Cahill v State of New South Wales

Barry Johnson v State of New South Wales (Department of Education and Training) [2006] NSWIRComm 275 Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2002] NSWIRComm 71; (2000) 49 NSWLR 610 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 DPP v Esso Australia Pty Ltd [2001] VSC 263; (2001) 124 A Crim R 200 Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Geoff Derrick v ANZ Group Limited (No. 2) [2005] NSWIRComm 145 Inspector De Leon-Stacey v The State of New South Wales (Department of Ageing, Disability and Home Care) [2005] NSWIRComm 131 Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275 Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) (No 2) [2007] NSWIRComm 168 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 CASES CITED: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117 Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]. O'Sullivan v Crown in Right of State of New South Wales (Department of Education and Training) [2003] NSWIRComm 303; (2003) 128 IR 158 Regina v Penisini [2004] NSWCCA 339 Regina v Heip Tan Nguyen [2004] NSWCCA 438 WorkCover Authority (NSW) v ACI Operations Pty Ltd (Industrial Court of New South Wales, Schmidt J, 25 February 1994, unreported) WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of the State of New South Wales (Department of Education and Training) [2001] NSWIRComm 313; (2001) 112 IR 1 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another [2000] NSWIRComm 1123; (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Keniry) v The Crown in Right of the State of New South Wales (Department of Community Services) [2002] NSWIRComm 349; (2002) 120 IR 269 WorkCover Authority of New South Wales (Inspector Tuckley) v The Crown in Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1 WorkCover Authority of NSW (Inspector Keenan) v Crown in Right of New South Wales (Department of Education and Training) (Industrial Court of New South Wales, Schmidt J, 6 December 1999, unreported)

TEXTS CITED: Nygh and Butt, Butterworths Australian Legal Dictionary, 2nd ed (1997)

HEARING DATES: 29 September 2008, 30 September 2008

PROSECUTOR: Mr B G Docking of counsel Solicitors: W G McNally Jones Staff Ms A L McRobert LEGAL REPRESENTATIVES:

DEFENDANT: Mr P M Skinner and Ms B Obradovic of counsel Solicitors: Crown Solicitor's Office Ms M T Kelly

JOHN JOSEPH CAHILL v STATE OF NEW SOUTH WALES (DEPARTMENT OF COMMUNITY SERVICES) (No 4)

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2008] NSWIRComm 201

1 In Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123, a liability judgment given on 27 June 2008, the defendant, the State of New South Wales (Department of Community Services), was found guilty of contravening s 8(1) of the Occupational Health and Safety Act 2000 ("the 2000 Act"). 2 The incident giving rise to the offence was described in the liability judgment at [3]: [3] On 24 May 2004, a client of the defendant, Ms Cheryl Cooper, attended the defendant's Ballina Community Service Centre ("CSC") for the purpose of an access visit to her three children, who had been removed from her care the week prior. An interview was conducted between the client and two of the defendant's employees employed as caseworkers, namely Ms Kylie Philps and Ms Linda Williams. During the interview the client stabbed one of the employees, Ms Philps, and threatened other staff present at the Ballina CSC. Ms Cooper was arrested, subsequently found guilty of intent to maliciously wound and sentenced to a term of imprisonment. 3 Details of the charge were set out at [4] and [5] of the liability judgment: [4] As a consequence of the incident, Mr John Joseph Cahill, General Secretary of the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales ("PSA"), empowered by s 106(1)(d) of the 2000 OHS Act, filed an application for order on 23 May 2006 that the defendant answer a charge under s 8(1) of the 2000 OHS Act. That provision requires that an employer "must ensure the health, safety and welfare at work of all the employees of the employer." [5] The particulars of the Application for Order alleged that: On 24 May 2004, at the Ballina Community Services Centre in New South Wales, the State of New South Wales (Department of Community Services) whose address is 4-6 Cavill Avenue Ashfield 2131 Sydney, New South Wales, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular, Gwen Balchin, Robin Kelly, Natjsia (sic) Lapic, Lynn Meehan-Frost, Kylie Philps, Theresa Pisanos, Rhonda Sherrington, Linda Williams and Raymond Hendrikas Wilton in that the defendant did not ensure systems of work and the working environment of the employees were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000

a) From time to time clients attended the place of work of the Department of Community Services ("DOCS") for the purpose of being interviewed by DOCS employees.

b) There was an actual risk of a DOCS employee suffering trauma, namely, a psychic or physical phenomena, or both, which may occur when an employee is exposed to a violent event involving a client that threatens danger or anxiety, or both, and can be created by being the victim or a witness to an event or restraining any client.

c) Aspects of the defendant's unsafe systems of work were any of the following: i) Failing to prevent the client, Ms Cheryl Cooper ("the client") from attending the place of work for an interview.

ii) Failing to undertake an adequate risk assessment of the client that had a focus on the safety of the employees at the place of work, assessed the risk and assessed what preventative or control measures needed to be in place to prevent or reduce an incident arising or escalating to a more serious stage.

iii) Failing to undertake a Protection Planning Meeting in respect of the client.

iv) Failing to ensure that there were a security guard(s) or police officers(s) present or then attended at the place of work whenever the client attended the place of work.

v) Failing to provide an alert in respect of the client or to warn employees that the client was to attend the place of work, or both.

vi) Failing to have in place adequate interview facilities at the place of work.

vii) Failing to have in place an adequate emergency system. d) Manifestations of the risk were the stab wounds to Ms Philps and the psychological injuries to Mr Wilton. 4 At [364] of the liability judgment the Court found that: [364] [T]he offence has been made out, notwithstanding that particular (c)(iii) has been struck out. It is unnecessary for the prosecutor to prove each and every particular: Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481 at 485. It follows that the defendant is guilty of an offence under s 8(1) of the 2000 OHS Act unless it is able to make out a defence under s 28 of that Act. 5 The defences under s 28 of the Act were not made out. At [400] the Court found that: [400] [T]he defendant, the State of New South Wales (Department of Community Services), is guilty of contravening s 8(1) of the Occupational Health and Safety Act 2000. The defendant will appear for sentencing at a convenient date. The parties will be advised. 6 Submissions on sentence were heard on 29 and 30 September 2008. This judgment deals with sentence. THE EVIDENCE 7 The prosecutor's evidence in the sentencing proceedings consisted of a statement of Raymond Hendrikas Wilton, the registered rules of the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales ("PSA"), documents purporting to show the prior convictions of the defendant and the second reading speech relating to the introduction of the Crimes (Sentencing Procedure) Amendment Bill 2007 (23 October 2007). Mr Wilton was required for cross-examination. At the time of the incident on 24 May 2004, Mr Wilton held the position of Manager Casework Out of Home Care at Ballina Community Service Centre ("CSC"). Mr Wilton intervened in the assault by Ms Cooper on Ms Philps. Paragraphs [112] to [113] of the liability judgment described the intervention and the psychological effect the incident had on Mr Wilton: [112] Mr Wilton described what happened. He saw Ms Balchin and Ms Cooper facing each other and Ms Balchin was holding Ms Cooper by the forearms trying to restrain her. He noticed Ms Cooper was holding a knife about four inches long. He said the struggle between Ms Balchin and Ms Cooper seemed to end and that Ms Cooper started to walk towards him. Ms Cooper was pointing the knife at him and was saying something about Satan. Mr Wilton said Ms Cooper looked angry and determined. Mr Wilton said he picked up a beanbag and held it in front of himself to discourage Ms Cooper from attacking him and anyone else in the room. Mr Wilton said Ms Cooper started backing out of the room and threw the knife at him. Ms Cooper left the building and sat in her car. The police came and arrested Ms Cooper. [113] As a result of a series of prior incidents and the incident on 24 May 2004, Mr Wilton was diagnosed with psychological injuries, which manifested in both physical and psychological symptoms. Arising from his psychological injuries, Mr Wilton receives on going treatment in the form of weekly counselling sessions and taking daily anti-depressant medication. Mr Wilton lodged a workers' compensation claim that was accepted. Mr Wilton's evidence 8 In his statement in the sentencing proceedings Mr Wilton stated, amongst other matters: · that my condition had manifested itself in physical symptoms such as loss of libido, poor sleep patterns, rapid weight loss and rapid weight gain. It also manifested itself in psychological symptoms including social withdrawal, a loss of self confidence, a sense of isolation and suicidal ideation;

