Cahill v State of New South Wales [2009] NSWIRComm 97 | Case summary

Cahill v State of New South Wales [2009] NSWIRComm 97 | Case summary | Zoe

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4 At the sentencing hearing the prosecutor called evidence from Mr Shay Deguara, an occupational health and safety industrial officer employed by the prosecutor. A statement provided by TAS Su was tendered, but she was not required for cross examination. Various other documents were tendered, including in relation to the defendant's record. The defendant called evidence from Mr William McKie, the Department of Education and Training's ('DET') Director of Student Welfare; Ms Marnie O'Brien, the DET's Director of Occupational Health and Safety; and Ms Valda Rusis, the Department of Juvenile Justice's ('DJJ') Deputy Director General (Operations). 5 It was common ground that given the defendant's previous record, the maximum penalty for each offence was $825,000. The prosecutor's case 6 It was the prosecutor's case that the evidence had established that these were serious offences, given the gravity of the risks to which TAS Mary and TAS Su were exposed, risks which were well known to the defendant. Sentencing had to be approached as discussed by Boland J, President in Cahill v State of New South Wales (Department of Community Services) (No 4) [2008] NSWIRComm 201, a recent prosecution also concerned with violence in the workplace. 7 The December judgment outlined the nature of the risks which materialised from TD and BH's conduct on 10 and 15 March. All of the defendant's systems were directed to the risks posed by detainees at Putland Education and Training Unit ('Putland'), whom the defendant classified as posing high risk to the safety of its staff. In the December judgment, it was concluded that paper policies designed to ensure safety were not in practical operation at Putland and that the practical systems in operation, also failed to ensure safety. The injuries suffered by TAS Mary and TAS Su resulted from their occupations, they being public officials, just as were teachers. This would be accepted as aggravating features of the offences, given the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999. That the offences involved the actual or threatened use of violence, was another aggravating factor, as was the fact of multiple injury. 8 There could be no question that the psychological injuries sustained by TAS Mary and TAS Su were objectively and subjectively foreseeable, or that there were simple and straightforward means available to the defendant to eliminate, or at least control the risks in question. 9 Both general and specific deterrence had to feature in the penalty imposed. Violence in the workplace was an issue not only for the defendant, but also for a wide range of other industries and employers. While account would be taken of the nature and size of the defendant's operations, and that even in its manifestations as the DET and DJJ, the defendant was a large employer, specific deterrence was required. 10 There was no question that, overall, the defendant had a relatively poor prior criminal record, albeit it was acknowledged that its record had to be approached, having in mind not only the operations in which it engaged, but also the size and scope of those operations. That was the case even when only the position of the DET was considered, where there had been considerable number of serious breaches of the Act, in circumstances where there had been violence at work. On the probabilities, the Court should find that the defendant was likely to re-offend. 11 As to contrition, what had been put for the DJJ was accepted, given the steps taken after the December judgment had been delivered, but it was submitted that the evidence led in relation to the DET, was rather problematic. There was a real question in its case, as to whether there had been remorse shown, or an acceptance of what had been revealed in the judgment accepted. On the probabilities it could not be found that the Director General of the DET, like the Director General of the DJJ, had read the judgment and accepted responsibility of the DET's actions, that is, its failures, which caused the materialisation of the risks in question. 12 It was also accepted that the principal of totality applied, but given what each of the three offences dealt with and the points of distinction between them, some care had to be taken as to how the principle was applied, especially in relation to the social support charge, which was submitted to be quite different to the other two charges, given the nature of the failures made out. 13 Orders for a moiety and costs were also sought. The defendant's case 14 In its submissions, the defendant pointed to the changes, both physical and systemic, made to the Cobham Juvenile Justice Centre ('Cobham') and Putland systems of work, both before the December judgment was given and subsequently. It was submitted to be relevant to penalty that not all of the measures which had been implemented were readily available, or easy to implement. The improvement to the radio system, for example, was 'constrained by the physical position of the Centre and the given technology at the time'. Given the size and scope of the defendant's operations and the need to consult widely with stakeholders before implementing changes to policies or procedures, it would be taken into account that many of the measures undertaken later, were in the planning or consultation phase as at the time of the offences in March 2004 and required significant steps to be taken, before they could be implemented. 15 The defendant argued that it was well settled that a defendant was not to receive a more serious sentence by reason of the manner in which the trial was conducted (see R v Baumer (1989) 40 A Crim R 74; R v Yam (1991) 55 A Crim R 116). 16 As to s 21A of the Crimes (Sentencing Procedure) Act, it was submitted that the nature and quality of the offences went to the inadequacies identified in the judgment as to the systems in place. Despite the failings identified in the December judgment, it was apparent that the defendant had in place a system that was 'multilayered and complex', as was accepted in the earlier judgment. 17 It was settled that the existence of such safety measures was a factor which may mitigate the seriousness of an offence (see Department of Mineral Resources of NSW (Mckensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 25; Warman International Limited v WorkCover Authority of NSW (1998) 80 IR 326; WorkCover Authority (Inspector Riley) v Broken Hill Pty Co Ltd (1998) 83 IR 427 at 429; WorkCover Authority (NSW) v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23). 18 It was also relevant that some of the inadequacies identified in the December judgment indicated an aberration from what could be regarded as the normal operation of the defendant's systems. Reference was made to the building programme underway at the time of the offences and the Principal's role in that programme, as well as the re-arrangement of classes after the escape on 10 March 2004. That there was evidence that no response being provided to a duress alarm was rare, was also a relevant consideration in assessing penalty. 19 It was also relevant that no physical injuries were sustained as the result of the offences; and that no violence, actual or threatened, was directed at, or suffered by either TAS Su or TAS Mary. As to foreseeability, it was argued that this was relevant to the level of the defendant's culpability (see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432). 20 While it was found that there was a foreseeable risk of psychological injury arising out of the offences as charged, that determination was based in part on the finding that there was a 'cumulative effect' on TAS Mary and TAS Su from repeated exposure to violence by detainees. It was relevant that 'cumulative effect' was not pleaded, other than for the period 10 to 17 March and earlier events were not part of the particulars and were statute barred at the time the proceedings were filed. 21 As to deterrence, it was accepted that both general and specific deterrence should be given some weight in the sentences imposed. It would be accepted, it was argued, in the case of specific deterrence that the chance of re-offending would be low. Account would also be taken of the significant changes made to the relevant systems, which have been implemented, audited and monitored since the offences occurred. It would be accepted that as a result, the risk that existed in March 2004 'had been adequately addressed to lessen the risk and enhance the psychological safety of persons' to whom the defendant owed a duty under the Act. 22 It was also argued that even though the charges were defended, account would be taken of relevant subjective matters, which mitigated the defendant's liability and culpability. They included the defendant's record, which had to be seen in the context of its size and operations. Given the size and scale of the defendant's operations, which were inherently dangerous and difficult and were provided for a long period, it would be accepted that the record of both Departments was a good one. Account would also be taken of the actions subsequently taken to promote safety. 23 In Veen v R (No 2) (1988) 164 CLR 465, the view taken was that the antecedent criminal history of the offender was relevant to show whether the offence was an uncharacteristic aberration, or whether there was a continuing attitude of disobedience of the law. In this case, some of the inadequacies shown on the evidence would be regarded as an aberration. 24 Account would also be taken of the defendant's co-operation with the investigation and the admissions made at trial, particularly in relation to injury. 25 As to contrition, the steps taken by the defendant to improve safety after the offences were relevant, as was the evidence of the defendant's ongoing commitment to ensuring safety and the apology proffered. 26 As to totality, it was argued that it would be accepted that the charges all arose out of a common factual matrix, albeit separate incidents were involved. The particulars of the charges identified identical breaches of safety and that the same conduct formed the basis of the offence, over a period of 8 days (see Crown in the Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 at [36] - [37].) Consideration

