Inspector Drewsen v Vee 8 Supercars Australia Pty Limited

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000

Crown in Right of State of NSW (Dept of Education & Training) v Keenan [2001] NSWIRComm 106 CASES CITED: Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 Inspector David Waterhouse v Innovative Property Developments Pty Ltd and Others [2006] NSWIRComm 97 R v Mansour (1999) 29 MVR 409

PROSECUTOR: Mr BG Docking of counsel SOLICITORS: Shaw McDonald Pty Ltd LEGAL REPRESENTATIVES: DEFENDANT: Mrs WG Thompson of counsel SOLICITORS: Allens Arthur Robinson

INSPECTOR LARRY DREWSEN v VEE 8 SUPERCARS AUSTRALIA PTY LIMITED FORMERLY KNOWN AS AUSTRALIAN VEE EIGHT SUPERCAR COMPANY PTY LIMITED Prosecution under section 8(2) of the Occupational Health and Safety Act 2000 Matter No IRC 800 of 2006 INSPECTOR LARRY DREWSEN v VEE 8 SUPERCARS AUSTRALIA PTY LIMITED FORMERLY KNOWN AS AUSTRALIAN VEE EIGHT SUPERCAR COMPANY PTY LIMITED Prosecution under section 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT

1 On 21 February 2004, two fire extinguishers exploded at the Wakefield Park Raceway, while they were being tested and recharged. One person, Mr Trevor Francis Lansdown, was injured in the first explosion and two others, Mr Brian Philip Eggleston and Mr Glen Robert Simmons, were injured in the second. The defendant was charged with two offences under s 8(2) of the Occupational Health and Safety Act 2000 ('the Act') and entered a plea of guilty to each offence. This judgment deals with the question of penalty. 2 The two offences to which the defendant entered its pleas were:

Matter Number IRC 797 of 2006 On 21 February 2004 at the Wakefield Park Raceway, Goulburn, in the State of New South Wales, being an employer, the defendant failed to ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work, in that the defendant failed to ensure that systems of work were safe and without risks to health to Trevor Francis Lansdown, Brian Phillip Eggleston, Glenn Robert Simmons, James Clarence Gardiner, Kerry Frederick Butchers and Jeremy Patrick Bird contrary to section 8(2) of the Occupational Health and Safety Act 2000

a) There was an actual risk of injury to people (other than the employees of the person) from a vehicular fire extinguisher cylinder releasing pressure, rupturing or exploding. b) The defendant's undertaking included: i) Conducting V8 supercar events in Australia, including at the Wakefield Park Raceway. ii) Having employees present at the place of work including Operations Manager V8 Supercar Championship Series Mr Anthony John Manson. iii) Having a role to attend all race meetings and the duties at race meetings included, "Draft and implement bulletins (via Stewards) as required through out course of weekend", "Work in pit lane with other staff …", "Liaise with staff", "Manage paddock use, access and circuit accreditation issues" and "Deal with work cover authorities on paddock OH&S issues".

c) Aspects of the defendant's unsafe systems of work were any of the following: i) After there had been an earlier rupturing or explosion of a fire extinguisher cylinder and Mr Lansdown was injured, the defendant failed to prevent or minimise Mr Lansdown servicing, charging and re-pressurising vehicular fire extinguisher cylinders in or about the tented garage of the Brian Phillip Eggleston racing team and in an area of work not away from other people. ii) The defendant failed to prevent or minimise Mr Lansdown over pressurising a fire extinguisher cylinder. iii) The defendant omitted causing to be available a stock of replacement vehicular fire extinguishers so that Mr Lansdown did not need to service, charge and re-pressure fire extinguishers at the place of work. iv) The defendant failed to undertake an adequate risk assessment before Mr Lansdown performed his undertaking, in that it did not adequately consider the risk, why the earlier rupturing or explosion of a fire extinguisher cylinder occurred, the time pressure on Mr Lansdown to complete the undertaking, the impact of the injuries that Mr Lansdown suffered arising from the earlier rupturing or explosion, that other people were to perform part of the work, such other people were not adequately trained, instructed or made aware of the risk associated with the tasks, that present in the work area were other people and no risk prevention or minimisation measures were identified. v) The defendant provided to Mr Lansdown accreditation or a pass to gain entry to the place of work to provide services to teams. vi) The defendant omitted to have in place a system of communication that alerted Mr Lansdown had returned to the place of work to perform work after previously being injured. vii) The defendant failed to prevent Mr Lansdown gaining access to his own equipment and the equipment of other people to perform the undertaking of Mr Lansdown.

