7 Consistently with the Crimes (Sentencing Procedures) Act 1999, a determination of the sentence here to be imposed, must be approached from a consideration of the nature and seriousness of the offences in question, together with aggravating and mitigating factors. In this case, I am satisfied that the evidence demonstrated, to the requisite degree, that the offences charged were each proven.
8 What here arises for consideration are two separate explosions, occurring on the same day, in circumstances where the defendant accepts that it failed to meet the obligations imposed upon it by the Act. While these were first offences, on the evidence it must be concluded that they were both relatively serious, the second more so than the first.
9 It was the defendant's case that race events in which it is involved are carefully planned and thought out, so far as considerations of safety are concerned. There are a number of parties involved in the arrangement, promotion and running of such events, with the result that if an accident occurs, it is the result of an unplanned event.
10 Most unfortunately, as was submitted for the defendant, these offences occurred in circumstances where the defendant and others were attending to a safety requirement for the racing to be conducted during the event, namely that fire extinguishers be carried by racing cars, which complied with the relevant safety requirements. Scrutineers had identified a number of cars which had non compliant fire extinguishers, which would deny them entry to the track. It was the way in which the testing and recharging of the fire extinguishers identified as non-compliant with these requirements was then undertaken, which was unsafe and had the most regrettable of consequences.
11 The evidence did not clearly establish who arranged for Mr Lansdown to attend the racetrack. On Mr Sakzewski's evidence, if a team had a non-compliant fire extinguisher, it was a matter for the team to take steps necessary to rectify that situation, either by replacing the fire extinguisher, or having it recharged and certified.
12 Mr Lansdown conducted one of only two businesses in Australia authorised by the manufacturer to service and maintain the fire extinguishers in question. Ordinarily, such work would be undertaken at Mr Lansdown's place of business. It was not an activity normally undertaken at a racetrack. On this occasion, Mr Lansdown attended the track and undertook the work for the racing teams who required their fire extinguishers to be tested and recharged, in their onsite garages. These were not permanent structures, but tents erected near the race track. Mr Lansdown was to be paid by the teams who used his services and on the day, the defendant did not regard itself as having responsibility for the safety of the work he was engaged to do. On the defendant's submission 'because of the number of persons participating in the decision to bring Mr Lansdown to the racetrack, it appears that no one person assumed responsibility for requesting a safe work method from Mr Lansdown or requiring a risk assessment to be undertaken.'
13 Subsequent expert testing of the fire extinguishers which exploded suggested that the most probable cause of the explosions was over pressurising and that this resulted from either inadequate equipment, operator error or a combination of both.
14 The defendant accepted its responsibility for what occurred, but pointed to the circumstances on the day, where others also had responsibilities under the Act and where none of them met those responsibilities. They included Mr Lansdown himself, the racing teams who engaged him, Wakefield Park Management Pty Ltd ('Wakefield') and the Confederation of Australian Motor Sports ('CAMS'). It was Wakefield which the defendant contracted to promote and conduct the event, which owned the raceway and leased the garages to the racing teams. The races were conducted under the rules of the Federation Internationale de l'Automobile ('FIA'). On Mr Sakzewski's evidence, it is the international body which governs V8 motor sports globally and imposes the local rules for racing. CAMS is its Australian representative, appointed by FIA to regulate motor sport in Australia, in order to promote and achieve safety, amongst other aims.
15 On Mr Sakzewski's evidence, the defendant's role on the day was as category manager, facilitating the arrival and participation of teams in the event and assisting in its running. It had a right of access to the garage area to see the teams and to inspect what they were doing.
16 That the defendant ought to have recognised its statutory obligations to ensure safety when Mr Lansdown came onto the track to undertake the work of testing and recharging the fire extinguishers, was accepted by entry of the pleas. That acceptance was understandable on the evidence. The defendant's then Operations Manager, Mr Anthony Manson, was present that day, with duties at race meetings which expressly included matters such as "inspecting track safety issues; work in pit lane with other staff including liaison between teams and race control during races; manage paddock use, access and circuit access accreditation issues; deal with work cover authorities on paddock OH&S issues". Otherwise, Mr Manson's duties between meetings included "oversee planning and development of a OH&S guide." It was the defendant which authorised Mr Lansdown's entry to the track that day and provided him with a pass, which enabled him to return to the track, after he had been discharged from the hospital where he had been treated for the injuries sustained when the first fire extinguisher exploded. Despite the explosion earlier that day, Mr Lansdown was thereby able to return to the track. The recharging of the other fire extinguisher which was then undertaken, led to the second explosion.
17 It was apparent from the evidence that before these events, the defendant had given consideration to safety matters, but despite this, the parties agreed that 'Representatives of the defendant who were at the Wakefield Park Event did not believe that the defendant had occupational health and safety responsibilities in relation to the testing and recharging of fire extinguishers at the Wakefield Park Event.' That was a most unfortunate lapse.
18 In assessing the nature and seriousness of this offence, I note the defendant's submission that it could not reasonably have anticipated that Mr Lansdown would conduct the testing and recharging of the fire extinguishers in such an unsafe way, that they would explode. While that submission may have some force in relation to the first explosion, given that Mr Lansdown was one of only two authorised service providers for such extinguishers in Australia, it is not a submission available to be made in respect of the second explosion, given that, as the defendant also submitted, after the first explosion, 'no one person took responsibility for investigating the cause of the explosion'.
19 As the defendant accepted by its plea, given its obligations under the Act, from the outset it ought to have given proper consideration as to whether servicing and recharging of the extinguishers could be safely undertaken at the track, given that such work was ordinarily performed at an offsite workshop, where quite different conditions prevailed to those prevailing in the tents where the work was undertaken that day. That the work had not been safely undertaken became apparent with the first explosion, in which Mr Lansdown suffered a broken arm, but still the defendant did not recognise and act upon its safety obligations.
