7 Consistently with the Crimes (Sentencing Procedure) Act 1999, a determination of the penalty here to be imposed, must be approached from a consideration of 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.
8 What arises for consideration are two separate explosions, occurring on the same day, in circumstances where the defendant has however only been charged with one offence, unlike Inspector Drewsen v Vee 8 Supercars Australia Pty Limited [2006] NSWIRComm 331, where the same two explosions led to two separate charges. Most regrettably, both explosions resulted in serious injury.
9 Like the defendant in Vee 8 Supercars, this defendant also accepted that it had failed to meet the obligations imposed upon it by the Act in the circumstances in which the explosions occurred. On the evidence, that acceptance was proper, as was the entry of the plea.
10 The evidence showed that the event being conducted at the Wakefield Park Raceway was conducted under the rules of the Federation Internationale L'Automobile ('FIA'). The defendant is the authorised body in Australia responsible for ensuring that FIA conditions and rules are adhered to during such events. Its charter is to ensure that motor sport is conducted in a safe, fair and socially responsible way. It issues a permit for such events. Its systems and rules govern matters such as judicial systems; event conduct; technical regulations for vehicles and equipment; rules for the conduct of and management of competitions; licensing of venues and participants; training and accreditation of officials and safety standards.
11 On this occasion the event was also governed by rules agreed with Australian VEE Eight Supercar Company Pty Ltd ('AVESCO'). Another entity, Touring Car Entrance Group Australia ('TEGA') and AVESCO provided various officials, who assisted in conducting the event. The defendant appointed stewards for the event, who determined judicial issues and who acted as its direct representatives at the event.
12 On 20 February 2004, scrutineers identified that certain vehicles did not have on board fire extinguishers which complied with new safety rules, introduced by the defendant, which came into effect on 1 January 2004. Unbeknownst to the defendant, arrangements were made for Mr Lansdown to attend the raceway to service the fire extinguishers. The work was undertaken at the trackside garage area, in a tent. An explosion occurred and Mr Lansdown was taken to hospital. After he was discharged, he returned to the track and attempted to service another fire extinguisher, which also exploded, injuring Mr Simmons and Mr Eggleston.
13 The defendant's Manager - Medical and Safety Services, Mr Brice Keys, was present that day. He had responsibility for administration of the defendant's safety and medical requirements for the event. Mr Keys was aware of the problem which had arisen with the fire extinguishers, but not of Mr Lansdown's presence on site. He attended the site of the first explosion, once he became aware of it, but all traces of the explosion had been removed and Mr Lansdown had been taken to hospital. Mr Keys only learned of the second explosion, after he had left the track. He thereupon returned to the event.
14 It was Mr Osborne's evidence that the incident revealed a gap in the defendant's approach to the safety of race events. Its focus had been on the conduct of the events themselves and not on peripheral activities related to the event. After the incident the defendant's Board reviewed that focus to extend generally to encompass activities previously regarded as peripheral to the conduct of race competitions. That was an understandable measure, given what had been revealed about the impact which safety rules for the conduct of a race, could have on pre-race preparations at the track.
15 Mr Osborne explained how the defendant is a sporting regulatory authority, which has 50 paid staff nationally and that it relies on the services of volunteers, to administer motor sport throughout Australia. The defendant is a not for profit organisation, made up of constituent car clubs. Its annual expenditure budget is less than the annual budget of a single leading team in the V8 Supercar Championship.
16 Prior to the incident, the defendant had developed a multitude of rules and regulations to assure safety at race events. These policies and rules were communicated to those who have day to day control of motor sport activities, who include promoters and event organisers; racing circuit and track owners; occupiers and operators; competitors; racing teams and pit crews; race officials and volunteers. While the defendant issues permits for events, it does not itself organise or conduct them. Those who do, undertake to abide by the defendant's rules and regulations. The defendant appoints stewards for each event, who are independent of the organisers and whose role is to monitor compliance with the rules.
17 This evidence explained how it came to be that the defendant's representative at the race, Mr Keys, was not directly involved in the steps taken by the race crews, in order to ensure that the defendant's new rules in relation to fire extinguishers, were complied with. While Mr Lansdown was engaged to come to the track to service non-compliant fire extinguishers, the crews also took steps to purchase compliant ones.
