Work Health and Safety Act 2012

HEARING DATES: 20 February 2025, final written submissions on

DECISION OF: His Honour Deputy President Lieschke

Work Health and Safety Prosecution - Guilty plea - Greyhound handler struck by mechanical lure during a trial race with resulting serious injuries - Track redevelopment one year earlier had relocated a starter box nearer to a pen closing gate with known possible access by registered handlers and employees into the path of the lure - No written hazard identification and risk assessment was conducted of the lure and the changed track layout, although the risk of a person being struck by the lure at the location of the incident was identified - Risk of fatal injury - Reliance on administrative controls of policies which were not enforced and commonly not followed by staff and handlers during practice trials - Substantial safety improvements after the offence - No compensation or reparations paid to victim - Whether to award compensation to victim under the Sentencing Act 2017 - Held: Fine of $255,000 imposed after reduction by 15% for early guilty plea and limited contrition - Compensation of $40,000 awarded to victim - Conviction recorded.

Sentencing Act 2017

Victims of Crime Act 2001

1. On 6 September 2022, a registered greyhound handler, Nicholas Lalli, was participating in an official three dog trial assisted by employees of Greyhound Racing SA Limited.
2. Mr Lalli walked behind an employee of the defendant and another handler into the dog catching area where a mechanical lure was about to speed through. Mr Lalli was then forcefully struck by the lure, suffering serious injuries of broken teeth and mouth lacerations, hand fractures, and leg fractures.
3. In July 2024, Greyhound Racing was charged by SafeWork SA with the following offence against the Work Health and Safety Act 2012:

1. The defendant, Greyhound Racing SA Limited (ABN 39 094 569 525) on 6 September 2022, at Angle Park in the State of South Australia committed a Category 2 offence.

(A minor indictable offence against section 32 of the Work Health and Safety Act 2012).

• 1.1 The defendant had a health and safety duty:

• 1.1.1 At all material times, the defendant was a body corporate conducting a business in the conduct, regulation and promotion of greyhound racing throughout South Australia.

• 1.1.2 At all material times, the defendant, as part of the conduct of its business, undertook trials involving greyhounds at 55 Cardigan Street Angle Park SA, 5010 ("the workplace").

• 1.1.3 On 6 September 2022, Nicholas Lalli ("Lalli") was a greyhound owner and/or handler, who was a participant and present during the conduct of a trial at the workplace.

• 1.1.4 The defendant had a health and safety duty prescribed by section 19(2) of the Work Health and Safety Act 2012 ("the Act") to ensure, so far as reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business.

• 1.2 The defendant failed to comply with the s19(2) duty:

• 1.2.1 While at the workplace, other persons, including Lalli, were exposed to risks to safety because:

• 1.2.1.1 The trial requires greyhounds to be placed in a starter box, once the starter box opens the greyhounds follow a travelling mechanical lure before being herded into a catching pen ("the task").

• 1.2.1.2 Before the conclusion of the trial, it was possible for owners and/or handlers (including Lalli) to enter the race track.

• 1.2.1.3 At the conclusion of the trial, as the greyhounds are moved to a catching pen, a mechanical lure travels through the path of a mechanical sliding gate.

• 1.2.1.4 It was possible for Lalli to enter the catching pen area via a gap between the mechanical sliding gate and railing.

• 1.2.1.5 It was possible for Lalli to remain close to the railing and in the pathway of the mechanical lure.

• 1.2.1.6 It was possible that Lalli could be struck by the mechanical lure as it went past.

• 1.2.1.7 It was consequently possible for Lalli to suffer significant injuries

• 1.3 The defendant failed to provide and maintain, so far as was reasonably practicable, the provision of safe systems of work in that it failed to identify the hazards and assess the risks of other persons entering the race track and take one or more of the following reasonably practicable measures to eliminate or minimise the risks to health and safety of other persons:

• 1.3.1 By ensuring that the mechanical sliding gate could not be operated when the mechanical lure was in motion.

• 1.3.2 By ensuring there was adequate barriers in place to restrict entry to the race track by participants during the conduct of and conclusion of trials.

• 1.3.3 By enforcing a procedure by which whenever a trial was being conducted that participants were not allowed to enter or remain on the race track.

• 1.3.4 By developing and implementing a policy whereby instructions, supervision and/or training was provided to participants about the risks associated with entering the race track during the conduct of a trial that was necessary to protect other persons from risks to safety arising from the task.

• 1.3.5 By ensuring there was adequate signage prohibiting the entry to the race track by participants during the conduct of and conclusion of trials.

