DPP v Keilor-Melton Quarries Pty Ltd [2018] VCC 2139 (13 December 2018)

Last Updated: 18 June 2019

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 17-02423

DIRECTOR OF PUBLIC PROSECUTIONS
v
KEILOR-MELTON QUARRIES PTY LTD

---

JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 December 2018
CASE MAY BE CITED AS:	DPP v Keilor-Melton Quarries Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VCC 2139

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Kaddeche
For the Accused	Ms Spicer

1. Keilor Melton Quarries Pty Ltd (‘KMQ’) was found guilty after a jury trial of one count of a contravention of s.26 Occupational Health & Safety Act; namely that as a person who had to any extent the management or control of a workplace, failed so far as was reasonably practicable to ensure that the workplace was safe and without risks to health. The maximum penalty for this offence for a corporate entity is 9000 penalty units, which equates to a fine of, $1,365,030.00.
2. The facts upon which the jury verdict were founded are as follows.
3. The quarry site at Leakes Road Plumpton was used for the extraction and transport of basalt and scoria.
4. KMQ was the holder of the Extractive Industry Work Authority to operate the quarry. It had held the Authority since August 2013. The transfer nominated Mr Zoran Masalkovski as the manager of KMQ. Condition 2.1 of the Authority required KMQ to ensure that all slopes/batters including excavations and stockpiles must be designed, constructed and maintained to ensure stability.
5. KMQ used employees of Altona North Landfill P/L, which I will refer to as ANL, to carry out work at the workplace.
6. On 23 May 2016, Mr Zoran Masalkovski was on-site, at least initially in the morning, to outline to the workers their task for the day. ANL employees Philip Mason, Mark Mott and Robert Wallace were transferring extracted scoria from one part of the quarry to an existing stockpile of scoria. The stockpile measured about 80m long and was approximately 13 m wide at the top. The stockpile was around about 9 – 10 m high.
7. Mr Mason was operating the loader whilst Mr Mott and Mr Wallace were driving the dump trucks which carried the scoria to the stockpile. In accordance with instructions given by Mr Masalkovski to the workers, Mr Mott dumped the scoria at the bottom of the stockpile. Despite having received the same instructions, Mr Wallace repeatedly drove his dump truck to the top of the stockpile. This required Mr Wallace to complete a three point turn to dump the material at the edge of the stockpile.
8. Due to the repeated unloading of the scoria from the stockpile over the previous six months, the bunds at the top of the stockpile were probably somewhat depleted. Furthermore, some of the stockpile sides were eroded, that is, near vertical and somewhat unstable due to the unloading process.
9. There was evidence from Mr Mason that he, that is Mr Mason had repeatedly told Mr Wallace not to dump on the top of the stockpile, but rather to dump his loads at the bottom. Mr Mason said he had told Mr Wallace again at the smoko break.
10. On about his seventh trip to the top of the stockpile, Mr Wallace reversed his truck to the edge of the stockpile. Before he could tip the load out, the truck flipped over the edge and slid down the side of the stockpile. Mr Wallace suffered serious injuries and died.
11. When WorkSafe inspectors attended at the site shortly after the accident, Mr Zoran Masalkovski told them that he had instructed Mr Wallace and the other workers to transfer the scoria and unload it at the bottom of the stockpile.
12. It may be concluded that Mr Wallace was acting contrary to the instructions provided to him at the beginning of the day by Mr Masalkovski; and also against what he was told by Mr Mason. I note that there was no suggestion that Mr Mason had authority over Mr Wallace.
13. In assessing the objective gravity of the offending, there are several general principles to which I must have regard. First, the seriousness of the offence is reflected in the maximum penalty. Securing health and safety and eliminating or reducing risks so far as is reasonably practicable, must be the paramount concern of every employer. As such, general deterrence will normally assume significant importance; and it does in this case. The accused company has no prior convictions and so the Crown does not press specific deterrence as assuming more than a minimal role in this case.
14. In cases involving a breach of the Occupational Health and Safety Act 2004, the accused is punished according to the gravity of the breach of that duty and not according to the result or consequences of the breach. I must have regard to the extent to which KMQ departed from its statutory duty and the extent of the risk of death or serious injury which might result from the breach. An assessment of extent of the risk involves the consideration of both the likelihood of the occurrence of an event as a result of the breach endangering the safety of employees or others and the potential gravity of the consequence of such an event.
15. In a case such as this, the fact that death resulted is relevant only in the sense that it might demonstrate the degree of seriousness of the relevant threat.
16. In determining the gravity of the breach of the duty in this case, the parties agree, that in accordance with the High Court case of Chiro v R, I should sentence KMQ on the view of the facts most favourable to it.
17. In this respect, Mr Gurvich QC on behalf of the Crown leading Ms Kadeche made two important submissions. First, it is necessary for sentencing purposes to precisely identify the matters over which KMQ had management or control, so that the breach may be identified. In this case, as I discussed with counsel, I consider that KMQ’s duty arose from condition 2.1 of the Work Authority; that accordingly it was reasonably practicable for KMQ to ensure the whole perimeter of the stockpile was adequately bunded.
18. The second submission made before me by the Crown, was that KMQ was not the exclusive duty holder at the site or over the quarrying works. Rather that duty was shared with Mr Wallace’s employer, ANL.

