Geoff Derrick v Westpac Banking Corporation

Geoff Derrick v Westpac Banking Corporation - [2006] NSWIRComm 76 - NSWIRComm 2005 case summary — Zoe

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1 The defendant has pleaded guilty to an offence arising pursuant to s 8(1) of the Occupational Health and Safety Act 2000. 2 The prosecutor in these proceedings is Mr Geoff Derrick. Mr Derrick is the Secretary of the Finance Sector Union of Australia, New South Wales Branch. He is prosecuting these proceedings pursuant to s106 of the Occupational Health and Safety Act 2000. 3 The defendant's business involves the operation of retail banking facilities within Australia, New Zealand and the Pacific Islands. It has 213 retail banking branches in New South Wales alone, including a branch at Avalon, on the Northern Beaches of Sydney. 4 The incident that gave rise to the offence was a robbery which occurred at the Avalon branch on 21 September 2004. Three male offenders entered the branch. The first male offender climbed onto the counter and over the Anti-Jump Barrier (AJB) and bulkhead, to the employee side of the counter. He also demanded access to the cash handling area. A second offender gained access to that area. A sum of money from a safe was taken. The second offender removed money from three teller drawers. In total, the three offenders escaped with approximately $25,000. 5 As a result of these events, the defendant was charged with an offence under s 8(1) of the Occupational Health and Safety Act 2000. In relation to that offence, it is alleged that the defendant: Failed to ensure the health, safety and welfare at work of all its employees, in particular, Helen Filatoff, Herbert (Nick) Saravia and Debbie Short whilst conducting banking operations at its Avalon branch at Avalon, Sydney, contrary to Section 8(1) of the Occupational Health & Safety Act 2000. 6 The particulars of that charge are: (a) The defendant, at all material times, employed a number of persons, including Helen Filatoff, Nick Saravia and Debbie Short to undertake banking duties on its behalf at its branch at Avalon, Sydney in the State of New South Wales. (b) The defendant, at all material times, failed to provide or maintain adequate plant so as to ensure the safety of the said employees, namely, adequately designed and installed anti-jump barriers that extended full height from the banking counters to the ceiling. (c) The defendant failed, in its risk assessment(s) to fully appreciate the risk of an offender climbing over the anti-jump barrier, having regard to the design of the anti-jump barrier and all the circumstances. (d) As a result of the said failure, Helen Filatoff, Nick Saravia and Debbie Short were placed at risk of injury.

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[7] During the Robbery: (a) the first offender sought to gain access to the secure cash handling area by getting over the top of AJB and bulkhead; (b) the first offender initially tried to climb the AJB using the WSSC bars but kept slipping as the bars would turn; (c) instead the first offender used his sneakers on the glass to push himself up and eventually over the AJB and bulkhead. He then jumped down from the top of the bulkhead to the floor, on the employee side of the counter thereby gaining access to the cash handling area; (d) while the first offender was attempting to climb the AJB, Mr Saravia activated the alarm at his work station; (e) Ms Filatoff observed that one offender was carrying a small handgun; (f) the Employees and customers (of whom there were approximately three or four) were instructed by the second and third offender to lie down on the floor and all complied; (g) the first offender instructed Ms Short to show him where the door was that divided the cash handling area and the public area - Ms Short complied; (h) the first offender pushed Ms Filatoff to the floor after she had walked out of her office; (i) having gained access to the cash handling area the first offender opened the locked employee entrance door and let the second offender into the cash handling area, the third offender remained in the customer area; (j) the first offender instructed Ms Short to open the safe (inside the strong room), he then pushed her in the back and shoulders and she subsequently used the keys in her possession to open her safe compartment; (k) the first offender removed a sum of money from Ms Short's safe compartment; (l) the first offender instructed Ms Short to open the other compartment in the safe (which was Mr Saravia's compartment); (m) Ms Short asked Mr Saravia for the keys to his safe compartment and he then handed them to her; (n) Ms Short walked back to the strong room with the first offender and opened Mr Saravia's safe compartment, the first offender then removed a pile of notes from that compartment; (o) the first offender instructed Ms Short to get money from Ms Filatoff. However Ms Short informed the first offender that as the manager Ms Filatoff did not have any money. At some stage Ms Short was pushed in the face by the first offender, who was wearing gloves; (p) the second offender removed money from three teller drawers; and (q) the offenders escaped with approximately $25,000. [8] Police immediately attended the Avalon branch after the Robbery but to date no one has been apprehended or charged for the Robbery. [9] The Employees: (a) were provided with trauma counselling on the day of the Robbery and two of the Employees were taken home after giving statements to the police; (b) did not sustain any physical injuries during the Robbery; (c) returned to work the day after the Robbery and had no time off; and (d) did not lodge any workers compensation claims in relation to the Robbery. [10] The Employees followed the appropriate procedure in responding to the Robbery.

