Inspector De Leon-Stacey v The State of New South Wales

Industrial Relations Commission (NSW)|2005-04-14|Before: Haylen J

Industrial Relations Commission of New South Wales in Court Session

CITATION: Inspector De Leon-Stacey v The State of New South Wales (Department of Ageing, Disability and Home Care) [2005] NSWIRComm 131

PROSECUTOR: Inspector De Leon-Stacey PARTIES: DEFENDANT: The State of New South Wales (Department of Ageing, Disability and Home Care)

Coombs v Patrick Stevedores Holding Pty Limited [2005 ]NSWIRComm 56 Inspector Keniry v The Crown in Right of the State of New South Wales (Department of Community Services [2002] NSWIRComm 349 CASES CITED:

HEARING DATES: 04/14/2005 EXTEMPORE JUDGMENT DATE: 04/14/2005

PROSECUTOR: Mr R Reitano of counsel SOLICTORS: WorkCover Authority Criminal Law Practice Legal Group LEGAL REPRESENTATIVES:

DEFENDANT: Mr S Benson of counsel SOLICITORS: Crown Solicitor

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Haylen J 14 April 2005 Matter No IRC 5722 of 2004 INSPECTOR DE LEON-STACEY v THE STATE OF NEW SOUTH WALES (DEPARTMENT OF AGEING, DISABILITY AND HOME CARE). PROSECUTION UNDER s 8(1) OF THE OCCUPATIONAL HEALTH AND SAFETY ACT 2000 EX TEMPORE JUDGMENT [2005] NSWIRComm 131 The defendant in these proceedings is the State of New South Wales as embodied by the Department of Ageing, Disability and Home Care. That defendant has pleaded guilty to a breach of s 8(1) of the Occupational Health & Safety Act 2000. I have heard evidence and submissions as to an appropriate penalty in the circumstances of the breaches particularised. Those breaches allege a failure by the defendant in relation to part of its undertaking at the Metro Residences, Rydalmere Centre: To ensure the health, safety and welfare at work of all its employees and in particular, (three named employees), in that the defendant failed to ensure that systems of work and the working environment of the employees were safe and without risk to health, contrary to s 8(1) of the Occupational Health & Safety Act 2000.

Particulars of the charge under which the plea has been entered were firstly, there was a general risk to health, safety and welfare of employees due to the potential of physical injury and psychological injury from an attempted assault or actual assault or property damage by clients and in particular a client referred to in these proceedings, by order of the Court, as "BL".

There was a specific risk due to the actual assault by BL on Miss Hundy. The defendant's acts or omissions comprised any one aspect or combination of aspects of the following: (1): allowing the cottage placement of BL at Logan Cottage Unit 10C; (2): failing to ensure that the doorway to the Nurses' Office attached to Logan Cottage Unit 10C was locked so that the office was a client-free area; (3): failing to ensure a duress alarm system was in place for employees activating the alarm and (4): allowing an employee to work in the Nurses' Office attached to Logan Cottage unit 10C when there was only one entry or exit doorway.

In relation to the evidence, the Prosecutor has tendered an extensive Agreed Statement of Facts, 16 photographs of the area in and around Logan Cottage and a certificate of prior convictions. All of the defendant's evidence by way of affidavit was formally read and relied upon, firstly, from Ms Bail who had been the Chief Executive Officer of the Metro Residences of the defendant and a very extensive affidavit with numerous and detailed annexures sworn by Ms Burlew, who had been appointed Deputy Director General Resource Management at the Department.

Because of the extent of the Agreed Statement of Facts, it is appropriate to incorporate in this judgment the terms of that document: 1. At all material times, Inspector Patricia de Leon Stacey of the WorkCover Authority of New South Wales, Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106 of the said Act to institute proceedings in the within matter. 2. At all material times the defendant, the State of New South Wales (Department of Ageing, Disability and Home Care) had its head office situated at Level 5, 83 Clarence Street, Sydney in the State of New South Wales ('the defendant'). 3. At all material times the defendant was a New South Wales Government Department which is responsible for policy, planning, resource allocation and performance measurement for the delivery of support services for older people, people with a disability and their carers in New South Wales. 4. At all material times the defendant operated Metro Residences, Rydalmere Centre, Victoria Road, Rydalmere, in the State of New South Wales. 5. At all material times the defendant provided supported accommodation and nursing services for adults with intellectual disability at its Metro Residences. The clients residing at the facility are not in custody or incarcerated and are not under the care of the defendant as a result of having been convicted of a criminal offence. 6. At all material times the defendant operated Logan Cottage within the confines of Metro Residences, Rydalmere Centre. Rydalmere Centre has three units of residential cottages for clients, each consisting of four to five cottages located approximately 5 to 10 metres from each other. Logan Cottage was situated in Unit 10 of the Rydalmere Centre. Unit 120 comprised of 5 cottages. Logan Cottage was also referred to as Unit 10C.

