provides a specialist or niche service of providing mobile drillings rigs capable of working in remote and environmentally sensitive areas.

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

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

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

50 I accept on the material before me that Orbit has gained, it would appear, a well deserved reputation for providing a very good service in the mining industry and a good reputation for the quality of its work and the reliability of its work and its operations. In that regard I accept the evidence of Mr Turpu as his dealings with Mr Smith and Orbit in the company's operations in Queensland in recent times. It is clear that the company has become a very successful company in the area in which it operates.

51 As for you, Mr Smith, you are now a 46 year old man, the father of two young adult sons and a younger daughter still at primary school. I accept that you have a long history of hard work as an employee as somebody who worked up to responsible management positions in larger companies and then had the diligence and enterprise to establish your own small business which you have grown into a much more significant business.

52 All of that shows commitment, dedication and hard work. I accept that you have worked hard also to be a good husband, father and provider for your family. One mark of that is that although you separated from your wife sometime ago and ultimately divorced, you and she are now working to restore the marriage and to continue to provide stability and family life for your children. Even during the difficult times of your disruptive marital relationship the two of you worked very hard to ensure that your children were not adversely affected by what was happening between the two of you.

53 I also accept that you have been personally distressed by the death of Mr Alford and by the appreciation of the fact that it was your failure to take reasonable care to ensure the company complied with its obligations as well as the company's recklessness in acting as it did that caused the death of this young man and I accept that you bear a considerable personal burden of guilt for that.

54 I also accept that your conduct since then is reflective of that and demonstrates a genuine desire to make sure that nothing like that ever happens again on your watch. I accept that all of those matters are relevant to the fact that you have accepted moral culpability, that you have displayed genuine remorse, that you are unlikely to re-offend in this way again and that the company is unlikely to re-offend in the way it did again.

55 I also accept that the company has never had an incident like this before and therefore both you and it must be treated as first offenders. I also take into account in your favour this, that you had thought long and hard about leaving the mining industry as a result of what happened to Mr Alford but you decided to remain in it and to make the commitment to improving the vehicles and plant and the training, supervision and safety procedures of the company to ensure as best as possible that something like this never happened again.

56 The company therefore remains a trading entity and you remain a person of means. Therefore both of you have the means to be able to pay the fines that you accept will be imposed upon you. This is not a case therefore where by the time a matter of breaches of employer's obligations under the Occupational Health and Safety Act 2004 come before a court the company has been wound up and there is no operating entity capable of paying any penalty imposed.

57 The fact that you have decided to remain in it to accept your responsibility and to improve things and to ensure that there is a trading concern available to meet the fines counts very much in your favour.

58 So far as the significance of delay between the death and the hearing of the plea is concerned I accept that none of the delay is of the making of Orbit or you, Mr Smith, and that each of you have used that time well to ensure that you have implemented appropriate procedures consistent with your desire not to have this happen again, and that you have done so, acting to remedy the defects despite the appreciation that in doing so it would also provide support for the acknowledgement that the procedures that the company had in place at the time were defective and deficient.

59 The next matter was the significance of the pleas of guilty and the stage at which they were entered. I accept that the pleas were entered at the earliest reasonable opportunity having regard to the complexity of investigations such as these and the nature of the charges that were laid. Both you and the company are entitled to benefit for that. Although there clearly has been a significant time in the gathering of the evidence and the identification of the appropriate charges it was also put to me and I accept that that time was spent essentially on both sides and working out what were the appropriate charges rather than putting the prosecution in a position where it knew it had to prepare for trial.

60 It also meant obviously so far as the family of Mr Alford were concerned that there was at the earliest reasonable opportunity acknowledgement of wrongdoing by the company.

61 Lastly the matter of the significance for sentencing purposes of the fact that for Orbit the maximum penalty for its offence is the same as the maximum penalty for the strict liability offence, although as I have said the offence here is one of appreciation of the probability that serious injury would flow and proceed regardless rather than strict liability.

62 It is not helpful in my view simply to say different offences, different states of mind the same penalty. That does not help in my view to assess where in the range of wrongdoing the company's liability falls by comparing it with the same penalty for a strict liability offence. In my view the correct approach is to assess it by reference to the fact that I must make an assessment of the objective seriousness of the offence to which the company has pleaded guilty, measured against the penalty scale available for it.

63 As I have said, in my view this is high end offending by the company. I accept not only Mr Papas' submission but also Mr Taylor's acknowledgement that this is a case of breach of employer's obligations to a worker where punishment, general deterrence and denunciation weigh heavily and assume greater prominence than matters personal, and that in these circumstances personal considerations are subordinate to those other considerations.

64 Weighing all of these matters as best as I can, appreciating of course that no amount of fine can turn the clock back, that the fines cannot be equated to the value of the life lost and that I must take into account not only those measures of objective seriousness but the conduct of the company since, which shows that it has accepted its responsibility and put in place procedures that maybe should have been in place earlier but has put the procedures in place and shown a genuine commitment to that, I have come to the conclusion that substantial fines must be imposed to mark that objective seriousness, to denounce the behaviour and to serve as a deterrent to others who think that they can ignore their responsibilities to workers and to imperil workers in the way Mr Alford was imperilled in this case.

65 I now propose to impose sentence. Each of Orbit Drilling Pty Ltd and Martin John Smith are convicted of the count to which they have pleaded guilty. On Count 1 Orbit Drilling Pty Ltd is fined an amount of $750,000. On Count 2 you, Mr Smith, are fined an amount of $120,000. I declare pursuant to s.6AAA of the Sentencing Act 1991 (Vic) that but for the pleas of guilty I would have fined Orbit Drilling Pty Ltd an amount of $900,000 and I would have fined you, Mr Smith, an amount of $150,000. You can take a seat, Mr Smith and Mr Taylor.

66 There are no other ancillary orders sought, were there?

67 MR TAYLOR: I will need to seek a stay of three months in respect of both sentencing orders, Your Honour.

70 HER HONOUR: A stay of three months granted in respect of the fines on both Counts 1 and 2. Mr Siracusa, no other ancillary orders?

Health and Safety Act 2004

At a glance

Court

Decision date

Source

Judgment (71 paragraphs)

Parties

Legislation Cited (1)