Inspector Ankucic v State of New South Wales

The charge 7The State of New South Wales (NSW Police Force) ("the defendant") in an amended application for order, was charged with a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the OHS Act"), by failing to ensure the health, safety and welfare at work of all its employees, in particular Senior Constable Wilson and Senior Constable Beverly. 8The particulars of the charge were: (a) The risk to the health, safety and welfare at work of Mr Wilson and Mr Beverly was the risk of them being struck by a motor vehicle or by motor vehicles while conducting pre-planned speed enforcement activity. (b) The defendant failed to implement and enforce a Standard Operating Procedure or other work procedure in relation to pre-planned stationary speed enforcement activity on roadways where the sign-posted speed limit was above 80km/h that precluded officers, including Mr Wilson and Mr Beverly, entering the roadway for the purpose of signalling to driver(s) of motor vehicle(s) to move to the side of the roadway and bring their vehicle(s) to a halt. (c) The defendant failed to enforce its 2004 Standard Operating Procedure for stationary speed enforcement (lidar) operations ("the 2004 SOP") in that it failed to ensure the provision of as much warning as possible to road users passing through or who were to be stopped of the Police presence at the site by means of: a. ensuring the positioning of the Police vehicle on the roadway at the site; b. ensuring the utilisation of the roof message bar and/or warning lights of the Police vehicle at the site; c. ensuring the utilisation of message boards or other signs at the site. 9The defendant pleaded guilty to the offence as charged. I was satisfied on the evidence, that the defendant was guilty of the offence as charged, and that it was appropriate for the plea of guilty to be entered. Having heard the evidence and submissions from the parties, I proceeded to convict the defendant of the offence, so as to enable the prosecutor to provide to the court victim impact statements from members of Senior Constable Wilson's family and also from his fiancée at the time, Ms Kylie Kerr. It follows, therefore, that this judgment is concerned with the question of penalty.

Prosecutor's evidence 10Mr R Reitano of counsel, who appeared for the prosecutor, tendered an agreed statement of facts ("ASF") which, excluding formal parts read: ... 3. The defendant is an emanation of the Crown in the Right of the State of New South Wales. 4. Highway patrol units are based in various Local Area Commands ("LAC"). 5. As at November/ December 2006 the highway patrol unit at the Brisbane Water LAC consisted of 22 officers under the supervision of 3 sergeants. 6. The Traffic Services Branch of the defendant establishes policy and issues guidelines in relation to the conduct of traffic operations. The Work Being Performed 7. On 11 November 2006 2 serving officers based in the Brisbane Water LAC highway patrol of the defendant, Senior Constable Peter Gordon Wilson ("Wilson") and Senior Constable Scott William Beverly ("Beverly"), were conducting pre-planned stationary speed enforcement activity at a site located on the F3 freeway (northbound) near Somersby ("the site"). 8. The F3 freeway at the location of the site consisted of 3 lanes of traffic in each direction. 9. The site was a longstanding location commonly used by the defendant for such activity. 10. At all material times the posted legal speed limit at the site was 110km/h. Traffic in the vicinity of the site would typically travel at 130km/h and regularly travel at speeds in excess of 150km/h. Vehicle speeds in excess of 200 km/h had been recorded at the site. The site was colloquially known to officers of the defendant as "the flight deck" in recognition of the fact that traffic often travelled at very high speeds along it. On 11 November 2006 Wilson and Beverly issued infringement notices with one for a speed of approximately 146 km/h in the vicinity of the site. 11. The speed enforcement activity involved Wilson and Beverly operating a "ProLaser III" laser-based "LIDAR" speed measurement device. 12. On 11 November 2006 Wilson and Beverly had commenced work at 4pm. They were tasked to perform mobile radar activity at the site from 4-30pm to 6-30pm using Lidar number LA228. 13. Wilson and Beverly parked Police highway patrol vehicle call sign "BW 202" adjacent to the eastern edge of the F3 freeway 91.2 metres south of Roads and Traffic Authority emergency vehicle crossing sign X32. From this location Wilson and Beverly had a clear view of northbound traffic (heading towards them) for a distance of between 800 and 1000 metres. 14. On 11 November 2006 Wilson walked onto the roadway to indicate to motorists detected of speeding to stop while holding a sign with the words "STOP POLICE" and then direct the vehicle to a stopping area. In stopping traffic on 11 November 2006, Wilson had stepped onto the roadway at least as far as the middle of lane 2. 15. Beverly stood near the edge of the roadway without the abovementioned sign and directed the targeted vehicle to stop by pointing at its driver. Beverly did not walk onto the roadway - he regarded such a practice as unsafe. The Incident 16. At approximately 6.35pm Beverly was writing an infringement notice in respect of a vehicle that he had stopped for travelling at an excessive speed while Wilson was operating the Lidar unit. Wilson then placed the Lidar on the bonnet of BW 202 before picking up the "STOP POLICE" sign. A maroon Ford Fairmont vehicle drove past Wilson who then stepped two thirds of the way into lane 3 (the easternmost lane) of the roadway. 17. Wilson raised the "STOP POLICE" sign with his right hand and pointed with his left hand in an apparent attempt to stop an unidentified vehicle. A silver Holden Commodore vehicle travelling at 110 km/h in lane 2 drove past Wilson. 18. A two vehicle collision then occurred. A dark green Mitsubishi Pajero 4 wheel drive vehicle travelling in lane 3 and driven by a P- plater braked heavily and was struck from behind by a black Toyota Hilux dual cab utility 4 wheel drive vehicle which caused the Pajero to collide with Wilson before spinning 180 degrees. Wilson had commenced running at that time towards the median strip in an attempt to avoid being hit. At the time of the collision Wilson was on the (eastern) fog line about a car length in front of BW 202 and 88.8 metres south of X32. He was thrown 2 to 3 metres into the air by the force of the impact and landed in bushes in the median strip a distance of approximately 10.5 metres from the point of impact. 19. Wilson received fatal injuries. 20. Neither the Pajero nor the Hilux suffered from any mechanical defect or component failure that contributed to the accident. 21. A subsequent check of the Lidar unit by Beverly indicated that the last vehicle speed detected prior to the incident was 133 km/h with such speed detected at a distance of 239 metres. 22. At the time of the incident the traffic density at the site was medium. The System of Work -- Standard Operating Procedure, LIDAR OPERATOR'S HANDBOOK & Lidar Record Sheet 23. The defendant issued a Standard Operating Procedure ("SOP") for stationary speed enforcement (LIDAR) operations in August 2004 ("the 2004 SOP"). 24. Since at least 2004, the Brisbane Water LAC of the defendant had in force a document entitled Brisbane Water Stationary RBT/ Radar/ Lidar Record Sheet ("the Lidar Record Sheet"). 25. Compliance with the requirements of the 2004 SOP and the Lidar Record Sheet was mandatory. Officers in the Brisbane Water LAC highway patrol were provided with copies of the documents and directed to comply with them. Presence of officers on the roadway 26. Both the 2004 SOP and the Lidar Record Sheet required officers of the defendant to proceed onto the roadway for the purpose of directing oncoming traffic to stop and proceed to a stopping site. 27. Both the 2004 SOP and the Lidar Record Sheet (with the exception of the final dot-point) stated: Multi-laned road: It is imperative to control the traffic flow in all lanes when working in multi-laned situations. Prior to proceeding onto a multi-laned road: All Police directions/ signals should be clear and precise. Any vehicles in lane one should be brought to a stop prior to proceeding onto the roadway (lane 2). Ensure the driver is aware that they must not proceed until directed to do so. Police are to repeat this process (lane by lane) until they arrive at the desired lane where the selected vehicle is travelling. Direct the selected vehicle into the stopping site, in accordance with the SOP's. Exit the roadway by releasing vehicles from their stopping point's (sic), one lane at a time. Return to the area that provides 'protection' from oncoming vehicles 28. Further, both the 2004 SOP and the Lidar Record Sheet stated: Personnel placement Stopping Police: where appropriate in a well-lit area of roadway within the stopping site. Operating Police: where appropriate in a well-lit area of roadway within the 'corridor of safety' provided by the Police Vehicle, or suitable side street, stopping bay, etc. ... Stopping Technique Safety should be the prime consideration when attempting to stop vehicles. Use extreme care and discretion when crossing lanes when giving directions/ signals to other traffic. 29. The practice customarily applied in the Brisbane Water LAC was that officers, upon entering the roadway, would stand either in the middle lane or the lane closest to the centre median for the purpose of indicating to the vehicle they wished to stop. 30. The placement of BW 202 on the eastern (rather than the western) edge of the roadway was inconsistent with the 2004 SOP. The placement of vehicles in that location was however common practice in the Brisbane Water LAC. Alternative to officers being on the roadway 31. The 2004 SOP required consideration of alternatives to the above method for stopping vehicles travelling at high speed. In particular, the 2004 SOP contemplated the use of a motor vehicle "if available and/ or operationally suitable" for such purpose. 