Geoff Derrick v ANZ Group Limited

CATCHWORDS: Occupational Health and Safety - Prosecution under section 8(1) of the Occupational Health and Safety Act - Banking industry - Multiple robberies - Prior conviction - Penalty imposed

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health and Safety Act 2000

Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Geoff Derrick v Australian and New Zealand Banking Group Ltd [2003] NSWIRComm 406 Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 CASES CITED: Regina v Way [2004] NSWCCA 131 Veen v The Queen (No 2) (1988) 164 CLR 465 WorkCover Authority of NSW (Inspector Chadwick) v BHP Steel (AIS) Pty Ltd (2000) 98 IR 122 WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163

INFORMANT Mr S M Whybrow of counsel Solicitor: Mr G Rees Gary Robb & Associates LEGAL REPRESENTATIVES:

DEFENDANT Mr J J Fernon SC Solicitor: Mr C Barton Freehills

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

GEOFF DERRICK v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

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

1 The Australia and New Zealand Banking Group Limited ("the defendant") has been charged with an offence under s 8(1) of the Occupational Health and Safety Act 2000 by the Secretary of the Finance Sector Union of Australia (NSW Branch), Mr Geoff Derrick ("the prosecutor"). Section 8(1) provides: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 2 The charge alleged that the defendant: [B]eing an employer, between 2 December 2002 and 29 April 2003, at Peakhurst in the State of New South Wales FAILED TO Ensure the health, safety and welfare at work of all its employees, in particular, Gail Taylor, Cheryl Collins, Lila Belcheff, Abby Rababi (nee Kassir) and Narelle Belefonte whilst conducting banking operations at is branch at 108B Boundary Road, Peakhurst contrary to s 8(1) of the Occupational Health and Safety Act 2000. 3 It was alleged in the particulars of the charge that: The defendant, at all material times, failed in a timely manner to provide or maintain adequate plant so as to ensure the safety of the said employees, namely, (i) adequately designed and installed anti-jump barriers on the enquiries counters, and (ii) adequately designed and installed security doors capable of preventing access from the public area to the staff area of the branch.

