Cahill v State of New South Wales

CITATION: Cahill v State of New South Wales (Department of Corrective Services) [2010] NSWIRComm 49

PARTIES: John Joseph Cahill (Prosecutor) State of New South Wales (Department of Corrective Services) (Defendant)

CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 8(1) of the Occupational Health and Safety Act 2000 - early guilty plea - appropriate penalty - serious breach - fatal injury - inadequate safety procedures - objective seriousness - risk reasonably foreseeable - deterrence - prior convictions - remorse and contrition - costs and capacity of a defendant to pay fine - penalty imposed

Crimes (Sentencing Procedure) Act 1999 - s21A(2) LEGISLATION CITED: Fines Act 1996 - s 6 Occupational Health and Safety Act 2000 - s 8(1)

Bastian v Medicraft Hil-Rom Australia Pty Ltd [2010] NSWIRComm 34 Environment Protection Authority v Davis [2005] NSWLEC 643 CASES CITED: Environment Protection Authority v Hardt NSWLEC 284 EPA v Barnes [2006] NSWCCA 246 Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service [2005] NSWIRComm 158; (2005) 143 IR 187 Morrison v Centennial Coal Company Limited [2010] NSWIRComm 4

HEARING DATES: 15 March 2010, 16 March 2010, 29 March 2010 8 April 2010

Mr B Docking of counsel Solicitors W.G. McNally Jones Staff LEGAL REPRESENTATIVES: Mr J Agius SC and Mr D O'Neil of counsel Solicitors Crown Solicitors

John Joseph Cahill v State of New South Wales (Department of Corrective Services)

Prosecution under s 8(1) of the Occupational Health and Safety Act 2000

1 The defendant, the State of New South Wales (Department of Corrective Services), has been charged by the prosecutor, John Joseph Cahill, General Secretary of the Public Services Association and Professional Officers Association Amalgamated Union of New South Wales, with a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). The defendant has pleaded guilty to the charge and this judgment is concerned only with the question of penalty. 2 The proceedings are constituted by an amended application for order filed in Court on 16 March 2010. Once the proceedings were amended, the defendant immediately entered a plea of guilty. I observe that there are significant differences in the charge and particulars, as constituted by the amended application for order, when compared with the charge and particulars as contained in the original application for order. 3 The charge and particulars as contained within the amended application for order are in the following terms: I, JOHN JOSEPH CAHILL of 160 Clarence Street Sydney in the State of New South Wales, General Secretary of the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and empowered under section 106(1)(d) of the Occupational Health and Safety Act 2000 to institute proceedings in the within matter, allege that:

On 11 December 2006 at the Silverwater Correctional Centre in New South Wales, the State of New South Wales (Department of Corrective Services) whose address is Henry Deane Building, 20 Lee Street, 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, Wayne Smith, Graeme Conn, Dennis Moroney, Dean Edwards, Brad Fahey, James McAvoy, Rashmi Goel, John Holmes, John Buckley, Brian Hooper, Darren Wilson, Taniela Loloa, Marc Maxwell, Monica Gubarewski, Simmerdeep Singh Kochlar and Kapil Khanna 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) There was an actual risk of an employee of the DCS suffering physical injury due to being subject to violence of Inmate Little, having to control or restrain Inmate Little when Inmate Little was involved in violence or threatened violence or having to control or restrain other inmates when these other inmates became involved in violence or threatened violence caused by Inmate Little.

(b) Aspects of the defendant's unsafe systems of work were any of the following: (i) Failing to ensure on 11 December 2006 that at least two officers escorted Inmate Little from the Case Management Team meeting, when Inmate Little was informed he was to be reclassified to a B security classification, to a holding cell.

(ii) Failing to ensure on 11 December 2006 that handcuffs were used on Inmate Little whilst being escorted from the Case Management Team meeting, when Inmate Little was informed he was to be reclassified to a B security classification, to a holding cell.

(c) A manifestation of the risk was the severe and extensive injuries including severe facial fractures and brain injury to Mr Smith and ultimately his death.

(d) Manifestations of the risk were the physical injuries to Mr Hooper and Mr Buckley and the physical injuries to Mr Conn and his psychological injuries arising out of his physical injuries. 4 I should observe that in entering a plea of guilty the defendant specifically eschewed that part of particular (c) which contained the words "and ultimately his death." The defendant took this approach because, on the basis of such of the medical evidence as was made available to the Court, it said that it could not be demonstrated beyond reasonable doubt that there was a causal nexus between the admittedly serious injuries sustained by Mr Smith and his death some little time after the event. 5 Ultimately, after argument, the prosecutor accepted the position contended for by the defendant, namely that: In the light of the admission it is prepared to make to the effect, that the injuries suffered by Mr Smith, which included multiple fractures of facial bones and a traumatic injury to his brain were of the most serious kind and of a kind that might lead to death …"

rendered it unnecessary for the Court to make any determination as to whether it could be established beyond a reasonable doubt that those injuries did in fact lead to Mr Smith's untimely and tragic death. I should emphasise also the observation made by the defendant that: In making this submission the defendant does not in any way suggest that Mr Smith's death is not of the utmost significance in fact and does not in any way detract from the sincere regret and sorrow that it has expressed about Mr Smith's injuries and his death. 6 I shall proceed on this basis. The factual background

7 There was tendered into evidence a statement of agreed facts and a voluminous amount of documentary material. Furthermore, statements were received from Donald Bethel and Shay Ewart Deguara on behalf of the prosecutor and affidavits of David Luke Grant and Bernadette O'Connor on behalf of the defendant. Mr Grant and Ms O'Connor both gave oral evidence. 8 The factual narration which follows is taken from the evidentiary material to which I have referred; in relaying it I am satisfied that the factual matters which are set out and which are adverse to the interests of the defendant have been established to the requisite criminal standard of proof. 9 The incident which gave rise to these proceedings occurred at the Silverwater Correctional Complex which houses a number of correctional facilities. Those correctional facilities were at all times operated and managed by the defendant who employed for that purpose correctional officers, welfare officers, drug and alcohol and other counsellors, administration officers and psychologists. Included within the complex is the Silverwater Men's Correctional Centre ("SMCC"), which is a minimum security institution including a Work Release Centre that allows offenders to leave the Centre each day to work in full-time paid jobs in the community. Each of the persons named in the charge were employed to work at the SMCC. 10 On the day of the incident, namely 11 December 2006, and for some time previously, Carl Little, referred to in the amended application for order as "Inmate Little", was housed at the SMCC. He was classified as a C1, that is a person who "should be confined by a physical barrier unless in the company of an officer." The minimum classification of inmates is a C level, although there are three levels, CI, C2 and C3, the C3 category being the most minimal category for classification in terms of security and participation in developmental programs. The highest classification is category AA. There are also categories A1, A2 and B, in descending order of a need for security. Information available to the defendant was to the effect that Mr Little had a long history of criminal activity, including convictions for crimes of violence and had spent many years in prison. 11 On 9 December 2006, information was received by a correctional officer that Mr Little had assaulted another inmate two days previously, a further inmate about five weeks previously and that he had a knife hidden somewhere within the Correctional Centre. A report was prepared that day for the information of the Intelligence Officer within the Correctional Centre. That officer arranged for certain phone conversations that Mr Little had had to be examined and the transcript of these conversations provided information that corroborated Mr Little's involvement in one of these assaults. Action was then taken to refer Mr Little's situation to a Case Management Team ("CMT") meeting for the purpose of considering the appropriateness of Mr Little's then current classification for security purposes. I should add that an Intelligence Unit report prepared at that time included the following: Given the information obtained from the monitored telephone conversations and the information provided by the informants, it is evident that LITTLE has perpetrated at least two assaults on other inmates since his arrival at Silverwater correctional Centre on 05/10/2006.