· from late May 2005 I took 2 days per week off work in order to recover. This was reduced to 1 day per week off work in February 2006;

· I still experience anxiety especially in the workplace and I still experience many of the symptoms that I was previously experiencing including poor sleep patterns and low libido;

· the Department (DoCS) still treats me like I am the problem and no one from management has ever discussed with me the impact of the 24 May 2004 incident on me, or enquired with me to see if I am recovering well despite having been employed with DoCS for more than 31 years;

· I found the proceedings were very difficult, and I was traumatised by giving evidence in the proceedings and reliving the events of the incident. Not once did anyone from DoCS approach me or offer me support. On the contrary DoCS made me feel like I was the enemy. In the witness box the Defendant tried to discredit me and I was accused of lying. This was very difficult for me as I believe that I have always been professional and have worked very hard for DoCS and have had to put up with many unsafe situations over the years;

· I spent much of the anxious years during the court processes expecting reprisals from DoCS for speaking up. To this day I feel vulnerable and I believe I have been poorly supported and left to feel afraid despite not having done anything wrong. All around me I see signs of improvements to security and I put this down to the OH&S legislation finally being taken seriously by this department. I believe that the changes occurring around me are directly related to the legislation now being properly applied and are an acknowledgement that this employer now understands its duty of care to the safety of its staff. I believe the security improvements are directly related to the prosecution and I have noted a marked increase in safety improvement activity as this case approached a date for judgement. I have seen evidence of further activity which I feel relates to the approaching sentencing hearing. Specifically a surveillance monitor to be used to monitor activity in the two secured interview rooms has been installed. I believe that this is the first in the state of this kind to be installed;

· my wife and family have endured the effects of my psychological illness for the past four and a half years. In the early stages, I felt suicidal and distant from everyone. I had no optimism that I would ever recover from my depression and my family were ill equipped to help me to stay safe and stay connected to them. There were times when it appeared that my marriage would end and if it had not been for the professional help I received from my Psychologist and GP the cost to my family and I would have been even more devastating than it has been; and

· I still feel ill at ease in my workplace and my anxiety rises quickly at the first sign of any disturbance, loud noises or unannounced changes in operations and procedures. To this day I wish I had not been exposed to violence and risk over the years of service and certainly to the incident on 24 May 2004. While the legal proceedings will be concluded once the sentence is handed down, for me this incident is something which marks what I can only categorise as the ruining of my career and painful memories I will have till my death. Mr Newbery's evidence 9 The defendant's evidence consisted of an affidavit of Leon Newbery, the defendant's Director, Corporate Human Resources. Exhibited to the affidavit were a large number of documents referred to in the affidavit. Mr Newbery was required for cross-examination. 10 Mr Newbery described his work experience, his role within the defendant's organisation and the defendant's function as a department of government. In 2007/08 the defendant employed "around 4,549 in total, including 2,146 caseworkers or around 47% of the total". Mr Newbery also described: (a) the role of caseworkers; (b) the defendant's occupational health and safety culture and the evolution of its policies in that area since 1992 including the consultative framework, which involved close consultation with the PSA; (c) improvements in the defendant's approach to occupational health and safety between 2004 and 2008. These included the following: a. The establishment of permanent OHS staffing resources in the Department, as previously mentioned, including OHS facilitators in each region, head office and helpline with current staffing costs of around $1,400,000 per annum;

b. OHS awareness training conducted for all managers and staff from 1 September 2004;

c. The inclusion of OHS matters in the Induction Checklist and Orientation training for all new staff;

d. The introduction of mandatory training in Predicting and Managing Occupational Violence for all caseworkers;

e. The inclusion of OHS responsibilities in the performance agreements for all staff;

f. The introduction of OHS risk management including Local Safety Plans and annual physical inspections of all sites across the Department.

g. Physical audit exercises undertaken in 2006 and 2007 as part of developing control plans. These physical audits cover a range of issues including security systems, accommodation and unresolved hazards. Any times not immediately resolved are included in control plans for all sites, which are renewed annual and are in place across the State. The auditing is now being undertaken by the OHS unit.

h. The development and promotion of the Department's OHS intranet site;

i. The development and introduction of on-line incident reporting; and

j. The introduction of a range of policies and procedures such as: i. OHS Policy; ii. OHS Consultation Framework' iii. Risk Management Policy and Procedure which was rolled out via training sessions across the State in early 2005; iv. Preventing and Managing Client Initiated Violence Policy and Procedure, the details of which are described further below; v. Emergency Management; vi. First Aid; vii. Return to Work; viii. Incident and Hazard Reporting; ix. Policies on Safe Driving and Preventing and Managing Psychological Injury are currently under development. k. Revitalisation of the state OHS Consultative Group and Local representatives with regular meetings being conducted across the State;

l. Promotion of OHS via the HR intranet site, DOCSVox articles, Comm Centre Messages and regional visits;

m. Two WorkCover audits with significantly improved ratings. A third audit as required under the WorkCover OHS Improvement Initiative was completed in June 2008 with the report pending; n. The close management of workers' compensation claims which has resulted in injured staff returning to work as soon as practicable and reduced costs;

o. The provision of much improved OHS and workers' compensation management information for regions and the Department as a whole, with quarterly briefings of the Department Executive on issues and trends; and

