Inspector Farrell v The Salvation Army

PROSECUTOR: Mr J Phillips of counsel SOLICITORS: Mr G Phillips Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT: Ms P McDonald of counsel SOLICITORS: Mr M Davies PriceWaterhouseCoopers Legal

JUDGMENT: - 37 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

29 July 2003 Matter No. IRC 949 of 2002 INSPECTOR ANTHONY JOHN FARRELL v THE SALVATION ARMY (NEW SOUTH WALES) PROPERTY TRUST PROSECUTON PURSUANT TO s 16(1) OF OCCUPATIONAL HEALTH AND SAFETY ACT (1983) JUDGMENT [2003] NSWIRComm 229 1 On 7 June 1998, Ms Barker was a patient at the Salvation Army Woodport Retirement Village at Erina, an aged and nursing care service conducted by the defendant. Ms Barker had been a patient for some three to four years but as a result of operative intervention had remained in a coma. Early that morning Ms Barker was being showered by a nurse employed by the defendant when it became apparent that the water was inappropriately hot causing her skin to redden. Ms Barker was admitted to hospital and died a few days later.

2 It is in these circumstances that Inspector Farrell commenced proceedings for a breach of s 16(1) of the Occupational Health and Safety Act 1983 against the defendant. The matter was listed on nine separate occasions between April 2002 and December 2002 before a plea of guilty was entered on 16 January 2003 to an amended charge.

3 At the hearing to deal with the evidence and submissions on the plea of guilty the parties tendered a Statement of Agreed Facts. That document sets out the circumstances surrounding the incident and it is therefore appropriate that, in substance, it be reproduced for the purposes of this judgment. Omitting formal parts the Statement of Agreed Facts set out the following matters: … 2. The Salvation Army (New South Wales) Property Trust, ("the Defendant") is a Statutory Body Corporate constituted by Section 3 of the Salvation Army (New South Wales) Property Trust Act 1929 ("the 1929 Act"). 3. At all material times, the Defendant was an employer and conducted business in the State of New South Wales with its principal place of business at 140 Elizabeth Street, Sydney in the said state. 4. At all material times the Defendant conducted the Salvation Army Woodport Retirement Village at 120 The Entrance Road, Erina in the State of New South Wales ("Woodport"). The undertaking carried on by the Defendant at Woodport was the provision of aged and nursing care services. At all material times the Defendant employed Mr Raphael Claverie ("Claverie") as an Assistant in Nursing. 5. At all material times Ms Jill Barker was a patient at Woodport. At approximately 6.20am on the 7 June 1998 at Woodport, Claverie was bathing Ms Jill Barker in the course of his employment with the Defendant. Ms Barker was placed into a waterproof bed in bathroom No 2 of Wing 5 at Woodport. After Miss Barker was placed into the waterproof bed, Mr Claverie turned the hot water on, waited some ten to fifteen seconds until the water came up to temperature and then added some cold water, tested the water again and then added some more cold water a further five to ten seconds later. He then bathed Ms Barker for some time around or just under thirty seconds. At this point, he noticed that the water was suddenly very hot and that some areas of Ms Barker's skin had reddened. Mr Claverie immediately drained the water from the waterproof bed and then administered First Aid to Ms Barker. Claverie then left the bathroom to seek emergency assistance. 6. In the subject incident Ms Barker suffered first and second degree burns to 30% to 40% of her body. Due to the burns that Ms Barker suffered, she was unable to be moved around as normally would have occurred and accordingly she developed bronchial pneumonia. 7. Ms Barker died in Gosford Hospital on 10 June 1998 of acute bilateral bronchopneumonia with the antecedent causes being her first and second degree burns associated with hypoxic brain damage. 8. The mixing valve which serviced the tap in the shower in bathroom No 2 in Wing 5 was a Rada 15BK thermostatic mixing valve ("the mixing valve"), supplied to the Defendant by Messrs H G Thornthwaite Pty Limited and was installed at Woodport on or about 25 June 1991. 9. The mixing valve in bathroom No 2 of Wing 5 failed on 7 June 1998 causing scalding water to come into contact with Ms Barker. 10. The Defendant had engaged the services of a licensed plumber Mr Partridge from Partridge Plumbing Services to undertake regular and emergency maintenance of the mixing valves. 11. An inquest in relation to Ms Barker's death took place before the Coroner on the 21, 22, 23 June, 27, 28 and 29 October 1999. The Coroner delivered his report on the 21 February 2000. Pursuant to Section 49(4) of the 1983 Act, proceedings were commenced within two (2) years of the date of the Coroner's Report. The Prosecutor says that the commission of an offence against Section 16(1) of the 1983 Act is apparent from the Coroner's Report and/or the proceedings at the inquest. 12. The Coroner found that Mrs Barker had been a resident of the defendant's nursing home for 3 to 4 years and during this period had received a high degree of care. 13. The thermoscopic unit of the mixing valve was examined by a qualified metallurgist, Mr Hinckley who presented a report to the coroner. 14. In his report Mr Hinckley located two leakage holes in the unit - leak A and leak B. He stated that it was more likely that one leak formed before the other and that this implied that that unit would have been expected to have kept operation for sufficient time as to allow the second leak to fully develop. Leak A was a substantial hole and probably due to the large impression which was caused at manufacture. 15. Both leaks showed signs of corrosion and Mr Hinckley stated that once the unit was in such a thin state there was a possibility that it may burst instantly. 16. The Coroner concluded: The evidence suggests to me that both leakage points must have developed over a period of time, and must have affected the operation of the thermoscopic unit. Leak A appears to be a major leakage point and thus I believe that is possibly where the catastrophic failure has occurred, taking into consideration in particular the circumstances surrounding the accident. 17. Prosecution proceedings for breach of section 17(1) of the 1983 Act were also commenced against Partridge Plumbing Pty Ltd. This matter is listed for sentencing hearing on 21 July 2003.

18. The Defendant has at all times co-operated fully with the Prosecutor in the course of the investigations of the Prosecutor. 19. It is alleged that the Defendant breached section 16(1) of the Occupational Health and Safety Act 1983 (NSW) on 7 June 1998 in that, being an employer at 120 The Entrance Road, Erina, in the state of New South Wales, it did fail to ensure that persons not in the Defendant's employment, and in particular Ms Jill Barker, were not exposed to risks to their health or safety arising from the conduct of the Defendant's undertaking while they were at the Defendant's place of work, in that: (i) The Defendant failed to implement an adequate or appropriate maintenance programme of the said mixing valve which serviced the shower tap in bathroom 2 of Wing 5; (ii) The Defendant failed to provide and maintain a safe system of work in relation to the monitoring and recording of temperature checks in relation to the said mixing valve .