At all material times attached to Logan Cottage was an office for the use of the nurses employed within the cottages within the cluster. The office was known as the Nurses' Office. It was a converted garage with one entry/exit to Logan Cottage and there was no adjoining door between the residential area of Logan Cottage and the Nurses' Office.

At all material times it was the general practice for staff to not lock the door when working in the Nurses' Office attached to Logan Cottage and clients regularly entered the office whilst staff were working in the office.

Four to five clients usually reside in each cottage of Unit 10 at the Rydalmere Centre. Each cottage generally has one staff member rostered to work morning and afternoon shift and two staff members rostered to work night duty from 11pm to 7am.

At all material times the defendant employed Francine Margaret Hundy ('Hundy'), Eva Maria Kolaric ('Kolaric') and Margaret Lau ('Lau'), as Registered Nurses at its Metro Residences, Rydalmere Centre.

At the time of the incident on 25 September 2002 Hundy was working during the rostered afternoon shift at Logan Cottage Unit 10C. She was the only employee rostered to work at Logan Cottage Unit 10C. Kolaric and Lau were working at other cottages within Unit 10 approximately 8 to 10 metres away. They could not see Hundy from where they were working.

At all material times nursing staff rostered to work at the cottages were provided with a personal pendant duress alarm for the cottage in which they were working and each cottage had an installed duress alarm attached to a wall. The system in place at the time of the incident on 25 September 2002 was for other staff, upon hearing an alarm, to immediately leave the cottage in which they were working and go to the cottage in which the alarm had been activated to render assistance. Each cottage had an alarm location light attached to the outside which would light up if the duress alarm had been pressed and enable the assisting staff to identify in which cottage assistance was required. The Nurses' Office attached to Logan Cottage did not have a separate alarm location light or an installed duress alarm.

At all material times five clients with developmental disabilities and/or challenging behaviours resided in Logan Cottage.

At all material times BL was a resident at Logan Cottage Unit 10C. Prior to 25 September 2002 BL had a history of physical and verbal aggression, absconding and property damage. Incidences of physical and verbal aggression involved staff and other clients. These matters were known to the defendant.

A Behaviour Intervention and Support Plan was instituted for BL on 16 January 2002. Psychologist, Ana De Matos within the plan lists BL's behaviour to include: a) verbal threats including repetitive demands, attempts to intimidate and frighten people, threatens ('I'm going to hit you/kill (client)/smash all the windows', etc); b) assault including punches (closed fist), kicks, and on occasion uses weapons (such as cutlery) against people. She notes assaults are full force and can lead to serious injury; and, c) property damage, smashes windows, mirrors, kicks doors, throws cups, etc.

An Incident Response Plan for BL dated 16 January 2002 and signed by Ana De Matos, psychologist, Hock San U, Nursing Unit Manager and Manon Wong, Director of Nursing, lists the following strategies for managing incidents: a) general management for property damage, stay at a safe distance, do not get in the way of flying furniture, remove other clients from the area, do not confront him at this time and wait for him to settle then redirect him; and b) managing attempted or actual assault, firmly saying 'Stop Brian!', direct him away from the area, and into an activity, remove other clients, discuss the matter later with him when he settles.

Psychologist Anna de Matos, in her Confidential Psychological Report relating to BL dated 22 January 2002 states, 'Staff members continue to state that the Incident Response Plan is adequate, however, often behaviours escalate despite the implementation of positive and preventative strategies. Staff report, however, that of late, challenging behaviours appear to occur in the absence of any identifiable triggers and/or warning signs. This has become difficult for staff to manage and data has shown a recent increase in the level of physical aggression' and 'All in all, Brian's inappropriate behaviour persists despite the regular implementation of the positive programming components of his Behaviour Intervention and Support Plan'.

In the period between completion of the Behaviour Intervention and Support Plan and the incident on 25 September 2002 there were 17 accident/incident reports completed by staff relating to verbal and/or physical aggressive behaviour by BL to staff, clients and damage to property. The incidents included punching other clients and a staff member, throwing cups and teapots at other clients and staff, threatening to kill clients and staff, absconding, verbal abuse and property damage including broken windows.