32. The 2004 SOP also stated: NOTE: Where speeds are detected above 140 km/h, any vehicle stop at the site would require further assessment. This reassessment may involve alternate stopping methods such as the use of a stop vehicle where available or appropriate. 33. A Roads and Traffic Authority emergency crossing (X31) between the northbound and southbound lanes located approximately 500 metres south of the site would also be used by officers of the defendant to conduct speed enforcement activities by means of detecting from within a stationary Police vehicle vehicles travelling at excessive speeds and then proceeding to chase and stop such vehicles. 34. A Lidar device could be used from inside or outside a motor vehicle. The "exclusion zone" 35. Both the 2004 SOP and the Lidar Record Sheet required the establishment of an "exclusion zone" at the site. Such a zone was designed "to provide a safe slowing down area for vehicles prior to stopping site-taking into account reaction times and vehicle stopping distances." The exclusion zone was to be "calculated from the point at which Police require a particular vehicle to come to a stop." 36. The 2004 SOP sets out various vehicle speeds and the length of the exclusion zone necessary when stopping vehicles travelling at such speeds. The Lidar record sheet however defines the length of the exclusion zone by reference to the speed limit for the roadway concerned. 37. The 2004 SOP states: For safety reasons, Exercise CAUTION if a vehicle falls within the 'Exclusion Zone' prior to signalling it to stop 38. The Lidar Record Sheet states: DO NOT signal a driver to stop if they have already entered the exclusion zone ... Police attempting to stop a vehicle within the Exclusion Zone should use caution and utilise available protection 39. Beverly's view was that once a vehicle had gone past the exclusion zone you would not stop it. Site assessment 40. A local instruction to highway patrol officers in the Brisbane Water LAC and the Lidar record sheet required that a site assessment be conducted before the commencement of Lidar stationary speed enforcement activity. The Lidar Record Sheet was a document to be completed as part of a risk assessment before the commencement of stationary speed enforcement activity using a Lidar device. The Lidar record Sheet was to be completed by the operator of the Lidar device. 41. The Lidar record sheet for the site on 11 November 2006 was prepared by Beverly after the incident. 42. Officers, including supervising sergeants, in the Brisbane Water LAC highway patrol were not provided with any instruction or training in relation to how to conduct site assessments. The only training received by such officers in relation to risk management was in general duties training. 43. As early as January 2006 the Brisbane Water LAC was aware that site assessments were not being conducted each time Lidar stationary speed enforcement operations were conducted. 44. The only Lidar record sheets produced by the defendant (pursuant to a notice issued under section 62 of the Occupational Health and Safety Act issued in the course of the investigation) in respect of the site for the period of 12 months prior to 11 November 2006 are for the following dates: 7 December 2005, 12 January 2006, 22 January 2006, 1 April 2006, 30 May 2006, 3 July 2006, 22 July 2006 and 5 August 2006. 45. The defendant did not have any policy or procedure requiring the provision of training or information to officers in relation to the conduct of Lidar stationary speed enforcement site assessments. A directive from the Commander of the Traffic Services Branch of the defendant on 27 July 2004 permitted the conduct of annual site assessments (as required by the 2004 SOP) "by experienced officers without training". 46. The defendant did not have any policy or procedure requiring the review or audit of site assessments or of officers' performance in relation to conducting such assessments. PLACEMENT OF BW 202 47. The 2004 SOP states: Field of vision: Any object or feature which restricts or limits a driver's visibility of the site or Police operating within the site. These may include: Trees and shrubs, poles/ signs, curves, etc. As much warning as possible is to be provided by police to road users passing through or who are to be stopped at the site. 48. Both the 2004 SOP and the Lidar Record Sheet state: Vehicle Placement At all times a fully marked Police vehicle is to be positioned on the roadway at the stopping location to provide early warning & corridor of safety. The roof message bar and/ or warning lights of the police vehicle are to be utilised. 49. The 2004 SOP identifies warning lights and message bar (if available) as part of the equipment to be used in speed enforcement (Lidar) operations. Further, the 2004 SOP states that additional message boards/ signs and additional lighting where available "should be utilised where appropriate." 50. In accordance with usual practice in the Brisbane Water LAC, BW 202 was deliberately concealed behind dense vegetation to restrict its visibility to oncoming motorists. 51. In accordance with usual practice in the Brisbane Water LAC, no signs, vehicle lights, roof bar or other warnings were provided to oncoming motorists of the fact that the defendant was conducting speed enforcement operations at the site and of the possible need to slow down and/ or stop. 52. In accordance with usual practice in the Brisbane Water LAC, no signs, vehicle lights, roof bar or other warnings were provided to oncoming motorists of the possible presence of Wilson and Beverly on the roadway at the site. 53. Two "radar" signs were present at the site. One of these signs was positioned near the front wheel of BW 202, the other near the rear wheel. Both signs faced across the roadway such that they were not visible to oncoming traffic. 54. Brisbane Water LAC had chosen the site as a location for the conduct of stationary speed enforcement activity in the knowledge that motorists would travel at excessive speed until approaching a fixed speed camera located one-and-a-half to two kilometres north of the site. 55. Of the 19 motorists interviewed during the WorkCover investigation who were involved in the collision, were witnesses thereto or who were issued with infringement notices for speeding by Wilson or Beverly on 11 November 2006 prior to the incident, 17 did not see BW 202 or the officers prior to being directed/ required to stop. No motorist interviewed saw any signs, vehicle lights, roof bar or other warnings of a Police presence. 56. These abovementioned 17 motorists were unaware that Police were conducting operations that might require them to stop or might involve Police officers being on the roadway. 57. Of the two motorists interviewed in the course of the WorkCover investigation who were alert to the Police presence, one was a passenger in a vehicle travelling in the westernmost lane of the freeway. This passenger saw the front left fender and wheel of a white car which she surmised to be a Police vehicle. This passenger was a local inhabitant who was aware that the defendant often operated stationary speed enforcement operations from the site and who as a result of having been contacted shortly prior to the incident and advised that the defendant was at that time conducting such operations was looking out for a Police presence. The other motorist who was aware of the Police presence had been a frequent user of that section of the F3, knew that Police frequently conducted speed checks at the site and was actively looking out for Police conducting such checks. REACTION OF MOTORISTS 58. A number of the motorists interviewed during the WorkCover investigation who were involved in the collision or who were issued with infringement notices for speeding by Wilson or Beverly on 11 November 2006 prior to the incident indicated that upon being confronted without warning by a police officer on the roadway they had to brake heavily, had difficulty maintaining control of their vehicle during such braking (including due to wheels locking and steering pulling to one side), were uncertain as to the officer's intentions, had to take evasive action to avoid the officer, reacted in an uncontrolled and/ or panicked manner or were unable to stop prior to reaching the officer (who had by then vacated the roadway). Such actions at times resulted in near-collisions with other vehicles, including as a result of vehicles travelling behind them also having difficulty stopping. 58. The driver of the Pajero vehicle that struck Wilson was unsure whether Wilson was indicating to her, the vehicle in front of her or the vehicle behind her to stop. 60. Some motorists directed to stop by Wilson for speeding prior to the incident almost collided with him in the course of stopping. Failure to Provide Instruction, Training and Supervision 61. The defendant provided Beverly with a copy of the 2004 SOP but provided no training or other information to him in relation to it. 62. Beverly received no formal training from the defendant regarding how to set up and operate a site in accordance with the 2004 SOP. 63. Beverly received no official training from the defendant in relation to risk assessment/ the identification of hazards associated with on-road speed enforcement. 64. Beverly received no training from the defendant that enabled him to conduct a site assessment to determine if the site is suitable for stationary Lidar operation. 