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The evidence showed that the practical safety systems in operation at Putland, designed to deal with the risk which detainees posed, were multilayered and complex, as the defendant argued. 29 I also accept that the evidence was that it was rare that a duress alarm was not answered, as occurred on 10 March 2004, in the class in which TAS Mary was working with teacher Ron, when they were threatened by TD. 30 As the December judgment discussed, providing access to education and training to juveniles detained in juvenile justice detention centres, is an important, but difficult undertaking. Ensuring the safety of the staff employed to achieve the defendant's aims is also difficult, given the ever present risk of violence which detainees pose to each other and to staff. That was why, in addition to the practical systems in operation at Putland, the defendant had also devised numerous written policies, designed to ensure staff safety. Regrettably, certain of these policies, including policies specifically designed to protect staff from the risk of psychological injury materialising, were not in operation at Putland and the practical safety systems which were in place, also failed in certain respects, at the time of these offences. Having this in mind, it is difficult to accept the defendant's submission that it would be concluded that these offences were an aberration. While there had not been prior prosecutions in relation to such incidents, on the evidence before March 2004, other staff had been injured by detainees at Putland. Both physical and psychological injuries had resulted. 31 Despite this, it is clear that in determining penalty it must be born in mind that this was not, on any view, a defendant which simply ignored the obligations which the Act imposed upon it. To the contrary, before the offences were committed in March 2004, it took very considerable steps to ensure that it met those obligations. The evidence also showed that since then, the defendant has made changes designed to improve both its practical and paper systems and to ensure that they are in effective, practical operation, not only at Putland, but more generally in its schools and juvenile justice detention centres. 32 What must thus be considered, in fixing penalty, is the nature and seriousness of these three offences, having in mind what the evidence showed as to how the paper and practical systems failed to ensure safety in March 2004, as the offences charged. 33 TAS Mary and TAS Su each suffered psychological injury at work, as the result of the defendant's failures to ensure safety, dealt with in the December judgment. That they were at risk of both physical and psychological injury, given their work at Putland, was well known to the defendant. It is in that sense that the risk to which they were each exposed, was not only foreseeable, it was foreseen. (See Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 and Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 70.) 34 Certain of the written safety policies which were not in operation at Putland, were specifically directed to ensuring that staff did not suffer psychological injury, as well as physical injury (as to which see [83] to [86] and [98] and [108] of the December judgment, for example). This, it seems to me, reveals that despite the defendant's overall impressive approach to safety, it cannot be doubted that the offences, here in question, were relatively serious ones. These policies were designed for all of the DET's operations and in some cases, the defendant's wider operations. That it was at Putland, that these policies were not operating, may not be overlooked. Putland is a school where staff were known daily to be at greater risk of injury than staff at other schools, given the risks posed by detainees. That the defendant failed to have important paper safety systems in operation at that school, throws considerable light upon the seriousness of these offences. 35 These policies included the 2002 DET 'Guide to Occupational health, safety and injury management' (see December judgment at [81] - [86]), the 2000 'Management of Serious Incidents Guideline' (see December judgment at [98] - [108]), and the 2003 Putland Management Plan (see December judgment at [109] - [112]). Not even the 'Taking Safety Seriously' policy, issued by the DET in December 2002 in response to the death of a teacher's aide at Yasmar, another juvenile justice centre, was not in practical operation at Putland (see December judgment at [96] - [97]). It is also relevant to bear in mind that these policies were developed against the background of other public sector wide initiatives, designed to protect employees such as TAS Mary and TAS Su from the risk of injury, both physical and psychological, which flows from workplace violence. Those initiatives were also not in operation at Putland (see December judgment at [74] - [80]). 36 These policies were intended to be in operation at Putland, a workplace where TAS Mary and TAS Su were employed to work with detainees classified as always posing a high risk to the health and safety of staff and where the defendant's practical systems were designed to detect and control occasions when such detainees posed heightened risk. DET staff at Putland were known always to be at risk of both physical and psychological injury from detainees who not only frequently threatened and engaged in violence towards other detainees, but also to staff, to whom they also frequently directed other inappropriate behaviour. Even a hostage taking was regarded to be a risk. The defendant's systems were incapable of accurately identifying which detainees might put staff at risk of injury on any day. All of the defendant's systems were directed to controlling the risks, when they materialised. As a result, staff, including TAS Mary herself, had, before March 2004, suffered both physical and psychological injury, when those risks manifested at Putland and yet the defendant did not ensure that the paper policies it had designed to ensure staff safety were in practical operation at Putland. Had the defendant's paper systems been adhered to at Putland in March 2004, the failure of the practical systems ought to have been prevented and, even if there were such failures, the risk of injury which materialised as result, could have been better controlled. 37 As has repeatedly been observed in the authorities, the existence of paper safety systems which are not in practical operation, are relevant when the nature and seriousness of the offence in question is being considered. The failure to have these important paper systems in operation at Putland, thus put the seriousness of these offences beyond any doubt. 38 The evidence showed that one of the real problems at Putland was the Principal's attitude to the safety of DET staff. (See December judgment at [699] to [703] for example.) The paper systems did not envisage that their safety was a matter for the DET, or the Principal, to simply leave in the hands of the DJJ. That, however, was the Principal's attitude, which led her to forbid staff from discussing the system failures which occurred on 10 March and to refuse to discuss the concerns which staff repeatedly sought to raise with her afterwards, so that the system failures could be addressed. The result of this approach was that what occurred with TD on 10 March was never investigated by the DET, or the DJJ. 39 The fact that this occurred at a time when there was a building programme underway, which meant that Putland was not operating normally, to my mind, does not explain or excuse what happened. It seems to me that this ought to have enhanced the attention being paid by the defendant to ensuring safety and should have made those in authority at Putland, more, not less, receptive to known staff concerns that their safety was being put at risk, by measures introduced to cope with the consequences of the building programme. In the circumstances, it seems to me, particularly having in mind the evidence given by the experts called by both parties, the defendant ought to have been aware that the risk of psychological injury materialising by Putland employees, was heightened. That such injuries were sustained by TAS Mary and TAS Su, cannot in the circumstances, be treated as an aberration. As has oft been discussed in the authorities, the Act requires employers to be proactive in dealing with risk prevention, not just reactive, after it has materialised. 40 Had the defendant's paper systems been in operation, the Principal would not have been able to refuse to deal with the real and ongoing concerns which staff had about their safety at Putland in March 2004. The serious failures of the practical safety system on 10 March 2004, were not only sought to be raised by TAS Mary and teacher Ron, but also by Assistant Principal ('A/P') Amanda and other staff. They repeatedly raised concerns with the Principal, that day and over the ensuing days, to no avail. Had the paper systems been operating, the defendant would not have failed to conduct any investigation into how its practical safety systems failed that day. Under those systems, there was, for example, a necessity for the Principal to refer the 10 March incident involving both TAS Mary and teacher Ron, both to a Serious Incident Committee, which simply did not exist at Putland, but which was supposed to review every serious incident and also to the District Office. That did not occur. 41 It follows that even if the operation of these paper safety systems could not have prevented the failures of the practical systems on 10 March, when duress alarms seeking assistance with TD were activated, had the difficulties which arose that day been properly attended to, as the paper systems required, there is a real likelihood that the later offences would not have occurred. I accept that what happened with the duress alarms that day was an aberration. That the defendant did not have in practical operation, paper systems designed to prevent and deal with such a situation, if it occurred, was not an aberration. That was how Putland was routinely operated. 42 It follows, given the existence of these paper systems, that there can be no question that there were readily available means by which the defendant could have prevented these offences from occurring. Even if the paper systems were not able to prevent them completely, adherence to what they required could have helped to ensure that the risks which manifested, were controlled. 43 This is especially important in relation to the charge encompassing 10 - 17 March, the social support charge. The failures in social support which the paper systems envisaged would be provided to staff at Putland were starkly revealed on the evidence (see, for example, December judgment at [211]), including that given in cross examination by the experts called by the defendant (see the December judgment at [254] - [262], [267] and [274] for instance). 44 The evidence also established that there were problems with the practical systems and the way in which they were implemented at the time of these offences, between 10 and 17 March 2004. Those practical systems failed to ensure safety, especially in the case of TD on 10 March, with the result that both TAS Mary and TAS Su sustained psychological injuries. TAS Su's injuries were triggered by the events of 17 March, but there is no question that what occurred beforehand, in the period from 10 March, also contributed to the manifestation of the injuries which she sustained from what happened that day. In that respect, what happened in relation to BH on 15 March may not be overlooked.