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B. Prior to the Robbery [11] For a number of years prior to the Robbery the FSU and Westpac had been corresponding, and discussing in security work group meetings, security issues - including AJBs, their design and employee safety. As part of this: (a) on 2 February 1995, Michael Johnston, Head of Employee Relations at Westpac wrote to Mr Tony Beck, Joint National Secretary, Finance Sector Union ('FSU') about the Westpac Security Agreement. A copy of this letter is Annexure 1; (b) on 31 August 1998, the Informant, Secretary, FSU wrote to Russell Chandler, National Manager, Group Security, Westpac concerning branch security and bandits gaining access across counters. A copy of this letter is Annexure 2; (c) on 19 October 1998, Mr Chandler wrote to the Informant about branch security and the installation of AJBs. A copy of this letter is Annexure 3; (d) on 23 February 1999, the Informant wrote to Mr Chandler in relation to a robbery at the Gymea Branch. A copy of this letter is Annexure 4; (e) on 5 March 1999, the Informant wrote to Mr Chandler about a robbery at the Petrie Plaza Branch, Australian Capital Territory. A copy of this letter is Annexure 5; (f) on 12 March 1999, Brian Wright, National Manager (Rlg) wrote to the Informant about the Gymea and Petrie Plaza branches. A copy of this letter is Annexure 6; (g) in Autumn 1999 the FSU's article 'Beating the Bandits' appeared in Inside Finance. A copy of this article is Annexure 7; (h) on 24 June 1999, the Informant wrote to Mr Chandler about Westpac's retail counter AJBs. A copy of this letter is Annexure 8; (i) on 29 June 1999, the Informant wrote to Mr Chandler concerning an incident at the Liverpool Central Branch and AJBs. A copy of this letter is Annexure 9; (j) on 15 July 1999, Mr Chandler wrote to the Informant concerning AJBs. A copy of this letter is Annexure 10; (k) on 19 July 1999, Mr Chandler wrote to the Informant in relation to AJBs and their specifications. A copy of this letter is Annexure 11; (l) on 17 August 1999, the Informant wrote to Mr Chandler about the fitting of suitable AJBs in Westpac retail workplaces. A copy of this letter is Annexure 12; (m) on 3 December 1999, Mr Frost, Industrial Officer OHS, FSU, wrote to Mr Chandler about branch security and AJBs. A copy of this letter is Annexure 13; (n) on 17 December 1999, Mr Chandler wrote to the Informant in relation to Branch Security and AJBs. A copy of this letter is Annexure 14; (o) on 2 January 2001, Mr Chandler wrote to Anthony Beck, National Secretary, FSU about a security agreement between Westpac and the FSU. A copy of this letter is Annexure 15; (p) on 22 January 2001, Mr Frost wrote to Mr Chandler about an incident at the Figtree branch. A copy of this letter is Annexure 16; (q) on 29 March 2001, Mr Frost wrote to Mr Chandler in relation to a robbery of the Maroubra branch. A copy of this letter is Annexure 17; (r) on 9 April 2001, Mr Chandler wrote to Mr Frost in relation to the Maroubra Junction Branch. A copy of this letter is Annexure 18; (s) on 16 April 2001, Mr Frost wrote to Mr Chandler concerning a robbery at the Flemington Market's branch. A copy of this letter is Annexure 19; (t) on 10 July 2001, Mr Onley wrote to Mr Frost regarding workplace security and AJBs. A copy of this letter is Annexure 20; (u) on 20 January 2002, Mr Frost wrote to Mr Chandler in relation to branch security and AJBs. A copy of this letter is Annexure 21; (v) on 11 February 2002, Leslie Martin, General Manager, Westpac wrote to the Informant in relation to an AJB upgrade program. A copy of this letter is Annexure 22; (w) on 22 February 2002, the Informant wrote to Ms Martin in relation to an AJB upgrade program. A copy of this letter is Annexure 23; (x) on 16 May 2002, Mr Frost to Mr Onley in relation to a robbery at the Westpac Cronulla branch. A copy of this letter is Annexure 24; and (y) on 13 June 2002, Mr Onley wrote to Mr Frost in relation to the robbery of the Cronulla Branch. A copy of this letter is Annexure 25. [12] On 10 December 2003 Ms Filatoff, the Manager at Westpac's Avalon branch, telephoned Physical Security (a section of Westpac responsible for physical security matters) to report a concern raised by employees about the gap between the top of the bulkhead and the ceiling at the branch. [13] In December 2003, a member of Westpac Physical Security conducted an assessment of the Avalon branch in order to investigate the concern raised by Ms Filatoff. [14] During the assessment the employee from Physical Security expressed the view to the employees at the Avalon branch that there was little or no risk of anyone climbing over the gap between the top of the bulkhead and the ceiling because of the WSSC bars and the bulkhead.

