Orbit Drilling and the Court of Appeal – The Court asks for an increase in penalty for s.32 offences!
The decision in Orbit Drilling P/L v The Queen; Smith v The Queen  VSCA 82 was handed down on Friday 3 May 2012. It’s one of the first on a s. 32 offence under the Victorian OHSA 2004.
Some people have no doubt been following this case since the plea in the County Court because the facts made for such headlines. In short they went something like this: Orbit Drilling and its director Martin Smith hired a young inexperienced truck driver, Bradley Alford, to come from Western Australia to work in Victoria. He was told to drive a Mack truck at a mining site. The truck was loaded, it had seriously defective brakes (a fact which was known) and it had to be driven down a steep slope. In the course of this Mr. Alford lost control, the truck flipped, Mr. Alford was thrown out and killed.
Orbit was prosecuted pursuant to s. 32 for recklessly engaging in conduct which placed Mr. Alford’s life in danger. Mr. Smitth was prosecuted pursuant to s. 144(1) of the Act for failing to ensure the company complied with its s. 21 duties.
Orbit and Smith pleaded guilty and Judge Hampel in the County Court fined Orbit $750,000 (the maximum at the time being about ($966,000) and fined Smith $120,000 (maximum being $193,000). Both Orbit and Smith appealed. They raised two grounds. First that the sentencing judge had assessed the culpability of Mr. Smith as a failure to prevent Orbit’s recklessness rather than dealing with the Orbit’s breach and Smith’s breach separately. The VSCA found against them on that point.
Secondly that the sentences were manifestly excessive. Before we get to that though – and there are some interesting comments made – the Crown conceded that the sentencing judge had sentenced on the wrong basis. The Crown raised a point which the Orbit/Smith parties did not raise. The Crown submitted that the sentencing judge had sentenced using the wrong – and much harsher – test as to what consituted reckless endangerment. The VSCA put it this way:
- The sentencing judge said that reckless endangerment requires knowledge of the company that “serious injury would probably result from the conduct of the company…”
- The VSCA repeated what was said in Muteneri v Cheeseman that ” recklessness involves acting with indifference towards or in disregard of what s realsied or foreseen to be the probable consequences of the relevant conduct..”
As can be seen the sentencing judge had not imported the recklessness component into her reckoning.
Anyway despite the Crown concession and the Court of Appeal finding that the sentencing judge had sentenced on the wrong test the Court went on to uphold the sentences for both Orbit and Smith. Orbit argued that as they were sentenced to over 75% of the maximum they were being given no discount for their early plea or lack of priors. The Court of Appeal simply said there was still scope to sentence higher for offenders with worse records. But they then went on to say that there was a real anomaly in having both s. 21 offences and s. 32 offences with the same penalty range ie 9000 units. They said that the Parliament should look to increasing the s. 32 offence range into the millions like in NSW where the s.32 equivalent penalty is something like $3M.
Anyone have a view on that discrepancy?