65. Beverly received no instruction or training from the defendant in relation to the conduct of a roadside safety briefing. 66. Beverly had received training in the Highway Patrol Education Program which consisted of radar theory and use, how to stop vehicles, the corridor of safety and to be aware of where to stop vehicles. Prior Incidents/ IDENTIFICATION OF RISK 67. On 18 May 2000, Mark Wayne Johnson ("Johnson"), a sergeant of police at the time and Glenn John Hartley, then a senior constable, were conducting a speed detection and enforcement operation on Budgewoi Road at Noraville using a laser speed detection unit set up on the side of the road. In the course of that operation Johnson detected a vehicle exceeding the speed limit. Johnson stepped onto the roadway and signalled the driver of the vehicle to stop. The vehicle continued to proceed towards Johnson, increasing its speed as it did so. Johnson tried to avoid the vehicle but it swerved towards him and the front right corner of the vehicle struck Johnson throwing him into the air and causing serious injuries. The driver of the vehicle was convicted of dangerous driving occasioning grievous bodily harm. 68. On 30 August 2003 Beverly was struck by a motor vehicle while conducting stationary speed enforcement duties using a "Lidar" device at a location approximately 100 metres north of the site. Beverly sustained injuries that included a broken right tibia and fibia that required surgery, necessitated him being off work for 6 months and left him with a permanent disability. 69. The incident involved Beverly stepping into lane 3 of the F3 freeway to indicate a vehicle to stop before moving back to the breakdown lane. The vehicle did not stop. However another vehicle braked to stop and a third vehicle following behind braked and took evasive action of swerving into the breakdown lane hitting Beverly. 70. As a consequence of the abovementioned incident in 2003, Beverly's method of working changed inasmuch as subsequently he would very rarely step out into the operating lanes of a roadway to stop traffic, preferring to give directions to offending drivers by standing in the breakdown lane and pointing at them. 71. Following the 30 August 2003 incident the defendant for a period of time did not permit the site to be used as the location for stationary speed enforcement activity. The site was however subsequently deemed suitable and operations recommenced. 72. On 28 May 2004 Deputy Commissioner Madden issued a direction to the defendant's officers as follows: In particular police are not to step onto a carriageway to stop vehicles. 73. The abovementioned direction followed delivery that day of judgment by Boland J (as he then was) of the Industrial Court in a prosecution of the defendant for breach of the Occupational Health and Safety Act 1983 arising out of the 18 May 2000 incident involving Johnson. The direction was subsequently revoked by Assistant Commissioner Goodwin on 7 June 2004. 74. On 7 February 2005 Senior Constable Michael McLoon ("McLoon") was conducting Lidar speed enforcement duties on Parramatta Road at Five Dock. After his partner, Sergeant Peter Robins, detected a car travelling at excessive speed, McLoon stepped on to the roadway to attempt to signal the driver to stop. The vehicle McLoon was attempting to stop swerved around a car that had been previously stopped for speeding and struck the officer. McLoon subsequently spent 2 months off work. 75. On 1 April 2006 a motor vehicle accident occurred at the site in the course of officers of the defendant conducting stationary speed enforcement activity. A heavy rear-end collision resulted in a car spinning in a clock-wise direction from lane 2 to the Eastern break-down lane. The defendant subsequently identified possible confusion by the driver of a third vehicle in relation to the vehicle being targeted by Police. 76. The defendant dealt with an allegation that on 12 July 2006 an officer from the Brisbane Water Highway Patrol was running onto the middle lane of the F3 freeway at Ourimbah Hill with a hand-held radar causing motorists to brake suddenly and swerve. The defendant's internal report in relation to this incident records the officer concerned stating that "...he was operating the speed measuring device (lidar) in accordance with NSW Police guidelines..." albeit that the officer denied that any motorists were forced to brake heavily. None of the motorists issued with infringement notices by the officer involved were interviewed. On 10 August 2006 the defendant determined to take no further action in relation to this incident. 77. On 3 November 2006 a motorist contacted Wyong Police station and the highway patrol office of the Brisbane Water LAC to complain about the conduct of a police officer at the site earlier that day. The motorist had witnessed 2 vehicles being stopped by an officer who stepped out into lane 3. The motorist nearly collided with one of the vehicles as it swerved dramatically into the lane in which his vehicle was travelling (lane 2) leaving a distance of only one car length in front. The motorist expressed concern to the defendant about what he regarded as the dangerous manner in which speeding vehicles were being stopped and expressed a concern that someone could have been killed as a result. Post- Incident 78. Following the Wilson incident, the defendant ceased out-of-vehicle Lidar speed enforcement operations. The only Lidar work performed was conducted from within Police vehicles. In the event of a speed detection, the Police vehicle would follow the offending vehicle before stopping it and issuing an infringement notice. This manner of operation remained in place until the completion of a state-wide review of the standard operating procedure for Lidar work by the defendant's Traffic Services Branch ("TSB"). 79. After consultation with WorkCover the TSB of the defendant issued a revised standard operating procedure for stationary speed enforcement ("the 2007 SOP") in March 2007. Each officer in the Brisbane Water LAC highway patrol has been provided with a copy of the 2007 SOP and a copy placed in each suitcase containing Lidar equipment. 80. Training in relation to the 2007 SOP was provided to some officers of the defendant. As at June 2009, not all officers of the defendant conducting highway patrol work had received such training. 81. The 2007 SOP prohibits officers conducting stationary speed enforcement operations using Lidar devices from entering the roadway on foot in speed zones that exceed 80 km/h. 82. From approximately January 2008, the defendant has required that any stationary speed enforcement activities conducted on major highways be conducted from within a motor vehicle. In the event of a speeding vehicle being detected, the Police vehicle is to follow the offending vehicle before stopping it and issuing an infringement notice to the driver. 11Mr Reitano also tendered the prosecutor's tender bundle which contained the following documents: (i) 17 photographs taken by Inspector Graham Wilcox on 14 November 2006; (ii) Standard Operating Procedures - Stationary Speed Enforcement - (LIDAR) Operations August 2004; (iii) Standard Operating Procedures - Stationary Speed Enforcement - LIDAR & RADAR March 2007; (iv) Brisbane Water Stationary RBT/RADAR/LIDAR Record Sheet; (v) Brisbane Water Stationary RBT/RBT Truck Record Sheet dated 11 November 2006; (vi) Sketch of Senior Constable A Kraeft (dated 24 April 2007). 12Counsel also tendered the following correspondence: (i) Letter from Mr Rick Bultitude, Acting Industry Team Manager, Government & Rural Teams, WorkCover New South Wales to Chief Superintendent John Hartley, Commander, Traffic Services Branch of the defendant dated 1 November 2004. The purpose of the letter was to provide comment on the defendant's updated "NSW Police Service Standard Operating Procedure for Stationary Speed Enforcement (LIDAR) and Random Breath Testing (RBT) Operations". Relevantly, Mr Reitano highlighted the following which was included in the letter: WALKING ONTO ROADWAY The Procedures create the impression that it is still established practice for officers to walk onto the road in front of oncoming traffic (and in particular across multi-lane roads) when conducting LIDAR and RBT operations. This high-risk practice should not be presented as the only option when attempting to stop a vehicle travelling on a muli-lane road. Other methods of stopping vehicles in this situation need to be explored and discussed in the Procedures. (ii) Letter from Mr Bultitude to Chief Superintendent Hartley dated 24 May 2005. 13The letter to Chief Superintendent Hartley dated 24 May 2005 was in respect of a meeting held between WorkCover New South Wales ("WorkCover") and the defendant regarding the updated NSW Police Service Standard Operating Procedures ("SOPs") for both Stationary Speed Enforcement (LIDAR) and Random Breath Testing (RBT) Operations. 14Relevantly, as highlighted by Mr Reitano, WorkCover advised: The documents appear to create the impression that it is still an established practice when officers are conducting LIDAR and RBT operations to walk onto the road in front of oncoming traffic and in particular across multi-lane roads. This activity, though identified as high risk in the documents, should not be the only option preferred when attempting to stop a vehicle travelling on a multi-lane road. Other methods of stopping vehicles in this situation need to be explored and discussed in the document. 15Counsel also provided a certificate of prior convictions. It disclosed that the defendant has seven convictions. Reference will be made to some of these convictions later in this judgment.