Dr Michael Fairley stated in his Psychiatric Report dated 4 October 2002, 'It should also be remembered, as I stated in reports over the last 8 years or so that BL has an anti social personality disorder, he is potentially extremely dangerous and complacency in dealing with him can have serious consequences'.

On 25 September 2002 at approximately 4.30pm at Logan Cottage BL had an angry outburst leading to him throwing a telephone through the glass panel of the back door of the cottage, causing damage to the telephone and door. Hundy activated the personal duress alarm and staff from other cottages responded to the alarm. Once the other staff arrived BL appeared to settle down and oral medication, Rispirdol 1mg was administered to him. It was anticipated by the staff that the Rispirdol would calm BL. The other staff then returned to their respective Units.

At approximately 4.45pm on 25 September 2002 Hundy exited Logan Cottage and went to the Nurses' Office attached to Logan Cottage, to complete paperwork in relation to the prior incident.

At approximately 4.50pm on 25 September 2002 BL entered the Nurses' Office despite Hundy's requests for him to wait outside. BL approached Hundy and commenced to punch her in the head. Hundy activated the personal duress alarm. Despite the alarm and Hundy's screams, BL continued to punch Hundy and knocked her to the floor. BL kicked Hundy several times in the groin area as she lay on the floor. BL then left the office. Kolaric and Lau responded to the duress alarm and went to Hundy's assistance but arrived after the incident. Lau had first responded by going to the residential area of Logan Cottage and had gone to the Nurses' Office subsequently.

As a result of the incident on 25 September 2002 Hundy sustained a deep laceration and soft tissue injuries to the nasal area, contusions to the scalp and soft tissue injury to the groin. She was also diagnosed as suffering from post traumatic stress syndrome. Ms Hundy was off work as a result of the incident until 2 December 2002. She returned to work in a different unit, where four staff are rostered on together.

As a result of the incident on 25 September 2002 Kolaric was diagnosed as suffering from post traumatic stress syndrome. She had a period off work and returned to work on graded hours in mid December 2002.

On 25 September 2002 following the incident BL was removed from Logan Cottage and placed in Unit 3 Hargraves, a more secure unit located within the Rydalmere Centre.

