Barry Johnson v State of New South Wales

Industrial Relations Commission (NSW)|2006-09-15|Before: Kavanagh J, Ms J

CITATION: Barry Johnson v State of New South Wales (Department of Education and Training) [2006] NSWIRComm 275

Prosecutor: PARTIES: Barry Johnson Defendant: State of New South Wales (Department of Education and Training)

CATCHWORDS: Sentencing - two offences under s8(1) of OHS Act - foreseeability of offences - general and specific deterrence relevant - alternative measures available to avoid risk - contrition - serious offence - application of s21A Crimes (Sentencing Procedure) Act 1999 to offences under OHS Act - aggravating factors considered applicable in particular circumstance and where victims teachers - reliance of prior convictions of Crown as defendant - totality applicable - moiety - costs - penalty - orders

Crimes (Sentencing Procedure) Act 1999 ss21A, 22, 23, 34 LEGISLATION CITED: Crimes (Sentencing Procedure Amendment (Standard Minimum Sentencing) Act 2002 Fines Act 1996 Occupational Health and Safety Act 2000 s8(1)

Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan 105 IR 181 Geoff Derrick v ANZ Group Ltd (No. 2) [2005] NSWIRComm 145 Kimberley John Hughes v Western Australian Cricket Association (Inc) and Ors (1986) ATPR 48 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 Markarian v R (2005) 215 ALR 213 CASES CITED: R v Jenkin [2003] NSWCCA 378 R v Tadrosse [2005] NSWCCA 145 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Wickham [2004] NSWCCA 193 WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of New South Wales (Department of Education and Training (2001) 112 IR 1 WorkCover Authority of New South Wales (Inspector Christopher Downie) v Menzies Property Services Pty Limited (2004) 136 IR 449 WorkCover Authority (Inspector Mason) v Wild Geese Building & Maintenance Pty Limited [2006] NSWIRComm 152

Prosecutor: Mr B.G. Docking of counsel Solicitors: Ms J. Macara MacMahon Associates LEGAL REPRESENTATIVES: Defendant: Mr B.D. Hodgkinson SC with Ms W.G.Thompson of counsel Solicitors: Ms Amanda Lye Crown Solicitor's Office

BARRY JOHNSON v STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING)

Prosecution under s8(1) of the Occupational Health and Safety Act 2000

BARRY JOHNSON v STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING)

Prosecution under s8(1) of the Occupational Health and Safety Act 2000

1 In the prosecution by Barry Johnson, General Secretary of the New South Wales Teachers' Federation of New South Wales ("the prosecutor") and the Crown in the Right of New South Wales (Department of Education and Training) ("the defendant") I delivered judgment as to liability on 31 March 2006 ([2006] NSWIRComm 109). 2 The defendant had been summonsed to appear before the Court to answer two charges that it had breached s8(1) of the Occupational Health and Safety Act 2000 ("the Act").

Matter No. IRC7028 of 2003 3 The first charge related to the events on 10 December 2001, in which it was alleged the defendant breached s8(1) of the Act in that it: failed to ensure health, safety and welfare at work of all its employees, and in particular Ronald George Calrow, Kenneth Charles Ambler and Lindsay John Cotterill, in that the employer failed to ensure the systems of work of the employees were safe and without risk to health contrary to section 8(1) of the Occupational Health and Safety Act 2000. Particulars : 1. The accused person employed teachers at its Dover Heights High School (now known as Rose Bay Secondary College) (the school). 2. There was a potential risk to a teacher of physical injury or psychological injury, or both, as a result of actual threatened violence by AL or having to restrain AL. 3. On 10 December 2001, at the school, AL became increasingly aggressive and had to be restrained by Mr Ambler, Mr Calrow and also later Mr Cotterill. 4. Mr Calrow suffered an actual injury to his left groin. 5. The accused person's breaches comprised any of the following aspects: (a) Allowing AL to attend the school as a student. (b) Failing to undertake an adequate risk assessment in relation to the potential risk occurring due to AL attending the school. (c) Failing to ensure that there was available the results of a complete medical, psychological and psychiatric assessment of AL. (d) Failing to adequately inform the employees and consult them about the previous incidents of AL's actual or threatened violence at the school or at any of his past schools, or both, in order to identify the potential risk and incident prevention or reduction strategies. (e) Failing to provide a security guards at the school. 6. There was a causal nexus between any of the accused person's breaches and the potential risk. 7. Additionally, or in the alternative, there was a causal nexus between any of the accused person's breaches and the actual injury to Mr Calrow.

Matter No. IRC7029 of 2003 (as amended) 4 The second charge related to the events on 11 December 2001, in which it was further alleged that the defendant breached s8(1) of the Act in that it: failed to ensure health, safety and welfare at work of all its employees, and in particular Ronald George Calrow, Kenneth Charles Ambler and Lindsay John Cotterill, and Melissa Jane McInnes, in that the employer failed to ensure the systems of work of the employees, including emergency communication mechanism, were safe and without risk to health, contrary to section 8(1) of the Occupational Health and Safety Act 2000.

The particulars of this charge were similar but two further elements to the charge were relied upon.

