Inspector Jennifer Short v The Crown in the Right of the State of New South Wales

Inspector Jennifer Short v The Crown in the Right of the State of New South Wales - [2007] NSWIRComm 138 - NSWIRComm 2007 case summary — Zoe

[36]

10 The Agreed Statement of Facts is a lengthy one so I have chosen to annex it to this decision. Of particular relevance though, are the following facts relating to the incident itself, which give some idea of the seriousness of the situation and the risks confronted by police as the violence escalated throughout the evening: · The beginning of the incident was marked by a number of projectiles being thrown at a police vehicle marked Redfern 450, being an unmarked police vehicle. · The defendant was asked to attend the area and to perform low impact, high visibility policing in an effort to deter any criminal activity. The defendant's response to the situation was to keep it as low key as possible. · At approximately 7pm, the roller shutters at Redfern Railway Station were closed due to the public disturbance in the vicinity. · The seriousness of the disturbance escalated considerably and at approximately 9pm, approximately 20 to 30 persons began running towards the defendant's employees who were present throwing bricks, bottles and other objects. As a result, at approximately 9.04 pm Sgt Wayne Baxter called a Signal 1, being a signal used in a life threatening situation which is broadcasted on VKG and to other police and transmitted over all radio messages on the computerised incident dispatch system. · At approximately 9pm, Sgt Baxter requested that Senior Constable ('S/C') Wright obtain the protective equipment from RF14 and commenced distribution of RF14 Personal Protective Equipment ('PPE') to those present. The RF14 PPE comprised of 2 helmets, 5 shields and 4 ballistic vests. S/C Wright then directed a constable to contact Redfern station and gather riot gear (RSRG) in Redfern storeroom and deliver to the Command Post. Some of the said equipment was defective. · At approximately 9pm, City Rail evacuated the Redfern Railway Station. · At approximately 9pm, the crowd attempted to set Redfern Railway Station alight. · At approximately 9pm the RSRG was delivered to the command post and distributed to about 7 or 8 police who then formed a line across the southern side of Lawson Street. · S/C Crowe and S/C Snowden went and got the Operational Support Group ('OSG') equipment truck from the Sydney Police Centre ("SPC") and took it to the Command Post. They arrived at approximately 9.50pm. They deployed all the equipment on the truck which included approximately 18 shields, a tub of leggings, 12 resistant vests and 18 helmets. · By approximately 1am the crowd had increased in size to in excess of 100 people. During this time, the crowd continued to attempt to break into Redfern Railway Station, forcing steel grills from the wall and then using them as weapons. The crowd threw explosive devices similar to Molotov cocktails and fireworks at the employees at that location. Persons filled 'wheelie bins' with flammable material, which were ignited and pushed towards police. · The crowd at the intersection of Eveleigh and Lawson Streets threw projectiles at the employees present at that location. At approximately 1am, an employee in full OSGPPE was knocked unconscious when he was hit on the helmet with a brick. · The violence escalated and a fire hose was deployed by order of Superintendent Smith against the crowd. · At approximately 2am, attempts to set fire to Redfern Railway Station continued. · By approximately 2am, the fire in the ticket office of the Redfern Railway Station was brought under control by the Fire brigade. · At 2.30am Sgt O'Riordan, the OSG assistant co-ordinator arrived at which time, there were twenty three OSG trained personnel with OSGPPE on the police line. · The crowd was brought under control at 3.40am. 11 The Operational Support Group is a specialist group of employees specifically trained and specialised in dealing with crowd control and riots. Employees attached to the OSG are on call on a voluntary basis. Approximately 34 employees attached to the OSG were called to the incident. Most of them were not aware of any Standard Operating Procedure that applied to the Block.

[38]