Defendant's evidence 16Mr P Bodor QC, who appeared with Mr MS Spartalis of counsel for the defendant, read an affidavit of John Douglas Hartley, who is an Assistant Commissioner of Police and Commander of the Traffic and Highway Patrol Command of the defendant. 17Assistant Commissioner Hartley set out his work history and experience with the defendant and explained that for operational purposes, the defendant is divided into a number of different commands. 18These include a number of Local Area Commands ("LAC"), which are established in respect of defined geographical areas. 19There are also a number of specialist commands comprised of units with targeted roles, such as the Traffic and Highway Patrol Command which was created in December 2011 and replaced the former Traffic Services Branch. 20Assistant Commissioner Hartley detailed the work carried out by the Traffic and Highway Patrol Command. Its purpose is to provide quality road safety and road traffic policing services. 21As at 11 November 2006, the Brisbane Water Highway Patrol had an authorised strength of 3 Sergeants and 19 Constables. It was part of the Brisbane Water LAC and therefore not part of, or under the direct command and control of the Traffic Services Branch at the time of the incident. 22The Assistant Commissioner set out the systems and procedures in place prior to the incident stating: [28] At the time of the Incident NSWPF had established policies and procedures in place, aimed at ensuring the health, safety and welfare at work of its officers. These polices and procedures were, and are, designed to be consistent with the requirement to control risks to health and safety through risk management, including elimination, and where elimination is not reasonably practicable, minimisation. [29] In general terms, however, NSWPF seeks to manage risks at a local level. That is, all commands within the NSWPF identify and manage local risks using the Command Management Framework (CMF). The CMF is a risk based, self assessment process focused on compliance and is based on the Australian Business Excellence Framework and the Australia/New Zealand Risk Management Standard AS/NZS 4360:2004. It encourages the identification of local risks and the development of locally relevant process controls. Management of risk relies upon experienced and trained personnel contributing to, and developing, risk management strategies, and constantly revisiting those strategies, as incidents and corporate knowledge evolves, in an ever changing workplace that is impacted upon by personnel, budgetary, policy and technological change. [30] All commands are required to adopt and adapt the CMF to their own needs and are supported by the Performance Improvement & Planning Command in its implementation. [31] As at 11 November 2006, each officer had access to the NSWPF intranet and was expected as part of their daily duty, to access and inform themselves of all commands, directives and amendments to procedures relevant to their daily duties. [32] During the training stage, serving officers were, and are, first introduced to these policies and procedures (in the form they are in at the relevant time) during their time at the Goulburn Police Academy as part of their assessable course content. In order to graduate, they are required to exhibit performance in accordance with the requirements of those policies and procedures, among other things. [33] Where new technology, or legislation was, or is, introduced, or changes to existing policies and procedures etc were, or are, introduced, serving officers are made aware of these by email, shift briefings or depending upon the complexity involved, by face to face training. [34] That awareness and training can take various forms depending upon the nature of the new policy or changes to be introduced, and includes the electronic circulation of written advice to all effected police, the creation and delivery of Six Minute Intensive Training packages (further explained later - see from paragraph 98 and on), the creation and delivery of face to face training, or through inclusion in the Mandatory Continuing Police Education Program. [35] In addition to these ongoing updates, serving officers would, or would have, also received additional instruction in the event that they sought to move into more specialist areas, which required specialist training; or participated in refresher training. 23Assistant Commissioner Hartley explained the workings of LIDAR speed detectors and LIDAR speed enforcement operations. The experience of the defendant, together with road safety research and anecdotal feedback, according to the Assistant Commissioner, was that the specific and general deterrent effect was greater where a speeding motorist is pulled over, or observed to be pulled over, rather than where a motorist received an infringement notice, sometimes several weeks later in the mail. 24As at 11 October 2006, approximately 930 of 14,500 sworn officers of the defendant, were authorised to perform LIDAR speed enforcement. 25Officers can not perform LIDAR speed enforcement unless they are authorised to do so. In order to become authorised an officer must: 43.1 have completed their initial training, which is a minimum of twelve months, 43.2 have had three years service in the field, 43.3 have passed assessment, 43.4 have completed and passed a twenty five week training course containing practical and academic instruction, and 43.5 have completed a three week speed measuring device operator's course, and passed an examination on that component. 26Assistant Commissioner Hartley stated that as at 11 November 2006, the applicable SOPs for conducting stationary speeding enforcement ("SSE") operations (including the use of LIDAR) were the 2004 Standard Operating Procedures Stationary LIDAR and RADAR Operations, August 2004 ("2004 SOPs"). 27The Assistant Commissioner referred to a judgment of this court in Inspector Covi v The Crown in the Right of the State of NSW (NSW Police) [2004] NSWIRComm 128, which related to a prosecution brought pursuant to s 15(1) of the Occupational Health and Safety Act 1983 ("the OHS Act 1983") (now s 8(1) of the OHS Act). The prosecution concerned a police officer who was struck by a vehicle while carrying out roadside speed detection and enforcement duties. This judgment was delivered on 28 May 2004. On that day, Assistant Commissioner Hartley forwarded a memorandum to all sworn members of the defendant by internal electronic mail indicating that an urgent review of instructions to police officers when dealing with on-road traffic enforcement activity was being undertaken and pending the outcome of that review the following instructions were to apply: When performing on road traffic enforcement particularly stationary LIDAR or RBT operations officers are to ensure they comply with current SOPs. In particular police are not to step onto the carriageway to stop vehicles and are to use barriers in the form of police vehicles, Armco railing or similar to ensure their safety. At all times police should ensure that there is an escape route in the event of a vehicle losing control (emphasis added). 28A copy of the email, together with the 2004 SOPs were annexed to the affidavit. 29On 1 June 2004, Assistant Commissioner Hartley attended a meeting at WorkCover's Gosford office with senior management from WorkCover, including Mr Bultitude, the manager for government and rural teams. He tabled the then current 2001 SOPs and the SOPs for random breath testing. The meeting concluded with agreement in principle on revisiting the 2001 SOPs and that further consultation should occur. 30On 7 June 2004, Assistant Commissioner Hartley issued a further memorandum through internal electronic mail for the information of all sworn police officers. This memo outlined consultation which had taken place with the WorkCover and that revised SOPs would shortly be published, which provided clarification with respect to operational aspects of conducting "planned stationary, on-road traffic enforcement" which must be carried out in addition to the requirements of the current SOPs. 31Stationary Speed Enforcement ("SSE") SOPs and Police Hand Signal SOPs were circulated by Statewide internal email on 28 July 2004, together with a suggested site assessment format. Copies of these emails were annexed to the affidavit. 32In addition to these communications, the 2004 SOPs were posted and available on the defendant's intranet from August 2004 to 11 November 2006. 33Assistant Commissioner Hartley understood that SOPs were also available in hard copy in the Brisbane Water Highway Patrol office. 34The 2004 SOPs required that the sites used to conduct LIDAR operations were suitable to conduct SSE LIDAR operations in accordance with the SOPs and required (among other things) that: 59.1 Police conduct site assessments of proposed Lidar operations sites, 59.2 An 'exclusion zone' be established for each site (ie an exclusion zone of 198 metres should be set for vehicles travelling at 140kph), 59.3 Police use illuminated stopping devices, 59.4 Clear signals be given to vehicles, 59.5 Police be placed in well-lit, suitably protected positions, 59.6 Police vehicles be placed in visible positions and that the roof bar or warning lights, or both, be illuminated, 59.7 Care be taken not to select a vehicle to stop that was being too closely followed by another, and 59.8 A site supervisor (the senior officer present performs the role of site supervisor) control the site. 35The 2004 SOPs required an annual inspection to be conducted. The site assessment forms were intrinsically self-explanatory, so no specialised training was required. 36Rather than conducting an annual inspection and assessment of each site, Brisbane Water Highway Patrol implemented their own site assessment form - which provided that site assessments could be conducted on each occasion that speed enforcement work was to be performed. 37Assistant Commissioner Hartley detailed the training provided to Highway Patrol officers in respect of the use of LIDAR equipment. 38The training comprised a course which included practical and theoretical training in respect of vehicle stopping techniques, including the use of lights and siren, establishing a corridor of safety, constant observation of the occupants of the vehicle and awareness in respect of where to stop a vehicle. 39Highway Patrol officers were also taught how to conduct safe vehicle stops for stationary LIDAR speed enforcement "on the job", through working with more senior Highway Patrol staff, and from feedback provided by more experienced officers/supervisors. 40Highway patrol officers were also provided with "on the job" training in respect of completing a site risk assessment in accordance with the SOPs through training provided by their supervisors and by observing other fellow officers. 41All officers were required to undergo compulsory computer assessment tests. Completing the compulsory assessment demonstrated that they maintained their skill levels and were conscious of their obligations in conducting SSE. These tests included operation of RADAR and LIDAR equipment. Pay increments and allowances were, and are, dependent on satisfactory completion of these assessment tests. 