LITTLE has an extensive history of violence and assaults, both within custody and in the community.

LITTLE has previously been listed as a high security inmate while in custody. He has many breaches of discipline with regards to Intimidation and Fighting. On 04/10/2005, LITTLE was placed on a segregation direction order due to stabbing an inmate in the neck while in custody at Junee correctional Centre.

LITTLE has a large number of recorded assault related offences, some being, Assault Police x 5, Resist Police Officer in Execution of Duty x 2, Malicious Injury x 1, Assault Occasioning Actual Bodily Harm x 3, Maliciously inflict Grievous Bodily Harm x 2 and Assault x 1.

LITTLE is currently serving Balance of Parole (1 year 7 months 22 days) which commenced 04 September 2005 and to expire 25 April 2007.

Due to LITTLE's behaviour since his arrival at Silverwater Correctional Centre He will be placed before the Case Management Team (CMT) for a review of his suitability to maintain a minimum security classification. 12 A transcript of the tapes of the telephone conversations in which Mr Little participated became evidence in the proceedings. They are somewhat difficult to follow because they are, as the Court was informed, in "pig Latin". They are indicative that Mr Little hit a fellow inmate on the chin because he was "going on stupid over the fucken eggs …. and that over poxy eggs mind ya …." There is an indication that Mr Little hit the inmate because he was "stressing me out." In a second conversation on the same day, Mr Little spoke of hating "looking at these heads here" and said "yeah feel like popping them like balloons …." When asked what the person who was hit had said to him, he said: "Nuffin he said fucken hell you hit like a sledgehammer." Mr Little said that he responded "I said I'm sorry matey. I said I'm not in the mood for fucken idiots creeping around … especially idiots I don't know." 13 On the morning of 11 December 2006, an Executive briefing took place attended by a number of correctional officers occupying senior positions. Senior Correctional Officer Wayne Smith was one of those attending. The information report about Mr Little, some of the contents of which I have previously referred to, was discussed including the request to review his classification. A recommendation was made by the Intelligence Officer attending the meeting that Mr Little be reclassified to a B classification, which would involve his transfer to another Correctional Centre. The senior officer present ordered that Mr Little's classification be reviewed at a CMT meeting that morning. No consideration was given as to how Mr Little was to be handled during and after the CMT meeting although there is a suggestion that Mr Smith was warned to be "mindful of inmate Little as it was more likely he would not be happy with the decision to regress him." 14 The CMT meeting held later that morning was attended by Mr Smith, a welfare officer and a psychologist. Mr Little was present and he was asked whether he had engaged in any fights or assaults at the Correctional Centre. He denied this. It was then put to him that he had admitted to assaulting two inmates in a telephone call and he said that he did not know anything about any admission. Mr Little was then asked to leave the meeting and he left the office in which it was being conducted and sat directly outside on some seats. The members of the committee then had a discussion and it was agreed that he would be reclassified to a category B, necessitating his removal from Silverwater. The decision of those present needed to be ratified by a superior officer. It was also necessary to relocate Mr Little to a secure location in the form of a holding cell whilst this process was being undertaken. Shortly thereafter, Mr Little was invited to come back to the office where the meeting was being conducted and he was told that he would be reclassified and moved to Bathurst Correctional Centre. There was then a discussion about whether Mr Little could speak to a solicitor and about the need for a case plan to be prepared for him and he was asked to sign a document to acknowledge the decision to reclassify him, which he declined to do. 15 The welfare officer, in a statement made to the police, described Mr Little's demeanour at the time. He said: Inmate Little's demeanour whilst in the CMT office was calm and he seemed to be thinking rationally and didn't raise his voice. He did not make eye contact with us when we were speaking. He would look at us initially to acknowledge us but then look away. He sat slumped in his chair but he did not display any anger and was quiet (sic) clear in his thinking, this was evident when he asked about the tape recording and also to speak with his solicitor. Even when he stood up, he had the opportunity to leave the office as the door was behind him but he didn't, he only left when he was asked to sign the booklet. Little did not appear to be under the influence of any drugs or medication and was very coherent and appeared to understand everything. The looking away is very common with aboriginal inmates. I believe in my experience that it is a cultural thing that they just don't do. 16 The psychologist, in a statement to the police, relayed what happened at the meeting and said about Mr Little: Once again, there were no signs of aggression or agitation. The fact that he did not sign his paperwork is not uncommon. Some inmates are of the belief that if they don't sign the paperwork, the recommendation won't go through, which isn't the case. The signature is their acknowledgement that the process and recommendation had been explained. Even when Little put his chair under the table, he placed it under gently and did not raise his voice. 17 After the meeting concluded, Mr Little left the office followed by Mr Smith. The psychologist commented: Wayne followed Little out of the room shortly after and Wayne closed the door to the CMT room as he left. I have never sat on a CMT when an inmate has walked out so to have Little walked out was unusual for me. Normal procedure is that the inmate is escorted back their cell to get their belongings and place in a holding cell which is due to them being a different classification to what Silverwater gaol holds. 18 There are a number of witness accounts as to what occurred next. 19 What followed subsequently that day is described in the amended agreed statement of facts in the following terms: 74. In more detail, Probationary Correctional Officer Goel whilst performing her duties as a Patrol Officer was called by the Case Manager Supervisor to escort Inmate Little.

At about 9.30am, Probationary Correctional Officer Goel arrived in the "A" area where she noticed Wayne Smith walking in front of Inmate little. Officer Smith and Inmate Little had already descended the stairs leading from the CMT meeting room and had passed by the holding cell and passed through a doorway leading from the area where that holding cell was into a vestibule immediately inside the backdoor of buiding "A". Probationary Correctional Officer Goel asked Wayne Smith "Do I escort Little to Echo unit first?" Wayne Smith replied "First he has to pack his bag."

Inmate Little and the two correctional officers then made their way through "A" block and exited the building through the rear door into a courtyard.