On 28 November 2002 Inspector Patricia de Leon Stacey, attended the defendant's premises and carried out an inspection of the site of the incident. Photographs were taken. They are annexure 'A' to this Statement of Facts. Inspector de Leon Stacey observed the following during her inspection: a) On 28 November 2002 Inspector de Leon Stacey attended the premises of Department of Ageing, Disability and Home Care, Metro West Residences, 262 Victoria Road, Rydalmere 2116. At approximately 12.45pm she entered the facility through a driveway from Victoria Road. The facility was identified by a white sign with blue letters. 'Metro West Residences, 262 Victoria Road, Rydalmere, Department of Ageing, Disability and Home Care'. She noted that the facility was in close proximity to the University of Western Sydney, Parramatta Campus, identified by a blue sign with white letters. b) The driveway was found to have forked to two directions, the direction to the University to the left and Department of Ageing, Disability and Home Care Metro West Residences to the right. She took the road to the right to go to the Metro West Residences. c) Inspector de Leon Stacey turned left to East Street and followed this street to get to Logan Cottage. Upon arrival into these premises, she proceeded to go to the office of Logan Cottage, Unit 10 and met a person who identified herself as Tracey Miao, Registered Nurse. She explained to her the purpose of her visit. Whilst in this Cottage office, she observed the office door and security screen door opened and found a client inside the office with Tracey Miao and up to three clients standing outside the office door. d) Inspector de Leon Stacey then proceeded down the end of East Street and turned left to a car park adjacent to the large building, identified as the Administration Building. There she met Jann Capizzi, Deputy Director of Nursing, Elizabeth Wylie, Director of Nursing and Wendy Lobley, Occupational Health and Safety Officer, Acting Human Resources Manager. Inspector de Leon Stacey explained the purpose of her visit and was then escorted by Jann Capizzi and Wendy Lobley to Logan Cottage (Cottage 10C), which was part of Unit 10, Queensland Rivers Unit. They walked from the Administration Building down East Street and went to Logan Cottage, which was approximately a five-minute walk from Administration. There was a sign 'Logan' mounted on the front wall of the cottage. e) The Cottage appeared to be built with brown-coloured bricks and a tiled roof. Inspector de Leon Stacey observed a section extending from one side of the building that contained an area identified as the Nurses' office. She observed a light installed above the stair landing at the back door. This blue light, identified as a Location Light, was connected to the duress alarm system. f ) From the rear of the cottage, Inspector de Leon Stacey went to the Nurses' Office, which was observed to be attached to Cottage 10C, Logan Cottage. Entry into this office was via a single door at the north end of the office, which comprised of a red-coloured metal mesh screen security door and a white internal door, which had a clear top panel. The panel appeared to be made of glass or plastic (Inspector de Leon Stacey observed that it rattled when the door closed or opened). The internal door had a round doorknob and an additional lock with a round knob that was operated from the inside. A key was used to open this internal door from the outside. The red-coloured metal mesh door appeared to be made of heavy-duty material and the lock from inside the door could be engaged by turning a small handle in a clockwise direction. She noted that it took up to two attempts to engage the lock when the security door was in a closed position. The security door when in a closed locked position, could not be opened without a key from the outside. Inspector de Leon Stacey did not observe a Location Light outside this door. g) Inspector de Leon Stacey observed two windows at each end of the office. A small window perpendicular to the door at the rear of the office and a large double window at the front end of the office (street side). She observed the large double window appeared to be made of brown-coloured metal and windows were opened by a winding mechanism. She found the large window frame wobbled when pushed. She observed that the only door to this office served as access and egress route. h) The interior floor of the office was covered with a lineoleum-type material. Inspector de Leon Stacey observed two office desks along the long walls of the office at each end. There were numerous filing cabinets along the perimeter walls. She saw a large grey metal safe mounted on a stand under the small window. A locked white cupboard behind the door was found, which was only opened and accessed by staff. Along the west side of the office, she observed cupboards at floor and above head level used to store medical equipment. Next to these cupboards were two refrigerators, one small bar refrigerator and a large two door domestic refrigerator. She observed a large blue-coloured vase, which appeared to be made of glass on top of the large refrigerator. i) Inspector de Leon Stacy observed shelves behind the office desk next to the large window. Shelves full of folders and files along the perimeter wall observed from floor to above head level. Numerous filing cabinets were also found next to these shelves. On top of the office desks, she observed office equipment such as staple removers, metal clips and scissors amongst other stationery. She noted space for staff to move around the centre of the office. j) At time of this inspection, Inspector de Leon Stacey noted the area to be busy and noisy. Several clients and persons other than employees were observed to be inside this small office and some clients standing outside the opened door.

On 17 December 2002 Inspector Patricia de Leon Stacey attended the defendant's Rydalmere Centre and carried out a further inspection of Logan Cottage and the attached Nurses' Office. On this occasion Inspector Patricia de Leon Stacey noted approximately 10 persons were in the Nurses' Office, including three clients. Inspector de Leon Stacey observed the dimensions of the Nurses' office were: Approximately 3.1 metres wide x 6.2 metres long x 2.38 metres high. 28. On 20 December 2002 Inspector Patricia de Leon Stacey issued Improvement Notice 247406 upon the defendant requiring the defendant to assess the risk to staff of assault by clients by allowing access and entry to the Nurses' Office and requiring the defendant to develop, implement and maintain appropriate control measures to eliminate the risk.

On 20 December 2002 Inspector Patricia de Leon Stacey issued Improvement Notice 27406 upon the defendant requiring the defendant to assess the risk to staff of assault and enclosure by clients due to the Nurses' office only having one entry and exit. Improvement Notice 247406 required the defendant to develop, implement and maintain appropriate control strategies to minimise the risk of assault, isolation or enclosure upon staff and other persons.

On 20 December 2002 Inspector Patricia de Leon Stacey issued Improvement Notice 247407 upon the defendant requiring the defendant to assess the risk to staff of injury through assault due to the duress alarm and pager system not being adequate. Improvement Notice 247407 required the defendant to review the duress alarm and pager system.

On 2 January 2003 Jann Capizzi, Deputy Director of Nursing issued a memorandum to enforce a policy of keeping the Nurses' Offices as a client-free area. The memorandum included directing staff to cease the practice of allowing clients access into the offices and keeping the doors locked.

On 1 April 2003 Inspector Patricia de Leon Stacey attended the Rydalmere Centre. On this occasion Inspector Patricia de Leon Stacey observed Logan Cottage and the Nurses' Office. She observed that the door to the Nurses' Office was open.