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12 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account. 13 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]: ....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.' 14 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. 15 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646. 16 On the issue of foreseeability, the Full Bench in Capral also stated: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: ... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy.

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17 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 18 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c). 19 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure: ... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender. 20 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends . ... (emphasis added) 21 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]: ...The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice... 22 Overall, I observe nothing in Markarian that precludes me, properly in my view, from identifying a discount for the entry of an early plea of guilty. Additionally, to the extent that there are subjective and mitigating features relevant to the defendant, they are matters which also should be considered in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular s 21A(1) earlier referred to.

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29 As part of the documentary material presented to the court, the prosecutor provided evidence of a number of bank hold-ups at various branches through out New South Wales and the ACT between 1999 and 2002. The evidence provided by the prosecutor included some 23 letters exchanged between the FSU and the defendant from 1998 to 2002 discussing Security Work Group issues such as AJBs at various locations around New South Wales. A common element of many branch hold-ups had been counter jumping. 30 The Avalon branch was fitted with Anti-Jump Barriers (AJB). The exact date of the installation of the AJBs at the branch is unclear but it is obvious they were in place at least by 4 March 1998, as set out in the Security Work Group Minutes of the same date. 31 The AJB at the Avalon branch consisted of laminated glass that extended 1655mm from the counter to the underside of the bulkhead. The height of the bulkhead above the counter and including the AJB was 2005mm. There was a gap of 2490mm between the ceiling and the bulkhead and the ceiling was 5500mm off the ground. The AJB also had a vertical gap (known as the Chandler Gap) through the middle in order for tellers and customers to conduct transactions, with horizontal crossbars and bars on the side. The horizontal bars, called WSSC bars, braced the bars on the side and rotated if an offender attempted to climb on them. 32 In their consultative process with the FSU, the defendant emphasised that AJBs were not bullet resistant and that their prime objective was to act as a robbery deterrent. By themselves, AJBs will never make a branch robbery proof. Overall, the defendant had emphasised long before the incident at Avalon that security procedures were to be followed at all times in order to minimise harm to customers and employees in a hold-up scenario. That emphasis is supported by a letter from the defendant to the FSU dated 12 March 1999, which stated: In the preamble to procedures which all staff are required to be familiar with, and which is set out in Westpac's Administration Manual under "Site Security" we have indicated to staff: Experience has shown that physical barriers put in place to prevent hold ups, have not resulted in the elimination of them but rather the bandits have become more skilful and resourceful in their efforts to overcome them. There does seem to be a misconception by some staff that these barriers, particularly when installed in conjunction with fly up screens, will prevent all access. Bearing in mind that the fly up screens are in place within .7 of second after alarm activation, these barriers provide the delay tactic to permit staff to activate alarms. 33 Given all of the above and notwithstanding the security measures in place to deal with such an occurrence, the risk of a hold-up and breach of the cash handling area in a bank premises by an offender was foreseeable. The defendant has acknowledged this fact by its plea of guilty and in doing so has acknowledged the causal link between its breach and the risk to safety as particularised. 34 As was stated in Capral, the presence of foreseeability 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. (Lawrenson Diecasting at 476).