At this time Inmate Little was leading Wayne Smith and was closest to him. Almost immediately after exiting the door to the "A" block building, Inmate Little stopped, turned to face Wayne Smith and while his face was very close to Wayne Smith he spoke to him. He then spat directly at Wayne Smith's face. Seeing that, Probationary Constable Goel used her radio to call for assistance. As she watched, Inmate Little then punched Wayne Smith to the face a number of times. That caused Wayne Smith to fall backwards to the ground and he appeared to be unconscious at that point.

When on the ground Wayne Smith's head was resting partly against the outside wall of "A" block. Inmate Little then turned and approached Probationary Correctional Officer Goel. He raised both his arms with clenched fists at her and as he did that she, being a probationary officer of small stature, and the prisoner being a large man, retreated down some nearby stairs into a courtyard area. Inmate Little closely followed her down the stairs. He then motioned with his hands as if he was going to hit her but stopped himself. He turned and walked away from her and then moved back up the stairs over to where Wayne Smith was still laying against the wall of "A" block.

At this time Wayne Smith had not moved from the position where he had been knocked to the ground by Inmate Little. Inmate Little then kicked Wayne Smith repeatedly. The kicks went to Wayne Smith's head, face and also his chest. In addition to kicking Wayne Smith, Inmate Little used a stomping motion with his foot to inflict blows to Wayne Smith's head. Inmate Little kicked Wayne Smith multiple times particularly to the head and face. As that was occurring Wayne Smith was not moving. As Inmate Little continued to kick him Wayne Smith began to bleed heavily out of his nose and mouth. As Inmate Little inflicted blows on Wayne Smith Inmate Little yelled at Wayne Smith.

As this was occurring Probationary Correctional Officer Goel was on her radio urgently seeking assistance. In response, AS Conn responded to the call and started to exit through the door from "A" block, a short distance from where Inmate Little was then striking Wayne Smith. As AS Conn did so, Inmate Little moved away from Wayne Smith and pushed the "A" block door closed, forcing AS Conn back inside.

At around this time Probationary Correctional Officer Goel had moved back to the stairs and near the "A" block. As she stood there Inmate Little placed his hand on her left shoulder and pushed her out of the way. AS Conn again opened the "A" block door and saw that Inmate Little was yelling something in the direction of the "A" block wall. At this time AS Conn looked and saw Wayne Smith on the ground, severely injured. He could see that Wayne Smith was bleeding profusely from his nose and other wounds to his face. AS Conn then saw Inmate Little step forward and use his foot to stomp on Wayne Smith's head. As Inmate Little did that AS Conn and other officers (AS Holmes and AS Buckley) that had also attended grabbed Inmate Little and pulled him away from Wayne Smith.

As Inmate Little was being pulled away, he again kicked Wayne Smith to the head on two further occasions. After pulling him away from Wayne Smith Inmate Little was restrained by prison officers. AS Conn told Inmate Little to leave the area and proceed to the "C" block holding cell. AS Conn also told Inmate Little not to do anything that would make the situation worse. Inmate Little said, "Fuck off or I will smash you." As he said this Inmate Little walked down some steps and moved away from "A" block and down the outside of "C" block. As he did so AS Conn followed and continued to instruct Inmate Little to go to the "C" block holding cells. As AS Conn walked beside him Inmate Little used his right arm and heavily pushed AS Conn away from him, saying "Fuck off or I will smash you."

Inmate Little then walked into the prison basketball court followed by AS Conn and other prisoner officers. As Inmate Little walked across the basketball court Inmate Little grabbed AS Conn by the shirt and pulled him towards Inmate Little. Inmate Little then wiped his hand, which was bloodied, across AS Conn's shirt. Inmate Little then wiped his other hand, which was also bloodied, on AS Conn's shirt. Inmate Little then pushed AS Conn away. 20 Subsequently, Mr Little was restrained. However, before this occurred there were a number of altercations involving other inmates and some prison officers were injured in the melee. These included a number of prison officers named in the amended application for order. 21 Some greater detail concerning the handling of Mr Little after the completion of the CMT meeting was provided in information given to the New South Wales Police Force by John Holmes, an Assistant Superintendent at SMCC. Mr Smith had spoken to Mr Holmes at the conclusion of the CMT meeting but prior to the final stage where Mr Little left the area. Mr Holmes said that he had a conversation with Mr Smith about whether Mr Smith would stay with Mr Little or escort him to a cell. Mr Holmes recollected a conversation "briefly at some point" where he said: When you're finished, and it, this is just the words that I, similar to what I would have used, that when you're finished with the, doing the CMT let me know and we'll take him downstairs and put him in the holding cell. 22 Mr Holmes was asked whether that would be normal routine for an inmate in that position to be placed in a holding cell. He responded: He would be escorted to a holding cell, on this occasion I'd been informed that Miss Goel was a patrol officer and we couldn't get another patrol officer, so in the absence of officers to escort him I contacted Miss Yarnton, who was Area Manager 1, and informed her that we would put him directly, that I would assist in escorting him directly to the holding cell downstairs, and then she agreed and that when she could get other officers he would then be escorted from that holding cell to another holding cell with his property. 23 Mr Holmes was asked whether he discussed that plan with Mr Smith. He said: I don't remember whether that whole plan was discussed with Mr Smith, I don't think it was, but I did discuss with him that when he was finished the CMT that I would assist him with that. I had called previous to that conversation for Miss Goel to come up and assist with the escorting, I would make an assumption that she came up and Mr Smith went with her as a, as an escorting officer. 24 There are a number of other matters contained within the amended agreed statement of facts which I set out hereunder: 46. AS Conn was not aware of any conversations or planning concerning how to manage Inmate Little either during or after the CMT. AS Conn gave Wayne Smith a warning to be mindful of Inmate Little as it was more than likely he would not be happy with the decision to regress him.

48. At Silverwater at or before the time of the incident, there was not in place any written procedures in respect of the escort or handcuffing of an inmate considered for a regression to B classification.

57. At about 9.05 am, there was dispensed to Inmate Little his methadone. Attached as S15 is a copy of the Police statement of Registered Nurse Natalie APAP dated 20 September 2007.

58. Prior to the CMT meeting AS Holmes was informed that Probationary Correctional Officer Rashmi Goel was a patrol officer and that another patrol officer was not available.. In the absence of officers to escort Inmate Little, AS Holmes contacted SAS Sharon Yarnton who was Area Manager 1.

59. SAS Yarnton was not required to, did not usually attend and had not attended the Executive briefing that morning because her position had flexible hours, meaning she commenced duty at 9 am as per her rostered hours. It was at about 9.10 - 9.15am, when AS Holmes telephoned SAS Yarnton who was in the Dep's Clerk's office at that time and spoke to her. SAS Yarnton describes in her departmental interview on 4 January 2007 that call: Q36 No worries. And what was discussed in that phone call?