Particulars: 1. The defendant employed teachers at its Dover Heights High School (now known as Rose Bay Secondary College) (the school). 2. There was a potential risk to a teacher of physical injury or psychological injury, or both, as a result of actual or threatened violence by AL or having to restrain AL. 3. On 11 December 2001, AL entered the school and threatened students and teachers with a butchers knife. 4. Mr Ambler has been diagnosed with Post Traumatic Stress Disorder. 5. Ms McInnes suffered Post Traumatic Stress Disorder. 6. Mr Cotterill suffered with Post Traumatic Stress Disorder, anxiety and depression. 7. The defendant's breaches comprised any of the following aspects: (a) Failing to prevent AL entering the school. (b) Failing to undertake an adequate risk assessment in relation to the potential risk occurring due to AL attending the school. (c) Failing to ensure that there was available the result of a complete medical, psychological and psychiatric assessment of AL. (d) Failing to adequately inform the employees and consult them about the previous incidents of AL's actual or threatened violence at the school or at any of his past schools, or both, in order to identify the potential risk and incident prevention or reduction strategies. (e) Failing to provide a security guard or security guards at the school. (f) Failing to have in place adequate communication mechanism so that there was communicated to Mr Cotterill or Ms McInnes, or both, any emergency caused by AL or there was a need to move these teachers and their students to a safe place, or both. 8. There was a causal nexus between any of the defendant's breaches and the potential risk. 9. Additionally, or in the alternative, there was a causal nexus between any of the accused person's breaches and the actual injury to Mr Ambler, the actual injury to Mr Cotterill and the actual injury to Ms McInnes. 5 The defendant on the particular date also breached the act with two further particulars relied upon. 6

In my judgment of 31 March 2006, I found: 273 To summarise I find on 10 December 2001, AL was properly in attendance at the school but should have been suspended from the school on 11 December 2001; there was a failure on 10 and 11 December 2001 to undertake an adequate risk assessment of AL given his attendance at the school; on 10 and 11 December 2001 there was a failure to ensure a complete medical, psychological and psychiatric assessment of AL; on 10 and 11 December 2001 there was failure to inform or consult the employees about previous incidents; on 11 December 2001 there was a failure to have in place an adequate communication system so that there was an ability to communicate with Mr Cotterill or Ms McInnes, or both, any emergency caused by AL or there was a need to move these teachers and their students to a safe place, or both.

274 I find the identified risk of a potential for physical or psychological injury to teachers at the school on the attendance of AL was causally connected to the above failures of the defendant when, as a matter of fact, that risk became a reality as four teachers suffered injury either of a physical or psychological nature because of the above failures of the defendant. 7 In assessing whether a defence to the charges was established, I commented: 288 The evidence established particularly by 10 December 2001 that it was within the defendant's knowledge that AL's behaviour was aggressive and, on occasions violent. This was assessed finally by 6 December 2001 (the Progress Report) but generally by 3 December 2001 (the Case Study). While the degree of violence escalated on the relevant dates I find that does not distract from the fact the defendant had knowledge of AL potential for violence. It should then have implemented its own procedure to identify the level of risk and put in place any of the identified reduction strategies for safe working. 8 In consideration of the context in which the offences were committed over the two particular days I found relevant there was an element of delay in the actions of the defendant which contributed to the breach holding: 205 . . . The bureaucratic delay in the release of the District Guidance File through the various District Guidance Offices and the delay in the decision-making at District level to determine the allocation of any of the possible alternatives for support for AL caused a significant increase in the risk. Bureaucratic obstruction comes to mind as a description, after my examination of these procedures, with a focus on delivering a service in the interests of AL and interests of the teachers at the school.