20 The circumstances in which the second explosion occurred thus requires further consideration. Despite the earlier explosion which had led to Mr Lansdown's injury and treatment in hospital, the defendant did nothing to ensure that he did not return to the track later in the day, to continue testing and recharging other fire extinguishers. What had occurred earlier that day had clearly not ensured safety during those operations, as they had been undertaken. The defendant submitted that in considering its culpability for what then occurred it was relevant that the Eggleston team, of which Mr Eggleston and Mr Simmons were members, were aware of the earlier explosion and still agreed to undertake the recharging under Mr Lansdown's supervisions. Mr Lansdown's culpability for what occurred was also submitted to be relevant, it being argued that it was greater than that of the defendant. For the prosecutor it was submitted that on the evidence it was open to conclude that this defendant was 'slightly' more culpable for what had occurred than CAMS.
21 I accept that the question of relative culpability is a matter to which consideration must be given in determining the penalty to be imposed on this defendant. Nevertheless, so far as this defendant is concerned, it must be observed that being aware of the circumstances of the first explosion and still permitting the safety of Mr Eggleston and Mr Simmons to be put at risk, when Mr Lansdown was allowed to return to the track and to instruct them in how to perform the recharging work, he being too injured to do so himself, undoubtedly made this defendant's second offence more serious than the first, as the defendant properly accepted in the submissions advanced.
22 It is, after all, by imposing safety obligations on a range of persons and entities involved in a particular undertaking, that the legislation seeks to ensure the safety of the people involved, even when not everyone upon whom such obligations rest, recognise or act to ensure that safety is maintained. Unfortunately, in this case, it appears that no one met those obligations.
23 While the fire extinguishers belonged to the racing teams, the necessity to service and recharge them arose from the rules under which the races were being conducted. Consistently with its involvement in the conduct of those races, it was the defendant who provided Mr Lansdown a hard access pass, so that he could get onto the track to undertake the work the teams required, so that they could participate in the race. It did not take steps to preclude further access, despite what the first explosion had revealed about the apparent lack of safety of the operation undertaken in the team's trackside garages.
24 The risk to safety posed was both a serious and obvious one, given that these fire extinguishers could explode during the process being undertaken. It is unnecessary to come to a final view that there was a risk of death present. The evidence did not seek to address this matter. It was evident that serious injury was both foreseeable from such an explosion and that it materialised. Indeed, the injuries could plainly have been more serious than those which in fact resulted, given the photographs in evidence as to the state of the extinguishers, after the explosion. That there were simple measures available to be taken which would have avoided the risk materialising, was also apparent. On the evidence, arrangements had also been made to purchase new certified fire extinguishers, which were being brought to the track. At the time of the second explosion, they were only a short distance away. New fire extinguishers could have been used instead of attempts being made to recharge the other fire extinguishers at the trackside.
25 These are all factors which must be reflected in the penalty to be imposed. Given the evidence, I am satisfied that both general and specific deterrence have a role to play in the penalty imposed. While these were first offences, the circumstances in which they occurred make the need for specific deterrence obvious. Given the explosion which resulted from the unsafe approach adopted to the recharging of the fire extinguishers and their use throughout the industry, the need for general deterrence is also apparent.
26 Subjective matters relevant to be taken into account by way of mitigation, include the size of the defendant's operations and its record since it commenced operation in 1997, the industry in which it operates and the role it plays in the dangerous sport of motor racing. It employed 18 staff at the time of these incidents and is responsible for the promotion and financial management of V8 Super car racing. While the defendant had a good record before these offences, I note that record only persisted for some 8 years.
27 I accept that this plea was entered early and that the evidence demonstrated that while on this occasion, there was an entirely inadequate approach adopted to the observance of the defendant's safety obligations, that this was not a defendant which had otherwise paid no attention to those obligations. Yet again, however, the evidence graphically illustrated that paper systems will be ineffective in ensuring safety, if they are not put into effect by those persons who have the responsibility for ensuring that corporate defendants attend to their obligations.
28 I also note the evidence of the steps taken by the defendant after the incident, to rectify the deficiencies highlighted. They included engaging external experts to conduct a safety audit; another external expert to develop a health and safety management plan for race meetings, which involved a safety audit of three such meetings; and the subsequent development of a safety manual. Some $75,000 was spent on these activities. The defendant modified its standard agreements with contractors, to deal expressly with safety matters and introduced a procedure for reviewing contractors' safety systems, before they undertook any work. Safety procedures are being developed and staff are being trained in safety. A health and safety officer has been employed, with various safety responsibilities, who is also involved in developing safety initiatives to benefit the motor racing industry. The defendant meets every 3 months with CAMS to discuss safety issues arising from race meetings; safety checklists are being developed for use by racing teams and work is being undertaken with promoters and race circuit owners, to co-ordinate safety induction programmes at race events.
29 I accept that these are all commendable initiatives, but the evidence suggests they are initiatives which should have been undertaken by the defendant from the outset of its operations. After all, the obligations imposed by the Act in 2000, were preceded by similar obligations, first imposed by legislation enacted in this State in 1983.
30 I also accept that the defendant co-operated with the WorkCover Authority in its investigations; that it has complied with safety notices issued and is working voluntarily with regulators on safety matters, including in other States. I also accept that the defendant has shown real contrition and remorse for what here occurred. All of these matters must be taken into account in fixing penalty.
31 As to considerations of parity, I note that Mr Lansdown and CAMS have been charged as the result of the events here in question and so the question of parity arises. Those matters have not yet been dealt with and the defendant submitted that the imposition of sentence in its case ought not to be delayed. I accept that approach in this case.