d) The injuries to Mr Lansdown, Mr Eggleston and Mr Simmons were a manifestation of the risk.

On 21 February 2004 at the Wakefield Park Raceway, Goulburn, in the State of New South Wales, being an employer, the defendant failed to ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work, in that the defendant failed to ensure that systems of work were safe and without risks to health to Trevor Francis Lansdown, Ralf Rupprecht and Steven Davy Brow contrary to section 8(2) of the Occupational Health and Safety Act 2000

a) There was an actual risk of injury to people (other than the employees of the person) from a vehicular fire extinguisher cylinder releasing pressure, rupturing or exploding.

b) The defendant's undertaking included: i) Conducting V8 supercar events in Australia, including at the Wakefield Park Raceway. ii) Having employees present at the place of work including Operations Manager V8 Supercar Championship Series Mr Anthony John Manson. iii) Having a role to attend all race meetings and the duties at race meetings included, "Draft and implement bulletins (via Stewards) as required through out course of weekend", "Work in pit lane with other staff …", "Liaise with staff", "Manage paddock use, access and circuit accreditation issues" and "Deal with work cover authorities on paddock OH&S issues".

c) Aspects of the defendant's unsafe systems of work were any of the following: i) The defendant failed to prevent or minimise Mr Lansdown servicing, charging and re-pressurising vehicular fire extinguisher cylinders in or about the tented garage of the Ralf Rupprecht racing team and in an area of work not away from other people. ii) The defendant failed to prevent or minimise Mr Lansdown over pressurising a fire extinguisher cylinder. iii) The defendant omitted causing to be available a stock of replacement vehicular fire extinguisher so that Mr Lansdown did not need to service, charge and re-pressure fire extinguishers at the place of work. iv) The defendant failed to undertake an adequate risk assessment before Mr Lansdown performed his undertaking, in that it did not adequately consider the risk, the time pressure on Mr Lansdown to complete the undertaking before the practice session, that part of the equipment to be used was from people other than Mr Lansdown, that present at the place of work were people other than Mr Lansdown and no risk prevention or minimisation measures were identified. v) The defendant provided to Mr Lansdown accreditation or a pass to gain entry to the place of work to provide services to teams. d) The injury to Mr Lansdown was a manifestation of the risk. 3 An agreed statement of facts was tendered. It provided:

The Defendant 1. The defendant, V8 Supercars Australia Pty Ltd (ACN 077 053 484): (a) is and, at all material times was, a company with its registered office located at level 1, 64 Marine Parade, Southport, in the State of Queensland; (b) is the category owner for V8 supercar racing in Australia; (c) is responsible for promoting and developing V8 supercar racing; (d) administers two V8 supercar series: (i) the V8 Supercar Championship Series; and (ii) the secondary V8 series, which is called the Konica Development Series. The Event 2. The incidents that are the subject of the charges against the defendant occurred: (a) on 21 February 2004 at the Wakefield Park Raceway, Goulburn, in New South Wales (the Raceway ); and (b) at the first Round of the 2004 Konica Development Series (the Wakefield Park Event). 3. The defendant contracted with Wakefield Park Management Pty Ltd (ACN 093 720 140) ( Wakefield Park Management ) for the conduct of the Wakefield Park event, which included Wakefield Park Management: (a) organising and promoting the Wakefield Park Event; and (b) providing access to the Raceway for the Wakefield Park Event.