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41 In relation to the robbery at the Cronulla branch, the FSU wrote a letter to the defendant, dated 16 May 2002, expressing its concern: … However, we must stress that there is still a potential problem with the AJBs. Whilst they do extend well above the counter, the addition of the post and rails now clearly provides what is a simple and effective ladder that again may assist bandits gaining access over the counter. We strongly recommend that the AJBs extend all the way to the ceiling . (emphasis added) 42 The Avalon branch had new AJBs installed as part of the AJB upgrade program in 2002. The AJB heights were extended from 1100mm off the counter to the height of the bulkhead and the Chandler Gap was narrowed from 300mm to 150mm. Horizontal WSSC bars were also installed to the front of the AJB. 43 On 10 December 2003, Ms Filatoff, the manager of the Avalon branch expressed concern about the gap between the top of the bulkhead and the ceiling. In December 2003, in response to those concerns, a risk assessment was undertaken of the Avalon branch by the Physical Security division of the defendant. That assessment concluded that there was little to no risk of anyone climbing over the gap to gain access to behind the counter, because of the presence of the WSSC bars and the bulkhead. That assessment subsequently proved to be incorrect. Further, the defendant was aware, at least as early as 29 April 2002, that the WSSC bars could be used as a ladder to breach the area up to and including the bulkhead. 44 Given all of the above, the absence of an AJB that extended up to the ceiling at the Avalon branch clearly represented a risk to safety. As well, the consequences of a hold-up also represented a risk to safety where there was every chance of serious repercussions. As was stated in Capral at 650: 'a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences'. In isolation, the potential for 'serious consequences' is not conclusive of the nature and quality of the offence, but it is clear that such a factor may be considered when assessing the ultimate culpability of a defendant.

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48 Mr Maihi's affidavit set out that the defendant already had in place a number of security measures at the Avalon branch. However, simple remediation efforts such as the installation of a security grill between the bulkhead and ceiling could easily have been implemented. The defendant undertook to investigate the gap between the bulkhead and the ceiling soon after the incident and effected this change promptly. The defendant provided a guard until the installation of the grill was complete. 49 The defendant also took steps to identify and remedy the same problem at other branches around the country where the AJB went up to a bulkhead and there was a gap between the bulkhead and the ceiling. 50 Since the incident, the defendant has also upgraded its risk assessment procedure and developed a new Security Risk Framework. The new framework requires a routine security risk assessment every 12 to 24 months on every branch in its network, depending on the security classification of the branch. 51 In submissions, counsel for the informant noted the similar factual features of Geoff Derrick v ANZ Group Limited [2003] NSWIRComm 406 when compared with the matter now before me. That matter referred to an offence charged pursuant to s 8(1) of the Occupational Health and Safety Act 2000 against the ANZ Banking Group. The defendant in that matter pleaded guilty. Briefly, the relevant facts in that matter were similar to the one I am now dealing with. That is, in June 2002 robbers jumped over the AJB at Brookvale branch of the ANZ bank and effected a hold up. Like this matter, they were able to do so because of the gap between the top of the AJB and ceiling. 52 Given the height of the AJB at its branch at Avalon, counsel for the informant pointed to that matter as evidence that, as an industry wide issue, the defendant was clearly on notice by 2003 there was a distinct risk to safety that needed to be addressed. And yet, he said, they did nothing. This fact he said emphasised the objective seriousness of the offence, particularly, when taken together with the FSU's letter to the defendant in May 2002 following the Cronulla branch hold-up.

