Geoff Derrick v Australian and New Zealand Banking Group Ltd

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Matter No IRC 432 of 2003 GEOFF DERRICK v AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED

Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2003] NSWIRComm 406

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.

2 Proceedings were brought against the defendant by Geoff Derrick, Secretary of the Finance Sector Union of Australia, New South Wales Branch ("the informant"), pursuant to s 8(1) of the Occupational Health and Safety Act 2000. That section provides: 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.

3 In an amended application for order the informant alleged that the defendant failed to: Ensure the health, safety and welfare at work of all its employees, in particular, Sue Clayton, Diane Christian, Robyn Jurd, Rosina Villella, Jean Barbour, Karen Searle and Jenny Sui, whilst conducting banking operations at its branch at 668 Pittwater Road, Brookvale, contrary to Section 8(1) of the Occupational Health and Safety Act 2000.

The defendant at all material times, employed a number of persons, including Sue Clayton, Diane Christian, Robyn Jurd, Rosina Villella, Jean Barbour, Karen Searle and Jenny Sui, to undertake banking duties on its behalf at its branch at 668 Pittwater Road Brookvale in the State of New South Wales.

The particulars of the charge are: a) The defendant, at all material times, failed to provide adequate plant to ensure the safety of the said employees, namely, anti-jump barriers that extended full height from the banking counters to the ceiling.

b) The defendant failed to carry out an adequate risk assessment of the security needs at the Brookvale branch of the Bank in that it did not identify the risk in failing to provide anti-jump barriers that extended full height from the banking counters to the ceiling.

As a result of the said failures Sue Clayton, Diane Christian, Robyn Jurd, Rosina Villella, Jean Barbour, Karen Searle and Jenny Sui were placed at risk of injury. The defendant pleaded guilty to the charge.