As to the defendant's policy to risk assess, I found: 209 . . . Those guidelines recognise the need to protect all in the school environment and specifically to protect against violence directed towards the teachers. The policy required the establishment of a Serious Incidents Committee under clause 1.2 of the Guidelines for Schools and TAFE NSW Colleges and Campuses - Management of Serious Incidents and defined a particular risk assessment to identify possible hazards both physical and psychological. In this endeavour, the Hazpak guide also would help. This Committee under the policy should have liaised with the OHS Committee (1.2.1). In the management of violent incidents the policies recognised the possibility of violent behaviour in the use of weapons, use of illegal substances, physical violence towards staff and unauthorised entry. Such behaviour, once recognised, had to then be addressed with strategies for the elimination of the risk. 210 The school did not have a Serious Incident Committee/OHS Committee and evidence revealed there was little staff awareness of the need for a risk assessment of this workplace. Under the defendant's two relevant guidelines, the Principal of the school was required to ensure at least one such a Committee was established. There cannot however be a passing off onto the Principal of the Department's obligation to ensure safe working for its teachers. There should have been a Serious Incidents Committee/OHS Committee at the school. Such a Committee should have been conducting regular meetings to identify risks. . . . Relevant Principles 9 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213. The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 10 Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at[32]). 11 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying: 57. The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 12 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. It is a relevant consideration that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s8(1) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). Of particular relevance is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A of the Crimes (Sentencing Procedure) Act 1999 sets out factors that the court is to take into account in any sentencing hearing and states, inter alia: . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions, … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, … (k) a plea of guilty by the offender (as provided by section 22) (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23) . . . Consideration 13 In a consideration of penalty, the court must consider the objective seriousness of the offence or, as has been said, the nature and quality of the offence. The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464, ad idem with the view expressed in Markarian (at 474) as follows: . . . in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" . . . 14 In order to properly assess the objective seriousness of an offence it is necessary to identify the offence committed by the defendant in its context (see Olbrich v R (1998) 45 NSWLR 538). This approach was adopted in the recent matter of WorkCover Authority (Inspector Mason) v Wild Geese Building & Maintenance Pty Limited [2006] NSWIRComm 152 (on appeal) where it was held at [19]: It is necessary, in order to properly assess the objective seriousness of an offence to identify the whole context of the offence actually committed by the defendant. In Olbrich v R (1998) 45 NSWLR 538 it was said (at 542): Whilst the language of aggravation/mitigation is not inappropriate, what is in fact involved is establishing the objective seriousness of the offence. In R v Laurentiu and Becheru , the charge was possession under s 233B(1)(a) of the Customs Act 1901 (Cth) . As Wood J (with whom Sharp J agreed) said (at 416): "... For his Honour to have sentenced either applicant on the bare fact of possession of the cocaine, the substance of the controlled delivery, would have involved serious error. Without the context of the possession, no assessment could have been made as to where the offences fell in terms of objective seriousness, within the range of uses involving possession of not less than, the traffikable quantity of cocaine." 15 When determining the objective seriousness of the offence, it is also necessary to take into account the causative factors of the identified risk (see WorkCover Authority of New South Wales (Inspector Belley) v Hughston & Sons Pty Limited at [56]; Drake Personnel Limited t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng (1999) 90 IR 432 at (452-453)). 16 I found, in the circumstance, it was established that the focus of the activity in the school was on the needs of AL, the student, once he was identified with behavioural problems, without the school having the dual necessary focus on ensuring a safe working environment for its teachers. No risk assessment, with a focus on safe working for the teachers, had been conducted as a result of AL's attendance at the school particularly when it was recognised AL had a history of violent behaviour and his behaviour within the school, in the short period of weeks of his attendance, had been threatening. 17 I further found while the Department of Education had a policy that required there should be a risk assessment conducted in circumstances where teachers could be at a risk from the behaviour of a student there was no real understanding held by the teachers at the school of the need for that risk assessment for safe working in such a circumstance. The school had no Serious Incident/Occupational Health and Safety procedure as required under the Department's Policy. 18 Given the Department had knowledge, prior to the two incidents identified in the charges, of the potential risks posed by AL attending at the school, I have found it was established that there was an element of foreseeability to the offence (at [287]). Alternative measures were available which would have assisted in avoiding the identified risk. The foreseeability of a breach of the Act is relevant to the consideration as to penalty. 19 The risk identified in both of the charges was the "potential risk to a teacher of physical injury or psychological injury, or both, as a result of actual or threatened violence by AL or having to restrain AL". The risk identified was limited to the safety of the teachers (see [189]). The defendant submitted the pleaded risk was over two days at one school and in relation to one student only. In this context the defendant submitted "this needs to be balanced against the size and diversity of the defendant's operation". There is no evidence that allows for the findings made in this matter to be applied as though they affected the entirety of the defendant's operation or even to any other school. In my consideration I give weight to the offence as established and the subjective features placed before me. 20 I accept there was "a comprehensive range of systems" put in place by the defendant to ensure safe working but a crucial element in that comprehensive system was not implemented at the school. The defendant carries the responsibilities for the activities at its school. There was no assessment of the potential risk to safe working that AL posed to teachers at the school. Further there was a delay in fully implementing the Department's system for identifying AL as a student with the potential for violent behaviour and this delay was reflected in a failure to put in place procedures which may have demonstrated the potential risk. 21 I find in Matter No IRC7028 of 2003 this was a serious offence. I find in Matter No IRC7029 of 2003 there were further elements to the offence than the common elements in the offence in Matter No IRC7028 of 2003 and the circumstance which occurred at work on 11 December 2003 was so threatening as to make it a more serious offence. 22 In the circumstance, as to specific deterrence, the defendant continues to provide public education for students throughout New South Wales and to operate our public schools. The defendant, evidence revealed, has a policy to integrate students with behavioural problems into the mainstream schools (when possible) so an element of specific deterrence becomes important in the circumstance. 23 The Department must ensure, as the employer, the implementation of its policies directed to the safety of its critical employees, namely, its teachers. A rigorous re-training of its teachers and Principals has to be conducted to ensure an awareness of, and implementation of, departmental policies and procedures for safe working. Once more an employer must be reminded of the need for the rigorous application of, and employee-training in, existing safe working policies. In WorkCover Authority of New South Wales (Inspector Christopher Downie) v Menzies Property Services Pty Limited (2004) 136 IR 449, the Full Bench commented: 67 The . . . discussion of paper systems in WorkCover Authority (NSW) v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23 at [35] is pertinent: "The existence of a system on paper alone is clearly not sufficient to comply with the obligations imposed by the Act. The employer is required to ensure that its ''paper systems'' are implemented and maintained in its daily operations: see Sydney City Council v Coulson (1987) 21 IR 477 at 480; WorkCover Authority (NSW) v Abigroup Contractors Pty Ltd (2000) 99 IR 196. The Court must have regard not merely to the system as it exists in theory, but as it is implemented in practice. In WorkCover Authority (NSW) v Supercoat Feeds Pty Limited (unreported, Industrial Relations Commission, NSW, Fisher P Matter No CT96/1020, 22 April 1997) for example, Fisher P said: 'The relevant system of work, however, is the customary method of carrying out the operation in which the employer is engaged - the system of work is that actually utilised and operated at the place of work.' Paper' systems whose prescriptions are not followed do not represent the actual system of work utilised and are irrelevant." See also WorkCover Authority (NSW) v Kirk Group Holdings Pty Limited and Anor ( 2004) 135 IR 166. . . .