p. There was significant investment on office accommodation and security across the State. (d) the improvements made to office accommodation and security. Mr Newbery said in this respect, "More than $87,000,000 has been spent on improving security and accommodation in Department workplaces, this includes spending on improved foyers, interview rooms, the introduction of CCTV and so on"; (e) improvements to "Preventing and Managing Client Initiated Violence Policy and Procedure". In this respect, Mr Newbery deposed: A working party on OHS protocols regarding interviewing clients was established and first met on 3 March 2005. A comprehensive consultation exercise on developing the necessary safety considerations involved in any client contact was drafted and the necessary consultation with the PSA occurred. The documentation required significant development and was done in tandem with the introduction of new security systems and accommodation standards. The development of the policy involved the development of a series of Safe Work Practices for common client interactions and an innovative Client Context Risk Management Tool, designed for situations where there was a perceived elevated level of risk associated with the client. Use of police officers during client interviews is specifically provided for in the Policy where risk is identified as high. The PSA were asked to attend a briefing session on 7 August 2006 and negotiations on the draft documentation continued over many months, finally including a pilot at 4 sites conducted in May to June 2007. The pilot sites for this were Cooma, Orange, Blacktown and Metro-ISS. Further negotiations continued until the PSA endorsed a major rollout of the program across the State which took place from August to October 2007. During that time Casework Managers were provided training on the new policy and procedures, including the Client Context Risk Management Tool, and training sessions were then conducted throughout the State for all caseworkers. (f) specific improvements made at Ballina CSC; (g) impact of Ballina incident on the defendant. In this respect, Mr Newbery deposed: The Ballina incident had an immediate and lasting effect on the Department, on a number of levels.

The biggest impact was felt locally, and as a result there were a number of OHS and related initiatives which were undertaken: a. WorkCover was advised immediately and the necessary reports were provided; b. The PSA undertook an inspection of the site, and the Department cooperated with its requests; c. A critical incident debriefing was conducted for identified staff at Ballina by IPS, the Department's Employee Assistance Program at the time. IPS was asked to undertake home visits as well as separate counselling for the manager; d. Leanne Gorton, who was the new OHS Facilitator for the Region visited Ballina the day after the incident. She met with relevant staff, helped them to complete the appropriate paperwork and provided necessary support; e. The workers' compensation insurer was notified and statements provided to it, as well as the necessary injury notification forms; f. A "Root Cause Analysis" of the incident was conducted by Mr David Troughton of Work Risk Solutions on 1 and 2 June 2004. This involved undertaking a systematic review of the incident to determine the underlying causes via interviews and focus groups of relevant staff; g. There were immediate safety steps undertaken at the Ballina CSC in the form of a security reminder issued on 7 June 2004 and Interim Safety Procedures were put in place also on that date; h. A meeting was held with the PSA at the Department's head office on 8 June 2004 in which the immediate actions taken were discussed; i. The local Ballina OHS working group, which comprised of management, staff and union representatives, was set up and met on several occasions. Submissions were provided to the OHS unit on 24 October 2004 regarding a range of action requested to improve security at Ballina as well as to provide support to staff, and to address ongoing office conflict. Most recommendations were approved and action was taken to organise physical improvements such as a security camera. The cultural health survey was also endorsed and undertaken over several months; j. A meeting with Mr Wilson from the PSA was held on 9 November 2004 to discuss the Department's Investigation report and the PSA report, progress with the local Ballina action plan and a summary of corporate wide initiatives. While Mr Wilson said the PSA would provide a copy of the PSA report to the Department, it has not been provided to date. (h) the work of various committees concerned with occupational health and safety including: State OHS Consultative Group; State DOCS/PSA Joint Consultative Committee; Regional DOCS/PSA Joint Consultative Committees; and Security Review Working Group; (i) training in occupational health and safety and occupational violence. In this respect Mr Newbery stated: The Department has rolled out specific training on Predicting and Managing Occupational Violence ("PMOV") via a 2 day training program that commenced in 2005 and 2006…This training has been modified over time and is still running, with over 1700 staff having attended as at August 2008. Further Risk Management Training, namely Preventing and Managing Client Initiated Violence Policy and associated training, was rolled out from mid 2007… The training on this policy was provided during Practice Solutions sessions. Practice Solutions Sessions are training sessions which occur every Thursday morning at every CSC across the State. Practice Solutions is a key vehicle for the Department to introduce changes to policies and procedures or to up skill various areas. As has been mentioned the nature of the work of caseworkers is to undertake risk assessments of children. There are a number of frameworks which apply here. Part of the professional training as social workers and their role in the Department requires all caseworkers to undertake risk assessments. Caseworkers mostly apply the professional judgement model, which is the gathering and assessing evidence of risk to child, including the likelihood and severity. The caseworkers are expected to weigh up information and form judgement which they may discuss with their manager. This is consistent with the risk management framework in the Preventing and Managing Client Initiated Violence Policy and Procedures, which includes an assessment of risk and the safety issues for staff. If staff assess there is a high risk from a client they are required to use a Client Context Risk Management tool to determine an appropriate risk management strategy, and if not they are still required to follow the safe work practices in the policy. 11 In relation to the record of prior convictions of the defendant tendered by the prosecutor, Mr Newbery stated: It appears from that printout that the Crown in its capacity as the Department of Disability and Ageing has been convicted and fined on at least 3 occasions in relation to 11 incidents for breaches of OHS Act, when that department had been part of the Department of Community Services. All of these convictions however relate to Disability Services, which was formerly part of the Department, and is now part of the Department of Disability and Ageing and not the Department as currently constituted.

12 The approach I intend to take to sentencing in this matter is that described in Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) (No 2) [2007] NSWIRComm 168 at [29] to [34]. Maximum penalty

13 The Court is required to give careful attention to maximum penalties because, firstly, the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick: See Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [31]. In the present case there was a dispute over whether the defendant was a "previous offender", thereby attracting a maximum penalty of $825,000: see s 12(a) of the 2000 Act. 14 Section 4 of the Act defines "previous offender": previous offender, in relation to the maximum penalty for an offence, means a person who has, at any time before being sentenced for that offence, been convicted of any other offence of any kind against this Act or the Occupational Health and Safety Act 1983. 15 Sections 120 and 121 of the Act provide respectively as follows: 120 Responsible agency for the purposes of proceedings against the Crown

(1) The responsible agency for the purposes of proceedings against the Crown is the agency of the Crown: (a) whose acts or omissions are alleged to constitute the offence, or

(b) if that agency has ceased to exist - that is the successor of that agency, or

(c) if that agency has ceased to exist and there is no clear successor - that the court declares to be the responsible agency. (2) The responsible agency is to be specified in the charge for an offence for which the Crown is prosecuted or in any penalty notice served on the Crown. The responsible agency may, during any proceedings for an offence, be changed by the prosecutor with the leave of the court. (3) The responsible agency is entitled to act for the Crown in proceedings against the Crown. (4) Subject to any relevant rules of court, the procedural rights and obligations of the Crown as the accused in the proceedings are conferred or imposed on the responsible agency. (5) For the purposes of this section, a State owned corporation is taken to be an agency of the Crown in right of New South Wales.