• 1.4 The defendant's failure exposed an individual to a risk of death or serious injury or illness:

• 1.4.1 Being the risk of serious injury from being struck by a mechanical lure; and

• 1.4.2 Which risk materialised on 6 September 2022, when Lalli was seriously injured as a result of being struck whilst the mechanical lure was travelling resulting in multiple fractures, the loss of teeth and lacerations.

1. At an early opportunity, Greyhound Racing entered a guilty plea. It is now to be sentenced. The maximum penalty for the offence is a fine of $1,500,000, with my sentencing power limited to imposing a maximum fine of $300,000.
2. The following agreed facts were tendered.

1. At the time of the incident, Greyhound Racing SA Limited (ABN 39 094 569 525) (the Defendant) was responsible for the conduct of greyhound racing and trials at 55 Cardigan Street Angle Park SA 5010 (the workplace).

1. At the relevant time, the Defendant's business principally involved the regulation, promotion and conduct of greyhound racing in South Australia.

1. At the relevant time, the Defendant engaged workers at the workplace.

1. At the relevant time, the Defendant allowed registered greyhound trainers, owners and/or handlers to undertake trials using greyhounds at the workplace (referred to also as "participants").

1. At the relevant time, Nicholas Lalli (Lalli) (who was a registered greyhound owner and handler (or "owner attendant") with the Defendant) and others were at the workplace to conduct trials with greyhounds with the assistance of workers engaged by the Defendant.

1. The Defendant continues to operate its business in South Australia.

1. At all material times, as part of the conduct of its business, the Defendant undertook trials at the workplace. Trials were not open to the public generally but were open to registered trainers, owners and handlers. Trials are similar to races insofar as they involve the use of a mechanical lure to entice the greyhounds to run and chase the lure.

1. During a trial, the greyhounds would chase the mechanical lure, which travels along the inner edge of the race track. Just beyond the finish line of the race track, there is a gate known as the "catching pen gate". The catching pen gate is swung across the race track effectively blocking the greyhounds from continuing to run and opening up access to an area known as the catching pen.

1. The mechanical lure is able to travel through and past the catching pen gate, as the inner edge of the catching pen gate has a smaller inbuilt chute, known as the sliding lure chute. The sliding lure chute is operated manually, and is closed by an employee of the Defendant after the lure has passed through it.

1. With the sliding lure chute shut, and the catching pen gate open across the track, the greyhounds are directed into the catching pen area on the outer edge of the race track, which is ultimately shut by use of the return gate.

1. Although it was not permitted on race days in accordance with the relevant policies and procedures discussed below, as at 6 September 2022, it was possible to gain access to the race track through the sliding lure chute during trials. This put people in close proximity to the mechanical lure whilst trials were occurring.

1. The Defendant was aware of the risks associated with workers and/or other persons entering the race track during the conduct of trials.

1. Workers who were engaged by the Defendant at the workplace were required to undertake induction training at the commencement of their employment. The induction materials specified that workers:

• 13.1 be instructed in relation to GRSA's policies, procedures and practices concerning safety;

• 13.2 complete a New Worker Safety Induction Handbook;

• 13.3 complete an Induction Training Record form (which form requires specific safety related tasks to be marked as completed); and

• 13.4 undertake training in relation to how to do each required task safely and what Safe Work Method Statements or Safe Operating Procedures apply to that task.

1. The New Worker Safety Induction Handbook included information about the Defendant's work health and safety policy, WHS responsibilities and the risk management process for addressing safety hazards.

1. Defendant had written policies and procedures in relation to the safe use of:

• 15.1 the catching pen, which policy required persons to hold a licence before being permitted to catch greyhounds (i.e., at the conclusion of a race or trial), and for those handlers to be aware of the lure position at all times;

• 15.2 the race and trial lure, which required persons to stand behind an access gate until all greyhounds have passed and entered the catching pen (which occurs after the lure has passed through the area); and

• 15.3 the decoy lure, which requires persons to stand behind the catching pen gate until all greyhounds have passed (which occurs after the lure has passed through the area), and for the decoy lure operator to wait for the lure to safely pass before moving towards the lure rail.

1. The Defendant also had a written Safe Work Method Statement in place in relation to Trackside Race Activities, which required:

• 16.1 persons to follow various written policies and procedures, including that referred to above relating to safe use of the catching pen gate, lure, and decoy lure;

• 16.2 repeated the need to stand away from catching pen gate until all greyhounds have passed, and to wait for the lure to safely pass before moving towards the lure rail.

1. The documents referred to in paragraphs 15 and 16 above identified risk of personal injury as a safety hazard of these tasks.

1. Greyhound owners and/or handlers were required to read and acknowledge a policy titled 'participant handbook', and acknowledge that races and trials must be conducted in accordance with the greyhound racing rules.