On 7 April 2003 Inspector Patricia de Leon Stacey and Inspector Douglas Rolland attended the Rydalmere Centre. Inspector Patricia de Leon Stacey and Inspector Douglas Rolland whilst driving past Logan Cottage and the Nurses' Office, observed that the door to the Nurses' Office was open and clients were observed to be standing just outside the opened door. The Inspectors parked the car and attended the Nurses' Office. Three staff members were present at the Nurses' Office.

On 7 April 2003 Inspector Patricia de Leon Stacey issued Improvement Notices 247417 and 247418 upon the defendant requiring the defendant to assess the risk to staff of assault by clients by allowing access and entry to the Nurses' Office and only having one entry/exit. The defendant was required to develop, implement and maintain appropriate control measures to eliminate the risk to staff. 35. In response to the improvement Notices, the defendant advised WorkCover that they took the following steps: (a) Revised procedures for reporting incidents in the workplace. (b) Issued a policy stating that office areas were client-free zones in January 2003 and reissued in April 2003 clarifying that office doors were to be kept shut. (c) Placed additional signage on office doors and in the office that doors were to be kept closed. (d) Installed emergency exit doors at the back of the Nurses' Office. (e) Purchased duress pendants for use in each office. (f) Installed a hard-wired duress button in the Nurses' office. (g) Installed duress location lights on the outside of offices. (h) Staff attended accredited behavioural management training. (i) Client risk profiles were completed on all clients which are reviewed at monthly meetings. Each client also has a behavioural intervention support plan. (j) Accommodation committee meets regularly to assess client placements. (k) Concern relating to client behaviour was now raised at handover of each shift.

The following documentation is annexed: (a) 16 photographs taken by Inspector de Leon Stacey on 28 November 2002 and 7 April 2003. (b) 8 photographs taken by Inspector de Leon Stacey on 30 June 2003. (c) List of defendant's prior convictions.

It is sufficient for present purposes, in light of the detail of the Agreed Statement of Facts, to note a few matters, although they operate as a repetition of what is in that document.

The defendant had the responsibility for policy planning, resource allocation and performance measurement for the delivery of support services for older people, people with a disability and their carers in New South Wales. The defendant provided supportive accommodation and nursing services for adults with intellectual disability at its Metro Residences and clients residing at the facility were not in custody or incarcerated and were not under the care of the defendants as a result of having been convicted of a criminal offence.

The Agreed Statement of Facts and the other evidence demonstrates the nature, generally, of the valuable service provided by the defendant, how it operated the Logan Cottage within the Metro Residences, its situation amongst a number of other cottages and the nature of the clients who were catered for in those facilities. There is reference in the evidence to an aspect of the clients dealt with by the Department, namely, those who exhibit challenging behaviour and that has been explained, as I think in other cases, to involve behaviour which can become violent and can put other persons, including employees, at risk of their physical well-being. There were such people at this particular facility, although I don't think there is any specification apart from the activities, in September 2002, of the client BL.

This particular incident, involving what was an attack causing physical injuries to Miss Hundy, occurred in an office used by the nurses. Although it is clear from the evidence that there were duress alarms in other parts of the facility and a light which would illuminate if those alarms were engaged and that staff had personal duress alarms, including Miss Hundy, the facility at the Nurses' Office of a separate duress alarm and a light which operated when that alarm was engaged on this particular day, were not available as is clear from the Agreed Statement of Facts. In due course, after this incident, those items were installed.

I also have evidence of the capacity of other employees working in the surrounding area to respond to a duress alarm. Some of the administration was some little way removed from this collection of cottages but there were people in close proximity who could and on the first occasion on this day were able to and did, respond to assist Miss Hundy.

It is clear from the evidence, including the Agreed Statement of Facts, that BL had spent a considerable portion of his life in some form of care, under the care of the defendant and perhaps its predecessors. There was a documented history, insofar as is relevant to these proceedings, from early 2002 of BL demonstrating a capacity for verbal threats; intimidating and frightening behaviour; assaults, including punches and kicks and the capacity to cause property damage. It was noted that the full force of this behaviour could lead to serious injury as well as property damage.

That was documented in January 2002 and there was an Incident Response Plan professionally put together to deal with that behaviour. One part of that plan, attempting to deal with and manage attempted or actual assault, required the person at risk to ask BL to stop and direct him away from the area and into another activity and remove other clients and later, after he had settled, to discuss the matter. Given the history of BL, that to me seems to be perhaps an inadequate plan, given that it was also noted that BL had demonstrated this behaviour without an identifiable triggering reason for that behaviour, including physical threats. It was noted at this early stage in 2002 that he had become difficult for staff to manage and there also had been shown a recent increase in the level of physical aggression.