An element of general deterrence is also therefore a factor in this consideration of penalty. This employer must understand, as must the employers of employees who contribute by way of providing a public service to our community, that great care must be taken to ensure their employees' safety. 24 A number of subjective factors must also be taken into account. The effect of s118 of the Act requires a consideration. Section 118 must be read with s121(2)&(3) of the Act which provides in relation to offences by the Crown as follows: 118 Act to bind Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities. . . . 121 Penalties in respect of proceedings against the Crown . . . (2) The penalty in respect of proceedings against the Crown is the penalty applicable in respect of offences committed by a corporation. (3) If that penalty differs for previous offenders, the Crown is a previous offender in relation to particular proceedings against the Crown only if the Crown is a previous offender in respect of the acts or omissions of the same responsible agency of the Crown (or any predecessor of that agency). 25 In WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of New South Wales (Department of Education and Training (2001) 112 IR 1, Walton J, Vice-President, noted at [21] the task of the court is to consider whether, in light of all of the circumstances of the defendant's operations, the offence in question constitutes an uncharacteristic aberration or manifests a continuing attitude of disobedience of the law (Veen v The Queen (No 2) (1987) 164 CLR 465 at (477-478)). I accept the former category is applicable to the present proceedings as I find there is no evidence upon which a finding could be made that the circumstances in this case "manifest a continuing attitude of disobedience". 26 In Ankucic, Walton J, Vice-President also considered, what convictions under the Act, should be recognised as the industrial record of "the Crown" saying: 61. I consider that the Court is required to consider prior convictions of the Crown generally when assessing the appropriate penalty to be imposed for an offence under the Act. As was pointed out by Hungerford J in Tuckley , the Crown retains overall responsibility as an employer, notwithstanding the fact that it may structure its operations by dividing different areas of responsibility between departments or similar entities. Of course, the consideration of the prior record of a defendant is not a mechanical process which merely requires the Court to aggregate the number of convictions which have been recorded. The defendant correctly pointed out that, when considering the defendant's record, it is appropriate for the Court to take into account the size, nature and diversity of its operations. In Haynes v C I & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455, for example, the Full Bench stated (at 456-457): "We think that, having regard to the specific nature of the legislation, the past record upon which both the prosecution and defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record. Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of a very large company with some prior convictions may, on analysis, be better than that of a smaller company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question." 62. A similar approach was adopted in McDonalds (at 454). 63. The task before the Court is to consider whether, in light of all the circumstances of the defendant's operations, the offence in question constitutes an uncharacteristic aberration or manifests a continuing attitude of disobedience of the law: see Veen v The Queen (No 2) (1987) 164 CLR 465 at 477-478. I would add that prior convictions against the same department or statutory authority may generally be of greater relevance when assessing penalty. In this regard, I note that there have been three convictions recorded against the Department in the last two years. I note that two matters resulted in fines of $210,000 for two offences and $80,000 in relation to one offence. Nonetheless, the overall record of the Crown must be considered. 27 Prior to 10 and 11 December 2001, the relevant dates of the two offences, the Department had recorded against it convictions ten offences arising out of six prosecutions. There are also at least five Local Court offences recorded against the Department. 28 The prosecutor submitted these convictions deprive the defendant of leniency, require more weight to be given in penalty and retribution and as there are three prior offences which deal with "violence", much weight must be given to the prior convictions. I accept, however, in this context those convictions must be seen in light of the significant operation of a Department of Education administering primarily the public education system across New South Wales. 29 Adopting the view expressed by Walton J, Vice-President, I take into account all prior convictions of the Crown as placed before me and note of greater relevance are those recorded against the defendant. The convictions, that is, the industrial record of the Crown has the effect, I accept, of tempering the leniency or mitigation which the defendant might otherwise attract in subjective terms but not so as to increase the appropriate penalty based on the objective seriousness of the instant offences. I take into account the industrial history of this defendant and of the Crown as placed before me particularly noting that three of the breaches of the defendant did reveal elements of violent behaviour. 30 Mr David McKie, Director, Student Welfare in the Department, gave evidence and explained the effect of a significant review that has been conducted of the Department's procedures in enrolling and dealing with students with special behavioural problems. This review has been conducted since the relevant incidents. 31 In the context in which the charges were established evidence revealed there was a failure by the defendant to identify at the school enrolment stage whether a student had a prior recorded history of violent behaviour at other schools which history was held in records of the defendant. A school Principal had no access to Departmental records which would have revealed the prior recorded violent behaviour of the student. Established departmental confidentiality provisions were used to limit a Principal's access to those Departmental records. A review was necessary. 32 The two charges considered by the court did not cover the circumstance of a student enrolment as an element of either charge. However, the Department has now addressed its procedures in this regard. It has conducted a review of its confidentiality practices and the procedures for enrolment of a student and a Principal can now obtain the recorded, prior history of a student. This initiative and review as conducted by the Department was both sensible and necessary and it is to be commended for reviewing its enrolment procedures. 33 The paper working systems in place at the time of the incidents on 10 and 11 December 2001 have also been reviewed. Existing policies and procedures for safe working have been amended and its teachers re-trained. I accept the defendant's commitment to provide a safe work environment for its staff especially its teachers. I accept this commitment existed prior to the charge. Nonetheless, the Department has acknowledged its failure to implement part of its pre-existing system for safe working. 34 Immediately after the incidents, a memorandum was issued to all recorded Directors and School Principals requiring a review on the status of all students who had a recorded history of violent behaviour. A bulletin was issued which identified a Principal's right to access the existing Departmental records containing the behavioural history of a student. 35 There is now a significant increase in the overall expenditure provided to schools to support teachers dealing with a student with behavioural problems. Extra alternative placements are now available for teachers working with students with behavioural problems. 36 The key features of the newly implemented strategy were identified by Mr McKie, Director, Student's Welfare of the Department as follows: a) A document and support materials is now provided to assist Principals (as Workplace Managers) and Staff to understand and implement Occupational Health and Safety at their workplace. b) Principals are now trained on the new policies/procedures and in particular, the Occupational Health and Safety tools for risk assessment and management. The materials are more specific and provide a greater level of detail than what was contained in Exhibit 1 in the proceedings. c) Communication and consultation has been given further emphasise in the Risk Management Flowchart for Student Behaviour and the Sample Risk Management Plan: Student Behaviour. d) In circumstances where a Medical Assessment may be sought as a step in the preparation of a risk assessment, based on available information, is not to be delayed. Risk assessments are to commence whilst medical information is being obtained. e) Where a counsellor attends a school on a part time basis, should a school have a need for urgent response, the principal is able to contact the district guidance officer or regional student support co-ordinator, student counselling and welfare, to organise, on an urgent basis, for a school counsellor to attend the school. f) There has been the establishment of a hotline for access to the Departments Guidance Files which hold the history of students with recorded problems. There is a strict protocol in place for that access. g) If a student is identified by the School Learning Support Team as requiring support beyond the school's expertise or resources then in non-urgent cases Access and Appraisal Forms will be completed and the student will be considered for placement on case load by a placement panel. h) The Department is in the process of developing an electronic Student Services Handbook which will provide Principals and other Departmental staff with advice on the availability, role of, and access to student services resources, including specialist support, alternative placements and funding support. i) On 28 January 2005, the Department issued a policy entitled Suspension and Expulsion of Students - Procedures which superseded the Procedures for the Suspension and Expulsion of School Students (1998) and Memorandum 98/380 (S.298). j) The Department ensures compliance with its Suspension policy through a system of monitoring of Principals by School Education Directors who: (i) must be notified of the long suspension of any student; (ii) are notified of and become involved in resolving any suspension which cannot be resolved and arrange for the student to attend a new school for suspended/expelled students within a set timeframe; (iii) conduct appeals where a parent believes that correct procedures have not been followed; (iv) analyse suspension and expulsion data to monitor local trends and issues. k) A new student discipline policy Student Discipline in Government Schools was published on the Department's internet and intranet websites on 12 May 2006. This policy replaced Good Discipline and Effective Learning - Ministerial Statement released in 1996. l) The Department's Guidelines for Schools and TAFE Colleges and Campuses, Management of Serious Incidents, 2000 at paragraph 1.2 requires schools to establish a Serious Incidents Committee where there is no existing committee to deal with the management of serious incidents. The policy further provides that the Serious Incidents Committee should liaise with other relevant committees in the workplace such as the Occupational Health and Safety Committee to develop the Serious Incidents Management Plan. That guideline remains in force. m) Within the Consultation and Communication section of Safe Working and Learning there is encouragement for Occupational Health and Safety committee members to review reports of safety incidents, injuries and illnesses and recommend appropriate corrective action to prevent recurrence. n) Compliance with these policies is one of the aspects to be reviewed by schools using the Occupational Health and Safety self assessment tool and is the subject of annual Occupational Health and Safety audits conducted by Audit Directorate. 