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47 TAS Mary appears to have had a better recovery from her injuries than has TAS Su. As the defendant argued, that TAS Su was likely to be injured as she was, from what she was exposed to in the period of these charges, was more difficult to foresee than was the case for TAS Mary, who was in class with teacher Ron on both 10 and 15 March, when they were directly involved in two very serious incidents with TD and BH. That TAS Mary was not physically injured on 10 or 15 March was fortunate. The injuries which she suffered could undoubtedly have been more serious than they were. 48 Nevertheless, the evidence was that it was well known to the defendant that repeated exposure to violence and threatened violence at work, put its DET employees at Putland at risk of psychological injury, with the final trigger for such an injury being known to possibly be an event, not particularly serious of itself, but in the circumstances 'the final straw' for a particular employee. It was what TAS Su was exposed to in class on 17 March, which was the final straw for her. Undoubtedly, that situation was less serious than what had occurred to TAS Mary on 10 or 15 March and it was quickly and appropriately dealt with, in accordance with the defendant's practical safety systems. 49 That such a situation might cause a psychological injury, was, nevertheless, foreseen by the defendant. As I have observed, had the defendant's paper systems been in operation, the injury TAS Su suffered on 17 March may well have been prevented. If the problems on 10 March had been dealt with in accordance with the defendant's systems, the events of 10 March would have been investigated and proper support would have been provided to Putland staff, who, at that point, the defendant was well aware, had serious and ongoing concerns about their safety. Those concerns had arisen in the context of an ongoing building programme which had disrupted ordinary operations. 50 The result was not only staff agitation over steps taken at Putland to deal with the consequences of the programme, which included reduced numbers of classrooms available for teaching, such as having two classes of detainees conducted in one room. The defendant eventually accepted that this arrangement was unsafe, but nevertheless, before 10 March staff concerns had resulted in the involvement of two unions and a dispute over safety issues before the Industrial Relations Commission of New South Wales. On 10 March, there were various system failures which not only resulted in the escape of a number of detainees, but the incident in TAS Mary's class that day. This was in close proximity to a bomb scare and a resulting evacuation. The result was significant detainee agitation and staff concern for their safety, which the Principal repeatedly refused to discuss over ensuing days, insisting that it was a matter for the DJJ to investigate and deal with. That did not occur. 51 Instead, the number of classrooms available at Putland were further reduced, with the result that normal classes were further disrupted. On 15 March, the Impact class in which BH was enrolled, was programmed for a General Education class with teacher Ron and TAS Mary. It was in that class that BH's behaviour became so out of control, that he had to be subdued and removed from class by DJJ staff. That was undoubtedly necessary, but resulted in an extraordinary altercation in the courtyard, which was witnessed by a number of staff, including TAS Su. That staff concerns for their safety would have been heightened by what they then observed, is not open to doubt. It showed very starkly the kind of risks to which they were routinely exposed in class. It was on 17 March, when another altercation erupted in TAS Su's class, so that she had to use a duress alarm to call for assistance, that TAS Su sustained a psychological injury. 52 This last incident was not of the level of seriousness of what had occurred on either 10 or 15 March, but for TAS Su, it went beyond what she was capable of tolerating, without injury. It was the common view of the experts that her reaction was an unusually severe one and, so I accept, it was less easy for the defendant to foresee that this particular event would be the trigger for her injury. Nevertheless, it was known that even a minor event could provide such a trigger, given what staff at Putland were repeatedly exposed to. 53 That TAS Mary and TAS Su were at risk of psychological injury at Putland was foreseen, although precisely how that might occur, was not. That either of them were so injured, is highly regrettable, as the defendant accepted at the sentencing hearing. The evidence showed that at the time of their injuries, each of them were dedicated, hardworking and well respected members of the Putland staff. Neither of them perceived themselves as vulnerable to the injury which they suffered. I had both of them, as well as the other staff employed at Putland and Cobham in mind, when observing in the December judgment:

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Other Aggravating factors 56 The defendant did not take issue with the prosecutor's submission that s 21A(2) of the Crimes (Sentencing Procedure) Act applies, TAS Su and TAS Mary each being a 'public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work'. The prosecutor relied on the approach of Boland J, President in Cahill (No 4) at [27] to [33], where his Honour agreed with the approach of Kavanagh J in Barry Johnson v State of New South Wales (Department of Education and Training) [2006] NSWIRComm 275 at [53] to [56]. 57 That approach, it appears to me, is the correct one. Like teachers, a teacher's aide employed by the defendant, in a juvenile justice detention, centre, is a public official of the kind to which the section is directed. The offence arose because of that occupation and it is apparent that by that occupation, like teachers, teachers aides at Putland are constantly placed at risk of injury at work, for the considerable benefit not only of detainees, but the community at large. The defendant's failure to protect TAS Mary and TAS Su from injury must thus be considered as an aggravating factor, in this case. 58 Also to be considered is that the events of 10 and 15 March undoubtedly involved the threat of violence (see December judgment at [314] - [318]). Actual violence was directed at teacher Ron by TD on 10 March. TAS Mary interposed herself between TD and teacher Ron, including when TD returned to class in the company of SS. On 15 March, again there was actual violence directed at teacher Ron, when BH threw a chair with considerable force at teacher Ron, narrowly missing his head. In accordance with her training, again TAS Mary stepped in to try and calm BH down and when he was trashing the room and DJJ officers had been called to restrain him, she stepped in to calm down the remaining detainee, who was considering going to BH's assistance. She deflected him from that course, by her intervention. (See December judgment at [500] to [509].) That there was a threat of violence so far as TAS Mary was concerned, was established on both occasions. On 17 March the violence which broke out in class was not directed to TAS Su, it was directed to another detainee, and so does not arise for consideration in the same way. (See December judgment at [713].) 59 The defendant's record must also be considered, albeit proper account must be taken not only of the defendant's operations overall, but also in the context of the undertakings which the DET and DJJ are involved. As to this Mr McKie's evidence was that in 2004, the DET operated 2242 schools, employing 52,000 full-time equivalent teaching staff and 15,800 full time equivalent support staff. Some 747,000 students were enrolled in these schools. There were 9 schools like Putland with some 1,406 enrolments. In 2004, there were 40 school districts. After restruction that year, 10 regions were established, improving supervision and operational support for school principals. 60 It is necessary to observe that the evidence as to the defendant's record must be approached with some caution. What was in evidence was the record, as provided by the WorkCover Authority, updated by a number of other convictions in prosecutions not brought by that Authority, which it has not recorded in the record of convictions which it maintains. That record was inaccurate on its face, in at least one respect. It records that the penalty imposed in respect of the fatality at the Yasmar Juvenile Justice Detention Centre was only $98,000, whereas the penalty actually imposed by Staunton J was $294,000 (see WorkCover Authority (NSW) (Inspector Stewart) v The Crown in Right of the State of New South Wales (Department of Education and Training, Department of Juvenile Justice and TAFE) (2002) 118 IR 207. The explanation for this, apparently, is that the fine was divided equally between the three government agencies involved in that prosecution, with the result that the penalty is shown to have been $98,000, not the $294,000 actually imposed by the Court. 61 Undoubtedly the mathematics are correct, but the approach adopted to maintaining a record of convictions is not. The record maintained by the WorkCover Authority as to this defendant's record of convictions is inaccurate, at least in relation to the penalty imposed. Such a document should not be provided by the WorkCover Authority, or be put to this Court as a reliable reflection of what the defendant's record actually is, especially when the document does not make any reference to the judgments in which penalty was imposed. A simple comparison between the purported record and the one judgement where I have sought to make that comparison, shows the difficulty. This is a problem that should be attended to with some alacrity, by the WorkCover Authority. 62 The defendant's record, as it appears in the material before the Court, seems to date back only to 1995, involving some 73 prior convictions, 33 associated with the DET's operations, six since 2002 where the risk in question concerned violent and/or challenging student behaviour, one of them a fatality at Yasmar. Three convictions were associated with the DJJ's operations, two of them relating to assaults on youth officers. 63 Record is a matter which must considered when determining penalty, as the prosecutor submitted (see R v McNaughton (2006) 66 NSWLR 566). In the case of this defendant, that record is plainly a considerable one, even if it must be considered in the context of this defendant's considerable operation over very many years, in various undertakings in various parts of this State. It is a matter particularly relevant in this case to the question of deterrence, to which I will return.