4 Mr S M Whybrow of counsel appeared for the informant. He tendered an agreed statement of facts that was in the following terms: 1 On 17 June 2002, the defendant carried out banking operations at a branch located at 668 Pittwater Road at Brookvale in the State of New South Wales ("ANZ Brookvale"). 2 On 17 June 2002, the defendant employed Rosina Villella, Jean Barbour, Karen Searle and Jenny Sui at ANZ Brookvale. 3 At about 9.45 am on Monday 17 June 2002, three unknown males entered ANZ Brookvale and held it up. One of the men carried a pistol and another a hammer. The report of the Insurance Services Unit of the NSW Police Service reported that two of the offenders made their way to the open vault on the employee side of the banking counters ("the cash-handling area"), which was at the time manned by two staff members, by jumping the counters and scaling a six foot high screen which is known as an anti-jump barrier ("AJB"). There was a gap between the top of the AJB and the ceiling allowing the offenders to access the cash handling area. 4 The offenders then stole approximately $39,000 from the vault and customers before leaving. 5 On 25 June 2002, FSU Industrial Health and Safety Officer, Greg Frost, attended ANZ Brookvale and conducted investigations on behalf of the FSU. Mr Frost has noted that there was a 400mm gap between the top of the AJBs and the ceiling. Mr Frost conducted a risk assessment of ANZ Brookvale with respect to holdup risk and assessed the branch to be in the "extreme" category for risk of armed holdup. 6 On 25 January and 26 February 1999, the informant wrote to Alistair Fotheringham, the then State Manager-Retail NSW/ACT for the defendant, calling on the defendant to fit ceiling to counter AJBs to all of its branches in the Illawarra, Sydney, Central Coast and Blue Mountains areas. 7 In 2000 and 2001, the FSU on a number of occasions wrote to the defendant and spoke with its officers advising it that its AJBs had faults and requesting the defendant to take immediate action to remedy the situation and to consult with the FSU as to the redesign of its barriers. 8 On 4 June 2001, Mr Ken Parry, on behalf of the defendant, advised the FSU that it had implemented an action plan to address the design of some specific anti-jump barriers and that the defendant was in the process of issuing work instructions to carry out these adjustments. 9 On 3 January 2002, a hold-up occurred at the Katoomba Branch of the ANZ Bank with offenders gaining access to the cash-handling area by jumping the counters and scaling the AJBs. At the Katoomba branch there was a gap at the top of the barriers which did not extend to full ceiling height. 10 On 5 February 2002, the FSU wrote to the defendant about the Katoomba robbery, describing the gap at the top of the AJBs as "an immediately obvious hazard that should have been detected and corrected some time ago". 11 On 28 March 2002, armed offenders held up the Annandale Branch of the ANZ Bank gaining access to the cash-handling area by climbing over an internal wall that did not extend to full ceiling height. On 24 May 2002, Mr Frost attended the Annandale workplace and noted that the gap through which the offenders gained access had been filled in. 12 On 3 June 2002, the FSU wrote to Mr Ken Parry to query why the hazard created by leaving the gap above the internal wall was not detected and eliminated before the robbery occurred. 13 In or about early May 2002, the defendant engaged Gadsden Signs ("Gadsden") to assess 86 ANZ branches in NSW, including ANZ Brookvale, to determine whether a gap existed between the top of the AJBs and the ceiling or bulkhead at each branch and, if necessary, take all the necessary measurements for the installation of expanded aluminium security mesh to eradicate such a gap. The above programme was brought to the attention of the informant after the robbery on 17 June 2002. 14 Prior to the incident on 17 June 2002 at ANZ Brookvale, the branch was identified by the defendant as a branch which would have security mesh installed to eradicate the gap between the top of the AJBs and the ceiling. 15 On 28 and 29 May 2002, a representative from Gadsden attended each of the ANZ branches located in the Northern Region of Sydney, including ANZ Brookvale, and carried out the work referred to in paragraph 11 above. A letter was submitted to the defendant by Gadsden on the day of the incident at ANZ Brookvale, which contained a quote for the supply and installation of security mesh at a number of branches (including ANZ Brookvale) which contained a gap between the top of the AJBs and the ceiling. 16 Prior to the incident, security mesh had been installed in the gap between the top of the AJBs and the ceiling at a number of ANZ branches. Shortly after the incident, security mesh was installed in the gap between the top of the AJBs and the ceiling at ANZ Brookvale. 17 On 17 June 2002, Rosina Villela, Jean Barbour, Karen Searle and Jenny Sui were placed at risk of injury.

5 The informant called Mr Gregory Robert Joseph Frost to give evidence. Mr Frost was employed as an inspector with the WorkCover Authority of New South Wales but prior to that, and at the time of the Brookvale robbery, he was employed by the Finance Sector Union of Australia, New South Wales Branch ("the Union") as an industrial officer with a responsibility for occupational health and safety. Mr Frost held tertiary qualifications in workplace health and safety. Mr Frost gave evidence about his involvement in pursuing occupational health and safety matters with the defendant over a period of time. He was asked a series of question about photographs he had taken following the robbery at Brookvale and about various correspondence between the Union and the defendant.

6 The informant tendered a bundle of six colour photographs taken on 12 August 2002 by Mr Frost showing the interior of the Brookvale branch and, in particular, the steel security mesh that, after the robbery, had been erected between the top of the AJB and the ceiling of the building. A "Hazard and Risk Assessment" form was tendered. Mr Frost completed this form on 25 June 2002 in relation to the Brookvale branch. The form is designed to assess the risk associated with a robbery or similar critical incident. Mr Frost assessed the risk as "extreme".

7 The first of the pieces of correspondence Mr Frost was questioned about was a letter from the informant to Mr Alistair Fotheringham, state manager retail NSW/ACT for the defendant dated 25 January 1999. The letter was in relation to Branch Security in New South Wales and expressed "deep concern with regard the (sic) continuing hazard of bandits jumping counters in our members workplaces, and the speed at which the ANZ Bank is moving to address and control the situation." The second letter was again from the informant to Mr Fotheringham dated 26 February 1999 expressing, inter alia, the same concern as the previous letter and calling on the defendant to fit ceiling to counter anti-jump barriers to all branches in the "Illawarra, Sydney, Central Coast, Newcastle and Blue Mountains areas."