The defendant pleaded guilty to the charge. 4 The circumstances giving rise to the charge are set out in an agreed statement, which provided the following relevant facts: 1 At all material times the defendant carried out banking operations at a branch located at 108B Boundary Road, Peakhurst in the State of New South Wales ("ANZ Peakhurst"). 2 At all material times the defendant employed a number of persons, including Gail Taylor, Cheryl Collins, Lila Belcheff, Abby Raabi (nee Kassir) and Narelle Belefonte to undertake banking duties on its behalf at its branch at ANZ Peakhurst. 3 On 2 August 2002, three unarmed offenders entered ANZ Peakhurst. Upon the offenders' entry, AJBs installed at the telling counter were activated by staff. One offender jumped the sales desk, which was not protected by anti-jump barriers, ("AJBs"), and forced a staff member to open the door between the public area and the staff only area of the branch. The sales consultant was then forced to open the door leading to the telling enclosure where the offenders took $13,970 in cash from the open drop boxes. 4 On 4 November 2002, two offenders entered ANZ Peakhurst. One of the offenders jumped the sales counter and, using a screw-driver, forced a staff member to grant access to the telling enclosure. Once in the telling enclosure, one offender entered the vault and used two sets of keys to access cash in dual locked cabinets. While this was happening, the other offender took money from the open drop boxes in the telling area. The offenders then fled taking $26,900 in cash. 5 On 2 December 2002. FSU Industrial Health and Safety Officer, Gregg Frost wrote to ANZ specifically raising the lack of barrier protection at ANZ Peakhurst. No response was sent to this letter until 29 April 2003. 6 In or around January 2003, Neil Grant, on behalf of ANZ, engaged Kirsten Currie, of Kirsten Currie Pty Limited, Architects, to consult the Bank in relation to security improvements at ANZ Peakhurst. 7 On 25 February 2003, Kirsten Currie inspected the premises at ANZ Peakhurst. She reported her findings in an email of the same day to Neil Grant, ANZ NSW Property Relationship Manager. In the email she recommended the following security improvements to be made: (a) AJBs be installed at the three sales counters. (b) Replace the existing sliding door separating the area behind the sales counter from the manager's office with a solid core door fitted with a viewing panel and an electric mortise lock. (c) Replace the existing door separating the public space to the staff only with a solid core door fitted with an electric mortise lock. Repair the electric lock on the existing security door granting access to the telling enclosure. 8 On 7 March 2003, Kirsten Currie produced a schedule of work for the security upgrade at ANZ Peakhurst. The security schedule outlined the following improvements: (a) remove the existing sliding door between the area behind the sales counter and the manager's office; (b) remove the existing door between the public space to the staff only area; (c) remove Venetian blinds in manager's office; (d) supply and install AJBs to ANZ requirements to full length of existing sales counter; (e) supply and install two new 40 mm solid core doors with electric mortise locks, adjustable door closers and viewing windows; (f) supply and install up to two new door frames; (g) relocate the existing tube lighting forward of the sales counters to avoid AJBs; and (h) install vinyl film to the windows of the manager's office. 9 On 21 March 2003 three offenders held up ANZ Peakhurst with a baton. Two of the offenders held the guard who was positioned at ANZ Peakhurst since 5 November 2002 hostage. The "Other" offender jumped the sales desk and attempted to force a staff member to open the security door leading to the area behind the telling counter. The staff member was unable to open the door due to the activation of an electronic locking mechanism. The offenders became agitated and fled the branch. The AJB's noted in the proposed work improvement were installed on 28 March 2003. 10 On 29 March 2003, King Building Services completed the security improvements recommended in the schedule of improvements prepared by Kirsten Currie. 11 Although these improvements included the installation of AJBs over the sales desk, they did not include the installation of adequately designed security doors capable of preventing access from the public area to the staff area behind the sales desk. 12 On 28 April 2003 the two guards which had been stationed at the Peakhurst branch since the robbery of 21 March 2003, were removed without any prior notice to the staff of the branch. 13 On 29 April 2003 three offenders entered the ANZ Peakhurst. The offenders gained access to the area behind the sales desk by kicking in a door providing access from the public area to behind the sales desk. The offenders then used a sledge hammer to gain entry to the teller area and stole $6,000.00 to $8,000.00 in cash. 14 As a result of the defendant's failures Gail Taylor, Cheryl Collins, Lila Belcheff, Abby Rababi (nee Kassir) and Narelle Belefonte were placed at risk of injury. 5 Mr S M Whybrow of counsel for the prosecutor tendered two letters from the Finance Sector Union to the defendant dated 16 October and 2 December 2002 respectively. The first letter expressed concern in relation to "front of house staff working within the Bank's retail workplaces". The letter stated: [T]he Union has great concerns about the working environment this was creating and that our members may be placed in positions were (sic) they might be exposed to abusive, aggressive and possibly violent customers or other members of the public. Significantly, these members may be placed in positions were (sic) they are fully exposed to the actions of criminals and most concerning that they may be used by these criminals to assist in perpetrating the robbery as a hostage or similar. 6 The second letter followed a visit by the Union's Health and Safety Officer, Mr Gregg Frost, to the Peakhurst Branch of the defendant in November 2002 following the robbery incidents referred to in the agreed statement of facts in August and November 2002. The letter expressed concern at the security arrangements at the Branch and the defendant's failure to respond to earlier correspondence inquiring as to the measures to be taken by the defendant to improve security. The letter sought further information from the defendant relating to occupational health and safety issues at Peakhurst. 7 For the defendant two affidavits were read. The first was that of Louis Arthur Hawke, the Head of Retail Banking for New South Wales and the Australian Capital Territory. In that role Mr Hawke is responsible for branch security. Mr Hawke provided extensive information regarding the defendant's program implemented in 2004 to improve safety and security throughout its branches, which was established to allow for a "more rapid identification and implementation of actions and controls necessary to address known and emerging security issues whilst at the same time ensuring improved training, consultation and documentation around management of risk." 8 It is unnecessary, and perhaps inappropriate, given that the defendant's improvement program go to security issues, to traverse the details of Mr Hawke's evidence except to say the Court accepts the program has introduced new systems and procedures that represent a significant improvement over those applying at the time of the offence. Defects or flaws in the security systems of the defendant that have implications for the health safety and welfare of employees will be capable of being identified and remedied in a much shorter and more acceptable timeframe than was the case with the offence. An important obligation on the defendant will be to ensure its new approach to security and health and safety of employees is maintained. 9 The other affidavit was that of Kenneth Fredrick Parry, Head of Operations, Personal Banking Australia. In that role Mr Parry participated in the general supervision of the occupational health and safety and security auditing of ANZ branches for the purpose of establishing compliance and conformity across Australia and New Zealand in relation to the defendant's occupational health and safety management system. In his affidavit Mr Parry described the general branch safety and security measures in place within the defendant's operation between 2001 and 2003 including a program to introduce and upgrade anti-jump barriers, carry out audits of safety risks, construct a comprehensive database to better manage the system for identifying and prioritising security deficiencies in branches and steps to be taken to address those deficiencies, and the trialling of closed circuit television. 10 Mr Parry also described short-term interim measures implemented between October 2003 and April 2004 to improve security and health and safety in New South Wales Branches. These included the installation of 'pop-up" screens in all branches; internal grille replacement at some 55 sites; reducing the risks at high risk ATMs; installation of closed circuit television at selected sites; installation of guards at selected sites; and, installation of a system of roving guards. Mr Parry explained that from June 2004 Mr Hawke assumed direct responsibility for branch safety and security in New South Wales. Consideration 11 It was held in Regina v Way [2004] NSWCCA 131 at [121] that the Court should exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in ss 3A (purposes of sentencing), 21A (Aggravating, mitigating and other factors in sentencing), 22 (Guilty plea to be taken into account), 22A (Power to reduce penalties for pre-trial disclosure) and 23 (Power to reduce penalties for assistance provided to law enforcement authorities) of the Crimes (Sentencing Procedure) Act 1999.