37 In addition to the changes to the defendant's Policies/Procedures and Guidelines, the defendant has undertaken a significant expansion of its infrastructure to assist in securing a safe work environment for its teachers and counsellors and associated staff. That has also involved a significant expenditure of monies by the Department. The measures taken in this regard were also set out by Mr McKie. The defendant has implemented the following measures: a) The completion of new facilities in 2007 will bring the total number of Behaviour Schools to 35 and the total number of Tutorial Centres and programs to 40. In addition 11 Suspension Centres have come into operation. As well as these significant improvements in educational programming support for students with behavioural difficulties, during 2002 19 new District Guidance Officers were appointed to enhance the supervision of the School Counselling Service and provide increased counselling support for students. b) Since 2002/2003 the Department's special education budget has increased from $515.1 million to $773.4 million in 2005/06 and represents 8.1 percent of the Department's total recurrent expenditure . The special education budget provides funds for a broad range of services and programs to support students with disabilities enrolled in regular classes, special classes and special schools. c) Since 2004 schools have also been able to access additional immediate support through the Regional Student Services Support Program (RSSSP) which funds schools to provide additional teacher or teachers aide (special) support. This program is managed by regional Student Services staff and allocates immediate additional support where the nature of a student's needs is considered to be in excess of support already available in the school. RSSSP is generally accessed by schools seeking immediate support while longer term responses are determined and put into place, that is, while a student is being assessed for Funding Support or special class placement or itinerant teacher support. This measure addresses any delays that might otherwise occur. 38 I accept these measures have been developed and implemented by the Department to address the risks identified in the incidents of 10 and 11 December 2001. Further, I accept such endeavours reflect the activities of an employer committed to securing the safety of its teachers attending at its workplace. 39 The prosecution inferred in submissions these procedures do not address directly the need for a risk assessment at the workplace to identify the needs of its teachers. I rejected this proposition. I found there was in existence at the time of the incident a comprehensive Risk Assessment Policy within the Department. I found it was not implemented at the school and the teachers had not been properly informed as to the policy nor trained in its implementation. I accept the new procedures will allow teachers to be informed and retrained to ensure there is conducted a risk assessment especially in a circumstance where the school is dealing with a student's behavioural problems and there will not be given the necessary access to existing departmental records to Principals. 40 I accept further the Department's expression of regret and expression of contrition it has made for the injury sustained by its four teachers: Mr Ambler, Mr McInnes, Mr Calrow and Mr Cotterill. The Department has said it has: reviewed the circumstances which led to these distressing incidents and is committed to ongoing improvement of its earlier programmes and initiatives to maximise the safety and welfare of its staff and students. 41 The prosecutor suggested that the affidavit evidence from the teachers revealed they did not feel "cared for" by the Department. Litigation is a very difficult process. The Department had the right to defend itself against the charges. That right is a basic foundation within the criminal justice system. The defendant faced two charges of a criminal nature. All litigation, whatever its nature, is unpalatable for witnesses, whether those witnesses are victims or simply affected by the events. It is difficult and it is understandable that the teachers who, evidence revealed, were impeccable in the performance of their duty, were obliged to give evidence in the matter and in some circumstances relive what must have been a horrendous event in their teaching life. However, the Department has in place systems to protect their individual rights through both the workers' compensation system and through the medical retirement system. One teacher has had the benefit of medical retirement. The others have been given the benefit of the compensation system. Those measures are designed, in a practical way, to recognise their sufferings. Their injuries, however, cannot be used to challenge the right of the accused to defend criminal charges brought against it. I only add that in my view the behaviour of the teachers during two incidents was of the most professional character. 42 I accept the defendant co-operated with the officers of the Federation, as the prosecutor, in producing relevant documentation and access to witnesses. 43 The defendant relied on the principle of totality and submitted these two offences have common features between them which should allow for a reduction in penalty. The prosecution submitted there is no commonality in the elements of the two offences. The Full Bench in Crown in Right of the State of New South Wales (Department Of Education And Training) v Keenan 105 IR 181 stated: 21. There was a well-established practice in New South Wales that when structuring sentences for multiple offences the trial judge could impose one sentence which represented the totality of the overall criminality involved in the offences. It was not considered necessary to consider each sentence separately to ensure that it appropriately represented the criminality involved in each particular offence: see R v Hayes (1984) 11 A Crim R 187 at 189 and R v Gordon (1994) 71 A Crim R 459 at 466. A similar approach had been adopted in relation to offences under the Occupational Health and Safety Act : see, for example, Moore v E W Cox Pty Ltd , and the authorities reviewed by Walton J, Vice-President in WorkCover Authority (NSW) (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 456-458. 22. In Pearce v The Queen (1998) 194 CLR 610, however, the majority of the High Court rejected this approach. That case concerned an offender charged with two offences - the malicious infliction of grievous bodily harm and the infliction of grievous bodily harm during a break and enter - which both arose out of the same incident. The majority, McHugh, Hayne and Callinan JJ, stated: "[45] To an offender, the only relevant question may be `how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. [46] Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process. [47] Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation. [48] Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences. (References omitted, emphasis added.)" 23. The effect of Pearce is that, in sentencing a defendant for more than one offence, the Court is required to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. It is only after determining an appropriate sentence for each offence that the Court should consider whether the sum of the separate sentences properly reflects the totality of the criminality involved. 24. The approach in Pearce has been applied on a number of occasions by the Court of Criminal Appeal: see, for example, R v Kalache (2000) 111 A Crim R 152 at pars 106 to 111; R v Wheeler [2000] NSWCCA 34 at pars 34 to 37; and R v Giam (No 2) (1999) 109 A Crim R 348 at 351. 25. The approach in Pearce has also been applied by this Court in relation to multiple offences under the Occupational Health and Safety Act : see, for example, WorkCover Authority (NSW) v State Rail Authority (NSW) (unreported, Kavanagh J, IRC 97/7032-7036, 13 October 1999); WorkCover Authority (NSW) (Inspector Donnelly) v Riverina Wool Combing Pty Ltd [2000] NSWIRComm 29; WorkCover Authority (NSW) (Inspector Mulder) v Yass Shire Council (2000) 99 IR 284; WorkCover Authority (NSW) v Company B Ltd [2000] NSWIRComm 119; and WorkCover Authority (NSW) (Inspector Hannan) v Bitupave Ltd t/a Boral Asphalt (No 2) (2000) 101 IR 458 at 470-471. 44 In the present proceedings both charges, I accept, arise out of similar factual circumstances over a period of two consecutive days (Judgment at [4]). However, on 11 December 2001, I found two further elements to the breach in that the defendant failed to prevent AL entering the school and failed to provide adequate communication mechanisms for the teachers in the sports field. 45 I accept the two offences contain significant common elements, namely, the failure on 10 and 11 December 2001 to undertake an adequate risk assessment of AL given his attendance at the school; on 10 and 11 December 2001 there was a failure to ensure a complete medical, psychological and psychiatric assessment of AL; on 10 and 11 December 2001 there was failure to inform or consult the employees about previous incidents. Therefore the principle of totality must be applied. The defendant is not to be punished more than once for the common elements of the offences and to avoid the double jeopardy that would follow if they were. 46 The maximum for each offence is $825,000.00 given the prior recorded industrial history of the Crown and noting particularly the industrial history of the Department (s12(d)(a) of the Act) and given the effect of s121 of the Act. 47 The prosecution submitted there should be the application of s21A of the Crimes (Sentencing Procedures) Act 1999 to the court's consideration of penalty for the two charges. It states: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work, (b) the offence involved the actual or threatened use of violence, (c) the offence involved the actual or threatened use of a weapon, (d) the offender has a record of previous convictions, (e) the offence was committed in company, (f) the offence involved gratuitous cruelty, (g) the injury, emotional harm, loss or damage caused by the offence was substantial, (h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), (i) the offence was committed without regard for public safety, (j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence, (k) the offender abused a position of trust or authority in relation to the victim, (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant), (m) the offence involved multiple victims or a series of criminal acts, (n) the offence was part of a planned or organised criminal activity. The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. . . . 48 Section 21A commenced on 1 February 2003 and applies to the determination of a sentence thereafter for an offence, whenever committed, unless before 1 February 2003, a court has convicted the person being sentenced of the offence or a court has accepted a plea of guilty to the offence and the plea has not been withdrawn (clause 45(2), Sch 2, Crimes (Sentencing Procedure) Act 1999). 49 On 14 March 2002, in the second reading speech of the Crimes (Sentencing Procedure Amendment (Standard Minimum Sentencing) Act 2002, in moving amendment to the Crimes (Sentencing Procedure) Act 1999 it was said: . . . A strong message needs to be sent that the court will not tolerate assaults and other criminal activities perpetrated against our most valuable citizens those whose occupation make them vulnerable to aggressive conduct. It is these groups that this legislation squarely protects. . . . 50 Consideration has been given to the effect of s21A of the Crimes (Sentencing (Procedure) Act 1999 on the sentencing process and allowing for the application of common law principles developed on sentencing. In R v Jenkin [2003] NSWCCA 378, Wood CJ at CL (Smart AJ agreeing) said: [22] That victim was working in an occupation that left him vulnerable to attack, and as such he was entitled to the protection of the courts: Regina v Thwaites (NSWCCA), 6 October 1993.