8 The third letter dated 4 June 2001 was from Ms Donna Robinson, executive assistant to the head of metrobanking Sydney, Mr K Parry, replying to correspondence from Mr Frost and indicating that an action plan in relation to AJB's had been identified and was being implemented "to address the design of some specific barriers."

9 It should be noted that the correspondence up to this point appears to be concerned with AJBs per se rather than the gap between the top of the AJB and the ceiling. It would seem this flaw in the security system had not become apparent to the defendant or to the Union until the robbery in Katoomba on 3 January 2002. The correspondence, nevertheless, reflects the Union's continuing concern at what it considered to be the defendant's tardiness in addressing the safety of its members and the Bank's seeming reluctance to consult with the Union over this issue.

10 The fourth letter, dated 5 February 2002 was from Mr Frost to Ms Robinson. The letter referred to the robbery at the defendant's Katoomba branch on 3 January 2002 and stated: The circumstances of this incident are of great concern to the Union and our members. [Words deleted] bandits were able to enter the workplace, approach and leap the tellers counter gaining access to the cash-handling area and able to threaten staff at close quarters. This again despite the fact the workplace is fitted with AJBs. However, the AJBs are defective in that they do not cover the area ceiling to counter as was demonstrated by the bandits who simply gained access over them.

11 The letter also stated: We indicated above that there is a clear defect with the present AJBs in that they do not cover the space ceiling to counter. We understand that some plans may have already been agreed to address this concern, can you please confirm and provide details. What we would say is that this is an immediately obvious hazard that should have been detected and corrected some time ago.

12 The fifth letter dated 3 June 2002 was from Mr Frost to Mr Parry and again raised the Union's concern at what occurred in relation to the robbery at the defendant's Annandale branch on 28 March 2002. The letter referred to Mr Frost's visit to the branch on 24 May 2002. The letter stated, inter alia: As previously indicated the bandits were able to enter the workplace and leap over an internal wall that is ballistic rated. Unfortunately there was a large gap between the top of the wall and the roof. We are at a complete loss to understand why this gap was present to start with and why subsequent inspection by ANZ management had not been able to detect and address this most serious omission before hand. It is exactly this type of ambivalent attitude to workplace health, safety and security that is the cause of our most serious of concerns regarding the ANZ Bank. We noted that this space has now been filled in.

13 The informant tendered into evidence an affidavit of Mr Khan Gool who had been employed by "Gadsden Signs" to "design, quote, sell, project manage and develop various sign and security related products" from August 1982 until his retirement in December 2002. Mr Gool deposed in his affidavit that for a number of years Gadsden had been contracted by the defendant to install anti-jump barriers at branches in New South Wales. He said that in or about early May 2002 he was contacted by a representative of the defendant and requested to visit 86 ANZ branches in New South Wales and carry out certain tasks including the task of assessing each identified branch to determine whether it required the installation of the expanded aluminium security mesh to eliminate the gap that previously existed between the top of the AJBs and the ceiling or bulkhead at some branches in New South Wales and, if required, to take all necessary measurements. Mr Gool said he completed this work between 15 May and 21 June 2002.

14 Mr J J Fernon SC appeared for the defendant. Mr Fernon tendered two affidavits with large numbers of annexures by Mr Allan Paul Gillmer, head of Health and Safety for the defendant, and Craig Brant Hollingsworth, state operations manager, NSW/ACT for the defendant. The deponents were required for brief cross-examination. Mr Gillmer's evidence went to:

· His responsibilities as head of health and safety for the defendant; · The defendant's general approach to occupational health and safety including the regular review of policies and programs; · The operation of the defendant's occupational health and safety committee; · The defendant's property-based standards known as the Operating Risk Management Standards (ORM Standards) that address a number of issues including health and safety. It was said these standards are designed to ensure that ANZ personnel comply with their safety obligations in relation to property that is within their control and responsibility and establishes a process for managers to identify hazards and eliminate and/or control risks; · The Operating Risk Executive Committee (OREC), which is ANZ's senior executive management forum responsible for oversight of operating risk. OREC meets on a monthly basis and supports the Risk Management Committee (RMC) of the ANZ Board. The purpose of the RMC is to assist the ANZ Board of Directors in the effective discharge of its responsibilities relating to the oversight of Group Risk Management strategies, policies and controls. The RMC's scope covers the broad range of inter-related risks to which ANZ may be exposed, namely business, market, credit, operational, liquidity and reputational risk management. OREC supports the RMC by carrying out a number of key functions including recommendations in relation to regulatory compliance by ANZ; · A Security/Health and Safety Working Group (the Working Group), which is comprised of representatives from various ANZ areas including Security, Personal Banking (Operations), Health and Safety and Group Risk and reports directly to OREC. The Working Group: (a) aims to develop a framework to ensure that: (i) significant health, safety and security risks are identified and reported to OREC; and (ii) suitable risk control measures are implemented by line management; and (b) reviews the security and health and safety policies of ANZ. · The appointment of a number of safety management personnel who are engaged for the purpose of ensuring the implementation of OHS programmes; · Specific provisions in the defendant's health and safety manual to the effect that business units who engage contractors to perform work at ANZ premises have a responsibility to ensure that: (a) a safe system of work is stipulated in the contractual documentation; and (b) the safe system of work is adhered to by contractors. · Risk assessment reports carried out by independent consultants. In 2002-03 211 risk assessment reports were carried out. These focused on occupational health and safety as it relates to the occupancy, use and operation of the branches by ANZ personnel, customers and visitors to the branches. The reports were conducted using a comprehensive checklist that was designed to assess specific risks in 14 risk element areas; · The fact that since 1999, the number of incidents which result in injury to ANZ employees being reported to the bank has decreased by approximately 25% and the Lost Time Injury Frequency Rate (which is calculated according to injuries which result in greater that one day or shift off work) has decreased by approximately 56%. Similarly since 1999, the number of workers compensation claims currently being submitted by ANZ employees has also decreased by approximately 33%.

· His responsibilities for Personal Banking on a state basis which included: (a) project management (consultation, restructuring, program roll-outs and implementation, 'trouble shooting', reporting and follow-up), for example the introduction of the new national personal computer based telling platform, "My Tell"; (b) customer focussed responsibilities (including transaction migration, queue management and design and concept (which includes working closely with architects to ensure that new physical designs comply with ANZ standards)); (c) managing third party providers to ANZ, for example, external technological assistance, temporary employee providers and other labour supply entities; (d) maintaining state management information systems (MIS); (e) controlling operating costs against a planned budget; and (f) implementing short and long term plans for the development of the operations environment including planning models and maintaining cost agendas.

· His responsibility for managing and actioning security and occupational health and safety risk assessment reports for Personal Banking in NSW. Personal Banking covers the areas of greater Sydney, Newcastle, Illawarra, the Central Coast and ACT. His major responsibility at the present time is to collate and record the results of OHS and security risk assessment reports that are carried out within the branches and to implement recommendations contained in those reports. The purpose of conducting security and OHS audits of ANZ branches in NSW is to identify and take appropriate measures to eliminate any identified security and OHS risks and to ensure compliance with OHS legislative requirements in NSW. His specific responsibilities included: (a) in conjunction with the Head of Security and State Property Relationship Manager, implementing the improvements and innovations to remedy the security deficiencies identified in security and OHS risk assessments in NSW; and (b) managing and updating ANZ's National Operating Database (the Access Database) in relation to NSW.