A Mr Holmes contacted me and actually said to me that he was Case Manager on the day and that he had a referral for Inmate Little to be placed before CMT due to intelligence received that he'd assaulted other inmates previously, and they were regressing him from a C classification to a B. My instructions to Mr Holmes were, How many staff members do you have to do that move? He said, The executive that's doing the CMT and we're waiting on some rovers. My instructions to Mr Holmes was, Do not move that inmate anywhere, you place that inmate in A block holding cell until further assistance arrives, and that's where I left it. So I repeated myself probably twice with John Holmes to make sure he understood it, asked him to repeat it back to me, and it was word-for-word as I said, so, yeah.

62. The defendant by entering a plea of guilty is not blaming Wayne Smith. AS Holmes states that he told Wayne Smith what should be done. The defendant accepts that Wayne Smith should not have had a discretion in respect of Inmate Little and, therefore, a systems failure occurred. It is accepted by the prosecutor and the defendant that Wayne Smith was a senior, very experienced and very reliable correctional officer and it is expected that if given a direction or instruction he would have followed it. In all the circumstances, there is a strong inference that Wayne Smith did not know he was given a direction or instruction in respect of Inmate Little.

70. A measure that the defendant should have taken but it failed to do so was to ensure on 11 December 2006 that at least two officers escorted Inmate Little from the CMT meeting, when Inmate Little was informed that a recommendation had been made that he was to be reclassified to a B security classification, to a holding cell.

71. Another measure that the defendant should have taken but it failed to do so was to ensure that on 11 December 2006 that handcuffs were used on Inmate Little whilst being escorted from the CMT meeting, when Inmate Little was informed he was to be reclassified to a B security classification, to a holding cell.

72. Handcuffs could have been obtained from the armoury in the Gate.

116. After the incident, the defendant took the following measures: (a) Inmate little was removed from Silverwater.

(b) The General Manager of Silverwater, Ms Bernadette O'Connor, on 13 December 2006 introduced "interim measures" in response to WorkCover Improvement Notices. Attached as S38 is a copy of that Memorandum.

(c) The General Manager of Silverwater, Ms Bernadette O'Connor, introduced a new system by Memorandum to all staff dated 6 January 2007. A new procedure was to apply when conducting an internal escort for segregation, B classification and those being considered for reduction to B classification or higher. The procedure changed so that an inmate whose classification had been regressed must be handcuffed and escorted. Attached as S39 is a copy of that Memorandum.

(d) A "closed gate" policy was introduced at Silverwater. This meant that the internal gates including the gates from C Wing to the basketball courts and from basketball courts to the oval were secured. For an inmate to exit or enter the wing areas the gates had to be opened by a correctional officer, as well as to access the clinic and education. Since the reduction in numbers of inmates in October 2008 at Silverwater, the gates to the basketball court are now unsecured.

(e) Two IAT officers were stationed at Silverwater. The objective seriousness of the offence

