7 The parties were agreed that the maximum penalty for this first offence was $55,000. Both parties submitted that in terms of parity, it would be open to conclude that Mr Lansdown was less culpable for what had occurred than was the defendant AVESCO, (see Inspector Drewsen v Vee 8 Supercars Australia Pty Limited [2006] NSWIRComm 331).
8 It was Mr Lansdown's case that his situation was akin to that of the defendant CAMS, which like him had been charged with one offence, which encompassed both explosions (see Inspector Drewsen v Confederation of Australian Motor Sport Ltd [2006] NSWIRComm 388). It was also submitted that in determining penalty, especially in considering the question of specific deterrence, account would be taken of the fact that Mr Lansdown had himself suffered considerable injury (see R v Noble and Verheyden (1996) 1 Qd:R 329 at 330-1).
Consideration
9 Consistently with the Crimes (Sentencing Procedure) Act 1999, the penalty here to be imposed, must be fixed having regard to the nature and seriousness of the offence in question, together with aggravating and mitigating factors. In this case, I am satisfied that the evidence demonstrated, to the requisite degree, that the offence charged was proven and that the plea was properly entered. Most regrettably, the two separate explosions which occurred on the same day were the result of serious and obvious safety risks.
10 On the evidence the work of recharging fire extinguishers such as those which here exploded, was usually undertaken in quite a different setting - in a workshop where Mr Lansdown had his own equipment. On this occasion the work was undertaken under time pressure, in a tent using equipment which belonged to other people, who used it for different purposes and where safety measures, such as performing the operation in a safety cage, were not implemented.
11 Mr Lansdown was one of only two people in Australia authorised to undertake this work. He was the person with the relevant expertise, brought to the racetrack to ensure that various race teams had fire extinguishers which complied with the applicable safety requirements. It was not disputed that at the trackside before the first explosion, the safety of undertaking the work in a trackside tent, rather than in a 'concealed room' by himself, was raised directly with Mr Lansdown by Mr Rupprecht. Mr Lansdown asserted that he knew what he was doing. He proceeded to perform the work, using a nitrogen bottle belonging to one of the teams, which was used to change tyres, without reducing the pressure of the regulators. Almost immediately, there was an explosion, in which Mr Lansdown was so seriously injured, that he had to be taken to hospital.
12 While Mr Lansdown could not recollect what occurred in connection with the second explosion, it was not disputed that after Mr Lansdown's return to the racetrack later that afternoon, Mr Rupprecht again raised the question of safety with him, saying 'I have warned you before you can't do this in an open space and you can't use other people's equipment without checking what the pressure on the regulators are'. Mr Lansdown, nevertheless, went to another tent and offered to repressure Mr Eggleston's fire extinguisher, telling him 'I'm not going to let this beat me and I have to do this but I have a broken arm so you will have to do what I tell you.' Regrettably, Mr Eggleston agreed, even though a new fire extinguisher was about to arrive from Sydney. There was time pressure, because Mr Eggleston needed to be able to get onto the track in order to qualify for the next day's race.
13 Despite encountering problems in successfully undertaking the process, Mr Lansdown and Mr Eggleston persisted with their efforts. Mr Eggleston felt that 'something just didn't gel', but the work was still continued and there was a second explosion. The subsequent expert assessment was that the most probable cause of the two explosions was overpressuring, as the result of inadequate equipment, operator error, or a combination of both.
14 In light of this evidence, Mr Lansdown's entry of the plea can be seen to have been a proper one. He had the expertise, he selected the equipment used and he controlled the operation being undertaken on both occasions. His initial approach was plainly not consistent with considerations of safety. His return to the track and his insistence on trying to recharge a second fire extinguisher after the first explosion must be regarded as entirely inconsistent with any proper attention being paid to safety considerations. This makes the offence a more serious one than would have been the case, if he had not persisted. While Mr Lansdown cannot recall what occurred in connection with the second explosion, the agreed evidence suggested that he was lucid and intent on persisting with the operation, even though too injured to undertake the work alone and so attempted the work with Mr Eggleston's assistance.
15 In submissions, it was put that Mr Lansdown had been treated with pethidine at the hospital. There was no evidence about the treatment Mr Lansdown received, or what effect, if any, such treatment might have had on his capacity to safely proceed with what he was doing. Nor was there evidence that the first explosion had affected his capacity to appreciate what he was about. Persisting with the recharging of a second fire extinguisher does not seem rational, given what had already occurred. Nevertheless, the undisputed evidence was that Mr Lansdown insisted on proceeding despite the question of safety being raised directly with him.