4 The evidence for the prosecution consisted of a statement of prior convictions showing that in July 1995 the defendant had been convicted two offences under s 15(1) and s 16(1) of the Act by the Chief Industrial Magistrate but with no fine imposed; a factual inspection report by Inspector Farrell; a number of photographs; and, an expert report from a metallurgical engineer, Mr Hinckley, dealing with the thermostat from the mixing valve used at the time of the incident.

5 Inspector Farrell was present when tests were carried out on the tap and thermostat mixing valve and were recorded on video by a police officer attached to the police video unit. One of the tests was conducted in relation to water temperature and was performed by a plumber under the direction of a police officer. Those tests showed that the water temperature coming from the particular mixing valve was 73.5 degrees and when the tap was half turned turned off, the temperature of the water was 72.6 degrees. Tests on the water temperature of a similar thermostatic mixing valve taken from another ward and installed in the same bathroom were carried out by the plumber. The temperatures produced under this test showed a temperature range of 42.8 degrees to 43.9 degrees when the taps were opened fully; a temperature of 42.9 degrees when the tap was half turned off; a temperature of 41.1 degrees when the tap was one quarter turned off.

6 Mr Hinckley's report disclosed the terms of the investigations to be: "To examine components from a failed thermoscopic valve in order to establish the nature of the damage and investigate the most likely conditions around its failure". The report observed that the mixing valve had been installed approximately seven years prior to the accident. During the course of his investigation Mr Hinckley detected two leakage points.

7 Mr Hinckley expressed the view that the most likely scenarios for the formation of the first leak were as follows:

· damage during manufacture to produce the large impression near the closed end. Formation of the corresponding preferential site for corrosion on the inside surface of the bellows. Subsequent development of the corrosion in this area until the remaining wall became too thin to maintain its integrity, resulting in either cracking, rupture of the bellows at the location of the crack or dislodgment of the thin piece to produce the observed hole. Leakage of the filler material through the hole into the water inside may have promoted the conditions for the etching-type attack observed in the area surrounding the hole;

· the preferential site for the abovementioned corrosion inside the region of the impression may have been due to possible tearing on the inside surface due to the resultant tensile stresses and the delicate nature of the thin-walled bellows. The presence of a crack/tear would act as a preferential site for corrosion. Alternatively, it may have been due to local micro-structural changes and/or work hardening affects resulting from permanent strain of the material;

· it was considered that the location of the hole adjacent to the impression was not likely to have occurred merely by coincidence since relatively few corrosion pits were observed. In relation to the most likely reason for the formation of the second leak, Mr Hinckley observed: Development of several corrosion pits in this area. Growth of these pits until one had thinned the wall to produce the hole.

8 Mr Hinckley thought it unlikely that the two leaks would have formed at exactly the same time and it was more likely that one leak was formed before the other. In those circumstances the unit would have been expected to keep operating for sufficient time as to allow the second leak to fully develop. It was expected that a gradual change in the operation of the valve may have occurred during this time.

9 From the results of the investigation Mr Hinckley came to the following conclusions:

· two leaks were found in the bellows component; · one leak was associated with an impression on the outer surface of the bellows and with coinciding corrosion from the inside surface. The impression itself was most likely to have been produced at the time of manufacture; · the other leak appeared to be solely due to pitting corrosion from the inside surface (ie water side). The cause of pit formation in this region was investigated but not determined; · a few other localised regions of pitting corrosion were present on the inside surface of the bellows.

10 The defendant filed and relied upon a significant amount of material that was supported by four affidavits which were read. Mr Linsell was the executive officer of Woodport Retirement Village having been appointed to that position on 7 January 1997. He described Woodport as consisting of a 96 bed nursing home, a 76 bed hostel with 67 self-care units. Woodport provided aged health care and related services in the Central Coast area and had been operating since September 1991.

11 Mr Linsell set out the circumstances of the accident and noted that Ms Barker had been admitted to Woodport in April 1995. Having been diagnosed with hypoxic global brain damage arising from an unsuccessful operation for an aneurism on the brain at Royal North Shore Hospital, Ms Barker, for the duration of her stay at Woodport, was completely dependent on nursing staff for all transfers and activities of daily living because of her comatose state.

12 Mr Linsell had attended the Coronial Inquest which was held over some six days in October 1999 and he had reviewed the Coroner's Report which was handed down in February 2000. He was aware that the Coroner had made some specific reference to the Australian distributor of the RADA 15BK thermostatic mixing valve, the distributor H G Thornthwaite Pty Ltd and the manufacturer Caradon Mira Ltd. He extracted a section of the Coroner's Report where it was noted that in an earlier Inquiry, the Liebermann Inquest, an employee of the distributor had given evidence that the average life of the thermoscopic unit was five years. When sold, that information apparently had not "got through" to the manufacturer and was not incorporated as a supplementary note with the mixing valve or the spare parts. At no stage were plumbers or users of the mixing valve advised of this expected life span. The Coroner stated that the manufacturer had always been aware that the thermoscopic unit had a service life by way of cycles but failed to place any warnings to that effect in its literature until June or later in 1998. In the Coroner's view had the distributor or the manufacturer advised users in some way of this limited life and the valve had been replaced after three or even five years, the death of Ms Barker may not have occurred.

13 On assuming his position as Executive Officer Mr Linsell familiarised himself with the requirements of the Nursing Homes Regulation 1996 made pursuant to the Nursing Homes Act 1988. At the time of the incidence the regulation required that the water supply system in nursing homes used by residents was to be regulated by means of a thermostatically controlled "fail-safe mixing system". Mr Linsell understood the term "fail-safe" to mean that should a mixing valve fail it should do so in a way which was safe. That understanding was consistent with licensing standards for aged care and nursing homes with which he was familiar. As a result of the evidence and investigations relating to the Coronial Inquest into Ms Barker's death he became aware that the word "fail-safe" had a restricted meaning when used in relation to thermostatic mixing valves.

14 Evidence at the Inquest from a senior engineer with the Department of Public Works and Services stated that the fail-safe or thermal shutoff of a thermostatic mixing valve was its ability to quickly shut off the hot water should the cold water supply to the mixing valve ever fail. The Department was not aware of any make of mixing valve which claimed or was shown to be able to fail safe if the pre-set temperature of the mixed warm water was exceeded or if the temperature control thermostat failed. The Coroner recommended that the Nursing Homes Regulation and other relevant legislation be amended to remove the term "fail-safe" and replace it with an appropriate description so as to remove any ambiguity.

15 The Coroner also recommended that the New South Wales Department of Health immediately issue a circular clearly stating the warning that mixing valves were not fail-safe and clearly stating the minimum service life for the thermoscopic units. The Coroner also made other recommendations including a mandatory requirement for the routine temperature monitoring of thermoscopic mixing valve applications based on the results of a risk assessment.