In R v Tadrosse [2005] NSWCCA 145, Howie J (Grove and Hall JJ agreeing said: [25] Before s 21A(2) was enacted, the common law recognised that there were certain categories or classes of persons who needed to be especially protected because they were particularly vulnerable to criminal offences generally or a criminal offence of a particular type. Of course the purpose of sentencing is to protect the community generally and this is achieved by each of the aims of sentencing such as deterrence, denunciation and rehabilitation. But an aggravating factor is something that operates over and above the general considerations that indicate that a particular class of offending should generally be dealt with in a particular way. 51 In R v Wickham [2004] NSWCCA 193, the Criminal Court of Appeal considered the effect of the section and acknowledges that aggravating factors are limited by common law principles. It was the intention of parliament in s21A to replicate the common law. Thus the court must be careful not to double count aggravating factors or breach the principles in R v De Simoni (1981) 147 CLR 383. Where an aggravating factor is relied upon, the court is best to make a finding of fact using the language of s21A and resolve clearly whether the factor is present. As Howie J said in Wickham (with Bell and Hislop JJ agreeing): 22. When a sentencing court is about to consider matters of aggravation . . . under s21A it is important that it recognises the limits upon the use to be made of those factors. The first is that found in relation to factors of aggravation in s 21A(2) which, after listing a number of aggravating features, provides: The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. The effect and policy behind such a limitation is self-evident: there should be no double counting of aggravating features of an offence.