1. The 'participant handbook' (also referred to as the Human Resources Policy & Procedure - Participant Handbook) included:

• 19.1 that participants should treat any racing venue as a workplace;

• 19.2 the Defendant's expectation that all visitors meet the same work health and safety standards as imposed on its employees whilst in the workplace;

• 19.3 information about the right, and an obligation, to stop work if conditions are unsafe;

• 19.4 a requirement that all visitors cooperate in the achievement of work health and safety principles to assist in the prevention of injury or illness to themselves and others;

• 19.5 a requirement that all employees and participants accept personal responsibility and strive to demonstrate commitment to health and safety;

• 19.6 a requirement that all employees (and participants) take reasonable care of their own safety;

• 19.7 a requirement that all employees (and participants) report immediately to management any situation that presents a hazard.

1. If a participant was a registered handler, they were also required to complete an application for registration. In the case of Mr Lalli, this was an "Owner Attendant" licence. In this application, the participant was required (and Mr Lalli did) to:

• 20.1 acknowledge that races and trials must be conducted in accordance with the greyhound racing rules;

• 20.2 carry out a "stewards' licence practical assessment", with a corresponding report prepared by an employee of the Defendant, assessing the applicant's competency, including in relation to "catching pen procedure";

• 20.3 complete an "owner attendant questionnaire", which requires reference to the Defendant's Rulebook and Policies as available on its website and included the following questions:

• 20.3.1 in relation to when to catch a greyhound after a race, to which Mr Lalli responded, "when the lure goes past and it's safe to enter the pen";

• 20.3.2 in relation to what the participant must observe at all times during and after a race, to which Mr Lalli responded, "all of the racing greyhounds and the racing lure".

1. Despite the steps it had taken, the Defendant did not have adequate practices or procedures in place in relation to the entry onto the race track by persons during trials. The practices and procedures referred to in paragraphs 13 to 20 above, were not adequately enforced by the Defendant during trials, so that people who used the race track to conduct trials could avoid the hazards of entering the race track.

1. At the relevant time, the Defendant did not have in place adequate control measures to address the risks of workers and other persons entering the race track during trials. There were no signs or hard barriers in place preventing any person entering the race track via the sliding lure chute from the 342 metre starter box area.

1. At the relevant time the Defendant had not undertaken an adequate risk assessment in relation to the hazards associated with entering the race track in the vicinity of the 342 metre start box and via the sliding lure chute during the conduct of trials.

1. On 6 September 2022, at approximately 6:50pm, Mr Lalli was placing a greyhound in the 342m starter box in preparation for a trial. The starter box opened and the greyhounds began to run along the track, chasing the mechanical lure.

1. Mr Lalli, another greyhound owner/handler and a worker engaged by the Defendant passed, on the race track, from one side of the catching pen gate to the other after the trial had begun via the sliding lure chute, as a short cut to access the catching pen area. There they awaited the conclusion of the trial.

1. Safe access to the catching pen area from the 342m starter box was available by exiting the 342m starter box area via a gate that led to the outside of the track, walking a short distance around the outside of the track and entering the catching pen through a designated gate near the catching pen area, outside of the race track. Mr Lalli, another greyhound owner/handler and the worker did not use this method of access on this occasion.

1. Mr Lalli was standing on the race track at the juncture between where the greyhounds would be diverted to the catching pen and where the mechanical lure would pass through the sliding lure chute. Mr Lalli was standing close to the sliding lure chute and the rail upon which the mechanical lure operates.

1. As the trial concluded, Mr Lalli was struck by the lure as it passed by him.

1. Mr Lalli was transported to the Royal Adelaide Hospital by ambulance where he underwent 2 surgeries for his injuries and remained in hospital for approximately 5 days.

1. The injury caused Mr Lalli to experience 3 fractures to his right tibia requiring 2 surgeries, 2 fractures to his left hand, the loss of one tooth and fracture to another tooth, and a laceration to his mouth. Mr Lalli is still recovering from his injuries.

1. The incident was reported to SafeWork SA on 7 September 2022 by the Chief Financial Officer for the Defendant, Mr Gavin Bosch.

1. The incident was captured on Close Circuit Television (CCTV).

1. After the incident, SafeWork SA issued compliance notices to the Defendant, including:

• 33.1 Improvement Notice WHSIN 223578 issued on 27 September 2022, recommending the Defendant review the control measures in place to ensure they are effective at preventing people coming into contact with the mechanical lure whilst it is moving, and

• 33.2 Improvement Notice WHSIN 229778 issued on 20 January 2023, recommending the Defendant undertake a risk assessment in relation to the hazards associated with operating the sliding lure chute.