16 Mr Linsell noted that the failed mixing valve unit had been in service at Woodport for over seven years but he was unaware of the evidence given at the Liebermann Inquest which suggested a life span of five years for the unit. The Liebermann Inquest was concluded in 1995 but there was no notification to the New South Wales Health Department, the Minister or the managers of various sites of the potential danger of the thermoscopic units.

17 In relation to occupational health and safety policies and practices at Woodport at the time of the accident, Mr Linsell noted that each of the sites and facilities was provided with a risk control management/occupational health and safety programme policy which provided general principles of practice directions relating to occupational health and safety at the site or facility. It was the responsibility of the relevant director and manager at the various sites and facilities to implement the policies. There was also an occupational health and safety manual based on the policy which had been in force at Woodport since 1992. Both the programme and the manual were exhibited and available to the prosecution and the Court for examination.

18 The New South Wales Health Department issued circulars under the Public Health Act 1991. These circulars were to be complied with by providers of health in the State and to the best of Mr Linsell's knowledge and belief Woodport had at all times complied with those circulars in relation to its activities and operations.

19 The New South Wales Health Department had also issued circulares relating to thermostatic mixing valves. To the best of Mr Linsell's knowledge Woodport had complied with and continued to comply with all such circulars. A number of those circulars were also exhibited and were available for consideration during the proceedings.

20 From the time he was appointed Executive Officer at Woodport Mr Linsell stated he had been pro-active in implementing the risk control management and occupational health and safety policy and identified the following steps as being taken by him prior to the incident: (a) establishment of an occupational health and safety committee; (b) in-house education and training staff in safe working practices; (c) operating an orientation programme for new staff and providing specific training and workplace safety manual handling; (d) operating a "buddy" system for new employees so that a new employee is paired with an experienced employee for a period of time; (e) site inspections by members of the occupational health and safety committee to identify work hazards and unsafe work practices; (f) equipment replacement/improvement programme; (g) preventative maintenance programme; (h) workplace assessments to ensure staff were carrying out tasks in accordance with appropriate procedures; (i) appointing a "site" occupational health and safety co-ordinator.

21 The water temperatures of the thermostatic mixing valves installed at Woodport had been monitored on an irregular basis. Variations in the water temperature noted by nursing staff were reported to the maintenance staff. At the time of the incident 90 per cent of the problems reported by nursing staff related to the water being too cold. Once the problem was identified, maintenance staff would contact the plumbing contractor for Woodport, Partridge Plumbers Pty Ltd, and lodge a service request. The maintenance supervisor at Woodport had maintained an informal system in relation to the maintenance of the mixing valves and recording of water temperatures. While those results had never been drawn to Mr Linsell' attention those tasks were performed.

22 Woodport had contracted Partridge Plumbing Pty Ltd, licensed plumbers, to service the mixing valves annually and on an "as required" basis. The annual servicing by Partridge occurred in June each year. A service log was kept for each valve. Any service calls apart from the yearly check were also logged. Mr Linsell said that at no time did Partridge advise or inform him of requirements in relation to the monitoring, recording, use and maintenance of thermostatic mixing valves and water temperatures.

23 Mr Linsell stated that significant steps to ensure that accidents such as that involving Ms Barker did not occur were taken immediately following the incident. Immediately following the incident, Mr Linsell and the Woodport Chaplin attended the hospital to counsel Ms Barker's family. Further counselling was supplied in support of the family up to and including the period during which the Coronial Inquest was held. A member of the Salvation Army conducted the funeral for Ms Barker and Mr Linsell also attended.

24 Immediately after the incident steps were taken to ensure that any inadequacies relating to the water supply system and the mixing valves in use at Woodport were addressed. All showers at Woodport which used a RADA mixing valve were closed and residents were bathed and washed by hand.

25 At the time of the incident there were six RADA 15DK mixing valves in use at Woodport. Approval was obtained by Mr Linsell to replace all the existing RADA valves as well as the installation of three additional mixing valves from another manufacturer. By 8 July 1998 all the mixing valves had been replaced by Partridge Plumbing at a cost of approximately $11,000.

26 In late June or early July 1998, the services of specialist hydraulic design and fire protection engineers were engaged to review the hot and cold water supply systems at Woodport. In late August 1998 Mr Linsell submitted a report outlining recommendations relating to upgrading the hot and cold water supply systems at Woodport following this specialist investigation. That specialist investigation and report was conducted at a cost of $1,250. 27 By September 1998, approval had been given for the specialist to prepare scale plans of the existing hot and cold water service and to further reporton the upgrading of the existing services. A total of $47,000 was spent on the basis of the report in relation to work to be performed on the upgrade to the hot and cold water supply systems at Woodport. These specialist consultants were used to asses tenders for the upgrading project which had an approved budget of $80,550. By August 1999, the upgrade had been completed and the specialist consultants used to inspect and review the work that had been performed by the upgrade contractors. By January 2000, Mr Linsell had been provided with a certificate certifying that the drawings and specifications of the work relating to the upgrade had been checked and complied with the Hosplan code.

28 In June 1998, Woodport purchased a data logger and software which enabled the continuous monitoring of water temperature over a test period. The test period used at Woodport is now seven days. This system permits Woodport to monitor a temperature range between 57.5 degrees C and 65 degrees C. In May 2002, Woodport also purchased a mixing valve kit to assist in achieving compliance with a recent circular from the New South Wales Health Department. A kit is used to ensure that the flow rates and temperatures at all ablution outlets in the nursing home are within the range prescribed by the Department.

29 In May 2000, a policy on the mixing valves was prepared and issued by Woodport based on a circular issued by the New South Wales Health Department. A check list was also prepared for the safe showering of residents and the check list is displayed in each bathroom at the centre.

30 A resident showering assessment form is used at Woodport to assist the various bathing needs of each resident. In November 1999, a new risk assessment form was issued to identify residents who may be at risk of injury by scalding or falling when showering or bathing. Nursing staff are provided formal training and education on how to use the assessment during orientation and during the "buddy" days, following the orientation of new employees.

31 The staff at Woodport are reviewed annually to assess whether they have the required level of competency to comply with the policies and procedures in effect at the centre. Further, in late August 2000, Mr Linsell had been provided with a copy of the WorkCover Safety Guide on thermostatic mixing valves. Mr Linsell stated that Woodport complied with that safety guide.

32 A manual temperature log is maintained in relation to the fifteen mixing valves installed at Woodport, as required by the New South Wales Health Department. The hot water temperature of each mixing value is recorded manually either once or twice a month. A mixing valve commissioning report is also maintained which contains installation and maintenance records relating to each of the valves installed.