Over the intervening eight months before this incident in late September 2002, there was recorded, as was the system of the defendant, 17 accident or incident reports relating to verbal or physical aggressive behaviour exhibited by BL to staff and clients and also damage to property. Those incidents included punching other clients and staff members, as well as throwing cups and teapots. There is also evidence in a psychiatric report dated after the event that previous psychiatric reports over a period of eight years showed that BL had an antisocial personality disorder and that he was potentially extremely dangerous.

The Agreed Statement of Facts demonstrates that there was one incident about 4.30 pm on 25 September that was responded to and staff were able to administer medication that was thought to have the effect of stabilising the behaviour of BL. Miss Hundy went to the Nurses' Office to complete a report, as was part of the system of the defendant and about five minutes later, while she was alone in the office, BL approached her. He commenced to punch her in the head, knocked her to the floor and kicked her several times in the groin area as she lay on the floor. The duress alarm was used by Miss Hundy but the assault was completed before others could arrive and apparently, because of the absence of a light signalling the location of where the duress alarm had been activated, at least one of the people who responded went to the wrong place before finally turning up at the Nurses' Office.

The injuries suffered by Miss Hundy are set out. She required at least 11 weeks off work. She returned to work in a different unit where a number of other staff were working enabling her to work in company. Another of the staff was diagnosed as suffering from Post-traumatic Stress Syndrome and had a period off work but in December was introduced, in a phased way apparently, to full-time work.

It appears that after this incident BL was removed from Logan Cottage and placed in what was described as Unit 3 Hargraves, a more secure unit, nevertheless located within the Rydalmere centre. I should say here that, given that one of the particulars to which the defendant has pleaded guilty is the allocation and placement of BL at Logan Cottage, it is somewhat surprising that there was not more detail in either the Agreed Statement of Facts or in the affidavit evidence, as to how BL came to be assessed as appropriate for this particular unit. I was told by counsel appearing for the defendant that these assessments were carried out professionally: I do not1 doubt that that is so. During 2002 apparently BL was moved between Logan Cottage and the more secure units but the reasons for those assessments and why they were made is not before me. I am therefore unable to assess or make any comment about the reasonableness or otherwise of those assessments but as I say, I accept that they were professionally made. Given the nature of reporting, over a period of months with 17 accident or incident reports and a psychiatric report referring to an 8-year history demonstrating potentially extremely dangerous behaviour, a large question mark remains about how BL came to be located where he was.

After this incident, there were a number of inspections conducted by WorkCover inspectors. One of the issues addressed by the defendant was keeping the Nurses' Office secure from the clients by locking the existing security door that was provided as part of that facility and making sure that staff were not alone in that office and not alone with clients. The effect of what is contained in the Agreed Statement of Facts is that after this incident there were observed times when the door, nevertheless, was not kept locked and where a number of clients were, in fact, in the office or around it. Some of those occasions showed that there were more staff than clients present and that may not pose a particular risk but it is the system here that is focused upon in the charge and the incident is evidence of the failure of the system.

It is perhaps indicative of the seriousness of this offence that there was a period of time which elapsed before there was a directive given, in early January 2003, about keeping the Nurses' Office client-free, which had to be reissued in April of 2003 because it was not being observed. This again raises the difficult question of employers adopting systems of safe work but then not taking all of the steps necessary to make sure that they are enforced.

The Agreed Statement of Facts also sets out that there were a number of steps taken by the Department in response to this particular incident. I think between the Agreed Statement of Facts and the evidence there might be identified something between 11 and perhaps 13 steps taken. There have been, without detailing what is already set out, revised procedures; policies about keeping the Nurses' Office free from clients; placing appropriate signage within the office; installing emergency exit doors so that there was another means for people in the office to get out of the office if an incident like this occurred again; the installing of a hard-wired, duress button and the duress location light.

Training is provided and that was emphasised in the defendant's affidavit material as well as continuing review of other parts of the very considerable system otherwise in place for Occupational Health & Safety as operated by the defendant. In relation to the defendant's evidence, Ms Bail, from her perspective as previous Chief Executive Officer of the Metro Residence, set out in some detail the nature of the residence in terms of its location and the facilities and the types of clientele. There is a quite extensive part of her affidavit which deals with BL's history and the individual plan that had been developed annually and reviewed quarterly, in relation to not only BL but every client, and the system of taking notes and the use of medication or behaviour intervention and how there were assessments undertaken by professional staff. Miss Bail also refers to the prior approach of providing very high levels of medication, which was no longer accepted or regarded as acceptable practice and the perhaps modern approach of keeping medication to an absolute minimum, in the best interests of a client's well-being and the problems then of managing a client in extreme circumstances.

