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.