12 The sentencing practice established in this Court under the Occupational Health and Safety Act involves a consideration of both the objective and subjective factors relevant to the offence and the offender. The primary factor is the objective seriousness of the offence, which involves an objective assessment of the nature and quality of the offence: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. Subjective factors play a subsidiary role in the determination of penalty. 13 In assessing the objective seriousness of an offence a fundamental consideration is the maximum penalty for the offence. As Wright J, President explained in WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163 at [23]: [T]he task of the Court is … to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the penalty scale of penalty set by the legislature from zero to the maximum: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699; Nesmat Pty Limited v WorkCover Authority (NSW) (1998) 87 IR 312 at 321; and Albury City Council at 407 - 408. Although some cases have referred to the consideration that a penalty should not be "oppressively high", such dicta should not be considered as qualifying the approach to balancing subjective and objective factors expressed in Waugh : see Albury City Council at 411; Lawrenson Diecasting Pty Limited at 474 - 475; Dowling v Overtop Pty Limited at 333; Ferguson v Nelmac Pty Limited at 208 - 209; Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 78 - 79. 14 The maximum penalty in this case is $825,000. This follows from the fact that the defendant is a previous offender under the Act and from the provisions of s 12(a) of the Act and s 17 of the Crimes (Sentencing Procedure) Act. The previous offence was dealt with by the Court in Geoff Derrick v Australian and New Zealand Banking Group Ltd [2003] NSWIRComm 406. The circumstances of that offence, to which the defendant also pleaded guilty, were explained at [1]: On 17 June 2002, at about 9.45 am, an armed hold up occurred at a branch of the Australia and New Zealand Banking Group Limited ("the defendant") at 668 Pittwater Road, Brookvale. Two of the three offenders made their way to the cash handling area on the employee side of the banking counters that was, at the time, manned by two employees of the defendant. They did this by jumping the counters and scaling a six-foot high screen that was known as an anti-jump barrier ("AJB"). There was a 400mm gap between the top of the AJB and the ceiling, allowing the offenders to access the cash handling area. The offenders stole a large amount of cash from the bank and from customers before leaving. 15 In considering the objective seriousness of the offence the Court stated at [20]-[22]: 20 In assessing the nature and quality of the offence in this case it is relevant to consider that prior to the robbery at Katoomba in January 2002 the defendant was apparently not alert to the prospect of armed offenders being able to gain access to money handling areas, and to confront directly its employees, by scaling the AJB and climbing through the gap between the top of the AJB and the ceiling. As the defendant, in effect, acknowledged by its plea, an adequate risk assessment would have identified the flaw in its security arrangements and would have averted the risk to health and safety.