I think, from that material and also from Miss Burlew's affidavit material, the Court can easily appreciate the important social purpose of the work undertaken by the Department, the competing requirements of the care and the level of care that they have to provide while trying to allow people to play a useful role in society in circumstances where some of them, like BL, will display or exhibit violent behaviour. The Court understands that, in those circumstances, their role is indeed difficult in juggling all of those objectives as well as the objectives imposed by the Occupational Health & Safety Act in requiring the Department, as an employer, to ensure the safety of its employees.

In both the affidavit of Ms Bail and Ms Burlew, there are a number of aspects of that safety plan operating at these residences and in Ms Bail's affidavit some detail provided as to the types of training in relation to challenging behaviour and more widely made available firstly, over a period of time and undertaken by a significant number of people over a significant period of time.

As I have said, Ms Burlew's evidence is perhaps more general and deals with: the creation of the Department in 2001, bringing together other departments and speaks of the Department's commitment to Occupational Health & Safety and the priority it has given to the development of an integrated system to manage workplace safety: the Department's HR Strategic Plan from 2002 to 2005; the recruitment of specialist Occupational Health and Safety staff; the development of new Occupational Health and Safety staff across the organization; the development of a comprehensive Occupational Health and Safety improvement plan and the allocation of what the Court would understand would be scarce resources in considerable amounts of money, nevertheless, to develop over a period of time and recruit Occupational Health and Safety specialist staff. That material deals with the Occupational Health and Safety improvement plan, the risk assessment and management conducted by the Department, how that is performed in relation to challenging behaviour and staff training in relation to challenging behaviour. The evidence deals with specialist support services and pilot studies and deals specifically with adults with an intellectual disability and high levels of complex behaviour and clients with an intellectual disability and complex health care needs. At the conclusion of that affidavit, there is an expression, on behalf of the Department, of its contrition by accepting responsibility for the incident and expressing regret at the occurrence of the incident.

My first task is to assess the objective seriousness of this offence and I do this on the basis that there is a record, I think, of some now ten prior offences which should be put into context immediately. By reference to the date on which these offences were dealt with, they run from 1999 and that was an offence against s 15 of the 1983 Act where a Judge of the Court imposed a fine of $95,000, where there was a maximum fine of $250,000 - a significant fine. There was a smaller matter in the Chief Industrial Magistrate's Court two or three years later of which the Prosecutor has been unable to provide details. There were then six separate matters dealing with behaviour in group homes, matters I dealt with under s 15 of the 1983 Act and a variety of fines were imposed, totalling approximately $275,000. They were all dealt with at the same time. There have since been two offences dealt with at the same time in 2005 by the Chief Industrial Magistrate, one relating to s 15 and the other to s 16 of the previous Act where fines of $22,750 each have been imposed. So here the maximum penalty that may be imposed is $825,000 for what might be referred to as a repeat offender. As I understand the submissions, there was no suggestion other than this was a serious offence. As to its context, there was much submitted for the defendant which I will return to in a moment.

What is important in my consideration is firstly, the known history of BL, including his propensity or capacity, from time to time to exhibit violent behaviour and the conduct of the Cottages, in circumstances which allowed one of the staff to be alone and for people who, as well as others, but including people who exhibited the same behaviour or similar behaviour to BL, to gain access to that area where there was no means of escape. The seriousness is further underlined by the fact that unfortunately here, although elsewhere there had been fixed duress alarms and a location light, at this office that did not occur. The staff did have personal duress alarms. That was not sufficient to be of great benefit, in this particular circumstance, to Miss Hundy.

The seriousness of the offence, therefore, may be gauged by firstly, the foreseeability of that type of occurrence and secondly, the fact that fairly simple steps could be taken to remedy the matter - here, keeping locked the security door; putting in another exit door; putting in a location light, as well as all the other things that the defendant deserves credit for doing. Some of these steps remained unenforced for months after this accident.

Now, the defendant asks me to consider this in the context of a large Department with some, I think, 12,000 employees. A large number are referred to as front-line staff who will, by the nature of their work, be exposed from time to time to challenging behaviour and have to deal with it. I accept that context, but nevertheless I believe that there was foreseeability of this risk and simple steps to remedy the detriment to safety exposed by this incident that result in this offence being regarded as a serious offence.