42Assistant Commissioner Hartley described the LIDAR operations at the Brisbane Water LAC as follows: 67. All Highway Patrol officers based out of the Brisbane Water LAC had completed the Highway Patrol training course. Senior Constable Wilson and Beverley had both been HWP officers since 2002. A review of their service records indicates that they had adequate and appropriate training. 68. In addition, a performance management scheme was conducted between the sergeants of Brisbane Water Highway Patrol to identify any further training needs or requirements in respect of officers attached to Brisbane Water Highway Patrol. 69. I understand that the sergeants of Brisbane Water Highway Patrol regularly held briefings for Highway Patrol officers under their command where they discussed any changes to standard operating procedures, amongst other things. The performance by those officers of their duties was also assessed by their supervisors, having regard to the requirements of the relevant NSWPF policies and procedures, amongst other things. 70. In particular, I understand that information regarding stationary lidar speed enforcement was made available to Brisbane Water Highway Patrol officers through the use of email or memo systems. Officers were supplied with a copy of the 2004 SOPs and given copies of the "Brisbane Water Stationary RBT/Radar/Lidar Record Sheet" (BW Checklist). There was a sign on register that officers signed to confirm that they were aware of new procedures such as these when they were introduced. 71. I understand that there was also discussion and emailing within Brisbane Water Highway Patrol regarding the completion of the BW Checklist, and the need to ensure site risk assessments were conducted and documented had been raised, and would also have been raised at formal training sessions involving the highway patrol. 72. At Brisbane Water LAC, locations for lidar operations to be conducted were determined by the Highway Patrol sergeants, based on intelligence or feedback from highway patrol officers. 73. One of those sergeants, or an experienced highway patrol officer would then attend that site and undertake a site assessment to consider whether it was appropriate to work from that location. 74. If the site was considered suitable, the Highway Patrol supervisors would then deploy staff specifically trained in lidar enforcement to conduct such operations from that site, from time to time. 75. The practice of the Brisbane Water Highway Patrol was that each site was to be assessed by the operator or other officer present each time the site was used. 76. As discussed above, Brisbane Water Highway Patrol utilised an area specific form for conducting site risk assessment, titled BW Checklist which contained a site assessment checklist to be completed by officers when performing lidar operations. 77. Brisbane Water Highway Patrol received approval to use their local form, the BW Checklist, for RBT/Lidar site assessment in lieu of an Annual Site Assessment on 27 May 2005. 78. The Highway Patrol sergeants at Brisbane Water LAC were responsible for providing on road supervision, checking that their officers were complying with tasking sheets at tasking locations, and performing their duties in the required manner. This included by way of intrusive supervision to check that tasks were performed in accordance with the applicable SOPs and guidelines. 79. In assessing whether Lidar operations were being performed correctly, the sergeant would attend the site, to ensure it had been set up in accordance with the SOPs and that the site was worked safely. 80. I am advised that the practice at Brisbane Water was for the sergeants to review a random sample of completed site risk assessments submitted by their officers, to ensure they were completed correctly. 81. As at 6 January 2006 one of the BW Highway Patrol supervisors, Sergeant Saunders forwarded an email to a number of NSWPF officers, including Peter Wilson and Scott Beverley reiterating that in order to comply with SOPs: "you are to conduct an assessment each time a location is used... Ensure the SOPs are followed and the required risk assessments are completed and submitted". 43The Assistant Commissioner described the remedial and rehabilitative changes to systems and procedures after the incident on 11 November 2006. A comprehensive investigation and review process was undertaken by the defendant and changes have been made to its systems and procedures. 44In particular, a review process was undertaken of the SOPs with the assistance of the Critical Incident Investigation Team and consultation with officers in the field. 45On 14 November 2006, Assistant Commissioner Hartley issued a Statewide memorandum which directed that: (i) LIDAR Operations will be conducted from within police vehicles with the vehicle then used to perform any subsequent motor vehicle stops. THIS DOES NOT APPLY TO SCHOOL ZONE ENFORCEMENT, (ii) Stationary RBT is to be conducted in speed zones of 80kph or less. THIS DOES NOT APPLY TO MOBILE RBT, and (iii) Commanders and Supervisors MUST ensure staff are briefed prior to commencing speed or RBT activities as per the SOPS and MUST assure themselves that the activity is being conducted safely. 46Assistant Commissioner Hartley stated that as at the time of the incident, a new set of SOPs had already been established in draft form. These draft SOPs were the result of extensive preparatory work and a multi agency working party which met over two days in December 2005 to revise the 2004 SOPs. 47The draft revision of the 2004 SOPS were presented to WorkCover for review and comment on 17 October 2006, prior to the incident. 48An internal electronic mail memorandum was sent by Assistant Commissioner Hartley on 12 December 2006 regarding new procedures. A further email was sent on 19 December 2006 to all Highway Patrol personnel advising of the introduction of the new SOPs and the revision of the Annual Site Assessment Form. 49The email of 19 December 2006 required that "All Highway Patrol officers are required to read and acknowledge the revised procedures prior to conducting any Stationery Speed Enforcement (LIDAR) Operations." 50In addition, the introduction of the revised Annual Site Assessment (ASA) form, "All sites used for Stationery Speed Enforcement (LIDAR) Operations are now required to be reassessed using the new ASA form." Copies of these emails were annexed to the affidavit. 51The refined SOPs were introduced to Highway Patrol Units on 21 December 2006, approximately six weeks after the incident as the Stationary Speed Enforcement LIDAR Operations dated December 2006 ("2006 SOPs"). 52The 2006 SOPs retained the requirement for police vehicles to be placed in a position to provide early warning and protection. They also retained the requirement for the use of message bar and/or warning lights to be used. Following consultation with all relevant stakeholders, including WorkCover, this requirement was deleted from the 2007 SOPs. 53Importantly a complete prohibition against entering the roadway on roads where the sign posted speed limit was 100km/h or 110km/h was also restated. 54At around the same time that the 2006 SOPs were introduced, associated Six Minute Intensive Training ("SMIT") packages was made compulsory for Highway Patrol officers. This was a computer based online training module. 55In January 2007, following the release of the December 2006 SOPS, all relevant stakeholders were involved in contributing to, and the review of, the 2006 SOPs. They included Mr Ankucic and Mr Wilson from WorkCover, Sergeant Chad George from Brisbane Waters Highway Patrol, and Assistant Commissioner Hartley. This process lead to the release of a revised SOP in March 2007. WorkCover was also consulted in relation to the 2007 SOPs. 56As a result of the review process, procedures in respect of LIDAR speed enforcement activities were overhauled to include: (i) Enhanced instructions for officers (ii) New restrictions on officers stopping motorists, (iii) Separate detection/stopping site configurations, (iv) Restrictions determined by the speed of the vehicle (rather than the signposted speed limit), and (v) Preclusion of median/dividing strips as areas from which such operations may be conducted. 57In particular, there was a total prohibition on officers conducting speed enforcement duties entering the roadway where the sign posted speed limit was 80km/h or greater. In those circumstances, the 2007 SOPs prevents stopping officers from using stationary (civilian) vehicle lanes as protection or moving beyond the working lane/area whilst signalling vehicles to stop. It also states that police are not permitted to enter the lanes at any time to stop vehicles. 58The requirement to place police vehicles in a position of early warning and to use message boards and lights was removed from the 2007 SOPs with the concurrence of WorkCover. 59Assistant Commissioner Hartley stated that as a result of the incident the following changes in respect of the use of LIDAR included: (i) All NSWPF operations on high speed roadways, requiring Police officers to conduct speed enforcement were halted, (ii) New instructions and restrictions have been implemented for stopping officers, (iii) New restrictions have been implemented on stopping officers, determined by the prevailing speed limit, (iv) Stopping/support Police are not to use median/dividing strips, (v) The completion of a site inspection report is mandatory prior to the commencement of operations, (vi) Site assessment instructions have been implemented which replaced the annual site inspection instructions. These incorporated updated instructions for site assessment and new instructions with regards to site inspection reports, and (vii) SMIT packages were developed using web based instructions that show preclusion zones and escape routes. 60An email was sent to all Highway Patrol personnel advising them of the abovementioned changes. 61Assistant Commissioner Hartley described the support provided to Senior Constable Wilson's family. This included bringing his parents to Australia from Scotland; sending a trauma response team to the incident on 11 November 2006 and providing counselling to the officers involved on the day and subsequently during November and December 2006. 62The then Police Commissioner Ken Moroney travelled to Gosford to meet with Senior Constable's Wilson's children, his former wife Wendy, and his partner Kylie. He also met with officers who had served with Senior Constable Wilson, in particular his former colleagues of Brisbane Water Highway Patrol. Senior Chaplain Alan Lowe provided welfare services to Mr Wilson's family and fiancée. 63Senior Constable Wilson was given a Police funeral with full honours and the Police Provident Fund made a payment of $60,000 in trust for the children of Senior Constable Wilson within the days following the incident. 64Assistant Commissioner Hartley stated that the defendant was committed to ensuring health and safety generally. He observed that some policing activities were, however, inherently dangerous. At times officers are required to work in an environment which may involve high risks and over which the defendant has limited control including responding to third parties who engage in criminal and illegal activity. 65He stated that the defendant has in place a range of initiatives aimed at eliminating or minimising risks associated with those environments and ensuring the health, safety and welfare of the general public, its officers and also its civilian personnel. 