21 The more serious aspect of the defendant's failure to ensure the health and safety of employees was its failure to take urgent steps after the Katoomba robbery to install appropriate barriers at Brookvale. The robbery at Katoomba occurred on 3 January 2002. The Union wrote to the Bank on 5 February 2002 drawing attention to the "immediately obvious hazard" constituted by the gap above the AJB. Another robbery, involving the same modus operandi , occurred at Annandale on 28 March 2002. At both locations the gap above the AJB was filled in shortly after the robberies. However, no instructions were given to Mr Gool to carry out his survey of other branches in relation to the gap, and the action needed to close it, until early May 2002. Moreover, it does not appear from the evidence that the defendant took any other steps that may have been available to avoid the risk to health and safety presented by the gap above the AJB at Brookvale.

22 Whilst it must be acknowledged that the defendant had commenced the process of remedying the problem, more than six months elapsed between the time the robbery occurred at Katoomba, when it must have become glaringly obvious to the defendant that its security arrangements at a number of branches were seriously flawed, and when the robbery occurred at Brookvale. In the meantime, the Annandale branch was robbed indicating, surely, to the defendant that certain unknown offenders had identified a flaw in the physical security arrangements and that there was every possibility that other branches with the same security deficiencies would be targeted. Yet I detected no sense of urgency on the defendant's part to take appropriate steps to endeavour to fulfil the absolute duty it has under the legislation to ensure the health, safety and welfare at work of all its employees. Even if it could be said that the installation of security mesh at a number of locations would take time (noting it was not until May 2002 that Mr Gool was engaged), no attention was given to an alternative strategy for eliminating the risk in the meantime.