The second limitation is that found in the s 21A(4), which provides: The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. The effect of this provision is to ensure that a factor is not taken into account in a way inconsistent with general sentencing principles and policy. It was the intention of Parliament to replicate the common law.

This provision can operate in one of two ways. Firstly, it can impose a limitation on the use to be made of a particular factor not otherwise apparent in the provisions of s 21A(2) or (3). For example, s 21A(2)(d) provides that an aggravating feature is that: the offender has a record of previous convictions. On its face that provision would indicate that a prior criminal record is a matter of aggravation by making the offence more serious. Yet the common law rule is that a prior record does not have the effect of aggravating an offence but it may either deprive the offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and the protection of the community: R v Shankley [2003] NSWCCA 253 at [31]. It has been held that s 21A(2)(d) should be read according to that common law principle: R v Johnson [2004] NSWCCA 76.

Similarly the aggravating factor in s 21A(2)(g): The injury, emotional harm, loss or damage caused by the offence was substantial would be limited by the rule that the effect upon persons of the death of the victim is not an aggravating feature of an offence such as murder: R v Previtera (1997) 94 A Crim R 76. It would also be limited by the common law rule that the court is only to have regard to the consequences of an offence that were intended or could reasonably have been foreseen: Wise v R [1965] Tas SR 196; R v Boyd [1975] VR 168.

The second way that the limitation in s 21A(4) can operate is to require the court to disregard a matter of aggravation because to take it into account would be to punish the offender for an offence which was more serious than that for which the offender was to be sentenced: R v De Simoni (1981) 147 CLR 383. This consideration is most likely to arise when the court has regard to factors which are often found as aggravating features of offences in the Crimes Act , such as that the offence was committed in company, that the offender used a weapon, or that the offender was in a position of trust.