66The defendant has introduced the Commissioner's Annual Safety Award ("ASA") to encourage the defendant's personnel to identify and take steps to address identified hazards within their own workplaces, and to provide recognition in respect of those who do. Awards and certificates of merit are issued in a number of categories and the recipients honoured at an annual reception. 67Annexed to the affidavit was an article from the 22 March 2010 edition of Police Weekly, which sets out the various initiatives acknowledged at the 2010 Safety Awards. 68Amongst recent safety initiatives, NSWPF has introduced: (i)A Fatigue Risk Management Framework, (ii)Commenced a programme aimed at providing each LAC and specialist unit with its own dedicated physical training instructor, (iii)Expanded its participation in the Safety Science Program to include duty officers and inspectors responsible for local human resource management, and (iv)Introduced annual wellbeing assessments for all commanders to support them in their pivotal roles. 69Within the last year, the Commissioner's Executive Team has endorsed a Workforce Improvement Program ("WIP"), aimed at implementing and evaluating these initiatives, particularly as regards reducing injuries and returning injured officers back to meaningful work. If the defendant cannot get officers back into a policing role due to the nature of their injury, the defendant provides transition assistance towards a meaningful civilian role within the defendant or other organisations in the public or private sector. 70Under the WIP, extensive training and mentoring is being rolled out to the defendant's sergeants and senior offices emphasise and improve upon their leadership skills required to constructively manage performance, resolve conflict and to promote a healthy workplace. 71Assistant Commissioner Hartley stated that the defendant has a long history of working collaboratively with WorkCover in formulating policies and procedures aimed at ensuring the health, safety and wellbeing of its personnel and the public at large. 72In terms of procedures relating to speed enforcement duties, this collaboration stretches back to around 2000, when he was told representatives of WorkCover were consulted by the steering committee established to draw up the very first SOPs for RBT and LIDAR. The resultant SOPS were issued in 2001. 73A further revision of the SOPs was commenced in 2005 and during this process, improvement strategies were presented to WorkCover representatives and received their support. 74In December 2005, a new working group was formed, comprising representatives from Highway Patrol, Traffic Policy, Region Traffic Coordinators, Safety Command, NSW WorkCover Authority and the Police Association. Pending finalisation, there was a great deal of consultation as part of the approval process which included all stakeholders including WorkCover. 75The draft SOPs were pending finalisation at the time of the incident, having been presented to WorkCover representatives on 17 October 2006. 76Assistant Commissioner Hartley said he understood that a complaint was made in July or August 2006 to WorkCover, prior to the Incident, regarding a highway patrol officer's actions in conducting operations from the median on the F3 Highway. Information was provided to WorkCover to assist in their investigation. WorkCover visited the site and took no further action. In written correspondence the inspector raised no issues in relation to the site and no further action was required. 77Assistant Commissioner Hartley in dealing with the defendant's corporate citizenship and community participation detailed its extensive involvement in community events, which include school fetes, shows and charities. 78It also assists the community by involvement through Youth Liaison Officers, School Liaison Police, Aboriginal Community Liaison Officers, Community Safety Precincts, Mental Health Intervention Team, and has a commitment to the Charter of Victims Rights, and Road Safety Initiatives, to name but some of the defendant's involvement in the community. 79Assistant Commissioner Hartley stated that the defendant at all times had co-operated with WorkCover during its investigation into the incident. On behalf of the defendant, he expressed its remorse and contrition stating that he sincerely regretted the death of Constable Wilson, the impact of Senior Constable Wilson's death on his family, friends, community and fellow officers; and the breach of the OHS Act. 80Assistant Commissioner Hartley stated that the defendant accepts its responsibility for its role in the incident, and the tragic consequences that followed. 81The defendant recognised the great loss to the relatives and friends of Senior Constable Wilson, and his colleagues. He further stated that the defendant relies on the following matters to express its contrition and remorse: a. The early plea of guilty to the Amended Application for Order; b. The prompt remedial action taken by NSWPF to eliminate the risk of a similar incident occurring in future; and c. The newly introduced punitive provisions to discipline officers who fail to comply with the SOPs. 82Assistant Commissioner Hartley acknowledged that the incident had profoundly affected a number of people in the defendant.

Relevant principles 83The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the OHS Act. Their Honours stated at [8] - [15]: [8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing. [9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act 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]: '[I]t 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 [was] intended to provide "further guidance and structure to judicial discretion.' [10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows: '[I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ... [11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) ("Capral") 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: 'The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence.' [12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: '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 [1999] 92 IR 188 (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. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.' [13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" (Capral at 650; 66). On that point the Full Bench in Capral stated: 'We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, 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. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]).' [14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: '[B]oth 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, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 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.' [15] 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 of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: '[I]t 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).'

Consideration 84Counsel agreed that the primary consideration, as set out in the above principles, requires a determination of the objective seriousness of the offence. This involves examining the nature and quality of the offence as set out in the ASF and the evidence. 85The failures by the defendant which gave rise to the risk to health and safety, in particular, of Senior Constable Wilson and Senior Constable Beverly was firstly, a failure to implement and enforce a Standard Operating Procedure, or other work procedures in relation to pre-planned stationary speed enforcement activity on roadways where the signposted speed limit was above 80kms per hour that preclude officers entering the roadway for the purpose of signalling the driver/drivers of motor vehicles to move to the side of the roadway and bring their vehicle(s) to a halt. 86The second failure of the defendant was to enforce its 2004 Standard Operating Procedure for stationary speed enforcement (LIDAR) operations by failing to ensure the provision of as much warning as possible to road users passing through or who were to be stopped, of police presence at the site by means of: (i) ensuring the positioning of the police vehicle on the roadway at the site; (ii) ensuring the utilisation of the roof message bar and/or warning lights of the police vehicle at the site; (iii) ensuring the utilisation of message boards or other signs at the site. 87As I have already observed and as set out in the ASF, the risk arose on 11 November 2006 when Senior Constable Wilson and Senior Constable Beverly were conducting pre-planned stationary speed enforcement activities on the F3 Freeway near Somersby when a two vehicle collision occurred as Senior Constable Wilson was attempting to stop a vehicle. 88In 2004 the defendant had in force a document entitled "Brisbane Water Stationary RBT/ RADAR/ LIDAR Record Sheet ("the LIDAR Record Sheet") and its officers were required to comply with the requirements of a Standing Operating Procedure ("SOP") for standard speed enforcement (LIDAR) operations. It is an agreed fact that the placement of the police vehicle on the eastern (rather than the western) edge of the roadway was inconsistent with the 2004 SOP. The placement of vehicles in that location was however, common practice in the Brisbane Water LAC (ASF 30). It is also an agreed fact that the defendant provided Senior Constable Beverly with a copy of the 2004 SOP but provided no training or other information to him in relation to it. He received no formal training from the defendant regarding how to set up and operate a site in accordance with the 2004 SOP, nor in relation to risk or the identification of hazards associated with on-road speed enforcements (ASF 61 - 63). 89The ASF also disclosed that on 30 August 2003, Senior Constable Beverly was struck by a motor vehicle whist conducting stationary speed enforcement duties using a LIDAR service at a location approximately 100 metres north of the site. He sustained injuries that included a broken right tibia and fibia that required surgery, and necessitated him being off work for six months. The incident left him with a permanent disability. The incident involved Senior Constable Beverly stepping into lane 3 of the F3 Freeway to indicate to a vehicle to stop before moving back to the break down lane. The vehicle did not stop. However, another vehicle braked to stop and a third vehicle followed behind, braked and took evasive action of swerving into the brake down lane hitting Senior Constable Beverly. 90As a consequence of the incident in 2003, Senior Constable Beverly's method of working changed as he would rarely step out into the operating lanes of a roadway to stop traffic, preferring to give directions to offending drivers by standing in the brake down lane and pointing at them (ASF 68 - 70). 91Other examples of incidents where officers sustained injuries during the course of conducting LIDAR speed enforcement duties, or where officers fortunately escaped injuries are set out in paragraphs 67, 71 and 77 of the ASF. 92Clearly, the series of incidents between 2000 and 2006 should have alerted the defendant of the serious risk to the health and safety of highway patrol officers who were conducting LIDAR speed enforcement activities and entering the roadway to stop vehicles. 