16 I am unable to accept, on the basis of all of this evidence, that in terms of parity, it could properly be concluded that Mr Lansdown had less culpability for what occurred this day, than did the defendant AVESCO. True it is that AVESCO could have dealt with the problems which the fire extinguishers presented that day in ways other than having Mr Lansdown undertake the work in question. The time pressure which, undoubtedly, influenced Mr Eggleston in agreeing to assist Mr Lansdown, was no doubt created by AVESCO, which could have taken a different course.
17 Mr Lansdown, however, also had safety obligations. He could have declined to undertake the work, if it could not have been performed safely in the circumstances prevailing at the track. He was the one with the expertise in the work. It was he who decided to undertake the work, utilising equipment other than in his own, at a location not equipped with a safety cage. It was, no doubt, in his commercial interests to do so. Despite the patent deficiencies of his first attempt to recharge a fire extinguisher with the equipment available, he later returned to the racetrack and attempted to recharge a second fire extinguisher, even though he was too injured, to undertake the work himself. This resulted in the unfortunate injuries which Mr Eggleston and Mr Simmons suffered. By that stage, even if there had been the slightest doubt about the safety of the operation at the outset, that doubt must have been removed, by the first explosion. Despite this, a further attempt to undertake the work was made. I am satisfied that this situation does not leave open the conclusion that AVESCO had greater culpability for what here occurred, than did Mr Lansdown. Like AVESCO he had an obligation to ensure safety. He utterly failed to do so.
18 In fixing penalty account must of course be taken of the fact that AVESCO was charged with two offences, the penalties for which were fixed in part by application of the totality principle. Only one charge was finally pressed against Mr Lansdown, the charge dealing with both explosions, as did the charge to which the defendant CAMS had earlier entered a plea. Mr Lansdown was also himself injured in the first explosion. All of these matters must be taken into account, in determining penalty in this case. Nevertheless, it cannot be overlooked that this was a serious first offence, on any view. The risk involved in the work being undertaken was foreseeable, indeed, it had materialised, before the second explosion. The risk was the risk of serious injury, which in fact resulted. There were also obvious steps which could have been taken to remove the risk.
19 On the evidence, I am satisfied that specific and general deterrence have a role to play in the penalty here to be imposed. General deterrence because of the widespread use of fire extinguishers throughout industry and the need to repair and maintain them. Specific deterrence because Mr Lansdown continues to operate his business, albeit these events have had a negative impact on its success. In the circumstances, I cannot accept that the need for specific deterrence was reduced by the fact that Mr Lansdown was himself injured. It was not only he who was at risk of injury in the steps taken which led to the first explosion. Despite having been injured in that explosion, thereby his attention having been so graphically drawn to the risk of what he was undertaking, he later returned to attempt to recharge a second fire extinguisher. In those circumstances, I take the view that the role of specific deterrence cannot be reduced in the penalty imposed in this case.
20 As to mitigating matters, I note that apart from contrition which might be reflected by entry of the plea, no evidence was led as to such matters. Nor was there any suggestion that any steps have been taken by Mr Lansdown to assist those injured, or to alter the approach which he had earlier taken to safety matters, in the business which he continues to pursue. No evidence was led to suggest that any steps were taken after this day by Mr Lansdown, to ensure that the events which had occurred could not be repeated. The Court was not addressed on anything relevant to such considerations, a quite different picture to that of the other two defendants.
21 Mr Lansdown still operates his business, notwithstanding that these events have had a deleterious effect and that he has now relocated to Queensland. His business now operates only at about 40% of its former level. It follows that but relatively little was led by way of mitigation of this offence.
22 Otherwise, it was submitted for Mr Lansdown and accepted by the prosecutor, that the defendant's record and his years of work in fire fighting, evidenced preceding good citizenship. I accept that submission, although noting that while a record of no offences under the Act was plainly a good one, there was no evidence as to how long the business in question had been conducted. Nevertheless, these are matters to which I have paid attention in fixing the penalty here to be imposed. I have also taken account of Mr Lansdown's acknowledged co-operation with the prosecutor.
Victim Impact Statements