25 The commencing point for the assessment of an appropriate penalty is a consideration of the objective seriousness of the offence. 26 In submissions concerning the seriousness of the offence, the prosecutor referred to the fact that the defendant knew or should have known that inmate Little posed a serious risk to the health and safety of employees at Silverwater, yet the defendant allowed its employees to be exposed to that serious risk of harm and failed to implement adequate measures to deal with it …. The risk was not only reasonably foreseeable, but the defendant was plainly aware of the risk. In making this submission, the prosecutor relied on a number of documents which were in evidence in the proceedings. One of these documents was the Information Report that was brought to the attention of senior officers in the defendant's organisation on 10 December 2006, following the monitoring of the telephone conversations to which I have already referred. That report set out the details of the telephone conversations and also contained these observations: Little has an extensive history of violence and assaults, both within custody and in the community. Little has previously been listed as a high security inmate while in custody. He has many breaches of discipline with regards to intimidation and fighting. There is then reference to a stabbing incident whilst Mr Little was in custody on 4 October 2005 in which he stabbed an inmate. The report continued: Little has a large number of recorded assault related offences, some being, Assault Police x 5, Resist Police Officer in Execution of Duty x 2, Malicious Injury x 1, Assault Occasioning Actual Bodily Harm x 3, Maliciously Inflict Grievous Bodily Harm x 2 and Assault x 1. Little is currently serving Balance of Parole (1 year 7 months 22 days) which commenced 04 September 2005 and to expire 25 April 2007. 27 Certainly, there is evidence within that document that Mr Little had physically assaulted police officers. 28 Furthermore, there was evidence available to the defendant and those attending the CMT meeting disclosing the details of some of the incidents that were referred to in a general way in the Information Report. 29 No good purpose would be served in setting out in detail the long and sorry history of violence both outside and within the prison system that has been committed by Mr Little. There are a number of instances where Mr Little has acted violently towards police officers and correctional officers. Some of these date back to 1995 but others are more relatively recent. These occurred in 2002 and 2003. Mr Little was transferred to Lithgow Correctional Centre in October 2005 following the stabbing incident at another correctional centre earlier that month. 30 I should add that there was an incident on 26 February 2003 where Mr Little physically attacked four SERT officers after he had refused to obey a direction to move away from a particular area. In addition to punching and kneeing officers, Mr Little put his finger in the eye of one officer attempting to gouge it out. 31 The defendant relied on Mr Little's apparent rehabilitation. There is a notation in the defendant's records that indicates that Mr Little had undertaken a program whilst being detained in the High Risk Management Unit at Goulburn Correctional Complex and was considered on 28 November 2003 as being suitable for transfer to Lithgow Correctional Centre, albeit with a maximum security classification. The defendant noted that Mr Little had not come under adverse notice whilst at Lithgow and he was subsequently reclassified from an A2 classification to a C1 classification when transferred to Silverwater. In response, the prosecutor pointed out that Lithgow was a maximum security correctional centre and that there was a much higher degree of control over inmates and their movements. Accordingly, opportunities for misbehaviour were limited and restricted, as conceded by Mr Grant in cross-examination. 32 No evidence was adduced concerning the circumstances in which Mr Little was reclassified to a C1 category that attended his transfer to Silverwater. It may only be inferred that in some way he had demonstrated behaviour that warranted such a reclassification. 33 I agree with the prosecutor's submission that the assault incidents which occurred whilst at Silverwater, one of which was verified in Mr Little's telephone conversation on 7 November 2006, should have raised some concern in the minds of responsible officers in the defendant's organisation that whatever behavioural modification Mr Little had undergone was incomplete or he had regressed. This is particularly so having regard to the descriptive words used by Mr Little to which I have earlier referred. Indeed, the defendant conceded this for the purpose of the proceedings. The defendant, however, asserted that it could not be said that it was on notice that Mr Little would have engaged in the extreme violent conduct that occurred on 11 December 2006 and that resulted in the savage physical attacked on Mr Smith and the assault of other officers. I agree with this submission and the prosecutor did not contend otherwise. 34 I conclude, therefore, that the defendant, as acknowledged by its plea of guilty, should have taken appropriate measures to guard against some form of physical violence from Mr Little, but not the kind of extreme violence that accompanied his savage attack on Mr Smith. 35 In assessing the objective seriousness of the offence, the defendant submitted that any risk posed by Mr Little had been taken into account and an appropriate plan had been put in place, albeit that it had not been executed as envisaged. Reliance was placed upon the direction given by Senior Officer Yarnton who had, on the evidence, directed Mr Holmes to ensure that Mr Little was removed to a holding cell and that in doing so he was appropriately escorted. Such a direction had been given by Senior Officer Yarnton following a communication to her by Mr Holmes. It was Mr Holmes' evidence, as contained within statements made by him, that it was his intention to have Mr Little secured in the holding cell and that he would assist Mr Smith in escorting Mr Little to that cell. There is, of course, the concession made by Mr Holmes that he may not have made this position sufficiently clear to Mr Little. 36 The prosecutor sought to call into question the evidence about Mr Holmes' intentions. This was based primarily on a statement made by Bernadette O'Connor, the then General Manager of the SMCC, given to investigating police on 12 April 2007. In the course of that statement Ms O'Connor said: I am aware after the event that Wayne (referring to Mr Smith) had a conversation with Assistant Superintendent John Holmes about the reclassification of inmate Little. I understand from John that he had arranged for Wayne to radio him after the meeting should he require assistance. I'm of the belief that Wayne made a decision that the inmate was calm and did not require John's assistance …. 37 It was submitted by the defendant that this recollection of Ms O'Connor concerning a conversation that she had had with Mr Holmes after the event cast doubt on the creation of a plan to accommodate the oversight of Mr Little after the termination of the CMT meeting. 38 In an affidavit sworn 25 March 2010 and tendered in these proceedings, Ms O'Connor said, in relation to that part of her statement given to the investigating police officers: 19. In relation to my statement of 12 April 2007 I have read paragraph 15 where I indicate an understanding from AS Holmes that he had arranged for Wayne to radio him after the CMT meeting, should Wayne require assistance. I did not ever make a note of that conversation. At the time AS Holmes spoke to me I was very busy attending to the multiple matters arising from the incident. The conversation I had with John Holmes was shortly after the ambulance had left Silverwater on 11 December 2006. I do recall John Holmes said to me words to the effect "I do not want to get Wayne into trouble. Wayne was supposed to contact me". I advised John to set out in his report accurately what occurred on the morning. During that conversation John Holmes did not give me a detailed account of what had happened. 39 I do not think that any useful purpose would be served in examining in minute detail the statements which Mr Holmes made and comparing them in the same detail with what Ms O'Connor said she recollected that Mr Holmes had said to her, in the context in which that conversation took place. This is especially so given the circumstances that prevailed at the time as were described by Ms O'Connor in her affidavit extracted above. 40 I accept that a direction had been given by Senior Officer Yarnton to Mr Holmes but that direction was not carried out as intended. Furthermore, no good purpose would be served in examining the conduct, whether by way of act or omission, of the persons involved in this unfortunate and tragic incident. On one view of it, and a view which I favour on the evidence, it may be inferred that the plan as formulated was frustrated when Mr Little peremptorily terminated his interview with the members of the CMT and, on the evidence, stood up, placed his chair near the desk and left the room, forcing Mr Smith to follow him. 41 The fact is, as conceded by the defendant by its plea of guilty and its submissions, there was a failure to have Mr Little appropriately escorted by two correctional officers and a failure in all the circumstances to have him handcuffed. 42 The defendant relied upon the fact that the officers who were directly involved in the matter, namely Messrs Holmes and Smith, were longstanding, experienced and responsible officers. This was to be contrasted with a scenario, say, where inexperienced or probationary officers had been contemplated to have been utilised to escort Mr Little. 43 The defendant also relied upon the fact that Mr Little's violent conduct could not have been reasonably predicted. I have already dealt with this matter and concluded that, given the two assaults upon inmates which had been reported to the defendant as having been perpetrated by Mr Little, and given the language used by Mr Little in describing one of them in his telephone conversation, the defendant should reasonably have anticipated that Mr Little might undertake some physical form of misconduct, albeit not the savage and brutal assault that he perpetrated on Mr Smith. 44 The defendant also relied upon evidence given by Assistant Commissioner Grant to the effect that there was an extremely low incidence of serious assaults upon officers within its operations. This evidence was given against background evidence concerning the overall operations of the defendant. Mr Grant said that in 2006 there were 6400 employees of whom 4405 were operational staff working in correctional centres and courts. The total number of inmates in full-time custody in New South Wales as at 10 December 2006 was 9434. As at 10 December 2006, there were 493 inmates at SMCC managed by 105 custodial staff and approximately 50 non-custodial staff. 45 Mr Grant gave evidence that he had examined statistics kept for "serious assaults by prisoners on prison officers." A serious assault was defined "as an act of physical violence requiring medical treatment and assessment by a medical officer resulting in overnight hospitalisation in a medical facility or requiring extended periods of medical treatment …." For the years 1999 to 2009, there were six such incidents, two in the 1999/00 year, three in 2001/02 and one in 2006/07, being Mr Smith. 46 As Mr Grant conceded in cross-examination, the recording of one incident for the 2006/07 year did not cover a number of other correctional officers who had received injuries in the melee which resulted from the incident initiated by Mr Little. Furthermore, the evidence concerning the serious injuries suffered in 2003 by at least one correctional officer at the hands of Mr Little, to which I have earlier referred, is not included within these figures. Even on this limited basis, I would consider this part of the evidence of Mr Grant with some caution. 47 Whatever the statistical situation, however, it does not detract from the circumstances surrounding dealings with Mr Little on 11 December 2006 given Mr Little's known history and in particular the assaults which had occurred some little time before. 48 In all the circumstances, I would assess, objectively, the offence to which the defendant pleaded guilty as being of a most serious kind. Deterrence 49 In fixing an appropriate penalty, it is also necessary that I take into account the deterrent effect that such a penalty will have both generally within the community and specifically with respect to this particular defendant. However, in considering the deterrent effect on this defendant I take into account the evidence given in the proceedings of only five prior convictions for breaches of the Act, ranging from 30 October 1996 to 15 July 2005. This is, given the nature of the defendant's undertaking, the number of establishments under its control and the number of employees, an excellent record, as was properly conceded by the prosecutor. S 21A Crimes (Sentencing Procedure) Act 1999 50 The prosecutor also submitted that the Court should take into account in assessing penalty, as an aggravating factor, the matter referred to in s 21A(2)(a) of the Crimes (Sentencing Procedure) Act 1999. 51 Relevantly, s 21A of that Act is in the following terms: 21A Aggravating, mitigating and other factors in sentencing

(1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters:

(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c) any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement 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,

(ca) the offence involved the actual or threatened use of explosives or a chemical or biological agent,

(cb) the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,

(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),

(ea) the offence was committed in the presence of a child under 18 years of age,

(eb) the offence was committed in the home of the victim or any other person,

(g) the injury, emotional harm, loss or damage caused by the offence was substantial,

(h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),

(i) the offence was committed without regard for public safety,

(ia) the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),

(ib) the offence involved a grave risk of death to another person or persons,

(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,

(k) the offender abused a position of trust or authority in relation to the victim,

(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant),

(m) the offence involved multiple victims or a series of criminal acts,

(n) the offence was part of a planned or organised criminal activity,

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,

(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,

(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),

(j) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability,

(k) a plea of guilty by the offender (as provided by section 22),

(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),

(m) assistance by the offender to law enforcement authorities (as provided by section 23).