33 Mr Linsell stated that in order for nursing homes to receive funding from the Commonwealth Government it was necessary that they seek accreditation confirming their compliance with aged care standards as provided by the Accreditation Grant Principles 1999 issued pursuant to the Aged Care Act 1997. Woodport had been assessed for accreditation in June 2000 and March 2003 and on each occasion had received accreditation on the basis that it complied with the principles.

34 WorkCover had established a Premium Discount Scheme to provide incentives to employers to implement programmes to improve work place safety and return to work strategies for injured workers. Rigorous audits are conducted under this scheme by independent premium discount advisors approved by WorkCover to determine whether the site is compliant with the premium discount benchmarks. If the site complies it receives a discount from the premium required to be paid on workers compensation insurance. Woodport had passed the first two audits for 2002/03 and obtained a discount in the premium of 15 per cent.

35 Woodport now documents contractual relationships with its plumber, Partridge Plumbing. Mr Linsell said that this step was taken to ensure that Woodport and Partridge were clear as to their respective responsibilities and scope of work relating to the maintenance of the mixing valves and providing a safe system of work in relation to the monitoring and recording of temperature checks in respect of the various mixing valves in use at Woodport.

36 Mr Linsell stated that on behalf of the Salvation Army and Woodport extreme remorse was felt in respect of the accident involving Ms Barker. Mr Linsell stated: It is a matter of deep regret that the incident occurred, particularly given the commitment by the Salvation Army and Woodport to provide care, assistance and support to those groups of people within society who are unable to fully care for themselves and require assistance and support. The occurrence of this accident has deeply affected the staff at Woodport, including myself. The memory of it continues to sadden us and we are working hard to ensure that such an incident, and indeed, any accident, does not happen again.

37 The Chief Secretary of the Eastern Territory of Australian of the Salvation Army, Mr Robert Street, also filed an extensive affidavit. He set out his duties and responsibilities including international responsibilities and gave general background concerning the nature and operations of the Salvation Army. He noted that the Salvation Army was one of the largest providers of social services to the Australian community, assisting more than 1 million people every year at a cost of approximately $375.5 million. He spoke about the basis of the Salvation Army being established on religious principles and adopting a military structure with corresponding ranks, uniforms, symbols and organisations. Officers who were commissioned were required to undertake appropriate training and did not receive any salary but were in receipt of adequate and appropriate allowances, allowing them to carry out their work. Provision was made for the officers to receive benefits in their retirement: they were required to enter into placements and to devote their time to the activities of the Salvation Army.

38 Mr Street stated that the charitable activities of the Salvation Army were not fixed or closed and were subject to change to ensure that help and assistance was provided at any particular time to the people most in need in the community. The charitable service made available by the Army was provided to people who needed the services without regard to their means and were accessible to the public generally. Property owned by the Army was held on its behalf by a series of property trusts established by statute.

39 It was noted that the Salvation Army received funding from various sources, including government grants, the Red Shield Appeal, contributions by corporate clients, legacies and donations, donated goods and farm produce and income from business activities which nevertheless had a charitable focus such as retirements villages, Employment Plus and Salvation Army stores. In general it was said that all monies received by the Army were used in full to provide a wide variety of charitable services. Among the services provided were community services, crisis and support accommodation, youth support, employment services, recovery services, emergency service, chaplaincies, court and prison services, Red Shield Defence Services, family tracing, financial counselling, telephone counselling services, professional counselling, an outback flying service, aged care, community care ministries, disable persons support, suicide support and English speaking classes.

40 Mr Street was able to support a number of aspects of Mr Linsell's affidavit relating to the accident and the occupational health and safety policies and practices of the Salvation Army. In particular in confirmed the expenditure on remodelling the mixing valves at Woodport and the other steps taken after the incident to enhance occupational health and safety at that Centre.

41 In relation to the defendant's prior convictions in 1995, Mr Street stated that the incident there related to an employee and client of the Miracle Haven Drug and Alcohol Rehabilitation Centre in Morisset. They were involved in laying aluminium irrigation pipes at a position below the centre line of power transmission cables. In the course of laying the pipes, the men raised one pipe which came into contact with the overhead wires and both men sustained burn injuries and shock as a result of a discharge of current. Mr Street stated that the Salvation Army immediately accepted that it failed to ensure the health and safety of its employees and non-employee workers insofar as it did not identify the overheard wires as being a hazard and did not provide instructional training with respect to working in close proximity to the overhead wires. Following that incident the defendant caused all overhead wires to be placed underground thus it was suggested overcoming the existence of any risk to the health and safety of employees and non-employees presumably engaged on a similar task.

42 Mr Street also stressed the defendant's deep regret at the death of Ms Barker. This regret was felt all the more deeply because the Army had been established to provide charitable services aimed at improving the condition of the poor and the more needy classes of society and all persons who were in need of assistance and support. Mr Street stressed that the defendant had taken considerable steps to ensure that accidents such as the one involving Ms Barker did not occur again.

43 There were two further affidavits filed on behalf of the defendant which might appropriately be described as providing character evidence in support of the defendant. Mr David Clark was a company director and chairman of Macquarie Bank Ltd. He had been a member of the Salvation Army's Advisory Board since 1990 and its chairman since 1999. The Advisory Board, consisting of 23 members, had the role of supporting and advancing the Army's programmes and services to the local community. In the course of rendering its services, Mr Clark said the Army was called upon to make a number of major decisions concerning financial operations, expansion of programmes and services, acquisition of properties, decisions relating to community needs and the innovative planning required to meet such needs. Mr Clark had also chaired the Red Shield Appeal on three occasions.

44 Mr Clark was aware of the circumstances surrounding the death of Ms Barker at Woodport and was also aware of the conviction of the defendant in 1994 arising from the incident at Morisset earlier described.

45 Mr Clark said that in his dealings with officers and employees responsible for the administration of the Army's affairs he had always found them to be careful and conscientious of the need to comply with any legal obligations that they had. He was aware of no matters in these dealings where such officers or members had deliberately avoided any responsibilities cast upon them or had sought to have them avoid, even by legitimate means, legal responsibilities properly falling on them. He spoke of the Salvation Army having a long and distinguished history of providing charitable and social services to those in need and being particularly prominent in the areas of drug and alcohol rehabilitation and support, disaster relief, counselling in various forms and employment assistance.

46 In relation to finances Mr Clark stated that the Salvation Army relied substantially on donations to fund its charitable works. The Annual Report showed that 36 per cent of the Army's revenues came from donations of various kinds with the remaining revenue coming principally from Government grants and client contributions. Interest from money held in bank accounts and dividends contributed only 4 per cent of the Army's revenues. He confirmed that the Army usually spent all of its net revenue on an annual basis on its social and charitable activities and he was aware that there was always an area of unmet need which could be met if the Army had received additional income. He expressed the view that the Army delivered its charitable and social services efficiently compared to most charitable organisations.