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70 No apology has otherwise been given direct to TAS Mary and TAS Su. So far as they are concerned, the defendant has done what the law requires of it, but no more. The only suggestion of any such steps was an enquiry as to TAS Su, made of her husband by the Principal, at an unknown time. Had there been such an apology, or other steps taken by the defendant to deal with their situation, it would undoubtedly have been a relevant consideration in assessing penalty. Such matters are frequently relied on by defendants, when penalty is determined in proceedings such as this. 71 I accept that the formal apologies which were proffered in the evidence called by the defendant, were, no doubt, genuinely given. Sorrow that injuries were suffered as the result of these offences, does not, however, of itself evidence remorse for the offences which were committed, as I observed in Inspector Chaston v Moussalli & Ors [2008] NSWIRComm 58 at [47] - [48]. 72 It must also be considered, in this case, however, that there was also evidence led at the sentencing hearing, that the Court's findings in the December judgment had been accepted by the defendant. The evidence showed that senior officers of both Departments had read the judgment. There was also evidence that certain of the steps taken to improve safety systems, followed that judgment; although properly, many changes were implemented beforehand. That approach was consistent with the obligations imposed by the Act. Necessary changes may not await a judgment in relation to charges concerning past failures, given the ongoing obligations which the Act imposed on the defendant. 73 In the case of the DJJ, it was Ms Rusis's evidence that the Director General of the Department, Mr Muir, as well as she and other senior officers, had read the judgment and that he had made a report to the Minister. They accepted responsibility for what the judgment revealed. In the case of the DET, there was evidence that Mr McKie and other senior officers of the DET had read the judgment; that Mr Mckie was selected as the senior officer to give evidence on the Department's behalf; that he proposed to the Director General that an official apology be given as a part of that evidence and that he make a formal apology on behalf of the Department, in giving his evidence. The Director General, Mr Coutts-Trotter gave his approval for that course by email. 74 While the prosecutor accepted that the evidence led in respect of the DJJ showed real contrition on the part of the DJJ, it was submitted that the evidence was not as clear in the case of the DET, although it was accepted that having heard Mr McKie's evidence, there could be no question as to the sincerity of the regret which he had expressed, for what had occurred. 75 The prosecutor drew attention to what Boland J, President had observed in Cahill (No 4) at [57] to [59] and [62] to [63]:

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... acted responsibly to remedy past deficiency. But its lack of acceptance of responsibility has a relevance in my not accepting that Esso's expression of remorse is practical and operational. Esso's failure still to accept responsibility for these tragic events is a serious deficiency. 77 As the defendant submitted, by way of contrast to the attitude of Esso, it has always accepted responsibility for the injuries which TAS Mary and TAS Su suffered. They each made worker's compensation claims which were investigated and then accepted. It is undoubted that, nevertheless, the defendant vigorously resisted the charges brought against it in these proceedings. It was entitled to do so. The law imposes a stringent obligation on a prosecutor to prove charges which are laid, to the criminal standard. The fact that the defendant unsuccessfully resisted the charges brought, by putting in issue numerous factual and legal questions, as the December judgment discussed, may not result in the imposition of any higher penalty on the defendant. 78 The approach adopted by Cummins J, it seems to me, is nevertheless, understandable, when sentencing in relation to offences committed under a statutory scheme directed to ensuring safety arises to be considered. A refusal to accept responsibility for serious failures to ensure safety is relevant to a consideration of the role of deterrence in the sentence imposed, because an acceptance of obvious past failure, throws light on the approach that a defendant is likely to take in future, in relation to its ongoing statutory obligations to ensure safety. 79 Here, it was the prosecutor's case that while the DJJ position reflected real contrition and an acceptance of its responsibility for what occurred in March 2004, the same was not so clear, on the evidence led for the DET. 80 I have considered this submission carefully, because of the evidence which suggested that in March 2004 the two Departments had approached their responsibilities for ensuring safety in quite a different way (see, for example, the observations in the December judgment at [595]). One of the problems at Putland was the Principal's approach that safety was a matter for the DJJ to ensure, it was not a DET responsibility, despite what the DET's policies actually required. Having this in mind, as well as evidence as to the different way in which the two Departments approached the question of responsibility for what occurred, I have paid close attention to the question of whether it might properly be concluded, that there is real acceptance by the DET, as well as by the DJJ, of responsibility and contrition for what occurred in March 2004, so far as TAS Mary and TAS Su were concerned. 81 Having done so, I am of the view that it must be accepted that there has here been more than a mere expression of remorse by the defendant and that the defendant has, on the balance of probabilities, shown that it is truly remorseful for what the December judgment revealed occurred in March 2004. In the face of Mr McKie's evidence, even though he could not say that the Director General of the DET had himself read the judgment, as had the Director General of the DJJ, it may not be overlooked that the evidence was that other senior officers of the DET had read the judgment and that Mr McKie's view, in the circumstances, that a formal apology should be given, he having considered what the judgment had revealed as to the DET's failings, was accepted by the Director General of the DET. I am satisfied that it has been shown on the balance of probability that the defendant has shown that it has accepted responsibility for its failings. 82 I have approached the fixing of the appropriate sentences on that basis.