(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence. 52 The prosecutor submitted that because the "victim" of the offence was a correctional officer, ipso facto, the provisions of s 21A(2)(a) applied. 53 In that Mr Smith and the other correctional officers, who sustained injuries or whose health, safety and welfare were put at risk on 11 December 2006, were or are all correctional officers, then clearly s 21A(2)(a) is capable of applying to these proceedings. I assume for this purpose that the reference to a "victim" is a reference to any person who was adversely affected by the offence committed by a defendant. Nevertheless, it seems to me that the general purpose of s 21A(2)(a) is to make it clear that the state will not countenance offences that impact adversely on persons performing a public service which is attendant on each of the occupations referred to in the sub-section. An obvious example is a defendant who has assaulted a police officer or other such person. 54 In the circumstances of these proceedings, the Court is required to take into account the employment milieu in which the offence occurred, namely one involving correctional officers. The objective seriousness of the offence is to be gauged by reference to the work performed by correctional officers in assessing the extent to which the conduct of the defendant, whether by way of act or omission, created a risk to the health, safety and welfare at work of correctional officers and, in particular, the late Mr Smith and those also affected by what occurred on the day of the incident. Accordingly, in assessing the objective seriousness of the offence for the purpose of determining an appropriate penalty, I have already considered and taken into account the fact that Mr Smith and the other persons concerned were correctional officers. To specifically apply s 21A(2)(a) would involve some element of double counting. An alternative view would regard the fact that the Court has, in fact, considered that correctional officers were adversely affected by what occurred on that day as resulting in the provisions of s 21A(2)(a) having been applied in any event. Subjective matters 55 In assessing penalty, there are a number of matters that are subjective to the defendant that are required to be taken into account. These include the defendant's good safety record, previously adverted to, the fact that the defendant immediately entered a plea of guilty upon the amendment to the charge, as earlier referred to, the fact that the defendant co-operated fully with the New South Wales Police Service and with the WorkCover Authority of New South Wales in and about their investigations into the incident and the expressions of contrition and remorse made by the defendant, including tangible assistance given to the family of the late Mr Smith and to other corrections officers who were adversely affected by what occurred. 56 It was the evidence of Mr Grant that immediately following the incident the defendant took a number of steps to provide assistance to the family of Mr Smith, the other correctional officers who were either injured or traumatised by the incident and certain inmates who were also in need of counselling after the incident. A number of senior correctional officers, including the Commissioner, attended the hospital and met with members of Mr Smith's family. The services of a welfare officer were provided to the family. 57 In the course of his affidavit evidence, Mr Grant said: 23. The staff at Silverwater were greatly disturbed when Wayne passed away on 25 January 2007. The impact of this death reverberated throughout the Department and the profound feeling of grief was shared by custodial and non-custodial staff alike.

24. On the 9th February 2007 one week after the funeral the Department held a remembrance service for Wayne Smith. The event was attended by over 1,000 staff and friends including Wayne Smith's family, representatives from the NSW Police, and interstate correctional jurisdictions. Correctional Centres were afforded the opportunity to lock down their centres to facilitate attendance at this important event.

25. A permanent memorial has been built at Silverwater in honour of Wayne. The project was supported by the Department with stonemasonry completed by offenders under supervision. Financial contributions were also received from staff social clubs at Parramatta and Silverwater Correctional Centres.

26. A remembrance service is held at Silverwater on the anniversary of Wayne's passing. Tribute is also paid to Wayne and his family at the Department's annual Remembrance Day event. At this event each of the officers whose deaths have been attributed to injuries sustained in the workplace throughout the history of the Department are remembered and honoured.

27. Many departmental staff were responsive to a request to support the Smith family by donating the monetary equivalent of a nominated period of recreation leave. This generous gesture of support from staff was a manifestation of the sorrow felt by staff across the organisation and was arranged by the Department in conjunction with the PSA. 58 All of these matters were conceded by the prosecutor as being factors that the Court was entitled to take into account in assessing the appropriate penalty. I propose to do so accordingly. Costs as a factor in assessing penalty 59 The prosecutor sought orders for the payment of costs and for a moiety of the penalty, and I shall return to these matters shortly. For present purposes, I need deal with a submission made by the defendant that, in considering the appropriate penalty, the Court should take into account the fact that the defendant will have to pay the costs of the prosecutor. It was submitted that those costs should be regarded as part of the defendant's punishment. In advancing this submission, the defendant relied upon decisions of the New South Wales Court of Criminal Appeal, the Land and Environment Court and of this Court. 60 The earliest of these decisions in point of time is a decision of the New South Wales Court of Criminal Appeal in EPA v Barnes [2006] NSWCCA 246. The Court was dealing with an appeal against the level of penalty assessed by a trial judge asserting that it was manifestly inadequate. The judgment of the Court was delivered by Kirby J, Mason P and Hoeben J agreeing with his Honour's reasons. In the course of his judgment, Kirby J referred to the judgment at first instance. The trial judge had determined that it was appropriate to make a costs order against the defendant in favour of the prosecutor. The trial judge then said: I do consider the amount of costs ought to be taken into account because if substantial they will clearly impact on the ability of the defendant to pay a fine. Her Honour then discussed the amount of agreed costs and a number of mitigating factors. Her Honour noted: these costs are substantial and I take this into account. Had the costs not been so great, I would have imposed a much higher penalty. 61 Kirby J then referred to an earlier case in the Land and Environment Court, Environment Protection Authority v Davis [2005] NSWLEC 643. His Honour said: 83 The second case bears a superficial similarity to the facts in this prosecution. It was a matter of Environment Protection Authority v Davis [2005] NSWLEC 643. Mr Davis owned and operated a business collecting waste from residential septic tanks. He had a licence to transport that waste, using a vehicle which had a capacity of 4,000 litres. By arrangement, he was obliged to dispose of the waste at a particular facility. On 20 February 2004, an officer of a government department was driving past a recreation area in Kyogle. He saw Mr Davis' truck. It was parked within the recreation area close to the banks of a river. The officer stopped. He saw Mr Davis discharging about 2,000 litres of sewerage onto the river bank. There was significant rain after the incident, which washed some of the sewerage into the river.