The defendant was fined an amount of $156,000. 16 A central consideration in determining the objective seriousness of the offence is the nature of the criminal conduct in respect of which the defendant has pleaded guilty. In this respect, the charge to which the defendant pleaded guilty was that between 2 December 2002 and 29 April 2003 the defendant failed to ensure the safety of employees at its Peakhurst Branch the failure being particularised as a failure to act "in a timely manner to provide or maintain adequate plant so as to ensure the safety of the said employees, namely, (i) adequately designed and installed anti-jump barriers on the enquiries counters, and (ii) adequately designed and installed security doors capable of preventing access from the public area to the staff area of the branch." 17 Prior to the happening of the offence the defendant's Peakhurst Branch was robbed on 2 August 2002 by three unarmed offenders. One offender jumped the sales desk, which was not protected by anti-jump barriers, and forced a staff member to open the door between the public area and the staff only area of the branch. The sales consultant was then forced to open the door leading to the telling enclosure where the offenders stole a significant amount of cash. 18 Then on 4 November 2002, two offenders entered the Peakhurst Branch. One of the offenders jumped the sales counter and, using a screwdriver, forced a staff member to grant access to the telling enclosure. The offenders again escaped with a large amount of cash. Immediately following this robbery the defendant posted a security guard at the Branch. 19 In January 2003 the defendant engaged a consultant to recommend improvements to the security arrangements at the Peakhurst Branch. Those recommendations were conveyed to the defendant on 25 February 2003 and on 7 March 2003, the consultant produced a schedule of work for the security upgrade at the Branch. 20 On 21 March 2003 three offenders held up the Peakhurst Branch with a baton. Two of the offenders held the guard hostage. The other offender jumped the sales desk and attempted to force a staff member to open the security door leading to the area behind the telling counter. The staff member was unable to open the door due to the activation of an electronic locking mechanism. The offenders fled. Subsequently two guards were stationed at the Branch but they were removed on 28 April 2003. 21 On 29 March 2003 the security improvements described in the agreed statement of facts were completed. As noted in the statement, although these improvements included the installation of anti jump barriers over the sales desk, they did not include the installation of adequately designed security doors capable of preventing access from the public area to the staff area behind the sales desk. 22 On 29 April 2003 three offenders entered the Peakhurst Branch and gained access to the area behind the sales desk by kicking in a door providing access from the public area to the area behind the sales desk. The offenders then used a sledgehammer to gain entry to the teller area and stole cash. It is no wonder the Peakhurst Branch has been closed. 23 The nature of this offence has strong parallels with the earlier offence involving the defendant's Brookvale Branch in that a feature of both offences is the time it took the defendant to assess and arrange for the installation of adequate security measures to protect its staff and property. It must have become apparent to the defendant following the two robberies in August and November 2002 that its Peakhurst Branch was vulnerable and its employees were at risk. I note a guard was installed on 5 November 2002 (then two guards were installed in March 2003 after one proved inadequate). Accordingly, it could not be said that the risk to the safety of employees from robbers was ignored by the defendant. But in terms of making the necessary security improvements listed in the agreed statement of facts, this was not achieved until six months after the November robbery and even then the improvements proved to be inadequate because they did not include the installation of adequately designed security doors capable of preventing access from the public area to the staff area behind the sales desk. 24 There was no evidence as to the extent to which guards located at bank branches are an effective deterrent to would-be robbers - certainly in this case a lone guard proved to be no impediment at all. But I consider that I have to accept that the installation of the guard in November and the additional guard in March must be taken into account as mitigating the objective seriousness of the offence. If these steps had not been taken, the offence would have been significantly more serious. As it was, even with the installation of the guards, the time taken to implement improved security arrangements and the fact that the arrangements ultimately proved to be inadequate, represented in my opinion, an objectively serious offence considering the obligation on the defendant was to ensure the safety, health and welfare of its employees against risks arising from robberies. 25 Up until the last robbery on 29 April 2003 there had been three robberies at the Peakhurst Branch. Each time, the robbers were able to gain access to the staff area behind the sales desk by jumping over the counter. Anti-jump barriers were installed to prevent such access but in the last robbery the offenders were able to simply kick in the door leading from the public area to the staff area. That seems to me to have been a significant oversight, it being reasonably foreseeable that if the staff area was not protected by an appropriately designed security door it would provide robbers with an alternative access to jumping over the counter, which by 29 April had been fitted with anti-jump barriers. 26 The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that is relevant to the assessment of the gravity of an offence: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [81]-[82]; Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317 at [87]. There cannot be any doubt that not only was the risk in this case foreseeable but the defendant knew of the risk. And it was a risk that could well have, in the circumstances of a bank robbery, led to serious injury or death. 27 In Graham Gerard Coleman the Full Bench stated at [88]: 88 It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9; Lawrenson Diecasting at 476. 28 It may be the case that there are no practicable measures available to a bank to ensure that its employees are never put at risk of injury in circumstances where a robbery occurs. But that does not relieve a bank of the obligation to do all that is reasonably practicable to ensure safety. It should be apparent from the earlier discussion that in this case, in the face of a risk known to it, the defendant did not take all of the available measures open to it to ensure safety in a timely and effective way. 29 In Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. Indeed, the Full Bench observed at [75] that "The need for general deterrence in relation to serious offences under the Act is undeniable." I consider it is appropriate to include an element in the penalty to deter others from committing a similar offence. Whilst I do not understand the offenders who robbed the Peakhurst Branch to have always been armed (although I note that on one occasion a staff member was threatened with a screwdriver), the observation I made in Geoff Derrick v Australian and New Zealand Banking Group Ltd at [28] is apposite here: Armed hold-ups represent a serious threat to employees not only in banks but also in all manner of places where goods and cash are kept including service stations, retail outlets and warehouses. The duty on employers is to make certain employees are not exposed to risks to their health, safety and welfare whilst at work and that responsibility extends to circumstances where an armed offender might confront employees. 30 In referring to specific deterrence, the Full Bench in Capral Aluminium stated at [77]:

77 In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at 46. 31 This is not a case where the defendant had failed to acknowledge that it provided and maintained plant that was inadequate to ensure the safety of employees and did nothing to remedy those inadequacies. The defendant has undertaken a comprehensive program to improve and upgrade its security arrangements, which will, in turn, provide better protection for employees. In particular, the defendant has implemented arrangements that will provide for a speedier process in identifying, assessing and rectifying any flaws or deficiencies in its security systems and thereby avoid the unacceptable time lags evident in these proceedings. Nevertheless, the defendant is a large organisation faced with the ever-present threat of robbery and it is appropriate to include in the penalty an element for specific deterrence although not a significant element. 32 That brings me to a consideration of subjective factors that may mitigate the seriousness of the offences committed by the defendant. I accept that the defendant entered an early plea of guilty and is, therefore, entitled to a significant discount of any penalty for the utilitarian value of the early plea. 33 It may be accepted that the defendant is of good character and has taken the necessary steps to improve significantly its security arrangements where they may assist in protecting the health and safety of employees. I also accept that the corporate respondent demonstrated a strong commitment to workplace safety and that is a factor to be taken into account in its favour: WorkCover Authority of NSW (Inspector Chadwick) v BHP Steel (AIS) Pty Ltd (2000) 98 IR 122 at 135. 34 As it has already been disclosed, the defendant has a prior conviction and this necessarily leads to a higher maximum penalty than if the offence had been a first offence. The fact that a higher maximum penalty exists for a second offence does not mean, in my opinion, that the ratio between the maximum penalty for a first offence and the maximum penalty for a second offence must necessarily be reflected in the penalty imposed on the defendant for a second offence. The primary consideration is the objective seriousness of the second offence and then fixing a penalty at an appropriate point on the penalty scale having had regard to relevant subjective factors. But that does not exclude a consideration in the process, of the circumstances of the first offence. 35 This is not a case where the defendant was convicted of an offence and shortly thereafter committed the same offence. The first conviction was recorded on 21 November 2003 in relation to an offence committed on 17 June 2002. This offence occurred between December 2002 and April 2003. The timeframe reflected in the committing of the offences, and the similarity of circumstances, strongly suggests that in 2002 and at least the early part of 2003, there was a significant gap in the defendant's capacity to address, in a timely way, flaws in security arrangements that had adverse implications for its duty to ensure the health and safety of employees. The defendant has moved to fill this gap in a systematic and comprehensive way. Moreover, very senior executives are responsible for security and occupational health and safety. 36 In fixing penalty I do not propose to treat the defendant's second offence as indicating a "dangerous propensity" to re-offend and thereby deserving of "condign punishment" (see Veen v The Queen (No 2) (1988) 164 CLR 465 at 477) but rather as part of systemic failure that prevailed in the defendant's enterprise over the period covering the two offences. 37 I have decided that in the circumstances an appropriate penalty is $270,000. This amount is to be discounted by 35 per cent for the subjective factors I have referred to thereby resulting in a penalty of $175,500. Orders 38 The Court makes the following orders: 1 The offence is proven and a verdict of guilty is entered.

2 The defendant is convicted of the offence as charged.

4 The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.