47 Mr Roderick McGeoch, Chairman Emeritus of Corrs Chambers Westgarth, solicitors, also spoke highly of the defendant arising from his association with its various activities. Between 1985 and 1987 he had acted as leader of the solicitors' division of the professional section of the Red Shield Appeal having accepted that invitation following his presidency of the Law Society of New South Wales. Mr McGeoch stated that the Red Shield Appeal was structured on the basis that it had an overarching committee and each of the committee members represented a section of the business and professional community. Each committee member was charged with creating his or her own structure to ensure that business people within their sector were asked to contribute towards the appeal. In this role Mr McGeoch inspected a number of the defendnant's facilities including foster homes for homeless men in central Sydney, the Women's Crisis Centre near Central Station and the William Booth Institute for Drug and Rehabilitation of Young People.

48 In 1990, Mr McGeoch was invited to become a member of the Advisory Board of the defendant. In that capacity he attended fund raising activities and from time to time provided advice to the defendant relating to its activities and administration. He also gave speeches at professional development practices conducted by the Salvation Army.

49 Mr McGeoch was also aware of the circumstances involving Ms Barker at the Woodport Centre and the circumstances surrounding the 1995 conviction of the defendant under s 15 and s 16 of the Act. He emphasised that the defendant was responsible for a range of activities and institutions throughout Australia that looked after the needy, including homeless men, drug addicts, women in crisis and other people needing religious and or other types of support. He stated that the contribution of the defendant to the community was in the order of approximately $40 million per year and was disbursed in various activities and works undertaken by the Salvation Army. It was his belief that through the dedication and works of the Salvation Army the lives of a multitude of people including young and old, had been rehabilitated and the lives of many people in crisis had been rescued. This was described as being "an overwhelming contribution to the society at large" and thus he considered the defendant to be "a very valuable organisation". Mr McGeoch did not consider there to be a more committed organisation to the well being of human activity than the Salvation Army. It was his view that the defendant endeavoured to ensure that people within its care were well looked after and not exposed to any form of risks to their health and safety.

PROSECUTOR'S SUBMISSIONS 50 It was submitted by the prosecutor that after an amended application for order there was filed a plea of guilty which was promptly entered by the defendant. In addition the parties had agreed that the costs and disbursements of the prosecution amounted to $15,000 including GST and a costs order to that extent would be consented to.

51 In relation to the objective seriousness of the offence the prosecutor pointed to the particulars of the breach namely the failure to implement and adequately or appropriately maintain programmes for the mixing valve and the failure to provide and maintain a safe system of work in relation to the monitoring and recording of temperature checks in relation to the mixing valves. This offence arose in circumstances of the operation of an aged care facility where the deceased was in a coma (and had been for some time) and was being bathed by a nurse. The mixing valve had failed catastrophically and it was only after that failure that the nurse made certain observations which made it quite clear that the hot water system had completely failed. That catastrophic failure had occurred over a period of time as identified in Mr Hinckley's report. It was put that had there been an adequate and appropriate maintenance programme, that programme would have detected the corrosion and at least the major leak found by Mr Hinckley.

52 The failure to provide a system in relation to the monitoring and recording of temperature checks arose in the operation of a nursing home and identified the special care required in conducting such an operation. A number of requirements were identified by Health Department circulars but the need to maintain such equipment was clear.

53 In relation to foreseeability, the prosecutor submitted that without the proper maintenance programme and without the regular checks on the water temperature it was foreseeable that an incident of this kind, being a catastrophic failure of the mixing valve, could have occurred. If the defendant had closely and carefully considered the terms of the Health Department's circulars which pre-dated this incident, that may have assisted in avoiding such an incident. All of these matters went to the objective seriousness of the offence.

54 Having been put on notice by the defendant that an application would be made under s 10 of the Crimes (Sentencing Procedure) Act the prosecutor submitted that this was not an appropriate case for the Court to exercise its discretion in favour of the defendant. It was clear from the authorities that the exercise of the discretion in relation to the provisions of the Occupational Health and Safety Act must be considered as extraordinary and highly exceptional.

55 In relation to specific deterrence, while noting the steps taken by the defendant since the incident, the prosecutor submitted that in this significant industry where there is a need to make sure all equipment is maintained appropriately, both general deterrence and specific deterrence were important and relevant factors.

56 In relation to subjective factors it was accepted that it was "undeniable that there are significant subjective factors in favour of the defendant". In considering the corporate character of the defendant it was recognised and set out in the affidavits the marvellous work undertaken by the Salvation Army not only in this State but throughout the world and that was a matter which would weigh heavily in any assessment of penalty. The prosecutor also accepted that there was co-operation and assistance provided by the defendant to the WorkCover Authority. Further, it was accepted that contrition was evident in this matter.

DEFENDANT'S SUBMISSIONS 57 The defendant accepted that because of its prior conviction under the Act the maximum penalty in respect of this offence was $825,000.

58 It was submitted in assessing the nature and quality of the offence and hence the gravity of the offence and the culpability of the defendant the Court ought to take into account: (i) whether there was an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible; (ii) the gravity or otherwise of the potential risk to safety following from the specific failure to implement safety measures that constitute the breach; (iii) whether there were simple and straightforward remedial steps available to minimise the risk.

59 The primary submission for the defendant was that the risk was not foreseeable. In the alternative, the degree of foreseeability was not great. The mixing valve which failed was one which complied with the requirement of the Nursing Homes Regulation 1996. The regulation required that the mixing valve be "fail safe". As Mr Linsell's evidence demonstrated, despite his considerable experience within the nursing homes industry, he did not realise (and it was not stated in the regulation) that the mixing valve was "fail safe" in a restricted sense - that is, it should shut off the hot water only where the cold water supply to the mix failed. Importantly, the ambiguity in the regulation was identified by the Coroner in his recommendations. It was evident from the Coroner's report that the mixing valve was not fail safe in the way normally understood in the use of that word.

60 It emerged during the Coronial Inquiry that thermoscopic units had a suggested service life of five years. This fact had emerged in a previous Coronial Inquiry into the death of Ms Liebermann. However, there had been no dissemination of that information by the New South Wales Health Department or the Department of Public Works and Services. At the time of the accident the relevant New South Wales Health Department Circular, in a very general fashion, provided for the maintenance of the warm water system.

61 The defendant had in place a system for the maintenance of the mixing valve. The water temperatures produced by the mixing valves were monitored on an irregular basis by the nursing staff and any variations reported to the maintenance staff. The maintenance manager/supervisor at Woodport maintained an informal system for the maintenance of the mixing valves and recording of water temperatures. Further, the defendant contracted a licensed plumber to service the valves annually and on a "as required" basis.