1. By 19 January 2023, the Defendant had complied with WHSIN 223578 and by 24 February 2023 WHSIN 229778 had been complied with.

1. The Defendant also received and fully complied with notices to produce throughout the course of SafeWork SA's investigation.

1. Since the incident the Defendant has updated its standard operating procedures (SOP) as follows:

• 36.1 Use of Race Lure (SOP-60): this SOP now requires that no person is to approach the inside rail of the race track during an event, race or trial, or any other time that the lure is running (unless authorised), and sets out a new emergency stop procedure which involves briefing relevant persons, signalling around stopping the lure upon the identification of unsafe work practices or incidents, stopping the lure and assessment of the hazard before giving the all clear to resume. This SOP also includes an additional operational safety check in relation to ensuring that personnel are briefed and aware of the emergency stop procedure before use of the lure;

• 36.2 Use of Main Catching Pen (SOP-61): this SOP now includes the same requirement as SOP-60 in relation to approaching the lure rail, and also includes a Catching Pen Procedure Confirmation which is a register of GRSA employees who have confirmed that they have read and understand this SOP;

• 36.3 Use of Return Gate (SOP-62): this SOP now includes the same requirement as SOP-60 in relation to approaching the lure rail;

• 36.4 Use of Decoy Lure (SOP-63): this SOP now includes the same requirement as SOP-60 in relation to approaching the lure rail.

1. The Defendant has also updated its Catching Pen Policy, which stipulates the requirements relating to the use of the catching pen for races and trials including a requirement in relation to trials that handlers must not enter the race track unless allowed by a steward or official, and only to where directed by that person, that the lure and greyhounds must pass before entering the race track and a specific prohibition on using the sliding lure chute as a throughfare.

1. The Defendant has developed and implemented a new Trial Operations SOP, which establishes a procedure for conducting trials at its race tracks, and which SOP annexes the Trial (Operations) Policy (Trial Policy) (as further described below). The New Trial Operations SOP requires compliance with the Trial Policy, and for relevant workers to receive training in the Trial Operations SOP (including the Trial Policy). This SOP also annexes a Toolbox Safety Talk (TST) as described further below.

1. The Trial Policy applies to workers and registered participants, and regulates the operation of trials at race tracks and sets out the procedure to follow trials. It:

• 39.1 requires participants to receive a TST before trials;

• 39.2 establishes a Safety Zone and Lure Exclusion Zone (being 3 metres from the inner side of the race track where the mechanical lure operates);

• 39.3 expressly prohibits using the sliding lure chute as a throughfare;

• 39.4 requires the catching gate pen to only be operated by workers, and using the designated points of contact which remain outside of the Lure Exclusion Zone at all times;

• 39.5 specifies that handlers can only access the race track via the dedicated access gate (see paragraph 41.4 below) after the "all clear" has been given by a worker, and the lure has passed the area; and

• 39.6 establishes an emergency stop procedure for the mechanical lure.

1. The new Trial Policy has been communicated by the Defendant via various means to:

• 40.1 workers, including by the Defendant's General Manager - Risk & Compliance carrying out in person training with all workers who participate in trials, and publication of the Policy on Connecteam (an application used by the Defendant as its information database and internal communications platform and which is accessible for all staff on mobile devices and computers); and

• 40.2 participants, including by publication on the Defendant's website under a new Race Safe tab, hardcopies being distributed at trial events, and publication on a private Facebook page for participants.

1. The Defendant has also implemented the following further improvements:

• 41.1 issued a written notice to stewards in relation to trackside activities on 12 September 2022, which identified the lure as a hazard for participants, required that registered handlers only access the race track under the direction of stewards, requires that participants only enter the race track after any lure and greyhounds have passed and to avoid the inside rail area, specifically prohibited using the sliding lure chute as a throughfare, and stipulating that if any of these requirements are breached, the lure and race or trial will be stopped;

• 41.2 updated signage and chains restricting access to the race track, and particularly near where the incident occurred, installed warning and advisory signs at entrance points to the 342m starting boxes at Angle Park stating "Do not enter unless authorised by GRSA staff" in clear text;

• 41.3 installed barrier chains to possible entry points at all race tracks;

• 41.4 installed a new designated access gate to the catching pen area to facilitate easy access from the 342m starting box to eliminate any perceived convenience of the "short cut" referred to above via the sliding lure chute;

• 41.5 improved the closing and latch mechanism on the catching pen gate with a guide to ensure when swung shut, the gate is guided to the latch and therefore ensure that the gate can be securely latched without any need to approach the path of the mechanical lure;

• 41.6 modified the catching pen gate by installing handles to the catching pen gate to designate safe standing areas for workers who are responsible for closing the sliding lure chute (which location is out of the pathway of the mechanical lure);

• 41.7 installed new mechanical lure equipment at the workplace which has a designated emergency stop button at the lure controls, and changed the type of machinery used so that a significantly faster braking time can be achieved.