93The judgment of this court in Inspector Inspector Covi v The Crown in the Right of the State of NSW (NSW Police) (No 2) [2004] NSWIRComm 400, identified (on 17 December 2004), the risk to the health and safety of highway patrol officers entering upon the roadway while conducting LIDAR speed checks. In that matter, as I have already observed, the defendant was charged with a breach of s 15(1) of the 1983 OHS Act. (The failure by the defendant was to ensure the health, safety and welfare of two of its officers while they were undertaking LIDAR speed detection operations). The particulars of the charge included that: (c) The defendant failed to maintain a system of work for the conduct of the LIDAR Speed Detection Operations that was safe and without risk to the health and safety of its employees. (d) The defendant failed to provide such information as was necessary to ensure the health and safety at work of its employees whilst conducting LIDAR Speed Detection Operations. (e) The defendant failed to provide such adequate instructions and training to its employees as was necessary to ensure their health and safety whilst conducting LIDAR Speed Detection Operations. 94The defendant pleaded not guilty to the charge. The defendant was convicted and a penalty of $150,000 imposed. 95Boland J (as he was then) observed at [25]: Furthermore, measures to avoid or minimise the risk were available and could reasonably have been implemented, as pointed out at [54]-[55] of the earlier judgment. For example, specifying the use of a marked vehicle with lights and message bar at the stopping site for the purpose of providing early warning to drivers; specifying the use of a marked police car at the stopping site as a barrier or refuge for officers undertaking LIDAR Speed Detection and roadside enforcement duties. The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the accident is relevant to assessing the seriousness of the offence in this case: Kembla Coal & Coke at 36. 96His Honour's reference to [54] - [55] was from his judgment in Inspector Covi v The Crown in the Right of the State of NSW (NSW Police) (the defended proceedings) where his Honour observed: [54] There is no reason that I can discern that would make it imperative for a police officer involved in speed detection and enforcement duties using a Pro Laser II unit to step onto the carriageway to signal a driver to stop. If one accepts the evidence of Ms Styan, and I do, Mr Hartley did not step onto the carriageway when he signalled her to stop and she had no difficulty at all in obeying the officer's directions. But putting that aside, I agree with the prosecutor that: [T]here appears to be no reason why the marked police car could not have been used at the subject site as a barrier to northbound traffic. Nor does there appear to be any operational or physical reason why Mr Hartley and Mr Johnson could not have signalled to the drivers of targeted vehicles from behind the relative safety of the marked police car - activating the lights of the vehicle in the manner described by Sergeant Gardiner ...There is no evidence that operating in this fashion would reduce the effectiveness of the stopping activity and to the contrary, the evidence (as well as common sense) suggests that the presence of the marked police car with activated lights would increase "the visibility" of the officers. [55] The defendant submitted that a marked police car on the side of the road did not necessarily constitute a barrier against the prospect of police officers being injured by a moving vehicle. In this respect, Mr Hodgkinson referred to evidence of an incident whereby a vehicle slammed into a police car on the roadside pinning an officer against another vehicle. The Court is not advocating what the safe system of work should be; that is not its task. But is seems to me that if it is necessary for police officers to engage in stationary roadside speed detection and enforcement and there is no reasonably practicable alternative, a system that provided for a barrier or buffer zone between police and oncoming vehicles, whether that is a police car or some other physical barrier, together with appropriate signs indicating a police presence, this is a significantly safer arrangement than a police officer standing on the roadway without a shred of protection other than the officer's wits and quick physical reactions. 97It therefore follows that this matter may be considered against the background that the risk to health and safety of officers conducting LIDAR speed checks had been identified to the defendant in December 2004. Mr Reitano submitted that this was a factor that aggravated the offence and this needed to be taken into account in determining sentence. I agree with this submission and that this is a serious offence, as Mr Reitano contended. 98Mr Bodor acknowledged that this was a tragedy of an unforeseeable combination of circumstances, submitting that: ... whilst this case is similar to Covi in that the deceased in this case was struck by a motor vehicle, in many other respects it is distinguishable and your Honour ought to look at it, we submit, with a balanced viewpoint that whilst a car and police officer carrying out stationary speed enforcement were involved in both incidents that the nature of the two are so far removed that one could not call this a repeat offence. I say that because of so many features, but most importantly that the Covi incident, I'll call it the Covi incident, but that was the genesis of the development of later standard operating procedures and was, if I can put it in the dying days of earlier clearly inadequate standard operating procedures, what was in place at the time of this incident were substantially enhanced procedures. 99It has been emphasised on numerous occasions by this Court that an employer must be proactive in ensuring health and safety. The obligation upon the defendant was to ensure the safety of its employees. It extends not just to the careful and observant, but to the hasty, careless, inadvertent, inattentive and even foolish: see WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257 and the extensive summary of the principles undertaken by Walton J Vice-President in WorkCover Authority (NSW) (Inspector Howard) v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 at [181] - [194]. 100The risk in this matter is the same risk as found in Covi which in my view, is not distinguishable on any material basis. The officers were operating in accordance with the 2004 Standard Operating Procedure and using the LIDAR speed detection device. It was an agreed fact that both the 2004 SOP and the LIDAR record sheet required officers of the defendant to proceed onto the roadway for the purpose of directing oncoming traffic to stop and proceed to a stopping site (ASF 26 - 27). Mr Bodor referred to a reference in the SOP to "consider alternative to stopping vehicles travelling at high speed (See Note on table, page 4) at RADAR/LIDAR site - utilising Stop Vehicle (See Stop Vehicle page 3)". A reference to a note on page 4 of the 2004 SOP provided: Note: Where speeds are detected above 140 km/h, any vehicle stop at the site would require further assessment. This reassessment may involve alternate stopping methods such as the use of a stop vehicle where available or appropriate. 101The reference to "See Stop Vehicle page 3" was a reference to a vehicle parked at the speed enforcement (LIDAR) site which could be used to stop the driver of any vehicle that fails to stop at the site. It stated that "caution is to be used when leaving the site at any time in a vehicle". No other alternate methods for stopping a vehicle are referred to in the 2004 SOP. 102The 2007 SOP provides under the heading "Stopping Officer" a note in the following terms: In speed zones above 80km/h, the Stopping Officer will not use stationary (civilian) vehicles in lanes as protection. Stopping police will not move beyond the working lane/area whilst signalling to stop and adhere to Preclusion Zone requirements. Police will not enter the lanes at any time to stop vehicles. 103I accept that this represents an example of a further significant development by the defendant in improving safety for officers conducting LIDAR speed checks. 104The defendant commenced a substantial review of the 2004 SOP immediately after the judgment of the court in Covi. I have earlier referred to the evidence of Assistant Commissioner Hartley that on the day of the judgment in Covi, Commissioner Hartley forwarded a memorandum to all sworn members of the defendant by internal electronic mail advising that an urgent review of instructions to police officers when dealing with on road traffic enforcement activities was being undertaken. That resulted in the August 2004 SOP. The defendant continued its review of the SOP and met over two days in December 2005 to consider a new draft SOP. This was as a result of extensive preparatory work and a multi-agency working party to which reference has been made in the evidence of Assistant Commissioner Hartley. The draft revision of the 2004 SOPs were presented to WorkCover for review and comment on 17 October 2006. 105I accept that, as submitted by Mr Bodor, shortly before the incident the defendant had demonstrated a serious commitment to rehabilitation which is evidenced by its review of the 2004 SOP and culminating in the March 2007 SOP. This prohibits police officers entering lanes at any time to stop a vehicle in speed zones above 80km/h and that the stopping officer will not use stationary (speed) vehicles in lanes as protection. 106However, in light of the evidence, I am unable to agree with the submission of Mr Bodor that this is quite an isolated incident. The defendant was aware of the risk. On a proper analysis of the ASF and the evidence, this is a repeat offence. The agreed facts state there was a failure to provide instruction, training and supervision to Senior Constable Beverly who, the evidence discloses was himself struck by a motor vehicle while conducting stationary speed enforcement duties using a LIDAR device at a location approximately 100 metres north of the site in 2000: see also Inspector Dall v Ullrich Aluminium [2011] NSWIRComm 156. 107The existence of a foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence: Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; (2000) 99 IR 29 at [81]; Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at [27]. In this matter Senior Constable Wilson suffered fatal injuries. 108Boland J pointed out the measures to avoid or minimise the risks in Covi at [54] -[55]. The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the incident is relevant to assessing the seriousness of the offence in this case: Kembla Coal and Coke at [36]. 109It follows that this matter can be characterised to include the following factors. Firstly, the risk was known to the defendant, as a result of the judgment of Boland J in Covi. Secondly, in these circumstances and I find, this is a repeat offence. Thirdly, the incident resulted in a fatality. Fourthly, in light of the judgment of Boland J, the defendant allowed a significant period of time to elapse, before changes that minimised the risk to officers' health and safety while undertaking speed checks, were introduced to the LIDAR system.