121 Penalties in respect of proceedings against the Crown

(1) In this section, penalty means: (a) the monetary penalty for an offence against this Act or the regulations, or

(b) the amount payable under a penalty notice served in connection with such an offence, or

(c) the amount payable under an order made under Division 2. (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). (4) Enforcement proceedings under the Fines Act 1996 cannot be taken in connection with penalties imposed in respect of proceedings against the Crown. 16 Section 121(3) is the critical provision. As it was observed in NSW Fire Brigades (No 2) at [36]: [36] The interpretation that has been applied to s 121(3) is that it is not applicable "to the Court's consideration of prior convictions of the Crown for the purpose of determining the appropriate sentence in relation to a charge as distinct from the determination of the maximum penalty for that offence": see WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of the State of New South Wales (Department of Education and Training) (2001) 112 IR 1 at [66] per Walton J, Vice President . See also WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 3) (2002) 112 IR 141 at [15]-[17] per Hungerford J. In other words, s 121(3) is concerned only with fixing the maximum penalty; it does not otherwise address the determination of a penalty for a particular offence within the permissible range from zero to the relevant maximum amount: Police Service (No 3) at [16]. 17 The question is whether the Department of Community Services ("DOCS") as the responsible agency (or any of its predecessors) - and not the Crown - is a previous offender either under the 2000 Act or the Occupational Health and Safety 1983 ("the 1983 Act"). Counsel for the defendant contended DOCS had not previously offended. 18 As mentioned earlier, the prosecutor tendered a list of prior convictions in respect of "THE CROWN IN THE RIGHT OF THE STATE OF NEW SOUTH WALES (Dept of Aging [sic], Disability and Home Care formerly Dept of Community Services)". Shown on the list were 11 prior convictions. The first of these was in 1999 and was the case of WorkCover Authority of New South Wales (Inspector Tuckley) v The Crown in the Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1. That case involved prosecutions arising from an assault by residents of a group home run by the defendant on an employee of the defendant. The defendant submitted this conviction was to be now treated as that of the Department of Ageing, Disability and Home Care, not that of the defendant; it was the Department of Ageing, Disability and Home Care, not the defendant, which was a "previous offender" under the Act because of that offence. The second conviction was in the Chief Industrial Magistrate's Court in 2002 and was also said to be appropriately regarded as one involving the Department of Ageing, Disability and Home Care.

19 Six further convictions in 2002 concerned offences that occurred between August 1998 and July 1999 (WorkCover Authority of New South Wales) (Inspector Keniry) v The Crown in Right of the State of New South Wales (Department of Community Services) [2002] NSWIRComm 349; (2002) 120 IR 269. These related to incidents at premises operated by DOCS known as Group Care Home. Apparently, this function was transferred out of DOCS in 2001 and is now part of the Department of Ageing, Disability and Home Care. Two other convictions were in the Chief Industrial Magistrate's Court in 2005 but no detail was available regarding these convictions. One presumes, however, they related to the Department of Ageing, Disability and Home Care, which was formed in April 2001. A further conviction in 2005 was shown, that being in the case of Inspector De Leon-Stacey v The State of New South Wales (Department of Ageing, Disability and Home Care) [2005] NSWIRComm 131. 20 Further, I note the evidence of Mr Newbery that: It appears from that printout [Exhibit S3] that the Crown in its capacity as the Department of Disability and Ageing has been convicted and fined on at least 3 occasions in relation to 11 incidents for breaches of OHS Act, when that department had been part of the Department of Community Services. All of these convictions however relate to Disability Services, which was formerly part of the Department, and is now part of the Department of Disability and Ageing and not the Department as currently constituted. 21 In determining whether the Crown is a previous offender it is sufficient for present purposes to refer to only two of the convictions recorded in Exhibit S3. Based on the following considerations I have concluded that the Crown is a previous offender: (i) in WorkCover Authority of New South Wales (Inspector Tuckley) v The Crown in Right of the State of New South Wales (Department of Community Services) the defendant, that is, the Crown in the Right of New South Wales in its emanation as the Department of Community Services, was convicted of an offence under the 1983 Act (see (1999) 96 IR 1 at 23); (ii) in WorkCover Authority of New South Wales (Inspector Keniry) v The Crown in Right of the State of New South Wales (Department of Community Services) the defendant, that is, the Crown in the Right of New South Wales in its emanation as the Department of Community Services, was convicted of six offences under the 1983 Act (see (2002) 120 IR 269 at 325-326); (iii) section 120(1) of the 2000 Act provides that: The responsible agency for the purposes of proceedings against the Crown is the agency of the Crown: (a) whose acts or omissions are alleged to constitute the offence, or

(b) if that agency has ceased to exist - that is the successor of that agency, or

(c) if that agency has ceased to exist and there is no clear successor - that the court declares to be the responsible agency. (iv) it did not appear to be in dispute that a "responsible agency" would include a public service department as set out in Schedule 1 to the Public Sector Employment and Management Act 2002 . Schedule 1 includes the Department of Community Services. That Department has, for relevant purposes, never ceased to exist; (v) the responsible agency could not have been the Department of Ageing, Disability and Home Care in respect of the offences in WorkCover Authority of New South Wales (Inspector Tuckley) v The Crown in Right of the State of New South Wales (Department of Community Services) and WorkCover Authority of New South Wales (Inspector Keniry) v The Crown in Right of the State of New South Wales (Department of Community Services) because it did not exist at the relevant times; (vi) it was not contended that a section or division or function of DOCS responsible for disability services within the Department could be regarded as a responsible agency for the purpose of s 120(1) or s 121(3) of the 2000 Act;

(vii) section 121(3) of the 2000 Act provides that: (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). (viii) by cl 13 of Sch 3 - Savings, transitional and other provisions of the 2000 Act, Pt 7 - Criminal and other proceedings (which includes s 121) extends to proceedings under the 1983 Act; (ix) it was the acts or omissions of DOCS that led to the conviction of the Crown in WorkCover Authority of New South Wales (Inspector Tuckley) v The Crown in Right of the State of New South Wales (Department of Community Services) and in WorkCover Authority of New South Wales (Inspector Keniry) v The Crown in Right of the State of New South Wales (Department of Community Services); (x) the responsible agency for the purpose of the present proceedings is DOCS; 22 The Crown is, therefore, a previous offender in relation to the present proceedings because of the acts or omissions of DOCS in WorkCover Authority of New South Wales (Inspector Tuckley) v The Crown in Right of the State of New South Wales (Department of Community Services) and in WorkCover Authority of New South Wales (Inspector Keniry) v The Crown in Right of the State of New South Wales (Department of Community Services). It follows that the maximum penalty is $825,000. The offending conduct