1. A video recording of the incident was presented in court. This recording provided clarification of some of the above descriptions. Additional circumstances were contained in a large volume of documents, in an affidavit from Brenton Scott, the defendant's CEO since 2024, and in two affidavits of Derek Kordick, the defendant's General Manager Risk & Compliance since November 2022.
2. None of the defendant's existing policies about safe work procedures that are referred to in the agreed facts specifically prohibited participants or employees from going onto or accessing the track during a trial.
3. The existing policies were not readily available to participants after their induction and registration. They were only available to employees via a server.
4. The video shows that access to the catching pen area was gained by simply walking through the open gateway of the catching pen gate, not through the 'lure chute'. The gate was part way across the track but with a gap of about one metre from the inside rail, through which the three people walked. While the gate includes the greyhound sized recessed chute area, that was incidental to the open gate.
5. A second employee of the defendant was present at the gate. His job was to manually close the gate after the lure passed. The first employee, then the trainer, and then Mr Lalli walked past the second employee through the open gateway as the lure and dogs approached. The video shows both participants then standing near the path of the lure watching the three approaching dogs, with the two employees still present.
6. No concern was raised at the time by anyone about the three people walking through the gate into the path of the moving lure, or about the two participants remaining in the area of the lure's path.
7. The mechanical lure had three parts, a 26 kg motor, a 1 kg lure and a connecting arm of 1.8 kg.
8. While the precise injury mechanism is unclear due to the speed of the impact and the vision quality, it is likely that Mr Lalli was struck in the mouth by the lure and in the leg by the motor at a speed of approximately 70 kph. Mr Lalli was immediately and forcefully spun around and flung to the ground. The magnitude of the forces involved likely caused the additional breaks to his left hand. Debris from the impact was scattered many metres down the track. Images of the lure show considerable damage to the motor unit, and a detached arm.
9. Mr Lalli's Victim Impact Statement of December 2024 was read to the court. Mr Lalli is aged 39 years. He was working as a sales representative at the time of the offence. He was very fit and active. Since then, he has worked hard at his rehabilitation, but with only partial recovery. One tooth was saved with root canal therapy, a second was lost and requires an implant. Mr Lalli initially needed 13 stitches to his mouth and lips. A 33 cm titanium rod was inserted in his right leg from ankle to knee. A year later the ankle screws were removed, but due to bone healing issues the first rod was removed, and a different rod was inserted. His leg has still not fully healed. He also has nerve damage to some toes. He is only now getting strength back in his hand. The trauma of the incident and coping with his injuries has taken a big toll. He has lost many weeks from work and has paid all his own treatment expenses. He has suffered a large financial loss.
10. The defendant's CEO, Brenton Scott, deposes to being authorised to express to the court the defendant's "deep regret for the incident" and for Mr Lalli's resulting pain and suffering.[1]
11. There is no evidence of any communication to the victim from the defendant accepting responsibility for, or expressing remorse or contrition for, the offence and his injuries.
12. The 'inadequacy' of policy enforcement during trials referred to in agreed fact 21 was clarified to be no enforcement. The senior 'steward' employee present at the event was not tasked with safety policy compliance.
13. The defendant had no procedure or practice for enforcing the policy for employees and participants to take the long way to the catching pen. Nor did the defendant appoint any employee to be responsible for checking that its safety policies were being followed in practice.
14. The 2021 redevelopment included installation of a new motorised lure, to replace the previous wire pulled lure.
15. Agreed fact 23 asserts an 'inadequate' hazard identification process. This fact was clarified to there not being any written hazard identification and risk assessment for relocation of the starter box or for use of the new lure. Nor had the defendant arranged for an expert safety audit been conducted.
16. There was also no emergency stop procedure for the new lure.
17. Agreed fact 26 could be read as 'this occasion' being an isolated instance of the policy not being followed. It was not. The defendant's internal investigation ascertained that both employees and participants regularly walked through the open gate during trials, as a short cut, without challenge. One employee felt he had to regularly do so. The defendant's senior steward admitted to using the same short cut at times.
18. The internal investigation was told by the lure operator that while he was remotely driving the lure to its maximum speed, he noticed someone entering the catching pen area from the track. He thought it was the employee who "often" did this,[2] and so turned his attention back to the greyhounds and lure. There was no policy that required him to stop the lure when he saw someone on the track, or enter the track through the catching pen gate during the running of a trial. Seconds later he saw the lure hit Mr Lalli.
19. The defendant operates multiple greyhound tracks in SA. It employs about 120 staff, including 54 full-time.
20. Derek Kordick started with the defendant in May 2020 in a compliance role that did not have safety responsibilities. The defendant's CEO and senior WHS officer at the time of the offence have since ceased their employment.
21. Mr Kordick attests to the defendant receiving notice of Mr Lalli intending to seek recovery of his damages. That was at the end of January 2023, five months after the offence, and after nothing had been paid to him up to then.
22. The defendant decided to seek indemnity from its insurer for the costs of the personal damage and loss it caused to Mr Lalli. It then ceased all contact with him. Mr Kordick is aware that at more than two and a half years after the offence, the defendant's insurer has still not accepted liability or paid anything to the victim.