· The following issues in detail: (i) his personal history in the banking industry; (ii) background to ANZ; (iii) the nature of OHS risks faced by ANZ; (iv) the management structure of ANZ upon his appointment to the role of Operations Manager in June 2001; (v) how OHS is managed at ANZ, including the interaction between Personal Banking and other areas of ANZ in relation to security; (vi) the development and role of the various ANZ Security Standards; (vii) the risk assessment process at ANZ, with a focus on the development and role of the security risk assessments (the Security Risk Assessment Surveys); (viii) the role of the audits which are carried out by Jones Lang LaSalle, ANZ's outsourced property provider; (ix) the development of a number of branch physical security measures at ANZ, including anti-jump barriers (AJBs) and security mesh (which is used to eradicate the gap between the top of AJB's and ceilings in branches); (x) steps taken by ANZ following the incident at ANZ Brookvale on 17 June 2002; (xi) general OHS improvements which have been made by ANZ following the Incident, including: (1) the introduction of OHS risk assessments carried out by Noel Arnold & Associates; (2) the ongoing review of the security risk assessment process flow; (3) the development of the branch revitalisation programme; (4) the construction of the Access Database to monitor the implementation of recommended safety measures at ANZ; (5) the installation of security mesh in all ANZ Personal Banking branches in NSW which had a gap between the top of the AJBs and the ceiling; and (xii) the general change in corporate approach towards health and safety which has been adopted by ANZ.

16 The defendant in this matter has pleaded guilty and thereby has acknowledged that it failed to ensure the health, safety and welfare at work of its employees in the manner particularised in the charge, namely: a) The defendant, at all material times, failed to provide adequate plant to ensure the safety of the said employees, namely, anti-jump barriers that extended full height from the banking counters to the ceiling.

b) The defendant failed to carry out an adequate risk assessment of the security needs at the Brookvale branch of the Bank in that it did not identify the risk in failing to provide anti-jump barriers that extended full height from the banking counters to the ceiling.

As a result of the said failures Sue Clayton, Diane Christian, Robyn Jurd, Rosina Villella, Jean Barbour, Karen Searle and Jenny Sui were placed at risk of injury.

17 The principles governing the assessment of penalty in this jurisdiction are well settled. In assessing the gravity of the crime the Court will look firstly to the objective factors governing the assessment of penalty and then to the relevant but subsidiary subjective considerations. The objective factors are: the maximum penalty available for the offence; the nature and quality of the offence; the foreseeability of the risk; whether there were straightforward steps available to avoid the risk; and, previous offences. The defendant has no prior convictions under the Occupational Health and Safety Act.

18 The defendant being a corporation and not being a previous offender, the maximum penalty in this case is $550,000: s 12 of the Occupational Health and Safety Act; s 17 of the Crimes (Sentencing Procedure) Act 1999.

19 In Warman International Ltd v WorkCover Authority of New South Wales (1998) 80 IR 326 at 339 the Full Bench stated: The penalty must reflect the nature and quality of the particular offence; the level of penalty must, on the one hand, compel attention to occupational health and safety risks in order to ensure that persons are not exposed to such risks at their workplaces but, on the other, must not be oppressively high.

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.

23 It was contended for the defendant that the offence particularised in the amended summons was unlikely to create serious risk to injury. It was submitted that there was an AJB in place and its deterrence value should be recognised. The defendant was aware, prior to the robbery at Brookvale, that in the absence of security mesh covering the gap between the top of the AJB and the ceiling, offenders could access money-handling areas and put themselves in direct contact with employees of the defendant. In my opinion the failures particularised did create a serious risk to safety.

24 Following the robbery in Katoomba the defendant, of course, was aware of the danger presented by a gap above the AJB, namely, the danger or risk to health and safety of employees being confronted directly by armed offenders with no intervening barrier between the offender and the employees. However, even prior to the incident at Katoomba, it seems to me that it was reasonably foreseeable that a bank robber might scale the AJB and slip through the gap above it. Prior to November 1999, any AJBs installed at ANZ branches had a serving gap of greater than 240mm at each teller point. According to Mr Hollingsworth's evidence, in or around August 2001, a number of robberies occurred in branches in New South Wales in which offenders crossed the counter through the serving gap at the teller points. Following these robberies, a review was carried out by ANZ and a decision was made to install vertical stainless steel bars to reduce the gap at each serving point to 150mm. This proposal was tested, but it was found that there was too much flexibility in 19mm vertical bars fitted 150mm apart. It was also found that it was still possible for offenders to enter through a 150mm gap at each serving point. Consequently, this gap was reduced with 25mm bars being installed so that no serving gap is now wider than 130mm.