18 Mr Keys' presence explains why the defendant was informed, once the safety of those involved in the event had been compromised when the servicing of the fire extinguishers was first attempted. Most regrettably, the advice the defendant received after the first explosion, did not lead it to take steps available to it to ensure that a repetition of the approach which had led to that explosion was not attempted. So it was that despite Mr Keys having attended to inspect what had occurred after the first explosion, Mr Lansdown was later able to return to the track and to continue the servicing operation, which resulted in the second explosion.
19 The evidence showed that considerable new measures were implemented by the defendant after the incident, to ensure that the series of events which unfolded on this day, could not be repeated. They included obtaining advice from an external risk management consultant; reviewing its safety policies to extend them to the safety of steps taken in connection with racing, as well as racing itself; updating its manuals and competition handbooks and distributing them to staff, all affiliated clubs, track operators and race meeting organisers; delivering educational awareness of these initiatives through workshops and newsletters; establishing a risk management steering committee to meet each month; employing a full-time risk management project officer; introducing a compliance checker official at race meetings, so that responsibility for safety compliance at events would not rest alone on the shoulders of volunteers, stewards, race organisers, clerks of course and event secretaries; a series of risk assessment documents were developed and all motor sport organisers encouraged to implement new targeted risk assessment procedures. In 2006, the defendant's National Competition Rules were also amended to require a compliance checker as an essential official at all events and briefings on the new office were provided to the motor sport industry.
20 These were very considerable initiatives. Given the hierarchy of management of this industry, with the defendant establishing the rules under which motor racing is to be conducted and issuing permits for events, but not itself organising or conducting the events, the implementation and enforcement of its rules, of necessity involves others - both participants and volunteers, as well as those operating in the industry for profit and employment. Nevertheless, with the amendment of its safety rules and the innovation of the compliance checker position particularly, very significant steps were taken to address a problem with the defendant's earlier approach to pre-race safety, which this incident had highlighted.
21 Understandably, the defendant was always concerned to ensure the safety of races themselves. Motor racing is, after all, a very dangerous sport. Nevertheless, risks to safety can arise in other ways including in connection with preparation for a race, as this incident graphically showed. The necessity of ensuring safety at the pre-race stage of events, has been recognised and sought to be addressed by the defendant, through the initiatives Mr Osborne described in his evidence.
22 I make these observations at this point, because the evidence suggested that this was not one of those cases where it could readily be seen that simple steps available to be taken by this defendant, would have ensured that its obligations to ensure safety would have been met on this occasion. This defendant did not give Mr Lansdown access to the race track. That was not within its control. Access was given by others. It had imposed the rules as to the necessity to regularly service fire extinguishers, but it did not control the steps taken by the affected race teams in order to comply with the rule. It was the race teams who arranged for Mr Lansdown to attend to undertake the servicing required, instead of waiting until new fire extinguishers had arrived at the track. Others upon whom safety obligations fell were aware of, and facilitated that course. The defendant was not. It also did not control the place where the servicing was permitted to be undertaken.
23 The defendant did not become aware of Mr Lansdown's presence, or of the attempt to service the fire extinguishers at the trackside, until after each explosion had occurred that day. The evidence did not show that all of the steps which have been taken by the defendant since the incident, if taken beforehand, would have precluded this risk to safety from materialising. Even the new policies and the introduction of the compliance checker at each event, cannot have assured that outcome. Steps available to others upon who safety obligations also fell, such as not permitting Mr Lansdown access to the track, or waiting for new fire extinguishers, instead of attempting to service the non compliant fire extinguishers at the trackside, clearly could have precluded this risk from eventuating. The evidence does not show that those matters were within this defendant's control.
24 It is in that context that the seriousness of this offence must be considered. Both the prosecutor and the defendant submitted that it should be concluded that this offence was less serious than the offences with which AVESCO was charged. On the evidence I accept those submissions. AVESCO was much more directly involved in the events which led to both explosions. In its case I found at [19], [21], [23] and [24] that:
... 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.
... 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.
... 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 garage
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