Charge 800 - The First Incident 4. On 20 February 2004, at the Raceway, scrutineers examined the vehicles participating in the Wakefield Park Event. The scrutineering revealed that some of the vehicles had on board fire extinguishers that did not comply with relevant rules. 5. A meeting was held between managers of the racing teams and two employees of Touringcar Entrants Group Australia Pty Ltd (ACN 069 655 269) (TEGA); namely, Mr Paul Gregory Taylor (Taylor) and Mr Steven Davy Brow (Brow). Following this meeting, arrangements were made for Trevor Francis Lansdown (Lansdown) to service the fire extinguishers at the Raceway. The defendant knew of these arrangements. Although Taylor and Brow were employed by TEGA, they were present at the event under the direction of and subject to the control of the defendant. 6. Lansdown was, at all material times, self employed and operating a business trading under the name Pyro-tection. Pyro-tection is one of only two businesses in Australia that is authorised to service and maintain the type of on board fire extinguisher used in the V8 supercars. 7. Lansdown entered the Raceway at about 9am on 21 February 2004. To access the Raceway, Lansdown was issued with a hard access pass issued on behalf of the defendant. Lansdown proceeded to the teams' garage area of the Raceway and began servicing the fire extinguishers belonging to the racing team headed by Ralf Rupprecht. One of the fire extinguishers exploded during the servicing process and Lansdown sustained injuries to his arms and legs. 8. Lansdown was attended to by on site medical staff and then was conveyed to Goulburn Base Hospital for treatment. Charge 797 - The Second Incident 9. At about 4pm on 21 February 2004, Lansdown returned to the Raceway. Lansdown spoke to Brow and then proceeded to the garage area. 10. Due to the injuries sustained by Lansdown earlier in the day, he was unable to undertake the testing and recharging of the fire extinguishers himself. Lansdown instructed two members of the Eggleston racing team (Brian Philip Eggleston (Eggleston) and Glen Robert Simmons (Simmons)) to carry out the task under Lansdown's instructions. Whilst Eggleston and Simmons were carrying out the servicing of the fire extinguisher under Lansdown's instructions, the extinguisher exploded. Eggleston suffered a crushed hand with restriction of use of the right hand, a broken jaw and an immobilised shoulder with permanent movement restriction. Simmons suffered a fractured wrist requiring the insertion of plates and screws, a damaged radial nerve of the right hand, hearing loss and post traumatic stress syndrome. Other Matters 11. 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. 12. When interviewed by WorkCover, Mr Anthony Manson, the Operations Manager of the defendant, stated that he did not know who could have prevented Lansdown continuing with the fire extinguisher servicing activities. 13. The servicing of fire extinguishers at the Raceway was not a usual activity as such servicing is usually conducted in a controlled environment. No risk assessment or safe work method was requested or undertaken in relation to the task. 14. The defendant fully cooperated with WorkCover's investigation of the incidents. 15. The defendant has no prior convictions for breaches of the Occupational Health and Safety Act 2000 (NSW). 4 Other documents were tendered and in the defendant's case, evidence was called from its Operations Manager, Mr Kurt David Sakzewski. 5 A victim impact statement provided by Mr Simmons was also tendered. The parties' cases 6 The parties were agreed that these were first offences, the defendant having no prior record and that the penalty in each case was $550,000. They also largely agreed on the applicable sentencing principles, including in relation to questions of totality and parity. As to the risk in question, the prosecutor submitted that it was 'an actual risk of injury or even a fatality to persons arising from the explosion of a pressurised gas cylinder, whilst recharging and repressurising fire extinguishers'. This was not conceded by the defendant, which submitted that the risk was a risk of serious injury, not death. The nature of the risk was submitted to be supported by the nature of the injury ultimately sustained by those close to the cylinder when it ruptured. Consideration

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.