1. The informant submits the offending was objectively serious, with significant gravity. The causes of the unsafe system of work commenced with a failure to conduct an adequate hazard identification and risk assessment of trial races, and of the relocated starter box. This failure was compounded by a reliance on the weak safety controls of policies about procedures, but without practical application and enforcement.
2. The routine hazard controls of exclusion zones, isolation, and signs would have significantly reduced the risk of harm, but were not used by the defendant.
3. The informant submits the defendant has made a range of substantial improvements, with further offending unlikely if the defendant remains vigilant and takes all reasonably practicable safety precautions that will ensure the safety of its operations.
4. The informant accepts the defendant fully co-operated with the investigation, and has no prior offences.
5. The informant accepts a reduction in penalty of up to 40% is available under s 39(4) of the Sentencing Act 2017, subject to the degree of contrition shown, the utilitarian benefit of the plea, and the defendant's subsequent conduct.
6. The defendant expresses to the court its significant 'remorse and sadness regarding the injury' sustained by Mr Lalli.
7. The defendant submits the offence resulted from its failure to recognise the impact of relocating the starter box. It accepts it should have done far more to comply with its obligations.
8. The defendant submits it did manage the 'low probability' risks of injury from the hazard of the speeding lure and use of the catching pen gate during trial races, by use of safety policies, procedures, and practices. A specific incident arose from a failure by staff and Mr Lalli to follow the correct procedure.
9. The defendant submits a low need for general deterrence based on the unique circumstances and 'unrepeatable risk' of the Angle Vale track and the mechanical lure.
10. It submits the full available reduction of 40% of penalty should be granted based on the defendant's early guilty plea, conduct, and contrition. Its contrition is not limited by its refusal to compensate the victim. That is because the defendant 'genuinely and reasonably' believed it was no longer 'appropriate' to engage with Mr Lalli, or to offer him any compensation, after it sought indemnity from its insurer. The defendant is aware its insurer has not accepted liability for Mr Lalli's loss and damage, and it has not yet paid anything.
11. The defendant submits that no compensation order should be made in favour of the victim because of: its insurance claim; the prospects for a claim for damages being filed in a court by the victim; the informant has not applied for an order for compensation; and a civil court is the appropriate court to fully assess the victim's loss and damage.
12. The informant did not wish to be heard on the defendant's further submissions regarding the issue of compensation for the victim Mr Lalli.