62 The defendant had relied on the services and expertise provided by Partridge Plumbing, the licensed plumber. Partridge plumbing had not advised or informed the defendant of requirements for the monitoring, recording, use and maintenance of the mixing valves and water temperatures.

63 It was submitted that the gravamen of the offence was that the defendant did not have a formal maintenance system in place which incorporated recording of temperatures. It was said that this was not a case where the defendant had no maintenance system in place even though it was an informal system which incorporated the services of a licensed plumber and its own nursing and maintenance staff.

64 The particular mixing valve that failed did so after being in service for over seven years in circumstances where there had been no previous incidents of a similar kind. The major maintenance complaint during this period was about the water system occasionally running cold.

65 The accident forming the basis of the prosecution against the defendant resulted from a catastrophic failure of a mixing valve. Mr Hinckley's examination of the mixing valve revealed that both leaks showed signs of corrosion and once they were in such a thin state there was a possibility that they may burst instantly leading to a catastrophic failure. The catastrophic nature of the failure was supported by the evidence of the nursing assistant who was bathing Ms Barker at the time of the accident. The nurse's evidence was that he was able to obtain the appropriate water temperature and bathe Ms Barker at that temperature for about 30 seconds until he noted that the water was suddenly very hot.

66 The defendant submitted that when these various factors were taken into account, a reasonable observer would not have foreseen the risk or the accident involving Ms Barker.

67 In relation to the gravity of the breach it was submitted that the tragic consequences of this accident had to be distinguished from the breaches to be assessed for penalty.

68 In relation to subjective factors the defendant said it had entered a plea of guilty at the earliest opportunity and in those circumstances the maximum discount for an early plea was available. In relation to its previous convictions under the Act in 1995, it was relevant that the circumstances of those offences were completely different to the present offence. In addition the defendant had been in operation in New South Wales for over a hundred years. As a charity and as one of Australia's largest providers of a diverse range of social services, the deferent had a history of good industrial citizenship.

69 It was accepted that the defendant had co-operated with the WorkCover Inspector and also during the Coronial Inquest. In relation to subsequent changes after the accident it was submitted that immediate steps were undertaken by the defendant to ensure that such an accident would not occur again. Those steps included: (i) immediate prohibition on the use of the RADA mixing valves at the Woodport Retirement Village and alternative bathing arrangements being implemented; (ii) immediate replacement of the existing mixing valves at Woodport and replacement by a different mixing valve; (iii) the engagement of specialist hydraulic design and fire protection engineers to review the hot and cold water system at Woodport; (iv) after acceptance of the report of the special engineer's recommending the upgrade of the hot water system, a project for this upgrade was implemented at a total cost of $80,550; (v) a new formal system of recording the temperature of each thermostatic mixing valve once or twice a month had been implemented; (vi) the defendant immediately issued memorandums to divisional social secretaries and aged care managers drawing attention to the dangers of the failed mixing valve.

70 It was said that the defendant had an ongoing commitment to occupational health and safety. It had developed a policy providing general principles of practices relating to occupational health and safety. It was the responsibility of the relevant director and manager at the various sites and facilities to implement the policies. At Woodport this task had been undertaken by Mr Linsell who had developed an occupational health and safety manual based on the policy. In addition, Woodport complied with the circulars issued by the Department of Health. Considerable resources were spent in establishing occupational health and safety committees, training, identification of work hazards and the like at Woodport.

71 While the defendant recognised it had a responsibility for the risk which arose at Woodport, it was noted that the WorkCover Authority had also commenced proceedings against Partridge Plumbing under s 17(1) of the Act. Partridge Plumbing was under contractual obligations to the defendant for the ongoing maintenance of the mixing valves. The defendant did not have expertise in these matter and relied on Partridge Plumbing to implement and suggest appropriate maintenance systems. Partridge Plumbing had failed in that duty.

72 There had also been a contribution to the risk to health and safety by the provider and distributor of the mixing valves around Australia, H G Thornthwaite Pty Ltd, an entity subject to criticism by the Coroner in his report. The fact that that entity had not been charged in relation to this matter could not be taken into account.

73 The defendant had demonstrated its remorse and contrition in relation to the accident. Assistance and support had been given to the family of Ms Barker and was evidence of contrition and remorse. Further, there had been a delay in the period between the offence and the sentencing, namely a period of five years.

74 Lastly, it was submitted that the corporate character and reputation of the defendant was relevant in the consideration as to mitigation of penalty. The defendant was an unincorporated religious society and was one of the largest providers of social services in Australia: it had a long and distinguished history of providing charitable and social services. 75 Under s 6 of the Fines Act, the Court exercising its discretion to fix the amount of any fine, was required to take into account: (a) such information regarding the means of the accused as is reasonable and practicably available to the Court for consideration, and (b) such other matters, in the opinion of the Court, are relevant to the fixing of that amount. In determining the imposition of penalty the Court was urged to take into account the charitable nature of the Salvation Army and the fact that it relied primarily on public donations and public support.

DELIBERATION 76 In assessing the objective seriousness of the breach I accept the defendant's submission that the incident involving Ms Barker is evidence of the nature of the breach which had been charged. I also accept the concession made by the prosecutor that knowledge of the 1995 Coroner's Report and the evidence of a five year life for the mixing valve would have been an aggravating feature of the offence but that was not the position in relation to this defendant.

77 I also accept the significance of the steps taken by the defendant to engage the services of a licensed plumber and the yearly maintenance plan which had been implemented, such that there was a system although it was accepted that the system was inadequate. In the scheme of this offence, however, these are relatively small steps on the path to providing for the health and safety of non-employees. They accorded with requirements already clearly set out by the regulator of aged homes.

78 It is significant that Health Department circulars had paid particular attention to laying down the requirements for the installation of certain mixing valves in facilities such as aged care homes. It is obvious that a system which delivered either excessively cold or excessively hot water had a potential to harm those aged persons being cared for. The responsibility of an operator in the position of the defendant could not be satisfied by doing no more than engaging a licensed plumber and the defendant accepts that position. A proper system of maintenance would have required some discussion between the operator and the plumber and consideration of the nature of the so-called "fail-safe" system and the circumstances which may affect the operation of the mixing valves over time. Further, Mr Hinckley's report demonstrates the degree of corrosion present in the mixing unit which failed and the fact that there were two leaks in that unit.

79 In relation to the failure to provide and maintain a system of work in relation to the monitoring and recording of temperature checks for the mixing valves, the defendant's own evidence demonstrates that shortly after this incident a monitoring system was purchased and installed. In relation to this Particular, again bearing in mind the nature and vulnerability of the persons likely to be found in aged care facilities, there should have been a heightened awareness of the need to effectively maintain and monitor the operation of the system. The possibility that the system might fail and possibly fail without warning, could not be said to be beyond the realms of human experience.

