DPP v Monaghan (Drogheda) Ltd

 
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[2014] IECA 52

THE COURT OF APPEAL

Ryan P.

Birmingham J.

Sheehan J.

314CJA/12
DPP v Monaghan (Drogheda) Ltd
In the matter Section 2 of the Criminal Justice Act 1993
The People at the Suit of the Director of Public Prosecutions
v
Patrick Monaghan (Drogheda) Limited
Respondent

314CJA/2012 - Sheehan - Court of Appeal - 17/11/2014 - 2014 IECA 52

Sentencing – Work safety – Undue leniency – Appellant seeking review of sentence – Whether application to review was statute barred

Facts: The respondent, Patrick Monaghan (Drogheda) Ltd, a stevedoring company, was loading timber onto a lorry from four separate stacks which had been unloaded from a ship and left on Town Quay in Drogheda, Co. Louth in November, 2009. Town Quay is a port area which at that time had a long established public right of way. A stack was accidentally tipped by a company employee who was trying to load poles from another of the stacks. The intertwined stacks began to collapse and the poles rolled forward. One of these poles crushed a passing child, killing him. An inspector from the Health and Safety Authority noted that the practice of having poles overlap from one stack to the next was dangerous as was the lack of chocking or wedging of the outermost poles of the stack using chocks. The inspector went on to say that while the respondent had carried out a risk assessment for the stacking and unloading and carrying of timber poles at a second premises from which it also worked and which was a closed quay, it had not done so in this situation to take account of the public area associated with Town Quay. He said no exclusion zone had been established and enforced by the respondent while the loading operation was being undertaken. In May, 2012, the respondent pleaded guilty to an offence contrary to ss. 12 and 77(9)(a) of the Safety, Health and Welfare at Work Act 2005, namely failure as an employer to manage and conduct his or her undertaking in such a way as to ensure so far as was reasonably practical that, in the course of the work being carried on, individuals at the place of work (not being his or her employees) were not exposed to risks to their safety, health and welfare. The respondent was fined €25,000 and directed to pay the sum of €5,290.55 by way of expenses with distress in default. The DPP applied to the Court of Appeal for a review of the sentence imposed on the respondent pursuant to s. 2 of the Criminal Justice Act 1993. The DPP submitted that the sentencing judge had erred in law and in fact by imposing an unduly lenient sentence which represented less than 1% of the court”s jurisdiction; in particular, the trial judge erred in failing to give sufficient weight to the aggravating factors and in giving excessive weight to the mitigating ones. The respondent raised a preliminary issue contending that the application to review was made outside the permissible time limit and was therefore statute barred. The DPP maintained that there were four modes of service available for service on a convicted body corporate and further maintained that even if this was not correct then the Court had a discretion arising out of its inherent jurisdiction to deem the service good and the Court should exercise this discretion in favour of the appellant.

Held by Sheehan J that the solicitor for the respondent company declined to accept service at a point when there was still time for the DPP to affect service in accordance with s. 10(1)(d) of the Criminal Justice Act 1993 if that was deemed prudent. The Court held that the structure of s. 10 of the 1993 Act provides for different modes of service in respect of a convicted human person as opposed to a convicted body corporate; s. 10(1) provides three modes of service for a convicted human person and one for a person convicted as a body corporate. The Court was unable to agree with the DPP”s view that there are four methods available for service on a body corporate and in light of s. 4 of the Interpretation Act 2005, The Court held that it cannot be said that s. 18(c) overrides the clear meaning of section 10(1). Accordingly the Court”s view was that the service of the notice of application for review of the respondent”s sentence did not comply with s. 10(1)(d) and held that the application on behalf of the DPP was statute barred.

Sheehan J held the application should be dismissed on the ground of inadequate service.

Appeal dismissed.

Introduction
1

1. This is an application by the Director of Public Prosecutions for a review of the sentence imposed on Patrick Monaghan (Drogheda) Limited pursuant to s. 2 of the Criminal Justice Act 1993.

2

2. On the 1 st May, 2012, the respondent pleaded guilty to an offence contrary to ss. 12 and 77(9)(a) of the Safety, Health and Welfare at Work Act 2005, namely failure as an employer to manage and conduct his or her undertaking in such a way as to ensure so far as was reasonably practical that, in the course of the work being carried on, individuals at the place of work (not being his or her employees) were not exposed to risks to their safety, health and welfare.

3

3. The respondent was fined €25,000 and directed to pay the sum of €5,290.55 by way of expenses with distress in default.

4

4. The maximum penalty for this offence on a body corporate is a fine of €3 million.

3

3. The respondent was fined €25,000 and directed to pay the sum of €5,290.55 by way of expenses with distress in default.

4

4. The maximum penalty for this offence on a body corporate is a fine of €3 million.

Background
5

5. The accident which gave rise to the prosecution in this case happened at Town Quay in Drogheda. Co. Louth on the 10 th November, 2009. Town Quay is a port area which at that time had a long established public right of way. The respondent, a stevedoring company, was loading timber for telegraph poles onto a lorry from four separate stacks which had been unloaded from a ship and left on the quay close to each other.

6

6. The Court was told that there were various sightings of a man with his three year old child walking along the quay and coming to stand in the vicinity of one of the stacks of timber beside a single pole lying on the ground. Initially, the child held his father's hand as he walked down the length of the pole, but then wanted to walk on his own. As he got close to the end of the pole the stack beside him was accidentally tipped by a company employee who was trying to load poles from another of the stacks. The intertwined stacks began to collapse and the poles rolled forward. One of these poles hit the child on the legs before rolling on to his chest and crushing him. The child was taken to hospital but tragically did not survive the accident.

7

7. An inspector from the Health and Safety Authority told the Court at the sentencing hearing that the practice of having poles overlap from one stack to the next was dangerous as was the lack of chocking or wedging of the outermost poles of the stack using chocks. He said that only one of the four stacks on the quay had vertical stacks to prevent the stack from collapsing.

8

8. The Inspector went on to say that while the respondent...

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