23 The charge in respect of which the defendant was found guilty was that on 24 May 2004 the defendant had failed to ensure the health, safety and welfare at work of a number of employees at its Ballina offices. As a consequence of the failure, employees suffered physical and/or psychological injury. The most serious physical injuries were those suffered by Ms Philps as a result of stab wounds. Ms Philps underwent counselling and was absent from work for six months. Mr Wilton suffered psychological injury such that he has experienced loss of libido, poor sleep patterns, rapid weight loss and rapid weight gain. His condition also manifested itself in psychological symptoms including social withdrawal, a loss of self-confidence, a sense of isolation and suicidal ideation. He continues to feel ill at ease in his workplace and his anxiety rises quickly at the first sign of any disturbance, loud noises or unannounced changes in operations and procedures. The incident, he said, "is something which marks what I can only categorise as the ruining of my career and painful memories I will have till my death". Ms Balchin suffered minor injuries in her struggle with Ms Cooper and other employees, including Ms Sherrington and Ms Williams, were placed at risk of injury. The Court observed at [310] of the liability judgment that "if it were not for the personal bravery of Mr Wilton and the others I have mentioned, the consequences of Ms Cooper's attack could have been more serious". 24 The defendant's failure to ensure the safety of employees was due to multiple causes, namely, a failure to: i) prevent the client, Ms Cheryl Cooper, from attending the place of work for an interview; ii) undertake an adequate risk assessment of Ms Cooper that had a focus on the safety of the employees at the place of work, assess the risk and assess what preventative or control measures needed to be in place to prevent or reduce an incident arising or escalating to a more serious stage; iii) ensure that there was a security guard(s) or police officers(s) present or then attended at the place of work whenever Ms Cooper attended the place of work; iv) provide an alert in respect of Ms Cooper or to warn employees that Ms Cooper was to attend the place of work, or both; v) have in place adequate interview facilities at the place of work; and vi) have in place an adequate emergency system. 25 The gravity of the offence is most apparent from the fact that the defendant knew or should have known (see liability judgment at [308]) that Ms Cooper posed a serious risk to the health and safety of employees at Ballina CSC, yet she was allowed to attend for an interview in circumstances where there were quite inadequate facilities and measures in place to deal with a client who was likely to react violently upon learning that she could not have access to her children. That is, the defendant allowed its employees to be exposed to serious risk of harm knowing that the risk existed and failing to implement adequate measures to deal with it. 26 I recognise the defendant is a large employer and that its caseworkers work in a highly emotion-charged environment. Given the nature of their work it is a challenging task to constantly ensure the safety of over 2000 caseworkers employed around the State. I have had regard to this difficulty in determining penalty. But in the present case not all that was reasonably practicable to protect the employees was done; yet it could have been done. The defendant knew of the classes of risk faced by its employees and had various paper systems in place from the early 1990s to deal with those risks (see liability judgment at [305]). However, the paper systems, where they existed, were not effectively implemented. For example, at [323] to [324] of the liability judgment it was said: [323] In the defendant's case, however, its policies and procedures provided for formal risk assessments to be conducted. Those policies and procedures, both at the time the charge was laid and after the incident on 24 May 2004, laid out in great detail the approach to be taken to risk assessment including in relation to the assessment of risk that clients presented. The policies and procedures were most relevant and applicable to an assessment of the type of risk presented by Ms Cooper. The policies and procedures to which I refer included: No. 92/136 Departmental Policy on the Effective Management of Client Behaviour to Prevent Injury or Illness to Staff, 20 November 1992; No. 95/148 Procedures for the Management of Threats to Staff, 29 December 1995; No. 96/65 Risk Assessment Policy Guidelines and Procedures, May 1996 that set down a method of conducting and recording the risk assessment process as signed by Rod Gilmour, Director Corporate Services, including for the risks of injury or illness to staff from clients; DOCS Policy Statement OHS Policy dated 26 September 2003, which said that Managers and Supervisors were accountable to the Director-General for implementing and monitoring risk management strategies applicable to staff and workplaces that they manage; OHS Risk Management Policy, August 2004 and OHS Risk Management Procedures; and Preventing and Managing Client Initiated Violence Policy and Procedures, July 2007. [324] The formal policies and procedures were not followed by the defendant through any of its managers or caseworkers. Indeed, there was no formal policy or procedure in place in the Ballina CSC in relation to dealing with potentially violent clients and there was no systematic risk assessment to determine the risk of violence before and on the charge date. 27 The prosecutor drew the Court's attention to what he regarded as three aggravating factors in s 21A(2)(a), (b) and (c) of the Crimes (Sentencing Procedure) Act 1999: 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, … 28 The prosecutor referred to what Kavanagh J said in Barry Johnson v State of New South Wales (Department of Education and Training) [2006] NSWIRComm 275 in relation to s 21A(2)(a) and a submission in that case that s 21A was not relevant 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 s 8(1) of the Act. Her Honour's observations and findings in this regard may be found at [53] to [56] of the judgment in Johnson: [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 s 8(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 ss 8(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 Crime (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 Crime (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 Crime (Sentencing Procedure) Act 1999. Through the application of s 21A of the Crime (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. 29 The defendant in the present case contended that s 21A(2)(a), (b) and (c) of the Crimes (Sentencing Procedure) Act were not directed at regulatory offences such as a contravention of s 8(1) of the Occupational Health and Safety Act, but rather true criminal offences by a perpetrator of an offence against one of the classes of victims described in s 21A(2)(a) because of their occupation or voluntary work, or where the perpetrator engaged in actual or threatened use of violence against the victim (s 21A(2)(b)), or where the perpetrator used or threatened to use a weapon against the victim (s 21A(2)(c)). In other words, s 21A(2)(a), (b) and (c) would have been relevant considerations in sentencing Cheryl Cooper but not the defendant in these proceedings. 30 I do not see why the provisions of s 21A(2)(a), (b) and (c) should not be applicable to offences under the Occupational Health and Safety Act and in that respect I agree with the observations of Kavanagh J in Johnson. I note that the defendant submitted that the mitigating factors listed in s 21A(3), those in paragraphs (b), (e), (f), (g), (h) and (i), making due allowance for the particular nature of this defendant as a Department of the Crown in the right of New South Wales, all applied in this case. I do not see how the defendant is able to successfully contend, for example, that the Court may not take into account as an aggravating factor that the offence involved the actual or threatened use of violence (s 21A(2)(b)), but could (as the defendant submitted) take into account the mitigating factor that the offence was not part of a planned or organised criminal activity (s 21A(3)(b)). 31 Regardless of whether an offence under the Occupational Health and Safety Act may be regarded as a regulatory offence, proceedings in relation to such an offence are criminal proceedings and it is apparent from the definition of "court" in s 3(1) of the Crimes (Sentencing Procedure) Act that the statute, including s 21A, applies to the Industrial Court. 32 The common law recognises that persons in certain occupations such as police officers "are called upon to place themselves in danger and do so for the benefit of the community at large. That is why the courts have always accepted that the fact that the victim was a police officer is a substantially aggravating factor": Regina v Penisini [2004] NSWCCA 339 at [20] per Spigelman CJ. The nature of the work performed by employees of DOCS, work done for the benefit of the community at large, places them at risk. The defendant recognised that its employees were at risk of being attacked by clients. Given the circumstances of the defendant's failure to protect its employees from risk, that the offence arose because of the occupation of those placed at risk and that the relevant employees were community workers, I consider that this amounts to an aggravating factor. 33 The offence clearly involved the actual or threatened use of violence and also involved the actual or threatened use of a weapon, namely, a knife. I have had regard to these as aggravating factors. In doing so, it does not amount to double counting.