80 During the course of the submissions I inquired of counsel for the defendant whether any steps had been taken to inform other aged care or related facilities of the dangers associated with the use and operation of these mixing valves and the fact that the Coroner had referred to evidence that the mixing valves had a life of up to five years. No representative of the defendant present in Court was, immediately, able to satisfy that query and leave was given to the defendant to file a further affidavit in relation to that matter. A further affidavit of Mr Street was duly filed and in this context it is to be remembered that the accident involving Ms Barker occurred on 7 June 1998, that evidence was taken at the Inquest in June and October 1999 and that the Coroner delivered his report on 21 February 2000. The further evidence filed by the defendant showed the following: (a) that on 22 June 1998, the defendant wrote to New South Wales Health Department asking for copies of departmental literature in relation to mixing valves in order to assist the defendant to determine a policy on the maintenance of mixing valves within the aged care facilities; (b) on 10 July 1998, New South Wales Health Department replied attaching a copy of the Department's latest circular dated 15 June 1998. In terms, that document did not draw attention to the estimated three to five year life of RADA mixing valves nor did it make any reference generally to the limited life of such mixing valves; (c) on 22 June 1998, the Salvation Army sent a memorandum to divisional social service secretaries and aged care managers concerning the draft policy on mixing valves and pointing out that it was the responsibility of each site to ensure that the controlled mixing valves were inspected by a licensed plumber at least once a year. It was also a requirement that each mixing valve be checked on site each fortnight using a thermometer and recording the temperature of the water and recording the date, time and temperature in a permanent record; (d) on 24 June 1999, an email was sent to various officers of the Salvation Army concerning mixing valves. The email specifically mentioned the Coronial Inquest held at Gosford "this week" and made reference to aspects of the evidence, including the following: Evidence suggested that, as the above mixing valve had 'more moving parts' than other supplier thermostatic mixing valves it would be prudent to replace these thermostatic mixing valves every three year period. It made reference to the RADA Mark 15 no longer meeting current licensing specifications but made no direct reference to the evidence that the RADA mixing valve had a life of between three and five years. A suggestion, however, was made that use of the RADA Mark 15 mixing valve not continue in Salvation Army facilities; (e) on 29 June 1999, Mr Linsell alerted the Divisional Commander of Newcastle and Central New South Wales Division of the Salvation Army that the RADA 15 BK mixing valve was no longer approved for use by the Health Department and supported an apparently earlier suggestion that the RADA valves be replaced in any event. This document refers to the Inquest but does not refer to the estimated three to five year life of the RADA valve; (f) on 19 August 1999, a memorandum was forwarded to divisional social service secretaries and aged care managers attaching a copy of the Code of Practice in relation to mixing valves; (g) on 14 March 2000, a memorandum was forwarded to divisional social services secretaries and aged care managers requiring all mangers to become aware of the Health Department's recent circular on "requirement for provision of cold and heated water"; (h) on 29 August 2000, a memorandum as forwarded to divisional social services programme secretaries and aged care managers attaching a copy of the WorkCover Safety Guide concerning mixing valves. The Safety Guide was issued in October 1999 and amended in November 1999 and made particular reference to the fatality which had occurred at Woodport noting that this was not the first serious incident or fatality involving the malfunction of the thermostatic mixing valve. The Safety Guide also noted that the mixing valves were used in many commercial and industrial situations, including public and private hospitals, nursing homes, hostels, hotels and motels, aged care facilities, educational facilities, government and non-government homes for disabled, goals and detention centres etc; (i) following the Coronial Inquiry, the defendant carried out an audit of valves in use at its centres throughout the territory. This included all aged care facilities and other centres run by the Salvation Army (for example, Oasis Drop-In Centre and the Irwin Centre). The audit was required to be completed by a licensed plumber qualified to inspect mixing valves; (j) the total cost of the project to install alternative mixing valves as a result of the above processes was approximately $150,000.

81 These matters lead to me to conclude that this breach was serious. The breach nevertheless may appropriately be assessed in the lower range of fines considering the statutory maximum of $825,000 which applies in this case.

82 Having regard to the importance and size of the aged care industry and also having regard to a wide range of circumstances in which persons in a variety of care circumstances may be open to the use of similar devices, the issue of general deterrence has a real role to play in the setting of an appropriate penalty. In relation to specific deterrence the defendant in its wide ranging activities is involved in the provision of aged care at a number of centres and there are other activities which may be relevant in the context of the breach dealt with in this prosecution. Notwithstanding the considerable steps taken by the defendant following the incident involving Mr Barker it is appropriate that specific deterrence form part of the consideration of an appropriate penalty.

83 Having regard to these considerations I would set the primary penalty at the sum of $130,000.

84 In relation to objective features it was common ground and I accept without hesitation the fact that the defendant pleaded guilty at the earliest opportunity having in mind the terms of the amended application for summons. I see no reason why the defendant should not receive the full benefit of its early plea and I therefore allow a discount on the penalty of 25 per cent in relation to that aspect.

85 The prosecutor accepted and the evidence supports the fact that the defendant co-operated with the WorkCover Authority including the conduct of the Coronial Inquiry. From the material presented by the defendant I am also satisfied that it has demonstrated, in a number of ways, its contrition and remorse in relation to this incident. I also take into account the lengthy involvement of the defendant in a variety of facilities over a long period of time and what may be regarded as its relatively good record in relation to occupational health and safety notwithstanding the incident which occurred in 1995. The numerous charitable and religious works undertaken by the defendant emphasises its status as a good corporate citizen in the sense it is relevant to the present proceedings. This is a significant factor which is taken into account in mitigation of penalty. There is, however, no room in the present case for the application of the approach to delay as found in R v Todd (1982) 2 NSWLR 517.

86 In the circumstances of this case I would propose to allow a further discount of 15 per cent in mitigation of penalty for the various matters referred to immediately above. The total discount I would allow in mitigating of the penalties is therefore 40 per cent. This discount produces a final penalty of $78,000.

87 In relation to the defendant's submission about parity certain difficulties arise. The prosecution in relation to the licensed plumber had not yet been dealt with and neither party was able to place before the Court any Agreed Statement of Facts or other relevant findings which might ameliorate the view I have taken of the seriousness of the breach. It might be accepted that the licensed plumber, as a matter of logic, may have a more significant role to play in maintaining a safe system of operation and monitoring for the mixing valves but on the approach that I have adopted I have confined my considerations to the nature of the duty owed by this defendant, what was within its capacity, and what it could do to ensure the safety of non-employees within its care. Similarly, in regard to the number of entities who were aware of the limited life of these mixing valves because of the evidence and findings of the 1995 Liebermann Coronial Inquiry, it is apparent that they were uniquely placed to inform the many users of their system of the likelihood of this cyclical defect. The defendant in these proceedings knew nothing of that evidence nor was it in possession of that information. However, it must be stressed that the Court in this sentencing exercise is not engaged in apportioning blame between a variety of entities who may have had a role to play in creating a risk to health and safety - the focus is on the real culpability of the defendant. It is for that reason that I have confined the assessment of an appropriate penalty to the matters identified above.