84 Mr Davis was later interviewed. He had been caught red-handed. He acknowledged his offence. He said he had a "brain explosion". He later pleaded guilty. He had a limited income and lived on a rural property in respect of which there was a mortgage of $160,000. His equity in that property was not stated. He had approximately $10,000 in savings. The sentencing Judge, Lloyd J, said this: "26. The primary consideration in sentencing is the objective gravity or seriousness of the offence. A number of factors highlight the seriousness of the offence in this instance. These might be described as aggravating factors. In the present case there is the quantity of waste involved - in the range of 1,500 to 2,000 litres. There is the deliberate nature of the offence. There is the fact that the defendant had consent to dispose of the waste at an approved disposal point. There is the fact that the defendant in doing what he did was saving himself both time and money, money saved in not having to travel to Lismore and pay for the tipping. And there is the nature of the waste itself and the fact that the Tweed River here is a source of drinking water.

27. General deterrence is also a major consideration in the imposition of penalties. The penalty must be sufficient to compel attention to others so that others are discouraged from committing like offences. For strict liability offences, however, care must be taken to ensure that the penalty imposed does not cause this particular defendant to shoulder an unfair burden of community education: see Waldon v Hensler (1987) 163 CLR 561 at 570."

85 His Honour accepted Mr Davis was unlikely to re-offend. Specific deterrence was unnecessary. His Honour ultimately made an order in these terms: "32. Having regard in particular to the defendant's modest means to pay any fine as required by the Fines Act, I consider that an appropriate penalty in this case is $8,000. I am prepared to discount this sum having regard to all relevant matters by $3,000, to $5,000. Accordingly, the Court makes the following orders:

1. The defendant is formally convicted of the offence as charged.

3. The defendant is ordered to pay the prosecutor's costs of $9,000 ...." 62 Kirby J then observed: 88 Returning to the penalty imposed upon Mr Barnes. As a matter of first impression, the fines imposed appeared unduly lenient, suggesting error. However, the fines were part only of the penalty. Mr Barnes was obliged to pay substantial costs. Her Honour made it clear that, but for that fact, the fines she would have imposed would have been much higher. 63 It is clear from my reading of the judgment of Kirby J that his Honour was cognisant of the requirement imposed by s 6 of the Fines Act 1996, which mandates a consideration of a defendant's means to pay a penalty. S 6 of that Act is in the following terms: 6 Consideration of accused's means to pay

(cf Crimes Act 1900 sec 440AB and Justices Act 1902 sec 80A)

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount. 64 Accordingly, EPA v Barnes is authority for the requirement to take into account an order for the payment of costs imposed on a defendant when considering a defendant's capacity to pay a monetary penalty imposed as a result of the commission of an offence. 65 I do not regard EPA v Barnes as establishing the proposition for which it was cited by the defendant, namely In considering the appropriate penalty the Court should take into account the fact that the defendant will have to pay the prosecutor's costs. Such a consideration will be confined, as I have said, to any question concerning the capacity of a defendant to pay a penalty. No such question arises in the context of these proceedings, it not having been raised in any way by the defendant. 66 The defendant also relied upon a judgment of Preston CJ in the Land and Environment Court of New South Wales in Environment Protection Authority v Hardt [2007] NSWLEC 284. In dealing with the question of penalty, his Honour first considered the financial means of the defendant in the following terms: Financial means

60 In the exercise of the discretion to fix the amount of a monetary penalty, the Court should consider the financial means of an offender to pay a fine from such information as is reasonably and practicably available to the Court: see s 6 of the Fines Act 1996. Once a determination has been made that a fine should be imposed, the correct procedure in assessing the appropriate amount of the fine is to determine it by reference to the gravity of the offence for which it is imposed. If the Court is satisfied that the offender would be unable to pay the amount determined, the Court may reduce the amount of the fine to take account of the offender's means and impecuniosity: see R v Rahme (1989) 43 A Crim R 81 at 87.

61 The fine may be only part of the penalty imposed on the offender. Consideration could also be given to other monetary amounts the offender may be ordered to pay, including the prosecutor's legal costs of the proceedings: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and [88].

62 The financial means of the defendant has been set out earlier. This shows that the defendant does have assets, particularly the two real properties. However, these properties are both subject to significant mortgages. Nevertheless, it does show that there would be a capacity to pay a fine obviously depending upon the quantum of the fine. 67 I am unable to conclude, with respect, whether [61] is intended to follow on from the observations contained within [60] or is intended to state a stand-alone principle. However, it may be that this matter is clarified by subsequent observations made by his Honour. In dealing with the "appropriate sentence", Preston CJ said: 63 The sentence of the Court should reflect the appropriate purposes of sentencing. In this case, of particular relevance are:

(a) punishment, denunciation and accountability: s 3A(a), (e) and (f) of the Crimes (Sentencing Procedure) Act ;

(b) deterrence both general and specific: s 3A(b); and

(c) restoration and reparation, recognising the harm done to the community in the form of the environment: s 3A(g).

64 These purposes inform both the type of sentence and its severity. There is a need for a fine to be imposed in this case to achieve the purposes of punishment, denunciation, accountability and general deterrence. There is also a need for orders to be made to restore and repair the environment that has been harmed by the commission of the offence. There is power under s 245 of the Protection of the Environment Operations Act to make such orders.

65 Having regard to the objective gravity of the offence as set out above, mitigated by the subjective circumstances of the defendant, also discussed above, I am of the opinion that an appropriate fine for this offence is $12,000. In fixing this amount I have also taken into account the financial costs that would be incurred in carrying out the orders for restoration of the environment under s 245 of the Protection of the Environment Operations Act . Mr Lane estimated those costs to be in the order of $55,000. The defendant estimated it may cost around $30,000 if he can use his own and his friends' labour and minimise the amount of imported fill. Accordingly, the financial costs of carrying out these orders should be taken into account in fixing the amount of the fine.

66 Furthermore, as was said by the Court of Criminal Appeal in EPA v Barnes , the total penalty that is imposed upon an offender should also take into account any order against the defendant for the payment of the prosecutor's legal costs. In this case an agreement has been reached between the defendant and the prosecutor that the defendant should pay the prosecutor's legal costs in the agreed sum of $105,000. I note that the defendant and the prosecutor have reached agreement between themselves that the defendant should pay that agreed sum by twelve equal monthly instalments, the first instalment to be paid within six months from the date of the Court making the order. I therefore take into account the fact that the defendant will pay the agreed sum of $105,000 as well.