34 I have referred to the evidence regarding the injuries that were caused by exposure to the risk. I should add what was stated in the liability judgment at [309], [310] and [346]: [309] The evidence demonstrated overwhelmingly that Ms Cooper constituted a significant risk to the safety of DOCS employees at the Ballina CSC on 24 May 2004. Moreover, the evidence also demonstrated beyond doubt that the defendant was aware of this risk. The risk was manifested in the actual incident that occurred on 24 May 2004. Noting that the defendant, in its internal policy and procedure documents, accepted that violence and threats of violence from clients could result in physical or psychological illness or injury to employees, in so far as Ms Philps was concerned the risk materialised in her being stabbed by Ms Cooper. In so far as Mr Wilton was concerned, he confronted Ms Cooper who had a knife in her hand. He was diagnosed with psychological injuries, which manifested in both physical and psychological symptoms. Arising from his psychological injuries, Mr Wilton receives ongoing treatment in the form of weekly counselling sessions and taking daily anti-depressant medication. Mr Wilton lodged a workers' compensation claim that was accepted. [310] Ms Balchin was also placed at risk in her undoubtedly brave confrontation with Ms Cooper as she tried to wrestle with the client who was holding a knife at the time. Ms Balchin suffered "contusions/bruising/crushing". Ms Williams was in the interview room when Ms Cooper attacked Ms Philps. Ms Williams' safety was unquestionably at risk as she also, courageously, confronted Ms Cooper who had a knife in her hand. Ms Sherrington moved into the melee to remove Ms Philps and undoubtedly her safety was placed at risk. Ms Sherrington was stressed by the incident. Ms Lapic, Ms Meehan-Frost and Ms Pisanos were in the immediate vicinity of the interview room and witnesses to the actual incident or its aftermath, including the injuries suffered by Ms Philps. I am unable to find any evidence that Ms Kelly was at risk. I would observe that if it were not for the personal bravery of Mr Wilton and the others I have mentioned, the consequences of Ms Cooper's attack could have been more serious. … [346] As the prosecutor submitted, even assuming a worst case scenario that the caseworkers did not stop the interview after Ms Cooper sat on the table, any security guard or police officer could have intervened later when Ms Cooper first slid across the table and struck Ms Philps in the face. At the very least, the actual incident of Ms Cooper dragging Ms Philps to the side of the room and stabbing Ms Philps another three times in the back would have been then prevented or certainly reduced. The same applies to Ms Cooper then following Ms Philps into the main office after Ms Philps broke free. There would have been no need for Ms Williams to run to the interview room door and yell for someone to ring the police whilst Ms Cooper and Ms Philps were fighting along the wall. The intervention of Ms Balchin, Mr Wilton and Ms Sherrington all needing to become involved to variously assist Ms Philps, to disarm Ms Cooper and to restrain Ms Cooper would also have been obviated or reduced if there was any security guard or police officer present.

35 Although the damage or injury caused by the breach does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: See Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral Aluminium Ltd v WorkCover Authority of New South Wales [2002] NSWIRComm 71; (2000) 49 NSWLR 610 at [94] and [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another [2000] NSWIRComm 1123; (2000) 95 IR 383 at 428 and Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]. 36 That Ms Philps was stabbed and Mr Wilton suffered significant psychological injury is indicative of the existence of a serious risk to health and safety. The injuries indicate that employees of the defendant, because of its failures to ensure safety, were made vulnerable to a violent physical attack by a client and were exposed to emotional harm as a consequence of such an attack. 37 The prosecutor, however, urged the Court to accept also that "the injury, emotional harm, loss or damage caused by the offence was substantial" and that there were multiple victims. Therefore, it was submitted, these factors were to be taken into account as aggravating factors: s 21A(2)(g) and s 21A(2)(m) of the Crimes (Sentencing Procedure) Act. The prosecutor did not seek to rely on a victim impact statement but rather on the relevant findings in the liability judgment and the witness statement of Mr Wilton admitted in the sentencing proceedings, which in my view was permissible. 38 There can be no denying that the injury to Ms Philps caused by being stabbed with a knife was substantial; Ms Philps was off work for six months. Mr Wilton also suffered substantial emotional harm as a consequence of the offence. In addition, there were multiple victims of the offence. I propose to have regard to these matters as aggravating factors. The risk and the degree of foreseeability of the risk

39 In assessing the objective seriousness of the offence the extent to which the risk was foreseeable is a consideration. In Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 it was held that it will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible. See also Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 70. 40 The risk was identified in the liability judgment at [299]: [299] I regard the risk to the health and safety of the defendant's employees as being a risk of exposure to a violent physical attack by a client or other person visiting the CSC. The risk to health obviously encompasses a risk of physical or psychological injury or illness. Further, the risk is not confined to the employee or employees who may be physically attacked, but any employee who witnesses the attack or its immediate aftermath, or who intervened in the attack in order to restrain the attacker and who may be placed at risk of traumatic stress caused by the intervention, or by seeing the injuries, or by the need to give aid to the victim of the attack. 41 The risk was not only reasonably foreseeable, but the defendant was plainly aware of the risk (see liability judgment at [309]-[310]; see also [372]). Remedial steps