19. Ultimately, the Crown submitted that the gravity of the breach here is not at a high level. The extent of the departure from the duty owed by KMQ is relatively low. This results from the fact that the accused company did not have exclusive management or control of the work place and the duty was limited to the holding of the Extractive Industry Work Authority. Moreover, the likelihood of the occurrence of the event as a result of the breach was low, given that Mr Wallace apparently acted in a manner inconsistent with that intended and instructed by the accused company. Nevertheless, it must be pointed out that the risk of death or serious injury which may result from the breach was self-evidently high and that in turn means that the potential gravity of the consequences were high.
20. I take into account the fact that in such cases, matters personal to the accused company are of lesser significance than in other instances of sentencing for criminal offences. Nevertheless, it is still appropriate to take account of some of the circumstances surrounding the accused company and its operators, particularly given that it is essentially a small family business.
21. KMQ purchased the quarry in 2008 but leased it back to its then previous owner. It was only in 2013 that KMQ took responsibility for the Work Authority, and leased the quarry to a related entity and then employed ANL to carry out extraction and transport works.
22. The directors of the accused company are Desa and Tode Masalkovski. To the very limited extent to which it is relevant to the sentencing consideration, I accept that they are people of impeccable good character who have been community minded and significant contributors to their local communities and in particular to the Melbourne Macedonian community; supporting various sporting, charity and community functions.
23. On the plea, I was told of the long history of generous support Mr Masalkovski had provided to the deceased worker, Mr Wallace. It was apparent that Mr Wallace’s death has had a profound effect upon the Masalkovski family, and on Mr Tode Maslakovski in particular.
24. Turning now to the submissions made on behalf of the parties as to sentencing principles. Mr Palmer SC on behalf of KMQ substantially agreed with the Crown submissions as to the applicable sentencing principles. In addition, Mr Palmer referred me to the recent decision of the Court of Appeal in Di Tonto v R, where the Court of Appeal upheld an appeal in relation to sentences imposed on a small company for breaches of s 23 of the Occupational Health and Safety Act. There the Court stated that the learned sentencing Judge had found that the conduct of the accused companies in Di Tonto, involved a very significant departure from acceptable safety standards and that the offending in that case was serious. Nevertheless the final plea was reduced to a fine of $190,000. Those findings stand in contrast to this case, where, as I have said, it is accepted by the Crown that the extent of KMQ’s departure from its statutory duty is relatively low and is not at a high level.
25. I have also had regard to the sentencing principles set out in the Court of Appeal decision of Frewstal.
26. In the end however I must consider the circumstances relevant to this case and form my own conclusion as to the appropriate penalty, in light of all the relevant sentencing principles.
27. On the charge of contravening the duty of a person with management or control of the workplace, the company is convicted and fined the sum of $230,000.