Dotmar Epp Pty Ltd (Dotmar) engineers plastic products at a factory in Dingley in Melbourne's suburbs. In so doing, it utilises routers and lathes which are machine tools used to assist in tasks such as cutting and drilling. Dotmar pleaded guilty in the County Court to two charges under the Occupational Health and Safety Act 2004  ('OHSA'). In essence, both charges concerned failures to provide or maintain plant and systems of work that were, so far as reasonably practicable, safe and without risks to health. Two of Dotmar's employees were injured as a result of following company procedures that sought to override many of the safety procedures required to operate the machinery.

Following a plea, the judge sentenced Dotmar to pay a fine of $300,000 on the first charge (incorrect use of the lathe), and $75,000 on the second (misuse of the router), making for a total penalty of $375,000. Dotmar appealed against the sentences imposed by the County Court on 18 August 2014, contending that the sentences were excessive.

The verdict

The Victorian Supreme Court agreed with the sentencing procedures of the County Court and dismissed the appeal of Dotmar.

In its submissions, Dotmar contended that the sentencing judge erred in her assessment of the gravity of the offending and gave too much weight to general deterrence. They also contended that the judge failed to give adequate weight to the plea of guilty, Dotmar's lack of prior convictions, delay, totality and proportionality, and matters in mitigation. The Court noted that on a proper analysis, the sentences could not be characterised as manifestly excessive.  Not only did the offending behaviour embraced by the first charge take place over a ten month period, but it occurred against a background of several years egregious failure to adhere to proper safety procedures with respect to the use of the lathe.

Counsel for the appellant also argued that, all other things being equal, a breach of the OHSA involving a death is always to be treated more seriously for sentencing purposes than a breach that does not. However, this was rejected by the Court as such an approach equated the gravity of the consequences of a breach — that is, whether the breach resulted in death or injury, or neither death nor injury — with the gravity or seriousness of the breach.

The Court also provided a list of considerations in determining the gravity or seriousness of the offence. This included the extent of the departure from the duty owed, the extent of the risk to health and safety thereby created, and the likelihood or risk of particular harm resulting.

Lesson
The case highlights the importance companies must place on safeguarding their machinery and other systems at work so as to eliminate or reduce the risk to workers of being seriously injured or killed. The provision of adequate guarding is an elementary safety feature of any machinery with moving parts and companies that seek to override these procedures in favour of a "faster and less-expensive" solution will face significant penalties from the Court even without prior convictions and a lack of proportionality.

Dotmar Epp Pty Ltd v The Queen [2015] VSCA 241

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