42 The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the risk to safety are relevant in assessing the seriousness of the offence: Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27; WorkCover Authority (NSW) v ACI Operations Pty Ltd (Industrial Court of New South Wales, Schmidt J, 25 February 1994, unreported); Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275. At [375] to [379] of the liability judgment the Court addressed the steps that were available to avoid the risk: [375] In the present case, there was a known risk that entailed the potential for serious injury to employees. On the other hand, the taking of precautions against the risk was neither expensive nor difficult. [376] In relation to particular (c)(i), failing to prevent Cheryl Cooper from attending the place of work for an interview, the precautions that could have been taken included: causing at Ballina CSC the attendance of a security guard or guards or a police officer or officers in order to prevent Ms Cooper entering the Tamar Street entrance through the automatic sliding doors or preventing Ms Cooper if she got into that foyer area from going from that part of the premises into the secured office area (including the interview room); interviewing Cheryl Cooper at Ballina Police Station in the presence of police after speaking at the Ballina CSC to Cheryl Cooper from behind the protection of the perspex protected reception area; not opening the external door that allowed Ms Cooper to come into the interview room; and having a written policy or procedure in place on the day of the charge to prevent Ms Cooper from going either into the premises through the Tamar Street entrance or, if she was in that foyer area, from going any further into the office area where the interview rooms were located. [377] In relation to particular (c)(ii) precautions that could have been taken included: undertaking a formal risk assessment of occupational violence in respect of a client like Cheryl Cooper; implementing the defendant's paper systems in place before and at the time of the charge; consulting with a cross-section of employees at the Ballina CSC and in particular those with experience in the job; and considering before and on the charge date, information and documents dealing with potential client violence based on known client history, which were available to the defendant. [378] In relation to particular (c)(iv) the precaution that could have been taken was to ensure that there were security guards or police officers attending at the place of work whenever the client attended the place of work. In relation to particular (c)(v), providing an alert in respect of the client or warning employees that the client was to attend the place of work, or both. In relation to particular (c)(vi), precautions that could have been taken included: providing a table in the interview room that was large enough to provide a complete barrier or restricted access between the client and the two employees; installing a window in the internal door to the interview room to permit vision and observation; maintaining an operating and functional observation room with a window that permitted monitoring of the interview; and providing CCTV coverage of the interview room. [379] In relation to particular (c)(vii), precautions that could have been taken included: providing and implementing a departmental policy about when to activate a duress alarm; providing and implementing a procedure for what happens once a duress alarm was activated and how to respond; providing and implementing emergency procedures in relation to violence by clients; providing and implementing practice drills for responding to a duress alarm or responding when a client became violent within the CSC; and implementing the defendant's paper systems in place before and at the time of the charge. See also [317], [318], [328]-[331], [335]-[336], [342]-[343], [350]-[357] and [362] of the liability judgment. As that judgment found, none of the steps that could have been taken to avoid the risk were difficult to implement or prohibitively expensive. Deterrence 43 General and specific deterrence are matters to be taken into account in sentencing under the Occupational Health and Safety Act: Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [71] to [80]. The defendant submitted in relation to general deterrence that DOCS virtually "covers the field" in child protection in this State and that, "There are few, if any, other defendants to generally deter". 44 This type of submission has been put on previous occasions in prosecutions under the Occupational Health and Safety Act where the defendant has regarded itself as sui generis or has operated in a small industry. It was put in O'Sullivan v Crown in Right of State of New South Wales (Department of Education and Training) [2003] NSWIRComm 303; (2003) 128 IR 158, to which the Court responded: [125] There is no doubt, and the defendant did not deny, that general deterrence is a relevant factor to be considered when assessing penalty. However, there is no warrant for a reduction in penalty because the industry is small and the potential deterrent effect is limited to only a few employers (which I do not concede in the present cases). Indeed, such an argument is misconceived. The imposition of a penalty that is consistent with the seriousness of these offences acts as a deterrent by compelling attention to the Act by all employers in the education sector and industry generally.

[126] In any event, I am not convinced by the defendant's argument that the field is limited. In the present cases, the employer is the Crown in the Right of the State of New South Wales, through one of its administrative arms of government, the Department of Education and Training. It may be true that no other employer in New South Wales conducts its business on the same scale as the defendant or administers its business in the same manner as the defendant. However, it does not follow that there are no other employers in New South Wales who engage in the same industry, that is, providing educational services to disabled children. It is not difficult to envisage a wide variety of workplaces (other than the defendant's workplace) which involve employees caring for, or interacting with, disabled (and potentially violent) children.

I agree with what was said in O'Sullivan and it is equally applicable in this case. 45 In relation to specific deterrence, it was submitted that the evidence of Mr Newbery comprehensively established that the need for the defendant to be prodded into an awareness of its obligations under the Act by a significant fine was minimal, if indeed specific deterrence in all the circumstances was relevant at all. 46 Notwithstanding the prosecutor's submissions that the defendant's attempts to improve its occupational health and safety policies and practices were largely paper based, I am satisfied that the evidence of Mr Newbery demonstrates that the defendant is taking its responsibilities for occupational health and safety seriously and, in particular, has taken significant steps to avoid a recurrence of the Ballina incident, both at Ballina and across its operations generally. I consider that the Ballina incident was a salutary and sobering experience for the defendant and the measures it has taken have lessened significantly the prospect of it re-offending. However, as the Full Bench in Capral Aluminium observed at [77]: In sentencing, a Court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The Court may form such a view as a result of the rehabilitation of the offender … or because the offender will not have the opportunity to commit a similar offence in the future… However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in the case of offences under the Act. At least where the offender continues to be an employer, risk to safety or its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may incur both by omission and omission. Employers are required to maintain constant diligence and take all practical precautions to ensure safety in the work place. Prior record of the defendant

47 The prosecutor submitted that the defendant's record of previous convictions was an aggravating factor: see s 21A(2)(d) of the Crimes (Sentencing Procedure) Act. 48 There was a dispute about whether or not any assessment of the record of previous convictions was to be based on the overall record of the State of New South Wales or the assessment was to be limited to that of DOCS alone. Mr Skinner, for the defendant, contended that it was DOCS' record only that was to be considered. He submitted that the decisions in WorkCover Authority of New South Wales (Inspector Tuckley) v The Crown in Right of the State of New South Wales (Department of Community Services), WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of the State of New South Wales (Department of Education and Training) [2001] NSWIRComm 313; (2001) 112 IR 1 and WorkCover Authority of NSW (Inspector Keenan) v Crown in Right of New South Wales (Department of Education and Training) (Industrial Court of New South Wales, Schmidt J, 6 December 1999, unreported) in which it was held that any assessment of the record of previous convictions was to be based on the overall record of the State of New South Wales were distinguishable on the basis that they concerned prosecutions under the 1983 Act. 49 The decision in Barry Johnson v State of New South Wales (Department of Education and Training, which was a prosecution under the 2000 Act, followed WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of the State of New South Wales (Department of Education and Training) (see [29] of Johnson). However, Mr Skinner submitted Kavanagh J in Johnson may not have been given the necessary assistance in having her Honour's attention drawn to ss 120 and 121 of the 2000 Act, which were not present in the 1983 Act. 50 Mr Skinner relied particularly on s 120(4) of the 2000 Act which states: (4) Subject to any relevant rules of court, the procedural rights and obligations of the Crown as the accused in the proceedings are conferred or imposed on the responsible agency.