General deterrence 110Mr Bodor submitted that whilst there was a general deterrence requiring an employer to provide safe systems of work, the reality is that there is one employer who employs this system of work. Senior Counsel also submitted therefore that both general and specific deterrence should merge because of the unique nature of the defendant which operates in a peculiar environment in which no other organisation is vested with the type of responsibility or carries out the type of work. I do not agree that both general and specific deterrence should be merged. 111In Covi (No 2) Boland J observed at [26]: ... Whilst there is only one NSW Police, that body is not alone in employing personnel to undertake hazardous operations as part of their employment. A significant rationale underpinning criminal penalties is to deter others from committing the same or similar offences. Any penalty imposed in this case will be in respect of an offence involving the defendant's failure to ensure the safety of an employee when he was undertaking a hazardous task. It is appropriate to include in the penalty an element for the purpose of deterring others, particularly those employers who are engaged in providing emergency services, from committing a similar offence. 112I respectfully agree and adopt his Honour's observations. I propose to include an element in the penalty for general deterrence.

Specific deterrence 113Although noting that the Police Service has seven prior convictions, one of which involved risks to safety arising from LIDAR speed detection devices, this is not a case which calls for the imposition of some additional significant punishment aimed at deterring this defendant, the State of New South Wales (NSW Police Force) from further offending against the OHS Act and/or for the purpose of compelling the defendant's attention to occupational health and safety issues, so that persons are not exposed to risks to their health and safety. The attitude of this defendant to workplace safety and the procedures that it had in place prior to the incident and particularly subsequent to the incident, are impressive and are relevant to specific deterrence. I include a component in the penalty for specific deterrence.

Subjective factors 114The relevant subject factors include a plea of guilty at the earliest opportunity to the amended application for order. I propose to allow a discount of 25 per cent for the utilitarian value of the plea: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 A Crim R 104. 115I also take into account that Assistant Commissioner Hartley on behalf of the defendant, expressed remorse and contrition. 116The defendant operates in an inherently dangerous and unique environment. Although the defendant has seven prior convictions, the occupational health and safety systems referred to in the evidence of Assistant Commissioner Hartley and the changes that occurred after the incident demonstrate, in my view, that it has a history of very good industrial citizenship which I take into account. 117There was an occupational health and safety system in operation at the time of the incident. It was the subject of an extensive review. In light of the judgment of Covi, the review included obtaining advice from WorkCover and consultation with other relevant parties. 118I also accept that the defendant is a good corporate citizen as demonstrated by its activities in the community. 119The Full Bench in Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 stressed the importance of taking into account good industrial citizenship and the compassionate steps taken in respect of the injured worker. Their Honours observed at [17]: We do not consider that the history of good industrial citizenship of the appellant, having regard to its prior record and the long period of operation of its business, was sufficiently taken into account. We also refer to the careful and compassionate steps taken by the appellant as to the welfare, rehabilitation and continuing employment of the injured worker. The reason we have made specific reference to that latter matter is that it does not seem to have been often referred to in other judgments in this area. 120I also find that the defendant co-operated with the WorkCover during the investigation of the incident.

Victim impact statements 121Mr Reitano provided the court with the following victim impact statements from family members pursuant to s 30 of the Crimes (Sentencing Procedure) Act 1999. The views emphasised include: Mr William Wilson (Father): "I have been in a nightmare for almost 6 years since losing my son, Gordon. I have become aggressive, short tempered and perhaps difficult to live with at times. I will never be able to live my life as I did before." Mrs Elma Wilson (Mother) "I not only lost my son but I have also lost contact with his three children, my grandchildren. Gordon's death has left a huge void in my life which can never be filled. I have lost all confidence in myself. I cannot go out unless I am accompanied by someone. My social life does not exist. I can't even go to his grave and place flowers. They say time heals, but time does not heal a broken heart." Ms Hazel Wallace (Sister) "On 11 November 2006 my word changed for ever when my only brother and sibling Gordon was tragically killed. I have become moody and lost confidence in many ways which has had a knock on effect on my husband and especially my children, making me over protective towards them. I cannot drive anymore, I take panic attacks at the thought of driving and being responsible for something that ultimately took away my brother's life. I have lost count of the amount of times I just can't cope anymore and lock myself away and cry. I am terrified of the future, when my parents become ill or worse I have no-one to help me deal or cope with this, I have been left on my own in that respect... I am so angry that I have basically been robbed of my only brother... Almost 6 years have passed and it still hurts as much and I miss him just as much as I did the day it happened. 122Ms Kylie Kerr, Senior Constable Wilson's then fiancée, read to the court a six page victim impact statement. She spoke of their preparations for the wedding and purchasing an engagement ring, the shock of being told of his death and the difficulty of telling Senior Constable Wilson's children, parents and sister that he had died. 123Ms Kerr acknowledged the assistance provided by the Police Legacy and the Commissioner of Police. In rememberance of Senior Constable Wilson, Ms Kerr arranged for a bridge to be named after him. She said she has been financially greatly affected due to taking 86 sick days in 2007 - 2008. She engaged her general practitioner and two psychologists to assist her through the difficult period. Ms Kerr is now happily married with two beautiful children. Her main hope has always been that no-one would have experienced what she has, and that every police officer returns home safely to their loved ones. 124In Inspector Sharpin v A Team Concrete (Aust) Pty Ltd [2004] NSWIRComm 182 at [138] I observed: Victim impact statements presently serve two distinct purposes. In the case of family victims, where a family member has died as a result of a breach of the Occupational Health & Safety Act 2000, it provides an opportunity for the family to express their feelings of grief and loss, and allows proper public respect to be paid to these feelings. In cases where there has not been a death, not only does the victim impact statement provide an opportunity for the victim to have proper public respect paid to their pain and suffering, but it also has a role to play in the determination of the appropriate sentence to be imposed by the Court. The statement will explain to the Court the extent of the impact the crime has had on the victim's life. 125The Court of Criminal Appeal in R v Mansour [1999] NSWCCA 180 and Hunt CJ at CL in Previtera (1997) 94 A Crim R 76 (at 84 - 85) stated that the Court in sentencing may bear in mind a victim impact statement and have regard to the particular effect of the deceased on members of the family. However, the Court should not give these considerations weight in determining the sentence imposed: Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 at [43]. See also Inspector Simpson v Tomago Aluminium Co Pty Ltd (unreported) Haylen J 27 April 2004 Matter No IRC 5351 of 2003); Inspector Sharpin v A Team Concrete (Aust) Pty Ltd at [138]. 126The court extends its deepest sympathy to Senior Constable Wilson's family and to Ms Kerr. 127The maximum penalty in respect of the defendant is $825,000. Taking into account the seriousness of the offence, and the subjective factors referred to earlier, I impose a fine of $300,000. 128I observe that absent the defendant's impressive approach to occupational health and safety, together with the additional steps it took after the incident, the penalty would have been greater. 129The prosecutor seeks a moiety and costs which I propose to grant.

Orders 130I make 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 $300,000 with a moiety thereof to the prosecutor.
4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed or, if agreement cannot be reached, as assessed.

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. Decision last updated: 30 November 2012