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I would agree with his Honour's view and consider that general deterrence is a factor to be considered in determining penalty. 62 In respect of specific deterrence, the Full Bench held in Capral at 644-645: 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 cases of offences under the Act. 63 In the present circumstances, considerations as to specific deterrence should be tempered against the defendant's longstanding and ongoing efforts to ensure a safe and secure workplace for its employees. Prior to the hold-up, the defendant had in place comprehensive occupational health and safety policies and security training. That much is evident by looking at the training records of Ms Short, Mr Savaria and Ms Filatoff, who had all attended Group Security Training annually since 2002. It is also supported by Mr Maihi's affidavit by reference to the defendant's consultative approach to work with the FSU to ensure safety in its workplace. As deposed by Mr Maihi, the defendant is the only banking institution that has a Joint Security Agreement with the FSU. Overall, Mr Maihi's evidence points to a defendant who heavily invests in workplace safety and continues to seek to do so and does so in cooperation with the FSU. The fact that it has pleaded guilty to the offence it has been charged with represents the defendant's acknowledgment that it had a lapse in judgment in its risk assessment as to the adequacy of the height provisions of the AJB installed at the Avalon branch. 64 The defendant is entitled to have taken into account the plea of guilty entered. In assessing the impact of the plea, the Court is guided by the decision of R v Thomspon; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. In this matter, I assess that discount at twenty five per cent. 65 There are also additional subjective features which the defendant is entitled to have taken into consideration in assessment of the sentence. I refer to the defendant's full cooperation with WorkCover in its initial investigation as well as with the prosecutor in this matter. The defendant has expressed remorse for any undue stress caused to employees or customers involved in the incident. As well, the defendant's strong commitment to occupational health and safety is also a positive factor to be taken into account. As counsel for the informant confirmed: It's accepted that this defendant has strong subjective features in its favour. … 66 Both the defendant and the FSU are to be commended for their cooperative efforts and commitment to ensuring a safe workplace for the defendant's employees.

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67 Considering all the subjective elements I have identified, a further discount in my penalty considerations is warranted. 68 The issue of moiety remains to be dealt with. The prosecutor has made an application pursuant to s122(2) of the Fines Act 1996 (NSW) for an order that a moiety be paid to him of one half of the fine imposed. 69 As was stated in my judgment in Peter Presdee v Commonwealth Bank of Australia [2005] NSWIRComm 389, there have been a number of first instance decisions of this court that have previously canvassed the issue of the allocation of a moiety of the penalty imposed to individuals other than the statutory authority of WorkCover within the scope of s122 of the Fines Act 1996. See the decision of Walton J Vice-President in O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) [2003] NSWIRComm 303 at [185]-[194]; Haylen J in Coombes v Patrick Stevedores Holdings Pty Limited [2005] NSWIRComm 56 at [101]-[111] and Boland J in Geoff Derrick v ANZ Group Limited (No. 2) [2005] NSWIRComm 145 at [3]-[25]. In each of those cases, the Court ordered a moiety of one half of the penalty imposed to be paid to the prosecutor. 70 The cases referred to represent an exhaustive consideration of this issue. I do not propose to repeat it in this judgment. Suffice to say, I concur with the overall conclusion in those judgments that the prosecutor in this matter falls within the scope of s122 of the Fines Act 1996 and that the Court has the discretionary power to order a moiety in his favour. 71 The informant did not tender an affidavit for the application of moiety and the informant, Mr Derrick, was called upon to give oral evidence. In giving his evidence, Mr Derrick stated that he was seeking 50% of the penalty imposed and gave a personal undertaking to remit all funds ordered to be paid as the moiety to the FSU. He stated that the moiety would be allocated in one-third equal shares for the following purposes:

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