1. The accepted particulars of the offence include a poorly controlled risk of death or serious injury. That magnitude of potential harm accords with the mass and speed of the lure that struck at head height. The blow to the victim's head was glancing, based on the broken teeth and lacerations, and his position of looking towards the outer track. A higher, or the maximum, risk could have been realised from an impact to a different part of a head.
2. I reject the defendant's submission that the incident was a 'low probability' risk. The defendant assumes that was the case, as there was no written hazard identification and risk assessment to inform or describe that conclusion. When the existing policies are considered together with the absence of practical application or enforcement (to the extent that the defendant's management were not aware of the regular use of the short cut by staff and participants), the risk of catastrophic harm from a speeding lure was significant. And the chance of a collision increased with each trial run in the same manner.
3. Even if the risk of harm could correctly be considered as having a low probability, the foreseeable resulting catastrophic harm meant the risk should have been carefully controlled.
4. The objective seriousness of the offending is very high.
5. The defendant had a misplaced reliance on limited policy documents prepared without the benefit of a written hazard identification and risk assessment, and which disregarded the critical issues of practical application and enforcement. The policy documents did not even prohibit access to the track during trial races. The policies were about work practices and procedures, but they did not result in those practices and procedures being followed. The policies remained disconnected from the risky way in which trials operated in practice.
6. Access to the hazardous area of the track by the employee, trainer and then Mr Lalli, was in fact facilitated by the defendant's second employee who controlled the pen gate. The wide variance between the policies and practice highlights how ineffective shelf policies are at ensuring safety to the greatest extent that is reasonably practicable.
7. The defendant's existing policies mistakenly treated its authorised participants differently to its employees, as it now recognises. The defendant's requirements for participants to read and sign documents, and to complete a questionnaire when being registered were plainly insufficient to discharge its responsibility for track safety, so far as was reasonably practicable. The general warning to be aware of the lure at all times was equally inadequate. I add that the defendant's failures also applied to its own employees during trials.
8. I accept that substantial improvements have been made to the safety management system since the offence. The safety policy has been revised with new requirements for physical hazard controls, more effective administrative controls, and new enforcement procedures. The physical layout of the catching area has been re-engineered to guard access to the dangerous lure path. Other significant changes include a new more convenient access gate, chain barriers, warning signs, and an emergency stop procedure for the lure.
9. I accept the defendant is likely to remain compliant if it remains vigilant and actively maintains and enforces its safety systems. The defendant also needs to maintain awareness that handlers and all other participants who could be affected by the defendant's activities are owed the same high level of non-delegable safety obligations as employees.
10. The experience of the defendant's victim, Mr Lalli, must also be considered. He was a relatively inexperienced registered owner and handler. He has suffered extensive injuries, from which he has not fully recovered. He is likely to be left with some life-long impairments.
11. Mr Lalli has not received any restitution or compensation. The defendant has so far avoided accepting any financial responsibility for the damage and loss suffered by its victim.
12. After Mr Lalli understandably sought help from a lawyer in December 2022, the defendant ceased all contact. The defendant had by then not paid anything but had claimed indemnity from its insurer for Mr Lalli's losses. The insurer has still not accepted any liability for Mr Lalli's losses and has paid him nothing. There has not even been any reimbursement of incurred treatment expenses, or of lost employment income.
13. The defendant knows that its victim has had to incur legal expenses to attempt to overcome the continuing absence of acceptance of liability since its guilty plea, and that he has so far been paid nothing. The defendant ought reasonably to know that its victim still faces a stressful, complex, costly, time consuming, and risky legal process. The defendant is acting in favour of its financial self-interest over those of its victim, as the law permits.
14. The defendant now submits that the important consideration of restitution to Mr Lalli for his serious injuries and substantial financial losses should be viewed by the court as a separate civil law claim for damages.
15. These circumstances raise the issues of contrition, and whether this court should make an award of compensation to the victim.
16. Regarding compensation, the defendant opposes an award, while the informant takes no position for the regulator or for the victim.
17. Section 124 of the Sentencing Act 2017 relevantly provides:

(1) Subject to this section, a court may make an order requiring a defendant to pay compensation for injury, loss or damage resulting from the offence of which the defendant has been found guilty or for any offence taken into account by the court in determining sentence for that offence.

(2) An order for compensation may be made under this section -

(a) either on application by the prosecutor or on the court's own initiative; and

(b) instead of, or in addition to, dealing with the defendant in any other way.

(a) a court finds a defendant guilty of an offence, or takes an offence into account in determining sentence; and

(b) the circumstances of the offence are such as to suggest that a right to compensation has arisen, or may have arisen, under this section,

the court must, if it does not make an order for compensation, give its reasons for not doing so.

(4) Compensation under this section will be of such amount as the court considers appropriate having regard to any evidence before the court and to any representations made by or on behalf of the prosecutor or the defendant.

(8) The amount paid to a person pursuant to an order under this section for compensation for injury, loss or damage must be taken into consideration by a court or any other body in awarding compensation for that injury, loss or damage under any other Act or law.