The court, of course, should bear in mind where the onus of proof lies and the standard of proof that is applicable when determining whether an aggravating factor or a mitigating factor is present. In respect of matters of aggravation proof lies on the prosecution beyond reasonable doubt. . . . However, due regard should be paid to what was said by the High Court in Weininger v The Queen (2003) 212 CLR 629 as to the significance of the use of the words "known to the court" in a similar Commonwealth provision, those words being used in s 21A(1) in respect of both the aggravating and mitigating factors. It was held at [21] that: . . . the phrase "known to the court" should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted. 52 Adopting the above principles the court is not entitled to take into account an aggravating feature of an offence, pursuant to s21A(2) Crimes (Sentencing Procedure) Act 1999, if the aggravating feature is an element of the offence. I accept s21A(2) of the Crimes (Sentencing Procedure) Act 1999 has no application if the aggravating feature is an element of the offence for which the defendant is to be sentenced (Wickham; R v Cramp [2004] NSWCCA 264; R v Berg [2004] NSWCCA 300; R v Mohamadin [2004] NSWCCA 401; R v House [2005] NSWCCA 88; R v Williams [2005] NSWCCA 99; R v JDB [2005] NSWCCA 102; R v Pearson [2005] NSWCCA 116; R v Ibrahimi [2005] NSWCCA 153; R v Street [2005] NSWCCA 139). 53 The defendant submitted the qualification in s21A(2)(a) of the Crimes (Sentencing Procedure) Act 1999 has effect only if the "offence arose because of the victim's occupation". It submitted the provision of s21A is not relevant to this court's consideration as the offence did not arise because of the victim's occupation but because of the employer/employee relationship that existed and the statutory duties imposed on an employer to its employees pursuant to s8(1) of the Occupational Health and Safety Act. The defendant submitted therefore the provisions of s21A(2)(a) of the Crimes (Sentencing Procedure) Act 1999 may well be applicable but in relation to any offence committed by AL. The defendant further submitted there is no reference within the general duties imposed on employers under ss8(1) and (2) of the Act (or anywhere else in the Act) that could be construed as placing a greater duty of care on the class of employees described in s21A(2)(a) of the Crime (Sentencing Procedure) Act 1999 than any other employee. Therefore to find s21A(2)(a) of the Crimes (Sentencing Procedure) Act 1999 operates in the manner contended by the Prosecutor is to import into the Act a special class of persons to whom an employer has a higher duty. The defendant submitted this is unacceptable in a criminal procedure. 54 In the alternative, the defendant submitted if s21A(2)(a) of the Crimes (Sentencing Procedure) Act 1999 applied it ought not be regarded as an aggravating factor resulting in any increase in penalty imposed by the court in the circumstance. The court is to have regard the defendant submitted to the charge as particularised and established not in terms of the 'actual or threatened use of a weapon' as relied upon by the Prosecutor. 55 The Court holds a discretion in the application of s21A of the Crimes (Sentencing Procedure) Act 1999. Through the application of s 21A of the Crimes (Sentencing Procedure) Act 1999 employees who are exercising a public function and provide a necessary public service which is beneficial to our society are protected by the provision. Many such employees and volunteers are exposed to the very worst of social circumstance. I accept teachers are part of the nominated category of such employees. The parliament has chosen to acknowledge the vulnerability of teachers and that the community has a need to especially protect them. Teachers provide a public service on a daily basis and are at times exposed to the most of difficult circumstances leaving them vulnerable to aggressive acts. Offending against a teacher can thereby be an aggravating factor to an offence. 56 It is my view in the circumstance the provision is applicable to the offences under s8(1) of the Act to which I am determining sentence. The employer, the Department, was fully aware of the propensity of the student to violent behaviour. The teachers were victims of the offences given the defendant's failure to provide them with a safe place of work. As to the relevant aggravating features I find the offences arose because of the teachers' occupation in exercising their public function (s21A(2)(a)); both offences involved the threatened use of violence (s21A(2)(b)); on 11 December 2001, the offence involved the actual use of a weapon (s21A(2)(c); the injury and emotional harm caused by the offences to the relevant teachers was I find substantial (s21A(2)(g)). I do not believe it is contrary to the rule of law or the administration of the Occupational Health and Safety Act to take into account the aggravating factors as enunciated above in determining the appropriate sentence for each offence. 57 The prosecutor makes an application for costs and as well makes an application under s122(2) of the Fines Act 1996 for an order that there be paid to it a moiety of the penalty imposed. I do not accept, as submitted by the defendant, that a moiety in the particular circumstances would represent a windfall to the Federation. Under the Act, the Federation had a right to act as prosecutor. This was a serious offence. It would have been a travesty of justice if the charges were not laid. 58 The grant of a moiety was considered by Boland J in Geoff Derrick v ANZ Group Limited (No. 2) [2005] NSWIRComm 145 where he stated at [20]: …It does not seem to me that it is an implicit requirement, that where the court directs a portion of the fine to be paid to the prosecutor it has to be satisfied that the purpose for which that portion will be used will be related to occupational health and safety …I consider if that is to be the purpose, no issue should arise to whether the Court should exercise its discretion to grant the moiety or part of it.

His Honour went on to say at [21]: … There is not much utility in speculating on the circumstances in which a court may not direct a portion of the fine to be paid to a prosecutor, but if the prosecutor is the secretary of an industrial organisation of employees and the evidence is that the portion of the fine is to be fully remitted to the organisation and then used for a lawful purpose or purposes in accordance with the requirements of the organisation's registered rules, whether it be directly for occupational health and safety purposes or not, that does not, in my opinion, constitute a proper basis for declining to grant the moiety or part of it.

I would agree with the views expressed and, in the exercise of my discretion, I propose to order the payment of a moiety as sought by the prosecutor. 59 In a successful prosecution, costs may be awarded to the prosecutor on the basis that costs will follow the event (WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (No 2) [2003] NSWIRComm 40 at [19]). However, costs may be apportioned in certain circumstances. The relevant general principles in that regard are contained in the judgment of Toohey J in Kimberley John Hughes v Western Australian Cricket Association (Inc) and Ors (1986) ATPR 48, subject to the qualifications in Cretazzo v Lombardi (1975) 13 SASR 4, namely: (a) Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order; (b) Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which it has failed; (c) A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law; and (d) Notwithstanding the above, the interests of justice may not be served if parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case. 60 I see no special circumstances justifying any other Order than the defendant shall pay the prosecution's costs as agreed or assessed. 61 Taking into account all the above considerations in mitigation and while objectively acknowledging that the Department had in place policies for safe working in the circumstances but noting only part of that policy was implemented, I make the following findings:

In Matter No IRC7028 of 2003 1. I find the defendant guilty. 2. The defendant is fined in the sum of $140,000.00.

In Matter No IRC7029 of 2003 1. I find the defendant guilty. 2. The defendant is fined in the sum of $160,000.00. 62 The defendant is fined in the total sum of $300,000.00. In application the principle of totality and given the significant commonality in the elements of the two offences there shall be a reduction of the above penalties to a total penalty of $220,000.00.

Orders 1. In Matter No IRC7028 of 2003, I find the defendant guilty. The defendant is fined in the sum of $100,000.00. 2. In Matter No IRC7029 of 2003, I find the defendant guilty. The defendant is fined in the sum of $120,000.00. 3. There shall be a moiety to the prosecution from each penalty. 4. There shall be an order for costs as agreed or assessed. Leave to apply if no agreement can be reached.

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