I have been addressed by the Prosecutor in relation to previous decisions of the Court and the Chief Industrial Magistrate. I don't wish to spend a lot of time with those but my own decision in Inspector Keniry v The Crown in Right of the State of New South Wales (Department of Community Services [2002] NSWIRComm 349 which was delivered shortly after this offence had taken place, perhaps indicated that there were a number of steps still that needed to be taken by the defendant to address safety for its staff, bearing in mind the need for that staff to have to face challenging, aggressive or assaultive behaviour.

In relation to deterrence it is usual, and I have no reason to depart from the view, to include an aspect in the considerations of penalty for general deterrence. There is no suggestion that that should not occur in this case. There was some little debate about specific deterrence. The Prosecutor relies on the history of a number of prior convictions and the fact that the Department's obligations require it to continue to offer these services and to place its staff in circumstances where they must deal with and be confronted by challenging behaviour. Against that the Department, the defendant in these proceedings, points to the activities it has engaged in, especially over the last three years, in addressing Occupational Health & Safety and its on-going review of those systems. Notwithstanding those commendable steps, I am satisfied that there remains a significant role for specific deterrence in assessing the appropriate penalty.

The injuries suffered by Miss Hundy have been set out in the Agreed Statement of Facts: I do not repeat them. There has been some suggestion since my decision in Coombs v Patrick Stevedores Holding Pty Limited [2005 ]NSWIRComm 56 that that decision departs from the orthodox approach of this Court, that the injury suffered by an employee or a non employee, will not necessarily dictate the seriousness of an offence. That is an incorrect perception. It is not appropriate, in these proceedings, to canvas the very detailed circumstances in Coombs but the evidence there dealt with what might be called repetitive strain injury and soft tissue injury in a significantly large workforce where there was evidence of a relatively small number of people being injured over time, as is usual with that type of injury. There is nothing in the decision in Coombs that should be taken as departing from the orthodox approach of this Court: it is merely an example of the considerations that were necessary to inform that particular decision.

Here, you have an attack on a member of staff, the nature of the injuries required a considerable time off work and there were consequences afterwards. I think it can be said on that material, to be open to conclude that the injury was serious and in fact, could have been more serious than the injuries actually received by Miss Hundy. As I have indicated, the approach of this Court is to use the incident as evidence of the nature of the risk and that is the approach I take in this case in concluding that the risk of serious injury was present and very serious injury and that forms part of the material on which I conclude that this is a serious offence.

There are a number of subjective factors that are sought to be pressed on behalf of the defendant. The defendant points to its considerable system of Occupational Health & Safety as documented and as applied and the steps it took to address the detriment to safety demonstrated by this particular incident. That is, I think, a factor that I am entitled to take into account.

In all this material that was in place at the time of the incident in September 2002 and as developed since 2002 there was still, as this case indicates, a clear and foreseeable risk and quite simple steps available to address that risk. Nevertheless, this is not a case where the defendant comes before the Court without a system or without ever approaching the issue of its obligations under the Occupational Health & Safety Act. It would be naive of the Court not to recognize the difficult circumstances under which this defendant operates in relation to the nature of the services it provides and the clients with which it deals. As I have said earlier, that does not, however, detract from its other obligations, including its obligations under the Occupational Health & Safety Act. The training that has been offered, as documented in the affidavit evidence and the other steps taken, speak of a commitment to these obligations.

I take from the evidence of Miss Burlew and the early plea, that the Department thereby demonstrates its contrition and I also place its record in the context of a very sizeable Department with a significant workforce, many of them placed in situations that may lead them to confront aggressive and challenging behaviour.

In relation to these matters, therefore, I would approach this case on the basis of the early plea and its utilitarian value and this plea was entered on the very first return date, which I might say the Court doesn't often see. There is no reason why the defendant should not receive the full benefit of the usual discount of 25 percent. For the other subjective factors I have referred to, there should be a further discount of 5 percent, giving a total discount of 30 percent.

In those circumstances, based upon those considerations, the Court makes the following orders: 1. The defendant is found guilty of a breach of section 8(1) of the Occupational Health & Safety Act 2000, as particularised in the application for order to which it has pleaded guilty in Matter No 5722 of 2004. 2. The defendant is fined the sum of $227,500 with moiety to the Prosecutor. 3. The defendant is to pay the Prosecutor's costs, as agreed or in the absence of agreement, as ordered by the Court.

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