67 I note that in fixing the fine of $12,000 I have taken into account the financial means of the defendant. I consider that having regard to the financial means of the defendant, he would be able to raise the finances necessary to pay a fine in the amount of $12,000 and it is not necessary to reduce the amount of that fine. 68 As I read [67] of his Honour's reasons for judgment, it would appear that the sum of $12,000 reflects, and is conditioned by, the financial means of the defendant. On this basis, the words "and it is not necessary to reduce the amount of that fine" as contained in the second sentence of [67] are intended to reinforce his Honour's conclusion about the capacity of the defendant to pay the sum of $12,000. Accordingly, I would conclude that the reference to EPA v Barns contained within [61] and [66] of his Honour's reasons for judgment is indicative of an approach to sentencing that will include the likely quantum of a costs order made against a defendant in considering a defendant's capacity to pay for the purpose of s 6 of the Fines Act. I do not understand his Honour to have determined that, absent any consideration of the defendant's capacity to pay, it was appropriate to take into account the costs order in determining penalty. 69 The decision in this Court relied upon by the defendant is Morrison v Centennial Coal Company Limited [2010] NSWIRComm 4. At [96] and [97], under the heading "Costs", Boland J, President, said: 96 The defendants did not oppose an order that they pay the prosecutor's costs as agreed or assessed. However, it was submitted that in considering the appropriate penalties the Court should take into account the fact that a defendants will have to pay the prosecutor's costs. It was submitted, and it would appear to be right, that costs are to be regarded as part of the defendant's punishment: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78], [88]; Environment Protection Authority v Hardt [2007] NSWLEC 284 at [66].

97 I have not been apprised of the amount of legal costs the defendants will be liable to pay but it is a reasonable expectation they will be substantial. In arriving at the penalties I have taken this into account. It would appear that his Honour was not assisted with any detailed analysis of the decision of the New South Wales Court of Criminal Appeal in Barnes or of the decision of Preston CJ in Hardt . 70 It is unsurprising that there is limited authority dealing with this matter because, at general law, defendants are not exposed to costs orders in criminal proceedings. The situation is, of course, relevantly different in the context of certain statutory offences including breaches of the Act dealt with by this Court. I do not understand, for the reasons given, that it can be said that there is any general principle established by these cases that would support the contention made by the defendant in this regard. 71 The prosecutor, in opposing the approach contended for by the defendant, relied on a decision of a Full Bench of this Court in Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service [2005] NSWIRComm 158; (2005) 143 IR 187. The appeal proceedings concerned in part an order made by the trial judge that the defendant should pay 20 per cent of the prosecutor's costs of the proceedings. In making such an order, the trial judge had given consideration to the capacity of the defendant to pay the penalty imposed and costs. In rejecting the appellant's submission that in some way there had been a double counting of the defendant's capacity to pay in his favour by adopting such an approach to costs, the Court said: 130 Addressing the issue raised by the appellant that the respondent gains a double deduction for his plea of impecuniosity if the court takes impecuniosity into account in the setting of costs as well as a penalty for a criminal conviction in the form of a fine, Lord Bingham CJ in R v Northallerton Magistrates' Court; Ex Parte Christopher John Dove [2000] 1 CR App R (S) 136 at [4] held: "While there is no requirement that any sum ordered by justices to be paid to a prosecutor by way of costs should stand in any arithmetical relationship to any fine imposed, the costs ordered to be paid should not in the ordinary way be grossly disproportionate to the fine. Justices should ordinarily begin by deciding on the appropriate fine to reflect the criminality of the defendant's offence, always bearing in mind his means and his ability to pay, and then consider what, if any, costs he should be ordered to pay to the prosecutor. If, when the costs sought by the prosecutor are added to the proposed fine, the total exceeds the sum which in the light of the defendant's means and all other relevant circumstances the defendant can reasonably be ordered to pay, it is preferable to achieve an acceptable total by reducing the sum of costs which the defendant is ordered to pay rather than by reducing the fine."

A number of Supreme Court authorities have followed this reasoning (see Morgan v Biddle; Thomas v Schwager and Koenig v Fraser ).

131 In the Supreme Court of Western Australia, Smith J in Flatow v Mullins stated at [3]: "But it is equally clear on the authorities that a sentencer should always have regard to the totality of the financial burden suffered by the offender as the result of the offence: see Thomas Principles of Sentencing 2nd Edition at p340. Where the combined total of an appropriate fine and an order to make payment towards the costs of the prosecution constitutes a penalty which is totally out of proportion to the offence it is appropriate to scale down either the fine or the amount of the order to pay prosecution costs."

We consider the approach of Lord Bingham preferable to this approach.

132 Section 6 of the Fines Act allows consideration of the financial situation of the respondent in the court's consideration as to the appropriate costs order. Pearlman J reasoned a costs order must be "just and reasonable". Lord Bingham CJ defined the test as an "acceptable total". While the power exists to consider the financial circumstances of a respondent in both penalty and costs the overall result must comply with the test of "just and reasonable". 72 It is clear from the judgment of the Full Bench in this matter that the in principle approach to taking into account the question of costs in conjunction with a consideration of the quantum of penalty is confined to circumstances where a defendant's capacity to pay is to be taken into account. Moiety

73 The prosecutor sought a moiety of the penalty imposed and this was not opposed by the defendant. I have had occasion to consider the appropriateness of making an order for the payment of a moiety in the case of a prosecution brought by the general secretary of an industrial organisation of employees in Bastian v Medicraft Hil-Rom Australia Pty Ltd [2010] NSWIRComm 34, especially at [11] to [13]. In these proceedings, a statement was filed of Shay Ewart Deguara, an occupational health and safety officer employed by the Public Service Association of New South Wales. That statement details the work undertaken by him and others on behalf of the union in the field of occupational health and safety. The prosecutor has tendered an undertaking to this Court that any portion of the fine ordered to be paid to him by way of moiety would be remitted to the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales to be dealt with (sic) accordance with the registered rules of the Association. 74 The statement of Mr Deguara also sets out the history of communications between the Public Service Association and representatives of the WorkCover Authority of New South Wales concerning its investigation of the incident which gave rise to these proceedings and enquiring about its intentions concerning the institution of a prosecution for breach of the Act. It appears that an inspector had concluded that the attack on Mr Smith was "unforseen" and that on this basis no prosecution would be instituted. 75 Accordingly, it was necessary for the prosecutor in these proceedings to institute proceedings, which resulted in a plea of guilty. Having regard to the general principles which have applied in this Court and its predecessor and having regard also to the fact that WorkCover NSW declined to institute a prosecution for breach of the Act, it is appropriate, in my opinion, that the prosecutor be awarded a moiety of the penalty imposed. Costs

76 The prosecutor sought an order for costs, which was not opposed by the defendant, and I shall make an appropriate order accordingly. Penalty 77 Because the defendant has been convicted of prior offences for breach of the Act and its predecessor, the maximum penalty is the sum of $825,000. Having regard to all of the matters to which I have referred in discussing the objective seriousness of the offence and deterrence, but taking into account in favour of the defendant the mitigating factors to which I have referred, I am of the opinion that an appropriate penalty is the sum of $215,000. Orders

78 I make the following orders: 1. The defendant is found guilty of the offence with which it is charged and convicted accordingly. 2. I impose a penalty of $215,000 with a moiety to the prosecutor. I note the undertaking of the prosecutor as to the disbursement of the moiety. 3. The defendant is to pay the costs of the prosecutor in an amount assessed by the Court in default of agreement.

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