Victim Impact Statement 32 A victim impact statement made by Mr Simmons was tendered by the prosecutor without objection by the defendant. Mr Simmons was present in Court when the matter was heard. This tender was made in accordance with ss 27 and 28 of the Crimes (Sentencing Procedure) Act 1999, this being a case where the offences resulted in actual physical bodily harm. 33 I was satisfied that to receive the statement tendered was appropriate in the circumstances of the case. The statement outlined the serious physical and psychological injuries Mr Simmons has suffered. The various medical reports attached to the statement put into context the personal harm he has suffered as a direct result of the offences here in question. 34 As Spigelman CJ explained in R v Mansour (1999) 29 MVR 409, when dealing with a victim impact statement which had led the trial judge to comment on the 'immeasurable grief' of the family of the deceased victim:

It is entirely appropriate that trial judges acknowledge the impact of crime on victims and their families in this public way. The purposes of the criminal justice system are well served by such public recognition of the grief imposed on families of victims.

35 In this case, there was no issue between the parties that the risk to which Mr Simmons had been exposed, was the risk of serious injury, which in fact, most regrettably materialised for Mr Simmons and for Mr Eggleston as well. Mr Lansdown was also injured. Given the photographic evidence of the state of the cylinders after the explosion, that the injuries which they each suffered could have been even more serious than they were, was quite apparent. 36 In those circumstances, I took the view that a just exercise of the discretion given by s 28 of the Crimes (Sentencing Procedures) Act 1999 involved the receipt of Mr Simmons' statement and I have accordingly considered it consistently with the legislative scheme, which includes the provision made in s 29(3), that the absence of such a statement does not give rise to an inference that an offence had little or no impact on a victim. This is, of course, a relevant consideration in this case, given that it was only Mr Simmons, who provided such a statement. 37 Under the legislative scheme, the receipt of the statement, no matter the very serious injuries which Mr Simmons has most regrettably suffered, cannot lead to the imposition of a higher penalty than would have been imposed in its absence. Its receipt, nevertheless, is a proper recognition by the Court, in a public way, of Mr Simmons' explanation of what he has to endure, as the direct consequence of these offences. As the Chief Justice explained, in this way the Court publicly acknowledges the awful impact which these offences have had on Mr Simmons. Again, regrettably in this case, he is not alone in his suffering.

38 Having weighed all of the matters I have mentioned, I concluded that the appropriate penalty was $60,000 for the first offence and $90,000 for the second, a total of $150,000. 39 In coming to that figure, I note that I adopted the approach discussed in Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 at [29] to [31] and Inspector David Waterhouse v Innovative Property Developments Pty Ltd and Others [2006] NSWIRComm 97 at [64] to [67]. I here concluded that a discount of 25% for utilitarian savings achieved by the acknowledged entry of early pleas, at the earliest opportunity, after the charges were amended by the prosecutor, was an appropriate discount on the penalties which I had otherwise determined were appropriate in all the circumstances of each case. 40 The principle of totality must also be applied. (See Crown in Right of State of NSW (Dept of Education & Training) v Keenan [2001] NSWIRComm 106). A total penalty of $150,000 for the two offences must be considered against a penalty backdrop of $550,000 for these first offences. On any proper and fair consideration of the defendant's criminality in these cases, that would impose a penalty in excess of its culpability, given the considerable, albeit not complete, overlap between the two offences. Accordingly, in determining an appropriate penalty by applying the principle of totality, I have concluded that an overall penalty for the two offences of $120,000 is just in all of the circumstances. This results in a final penalty in each case of $50,000, for the first offence and $70,000 for the second, as I take the view that the second offence was the more serious of the two offences here in question, for the reasons earlier explained. Orders 41 For the reasons given, I find the defendant guilty of the charges to which the pleas were entered. Vee 8 Supercars Australia Pty Limited is ordered to pay a penalty of $50,000 in Matter Number IRC 797 of 2006 and $70,000 in Matter Number IRC 800 of 2006, with a moiety to the prosecutor in each case. 42 I also order the defendant to pay the prosecutor's costs as agreed, or in the absence of agreement, the matter may be referred to the Registrar for assessment. The parties have liberty to approach in that respect.

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