88 In relation to the defendant's submissions concerning the operation of s 6 of the Fines Act I accept that the Court is obliged to take into account such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration and such other matters as in the opinion of the Court are relevant to the fixing of that amount. This is not a case where impecuniosity is pleaded and indeed the material before the Court demonstrates that the defendant has the capacity to pay a fine within the range that I have already indicated. I also accept that there may be circumstances where although there are certain means available to satisfy a penalty imposed, the imposition of a higher range of penalties may have adverse ramifications for a business such as to put its operation into jeopardy. There are no such considerations in the present matter.

89 In substance what is put by the defendant is that its overall charitable works and participation in such fields as the provision of aged care is such that some lower order of penalty or no penalty should be imposed having regard to the fact that the defendant relies primarily on public donations to continue those commendable works. The evidence, in fact, showed that 36 per cent of the Army's income came from donations.

90 I am not convinced that these matters properly arise under s 6 of the Fines Act although they may have some relevance for the operation of s 10 of the Crimes (Sentencing Procedure) Act 1999, a matter with which I shall shortly deal. Whether or not I am required by s 6 of the Fines Act to take into account the fact that the defendant relies on donations to undertake its charitable works is not necessary to decide in the present matter. Here, the evidence does not suggest that the imposition of any level of penalty (even up to the maximum of $825,000) would have any adverse impact on the operations of the defendant. The defendant simply states, and it is undoubtedly true, that there is always more it can do with the money it receives and that necessarily some things must be left undone because of the level of donations made: the payment of a fine will reduce its resources to perform commendable work but that fact appears to raise different considerations to those referred to in s 6 of the Fines Act.

91 The defendant is a large and well resourced entity. As a good corporate citizen it shoulders a number of responsibilities which impact upon its financial position but which it is nevertheless appropriate for it to bear: it must pay taxes imposed by various levels of government; it must spend money to comply with a myriad of regulations which attend the operation of its many and varied undertakings; where it engages employees it must meet the minimum requirements of awards and industrial instruments where they are relevant. Indeed, in meeting its obligations under the Occupational Health and Safety Act as the evidence it relies on discloses, the defendant is necessarily involved in the expenditure of sometimes large sums of money to ensure the safety of persons who find themselves within its various workplaces. All of these expenditures reduce the amount of money available for charitable works, but necessarily so. The operation of aged care centres may perhaps fall into a slightly different category because of the Government subsidies that are available, as may some of the other activities of the defendant. Aged care is nevertheless a subsidised business with clients contributing through their pension entitlements. It is these matters which convince me that notwithstanding the good and charitable work performed by the defendant generally, it is not appropriate that there be any further reduction in the fine to be imposed in this matter nor should a decision be made on this account that no fine at all is appropriate to impose upon the defendant.

92 The matters just discussed lead directly into a consideration of the defendant's application under s 10 of the Crimes (Sentencing Procedure) Act 1999. That application was sought to be supported by the suggestion that the risk was not foreseeable and the extraordinary steps taken by the defendant to make sure the risk did not arise in the future: this was said to be such a rare and extraordinary circumstance that it would be appropriate for the discretion under s 10 to be exercised in favour of the defendant.

93 The defendant accepted that the making of such an order was to be considered as "extraordinary and highly exceptional" having regard to the decision in McCarthy v Sell and Parker Pty Ltd (1999-2000) 102 IR 355 at 357 and that such an order would only be made in very limited circumstances, having regard to the decision of WorkCover Authority (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 and 70.

94 I gave consideration to the operation of s 10 in Inspector Stewart v Siemans Dematic Pty Ltd (formerly Mannesman Dematic Colby Pty Ltd) No 2 [2003] NSWIRComm 45. In that decision while I accepted that the discretion conferred by s 10 was wide ranging and that it was not appropriate to treat the scope and range of matters which are proper for a sentencing Judge to take into account in a narrow way, following what was said in Thornelowe v Filipowski (2001) 52 NSWLR 60 it would nevertheless be a rare case when the discretion would be exercised in relation to a prosecution with a public purpose such as under the Occupational Health and Safety Act. I noted that in Thornelowe v Filipowski, Spigelman CJ stated: 171. Even in the case of an offence of strict liability, no public purpose is served by recording a conviction or imposing a penalty in circumstances where the relevant accused could not, as a matter of practical reality, have done anything to ensure that the offence or, in the case of a result offence, the adverse consequences of the conduct, did not occur …. 178. It is, in my opinion, relevant to the exercise of the discretion under s 10 of the Sentencing Act, in the context of a strict liability offence, to consider what the applicant for the benefit of s 10 could have done to avert the event that has occurred. While questions of weight are always for the sentencing Judge, it is unlikely that this consideration will be given determinative weight in the case of a serious offence or a repeated offender. Where, as here, there was a comparatively minor pollution by a first offender, this consideration is entitled to weight.

95 Section 10 of the Sentencing Act permits an order to be made directing the relevant charge be dismissed if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than minimal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. In exercising this discretion a court is required to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition; (b) the trivial nature of the offence; (c) the extenuating circumstances in which the offence was committed; (d) any other matter that the court thinks proper to consider.

96 It can immediately be accepted that the defendant's character and antecedents are such that it qualifies under the initial requirements of s 10. I am, however, unable to accept, for reasons already dealt with, that this offence can be regarded as "trivial" or that there were extenuating circumstances in which the offence was committed. In Thornelowe's case an important consideration was that as a matter of practical reality the defendant could have done little to avoid what was a strict liability offence and the court was able to categorise the offence as being comparatively minor and committed by a first offender. These considerations do not apply in the present case. Similarly, in Wong v Melinda Group Pty Ltd (1998) 82 IR 118, Hungerford J held that the real culpability for the offence lay elsewhere and that there were extenuating circumstances over which the defendant had no control. Having regard to all the requirements of s 10 of the Crimes (Sentencing Procedure) Act 1999 I am not persuaded that this is an appropriate case for the exercise of the discretion of the Court to impose no penalty.

ORDERS 1. The defendant is convicted of the amended charge to which it pleaded guilty in matter No IRC 949 of 2002.

2. The defendant is fined the sum of $78,000 with moiety thereof to the prosecutor.

3. The defendant is to pay the costs of disbursements of the prosecution in the agreed sum of $15,000.

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