25 If an offender could pass through a gap greater of 150mm it is reasonably foreseeable that an offender could pass through an even wider gap of 400mm, notwithstanding it was at a height of 1800mm above the counter.

26 The evidence was that following the Brookvale robbery security mesh was installed in all ANZ Personal Banking branches that had a gap between the top of the AJBs and the ceiling. The cost of installing the security mesh at Brookvale was $18,766. The total cost for all branches was $476,000. This would indicate that the measures available to remedy the defect that gave rise to the risk to health and safety were, for the defendant, relatively simple and straightforward.

27 In Capral Aluminium Ltd v WorkCover Authority of New South Wales 49 (2000) NSWLR 610; 99 IR 29 the full court considered that both general and specific deterrence were matters that should normally be given weight in the sentencing process. At pars [75]-[76] the court said: Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable. 76 On the other hand, the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence: see Ruby, Sentencing (5th Edition, Butterworths, Toronto, 1999) at 10. The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence.

28 It is appropriate in this case that I give weight to the need for general deterrence in determining penalty. 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.

29 As to specific deterrence, it must be acknowledged that the defendant has highly sophisticated and comprehensive policies and practices relating to occupational health and safety and its failures on this occasion seem out of character with what had hitherto been a commendable attitude and record regarding occupational health and safety. Although, I note that in relation to AJBs the Union was expressing concern about the defendant's failure to fit adequate barriers as early as January 1999. In any event, the defendant has taken steps after the incident at Brookvale to avoid a recurrence of the risk and to review its policies and practices generally. The defendant's propensity to re-offend must be regarded as low. I do not propose to give much weight at all to the need for specific deterrence in fixing penalty.

30 That the defendant was aware of the specific risk to safety presented by the gap above the AJB following the Katoomba robbery and the fact that the Brookvale robbery took place over six months later without the risk at Brookvale having been attended to in the meantime, is a significant aggravating factor to be taken into account in assessing penalty in this case. There was no satisfactory explanation put forward by the defendant for the delay in remedying a known risk to the health and safety of employees. Having regard to the matters thus far addressed I would assess the gravity of the offence to be at a level that attracts a penalty of $240,000.

31 The relevant subjective factors to be taken into account in mitigation are: the early plea of guilty to the amended charge; the defendant's commitment to occupational health and safety; and, its prior good record. The informant properly conceded that the defendant entered its plea to the amended charge at the earliest opportunity. I would, therefore, allow a discount on the penalty of 25 per cent for the utilitarian value of the early plea.

32 I have already referred to the quality of the defendant's occupational health and safety policies and practices and the steps taken by the defendant to improve these policies and practices. The evidence reveals that the defendant is aware of its obligations under the Act. The defendant has a comprehensive occupational health and safety program that is designed to identify and address occupational health and safety deficiencies and concerns. Since the incident the defendant has made a number of significant improvements to its health and safety system to prevent a recurrence of what occurred on 17 June 2002.

33 The defendant undertakes regular security risk assessments and occupational health and safety audits the purpose of which is to identify and take appropriate measures to eliminate any identified security or occupational health and safety risk within its branches. Risk assessments are carried out either annually or bi-annually depending upon the classification of the branch's risk. The category of exceptional and high risk is reviewed annually whilst medium and regular risk branches are reviewed bi-annually. The surveys are undertaken by an independent security and loss prevention consultancy.

34 In addition to the 25 per cent discount for the utilitarian value of the guilty plea, I would discount the sentence by a further 10 per cent for the other subjective factors. This results in a fine of $156,000.

35 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. 3 The defendant is fined an amount of $156,000 with a moiety thereof to the informant.

4 The defendant shall pay the informant's cost 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.

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