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Deterrence 83 As to deterrence, I am bound to follow the approach discussed by the Full Court in Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [71] - [79], that deterrence should normally be a matter of significant weight in the sentencing process. Given the nature of these offences, and the fact that they involved the materialisation of obvious, known safety risks which can flow from violence and threats of violence at workplaces, in circumstances when paper systems designed the deal with that risk were not in operation, there can be no doubt that general deterrence has an important role to play in the penalties to be imposed. 84 I also accept, however, the defendant's submission that specific deterrence has a smaller role to play in this case, given the impressive evidence of this defendant's attention to its safety obligations, both before and after the incident in question. The evidence also well established that the defendant has taken significant steps since March 2004, not only to improve the practical safety systems which it operates, to ensure that the problems which occurred in March 2004 do not recur, but also to ensure that its paper systems are also in practical operation. Without that evidence, a higher penalty must have resulted. 85 This evidence included the establishment of the DET Occupational Health and Safety Directorate in 2004, which Ms O'Brien heads. Of the 42 staff employed in that Directorate, 21 are employed in the injury management centre, responsible for processing incident notifications, as well as workers' compensation claims. 86 A range of written safety policies and supporting tools have been updated, or newly implemented by the defendant since March 2004. As the evidence in this case revealed so starkly, however, paper policies are only helpful, if they are actually operating. In this regard, training directed to Principals, including the Principal of Putland, to ensure that they understand and implement applicable policies in their schools, was undertaken in conjunction with Principal Associations in 2005 and 2006. Similar training was also conducted with other officers of the DET. 87 Furthermore, an audit system of the operation of paper safety systems at schools was introduced by the DET in 2005. The evidence was that Putland achieved satisfactory outcomes in the audits there conducted by the defendant in 2005, 2006 and 2007. (There was no audit in 2008). In my view, this is a particularly important change, given what was revealed as to the defendant's failures in this case. 88 There are further improvements and training initiatives planned for implementation in 2009, including individual school action plans for required improvements. Again, a programme of audits of the implementation of these plans, is also proposed to be introduced in 2009. 89 Changes to incident reporting have also been introduced, including a broadening of what constitutes an incident and the establishment of a 1800 Incident Notification Hotline for incident reporting, which is staffed from 7 am to 7pm, Monday to Friday, by trained nurses. Notification of an incident is then provided to workplace managers within 30 minutes. Reports of psychological injury, or potential psychological injury, are now managed by referral to dedicated rehabilitation officers, with the result that within 72 hours of notification, a psychological early intervention service rehabilitation officer begins to deal with the notification, including by referral to the workplace manager or a manager's supervisor, as well as providing support and assistance to the affected employee. Ms O'Brien also outlined how such reporting now operated in practice at Putland. 90 Changes to emergency planning were also explained by Ms O'Brien and at Putland, how this operated between the DET and DJJ and involved the DET OHS committee, was also outlined. Ms O'Brien explained that discussions were also to be pursued with the PSA in relation to changed selection criteria for TAS staff (now called Learning Support Officers). Expert advice in relation to psychological screening of staff was also proposed to be taken. A Psychological Wellbeing at Work Program had been successfully piloted at a number of schools in 2008, with the support of the PSA and Teachers Federation. Other changes introduced in consultation with the two unions were outlined, including a 'Dignity and Respect in Workplace Charter', signed in March 2008 and a 'Leading Well: The role of Leadership in improving the prevention and management of psychological injury', released in October 2007, by the NSW Department of Premier and Cabinet. 91 As to the practical safety system at Putland, there have been many changes which include changes to the duress alarm system, including where it sounds, in order to ensure a DJJ response and stationary duress alarms in each classroom; changes to the radio system which address the problem that calls for assistance made by staff could not override radio traffic; certain staff have also been issued with pagers. There have been changes to the incident reporting system and the steps required to be taken, to ensure that risks to safety are identified and addressed, when they arise. The misbehaviour reporting system has also been altered, particularly in relation to executive intervention following such a report. A 'Principal Review' section has been introduced into the standard form. There have been changes to the way in which relevant information about the risk which particular detainees pose is assessed and conveyed to DET staff. Running records are now maintained, updated during the course of each day and communicated to staff in writing, rather than merely vocally at daily DAP meetings. DET staff training in self defence and other risk minimisation strategies has also been undertaken and changes have been made to daily DAP meetings, including in relation to who attends the meetings, how information is conveyed at meetings and how hazards are there identified, and dealt with. 92 Changes have been made to how information about detainees is shared by the DET and DJJ and how morning briefings are conducted. Potential problems with classroom mix are now considered daily by Unit Co-ordinators. The DET and DJJ are also renegotiating their overarching Memorandum of Understanding, as to how Cobham and Putland are managed. 93 The DET Legal Issues Bulletin which directs staff as to how and when they are to physically restrain students, is also now under review. 94 In 2005 a new 'Objective Detainee Classification Policy' was introduced, which was reviewed by the James Cook University in 2008. The review found that there had been a significant reduction in the number of detainee on detainee and detainee on staff assaults since the implementation of the policy. Classification now has regard to specified objective criteria, including violent offences, previous offending history, escapes or attempts and violent assaults in custody. There are now 8 levels of classification provided. 95 The ACCESS and Focus programs continue at Putland, but a new case management policy provides for a case plan to be developed for each detainee, with behaviour management plans an add on, for those who require additional interventions. Changes have been made to the way in which recess breaks are managed at Putland. Now only 2 units have their breaks in the courtyard. Other detainees are escorted to neighbouring units for their breaks. The whole school no longer mingles in the courtyard during recess. 96 Mr McKie also explained steps taken in relation to specific supervision and training of the Principal at Putland and steps taken there, once these proceedings commenced, to increase supervision and interaction with staff, by a School Education Director. Mr McKie's view was that Putland was now a well run school, which has good structures in place to manage events, safety and to support staff. 97 These are all very significant changes. I am satisfied that it is proper for the Court to encourage defendants to adopt such a proactive approach to meeting their ongoing obligations under the Act, by reflecting such activity in the part which specific deterrence plays in the penalty imposed. 98 Despite this, I am nevertheless satisfied that specific deterrence must still have a role to play in this case. Given this defendant's record of convictions and how the evidence revealed that the problems in this case flowed in large measure from the attitude to safety which the Principal, the DET's most senior employee at Putland took, it is apparent that the penalty must reflect an element of specific deterrence, so as to help ensure that the defendant and the senior employees through whom it must act at the school level, adopt a different approach to ensuring safety, than that adopted at Putland in 2004. As the Full Bench observed in Capral at [77]:

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77 On 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: R v Corner (Court of Criminal Appeal, 19 December 1997, unreported) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (Court of Criminal Appeal, 8 December 1995, unreported). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely reactive: WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at [46]. 99 In this case, realistically, given its record, the evidence does not permit the conclusion that the risk of the defendant re-offending is low or non- existent. Staunton J considered in WorkCover Authority (NSW) (Inspector Stewart) v The Crown in Right of the State of New South Wales (Department of Education and Training, Department of Juvenile Justice and TAFE), how systems at Yasmar had broken down, with the result that an Interdepartmental Review was established in 2000 and other new safety measures were then implemented, including in relation to detainee risk assessment and how relevant information about detainees was shared with staff. On the evidence in this case, the fatality which led to that prosecution resulted in the creation of paper safety systems, specifically designed to ensure the safety of staff like TAS Mary and TAS Su and yet, they were not in operation in 2004 at Putland. 100 In this case, again, the defendant relies on considerable changes to paper systems which it proposes too introduce or has introduced to ensure safety. The penalties which are imposed must thus compel attention to the issue of safety, in such a way as to help ensure that other employees are not subjected to similar failures in future. (See Capral Aluminium at [71] - [80]).

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Penalty and the principle of totality 101 The principle of totality must also be applied. (See Crown in Right of State of NSW (Dept of Education and Training) v Keenan). 102 It is apparent that the three offences had features in common. They were concerned with events which unfolded at Putland over the period 10 - 17 March 2007, at a time when the normal operation of the school was disrupted by the building programme and when the underlying problems caused by the defendant's failure to have important paper safety systems in operation were common. 103 Of the three offences, it seems to me that it was the offence committed on the 10 March in relation to TD, which was the most serious of the three offences. In that case, it was not only failures of the paper safety system which permitted the materialisation of the risks in question, but also very serious failures of the practical systems. The offence of 15 March had certain common features with that of 10 March and the offence which bridged the period 10 to 17 March, which was concerned with social support, rested in part on what occurred on 10 and 15 March. While that charge emerged from the same matters with which the other two offences were concerned, as well as encompassing what occurred to TAS Su on 17 March, as the prosecutor submitted, there were some differences which may not be overlooked, namely the failure to provide social support which the other two offences did not encompass. 104 It seems to me, having in mind what was dealt with in the December judgment and having weighed all of the matters to which I have referred, that the appropriate penalties for the three offences is $250,000, for the 10 March offence, $200,000 for the 15 March offence and $220,000 for the 10-17 March offence. 105 A total penalty of $670,000 for the three offences must be considered against a penalty backdrop of $825,000 for each offence, a total of $2,475,000 for three offences which have many features in common. On any proper and fair consideration of the defendant's criminality in these cases, that would impose a penalty in excess of its culpability, given, as I have sought to explain, the substantial, albeit not complete, overlap between the offences. 106 Accordingly, in determining an appropriate penalty in each case, by applying the principle of totality, I have concluded that an overall penalty for the three offences of $540,000 is just in all of the circumstances. That should result in a final penalty of $200,000, for the 10 March offence, $160,000 for the 15 March offence and $180,000 for the 10 - 17 March offence.

Cahill v State of New South Wales

At a glance

Court

Decision date

Before

Source

Judgment (102 paragraphs)

Parties

Cases Cited (30)

Cited By (4)