1. Section 124 requires this sentencing court to consider, on application or on its own initiative, whether to exercise the compensation power in each case where a right to compensation may have arisen. I find a right to compensation has arisen given that the workers compensation and motor vehicle exclusions do not apply.
2. I accept the purpose of this compensation power is to provide a summary method of compensating a victim of crime for personal injuries and damage to property. The power is not limited to property loss. The purpose is not to provide for a full and complete assessment of complex damages based on common law principles.
3. Exercise of the compensation power does not depend on the informant's stance. To the extent it is a relevant consideration, I place no weight on it. That is because no explanation has been provided, and there is no evidence the informant has told the victim of his right to apply for compensation through him under the Sentencing Act, noting the prosecution's obligation to do so under s 12(2) of the Victims of Crime Act 2001.
4. A compensation award under s 124 appears suited to awarding interim compensation in cases where there is clear evidence of loss and damage, but a full assessment of complex injuries, impairments, and economic loss will be required at some indeterminate future time. Such an award does not prejudice a later full assessment of damages based on all relevant evidence: s 124(8). I accept the defendant's submission that any award of compensation in these circumstances should be consistent with, or reflect, the reality of Mr Lalli's likely need to sue for his full damages.
5. In my view the defendant's assertion of the reasonableness of its decision to not compensate the victim is neither correct, nor relevant. If it is relevant, I find the defendant has unreasonably disregarded the plight of its victim out of financial self-interest. There is no good reason why the victim's incurred losses and expenses should not have been paid and reimbursed. There is no suggestion the defendant does not have the means to do so. I accept a full assessment of damages may need to wait for certainty of prognosis, but that does not explain why interim assessments could not have been made.
6. The defendant's conduct is lawful and not an aggravating circumstance, but it is not a reasonable response to the known plight of the victim of its crime.
7. In determining that an award of compensation in the nature of an interim assessment of damages should be made, I have placed weight on the following circumstances.
8. No civil law proceedings have been issued. A pre-action meeting is yet to be held, more than two and a half years after the offence.
9. The defendant's insurer had not accepted liability for Mr Lalli's loss and damage by the time of the defendant's final submission, despite the guilty plea being made on 25 November 2024.
10. The defendant has not submitted or alleged that its victim is not entitled to be compensated in full.
11. There is clear unchallenged evidence of substantial non-economic loss, although not the full extent of it. The evidence is contained in the recorded vision of the injuries occurring, the defendant's witness statements, and in Mr Lalli's record of interview, Victim Impact Statement, and RAH discharge summary.
12. There is general evidence of loss of employment income and of Mr Lalli incurring thousands of dollars of treatment expenses, but no details of amounts.
13. Mr Lalli's injuries resulted from a criminal offence and not from a civil wrong, and so the scheme of the Civil Liability Act 1936 for assessing non-economic loss does not apply: s 51.
14. I determine that an award of $40,000 of compensation be made towards compensating Mr Lalli for his past non-economic loss resulting from the injuries to his teeth, mouth, right leg, and left hand.
15. A reduction in penalty of up to 40% is available based on the early guilty plea. However, timing is not the only consideration. Demonstrating that contrition by making restitution to a victim within an offender's means is important.
16. Here, there is the unusual factor of a substantial defendant deciding to not pay any reparations or compensation to a victim who remains entirely uncompensated more than two and a half years after the offence.
17. In my view, the defendant's chosen course of action in the known circumstances is not consistent with full or demonstrated contrition, or with a full acceptance of responsibility for its criminal omissions. It has not promptly acted to make amends to its victim. The defendant's decision to act according to its own financial self-interests is a lawful course of action, but it is not consistent with full contrition and full acceptance of responsibility.
18. The guilty plea still had some limited utilitarian value, and the defendant has acknowledged its offending against its primary safety duty. However, the defendant's failure to make any reparations to its longsuffering victim, in favour of self-interest, means that a reduction of 15% is all that can be justified. While this is a difficult evaluation, I conclude that any greater reduction would disproportionately elevate the timing of a guilty plea over proper regard for the victim's welfare, and as a result "would, or may, affect public confidence in the administration of justice": s 39(4)(i) Sentencing Act.
19. I accept the defendant does not have any prior offences.
20. The offence calls for a high penalty due to its high level of objective seriousness. The poorly controlled risk was of lethal injuries, with exposure to the risk being a regular occurrence at trial races. The lack of effective safety resulted from the defendant's failure to conduct a written hazard identification and risk assessment, with safety expertise input, and a failure to go beyond weak policy and administrative hazard controls. It essentially failed to consider all the ways of preventing someone being hit by the speeding lure, and to implement in practice the best physical and administrative protections that were reasonably practicable. The defendant wrongly relied on ineffective paperwork that was not applied or enforced in practice.
21. General deterrence is an important consideration. Contrary to the defendant's submission, it is not the specific type of poorly controlled hazard that is significant. The relevant issues of general application include not conducting written hazard identification and risk assessments of changed systems of work involving potentially lethal plant, and reliance on policy that is not enforced in practice.
22. I have considered the circumstances and penalties imposed in the cases cited by counsel. They demonstrate two points. Firstly, no different sentencing approach is required for offences where a hazard has foreseeably caused harm to a victim who is not an employee. Secondly, these cases each depend very much on their own circumstances, with penalties of up to 25% of the maximum before reduction.
23. I commence with a notional fine of 20% of the maximum, which is $300,000. After application of a reduction of 15%, I impose a fine of $255,000.
24. I order Greyhound Racing SA Limited to pay within 21 days to Nicholas Lalli compensation of $40,000.
25. A conviction for the safety offence by Greyhound Racing SA Limited will be recorded.
26. I order Greyhound Racing SA Limited to pay a Victims of Crime Levy of $424, and a contribution to the informant's legal costs of $2,310.

[1] Affidavit 19 February 2025, paragraph 11.