51 Counsel submitted that s 120(4), read in conjunction with the other provisions of s 120 and s 121, necessitated the conclusion that in legislating for these provisions the legislature was overcoming the decision of Hungerford J in WorkCover Authority of New South Wales (Inspector Tuckley) v The Crown in Right of the State of New South Wales (Department of Community Services) and the result was that in assessing the record of prior convictions of a government agency only the agency's record was relevant and not that of the Crown generally. 52 In my opinion, Walton J dealt with this issue in WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of the State of New South Wales (Department of Education and Training) and nothing put by the defendant in this case would cause me to take a different view than that expressed by his Honour at [64]-[71] of that decision. The reliance on s 120(4) adds nothing to the debate, in my opinion. Section 120(4) is concerned with procedural rights and obligations. A procedural right is merely a right of access to a method of enforcing substantive rights and duties (Nygh and Butt, Butterworths Australian Legal Dictionary, 2nd ed (1997) at p 1129). The procedural right referred to in s 120(4) of the 2000 Act does not have the effect of transferring the record of convictions of the Crown for previous offences to one of the Crown's responsible agencies. 53 Having regard to the foregoing considerations, I consider the offence was objectively serious. In particular, the employees of the defendant at Ballina doing work for the benefit of the community at large were placed at what the defendant knew was a serious risk of injury from a violent attack by a client in circumstances where reasonably straightforward measures were available to mitigate or prevent such a risk arising, but which were not put into place until after the attack. Mitigating factors

54 The defendant submitted the following mitigating factors in s 21A(3) of the Crimes (Sentencing Procedure) Act were to be assessed in its favour: ... (b) the offence was not part of a planned or organised criminal activity, … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … 55 It may be accepted that the mitigating factors in s 21A(3)(b), (f), (g) and (h) are to be assessed in the defendant's favour and I do so. I also take into account in the defendant's favour the extensive steps it has taken to improve its policies and practices relating to occupational health and safety and the defendant is to be commended in that respect. 56 The defendant does have a record of prior convictions. However, when considering the defendant's record, it is appropriate for the Court to take into account the size, nature and diversity of the defendant's operations: see WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of the State of New South Wales (Department of Education and Training) at [61]. 57 As to the questions of remorse or contrition, one must have regard to the provisions of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act. That is to say, the court may only take into account remorse shown by the offender if the offender has provided evidence that he or she has accepted responsibility for his or her actions and the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both). 58 The prosecutor referred to the decision of the Full Bench in Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117 at [119]: But we should make it clear that where a defendant has been found guilty of an offence under the Act yet declines to accept responsibility for the act or omission constituting the offence, especially where there has been serious injury or death, the Court will discount the value of any expression of contrition because we would regard it as a serious deficiency in the absence of any reasonable explanation. 59 It might be thought that the measures taken by the defendant to avoid a recurrence of what occurred on 24 May 2004 and the more general initiatives taken to improve its occupational health and safety policies and procedures, are an indication of contrition or remorse. However, I do not think so. In any event, I have had regard to these steps in the context of specific deterrence where I have concluded that the measures the defendant has taken have lessened significantly the prospect of it re-offending and as a general mitigating factor. 60 I refer to the evidence of Mr Newbery. Counsel for the defendant asked Mr Newbery the following question: Q. I know you were present when I indicated from the bar table that you had gone to the director general and discussed the issue of the contrition by the department for this offence. You can confirm that from the director general the Department expresses remorse and contrition for this event?

Mr Newbery's answer was: A. I can confirm that. 61 The cross examination of Mr Newbery revealed the following: · that Mr Newbery had not read the liability judgment but had been advised of its content. Mr Newbery had also not read the charge against the defendant and he was not aware of the particulars in the charge found to have been proven against the defendant; · that he had a discussion with the Acting Director General, Ms Annette Gallard, of DOCS during the week prior to the sentencing hearing; · Mr Newbery advised the Acting Director General that he was to appear before the Court in the sentencing proceedings and that counsel had asked whether he "would be empowered to make an admission as to contrition". He asked the Acting Director General if that would be the case. Ms Gallard replied, "of course"; · Mr Newbery did not know whether the Acting Director General had read the charges and the particulars of the charges or the liability judgment; · to the best of Mr Newbery's knowledge no person in a management position with the defendant had conveyed to employees who were placed at risk on 24 May 2004, including Mr Wilton, that the defendant was sorry nor had any manager expressed an apology to any employee on behalf of the defendant for what had occurred; · Mr Newbery had not spoken to the Minister regarding the liability judgment; · it was conceded by Mr Newbery that none of the persons within DOCS who would be expected to accept responsibility on behalf of the Department had expressed an acceptance of such responsibility for any of the failures to ensure safety as set out in the charge and found proven by the Court; and · to Mr Newbery's knowledge DOCS had not acknowledged any injury, loss or damage had been caused to Mr Wilton or to Ms Sherrington by its actions of contravening the Occupation Health and Safety Act 2000. 62 A simple expression of contrition or remorse by a representative of a corporate offender, no matter how senior the representative, is not enough to enable the Court to find that the offender is remorseful: As Cummins J said in DPP v Esso Australia Pty Ltd [2001] VSC 263; (2001) 124 A Crim R 200, "personal expressions of remorse need to be translated into reality". See also see Regina v Heip Tan Nguyen [2004] NSWCCA 438 per Bell J (Hidden and James JJ agreeing) at [21]. There must be evidence that the offender has accepted responsibility for its actions and also that the offender has acknowledged any injury, loss or damage caused by its actions or that it has made reparation for such injury, loss or damage (or both). 63 In this case I am not satisfied that the defendant has, on the balance of probabilities, shown that it is remorseful. Critically, there was no evidence that the defendant has accepted responsibility for what occurred on 24 May 2004 at Ballina. It may be that the fact the defendant did not contest Mr Wilton's entitlement to workers compensation for the psychological injury he sustained was an acknowledgement that its action caused the injury. However, there was no reparation beyond what the defendant was legally obliged to do as an employer. PENALTY

64 Having regard to all of the objective and subjective considerations that are addressed in this judgment I consider that an appropriate penalty for the offence is $200,000. MOIETY

65 Under s 122(2) of the Fines Act 1996 the prosecutor has sought an order that there be paid to him one-half of any fine. The prosecutor's lawyers were instructed that the prosecutor undertook to this Court that any portion of the fine that the Court ordered the defendant to pay to him would be remitted to the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales to be dealt with according to that Union's registered rules. The defendant did not wish to be heard upon the question of a moiety of any fine. 66 It does not seem to me there is any reason not to make the order sought by the prosecutor: see Geoff Derrick v ANZ Group Limited (No. 2) [2005] NSWIRComm 145 at [20]-[26]. The Court holds the prosecutor to its undertaking to remit one half of the fine to the PSA and the remittance shall be dealt with in accordance with Rule 121 of the PSA Rules. That Rule is in the following terms: The funds of the Association shall be applied to the following purposes: (a) Defraying the costs of management of the Association.

(b) Subscribing to any association or organisation with which the Association may, in accordance with these Rules, co-operate or affiliate.

(c) Defraying the cost of publishing the Association Journal.

(d) Defraying any expenses incurred in making or opposing any application to a Federal or State Board or Court of Arbitration or Industrial Appeal.

(e) Making payments in connection with any matters prescribed by these Rules or affecting the general interests of members.

(f) Paying such sums as may be determined by Central Council to a special fund or funds.

(g) Acquiring by lease, purchase, donation, devise, bequest or otherwise any real or personal property necessary for the carrying out of any of the objects of the Association.

(h) Aiding and encouraging members generally or particular groups of members in taking action directed to the improvement of salaries and working conditions.

(i) For or in connection with any other lawful object or purpose authorised by Rules of the Association. ORDERS

67 The Court makes the following orders: (1) The defendant is convicted of the offence. (2) The defendant is fined an amount of $200,000 with one half of the fine to be paid to the prosecutor. (3) The defendant shall pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment.

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