13 Moreover, it was acknowledged that the riot gear ('RSRG') was obsolete and kept in a storeroom. Whilst Sgt Wright deployed that equipment to protect the employees it was incomplete and inadequate for the purpose of totally protecting the employees present and/or poorly maintained. 14 The problems encountered with the PPE were described in the Agreed Statement of Facts. Some examples are as follows: · Sergeant Baxter wore one of the full sets of equipment from the RF14PPE and the other was worn by Acting Sergeant Wright. Sergeant Baxter was unable to lower the visor on his helmet as it was so scratched that he was unable to see through it. Later, the visor on the helmet partially broke off when an object hit his helmet. He could feel the impact of the bricks and the pavers being thrown on his shield and helmet. · Only OSG personnel were issued with fire retardant clothing. · Senior Constable Matthew Bennett arrived at the scene of the incident at approximately 11pm. He noticed that a number of the employees were in general uniform and a large majority of the employees had ballistics vests, but no head protection at all. There were employees wearing OSGPPE standing in a line formation, and people standing approximately 50 metres away from the line throwing glass bottles, rocks, and bricks at the employees. · Probationary Constable Roslyn Carroll from Holroyd Police Station was on general duties during the incident. She arrived at the scene of the incident at approximately 2am, and upon arrival she was not supplied with PPE until approximately 45 minutes after her arrival. The helmet from either RF14 PPE or RSRGPPE that she was issued with was too large for her and kept falling forward. She asked for a smaller one and initially she was given a helmet without a visor and then swapped it for one with a visor. She also found it difficult to breathe in the helmet and lifted the visor to help her breathe but it kept falling down. She was not present in the police line. · Senior Constable Crowe said that when wearing OSGPPE he received multiple bruising and swelling to the upper left torso and arm, also to his upper legs. He sprained his right ankle, as a result of being hit by projectiles. He was also hit on the back by the fire hose. He was injured between 10:00pm and 4:00am. He found that the OSGPPE he wore did not protect his arms, legs and quadriceps and extra padding to the upper arms and upper leg area was required. · Probationary Constable Davis was behind the police line without PPE. Persons throwing objects were beside and behind the police line. He was hit on the side of the face by a brick. He ran to seek cover. Constable Paton pulled him out and told him to see the ambulance. At the ambulance he was issued with PPE of a shield, shin guards, a ballistics vest and a helmet. · Leading Senior Constable Michael McGowan from Ashfield Police Station responded to the incident as a qualified OSG operative and arrived at the scene of the incident at approximately 11.45pm on 15 February 2004. He joined the police line at 11.55pm when he had OSGPPE including fire retardant overalls. At 2am while still wearing the OSGPPE he was struck on the head with a large object and was knocked unconscious and suffered severe concussion. This left him with whiplash type injury and bruising to his left shoulder and upper arm, headaches, fatigue, broken and chipped teeth, and loss of memory. He was unable to be left alone for 2 weeks following the incident as a safety measure. He was not able to drive or consume alcohol for one 1 month after the incident. He required further dental and psychological treatment. · Between approximately 9pm and 10pm on 15 February 2004 more PPE arrived from the Redfern Police Station storeroom. About 7 to 8 employees were suited up to form a police line with the available employees in PPE. Some of the PPE was defective in that the chinstraps on the helmets would not close. Some of the helmet face shields were scratched restricting vision out of the shields. Some of the hand shields were scratched restricting vision through the shields. Some of the handles of the shields were broken or cracked. Some of the leggings were unable to be secured due to damaged buckles and straps. The face shield of the helmet worn by Senior Constable Wright was so scratched that he was unable to see through it and it was hanging from one hinge so that he was unable to drop it down to protect his face. · Constable Peter Dziewior from City Central Transit Police attended the incident sometime after 9pm after hearing signal 1. Sometime after 9pm he arrived at the scene of the incident and saw a large number of persons hurling missiles at the employees and police vehicles. He saw broken rocks and bottles on the police vehicles and the whole area was littered with bottles, rocks, pavers and bricks. A large brick hit his leg and he felt extreme pain, which caused his leg to buckle. Later he was issued with OSGPPE and when he was on the police line the metal spring strap of the shield that held the shield onto his elbow fell off when the shield was hit. During the incident a missile hit his helmet and as a consequence he felt his neck snap back, and his mouth filled with small sharp items. He realised that they were parts of his teeth that had been chipped off. His facemask had clouded over constantly and he had to wipe it a number of times. At times he could not see clearly enough to see the missiles coming in order to dodge them. At one point he saw a large missile coming at his head so he raised his shield to intercept it, at the same time another missile was thrown hitting his inner right thigh, which caused him pain and he almost fell down, as he could not support his weight. The rubble beneath him made it difficult for him to walk. He could not look down to see where he was walking as he had to keep looking ahead to dodge missiles. Between around midnight and 1am his facemask fogged up again and as he tried to wipe it away, he felt three missiles hit his helmet in quick succession and he felt light headed. Another missile then hit him very hard in the front part of his helmet and he fell. He was treated for concussion by the ambulance officers at the scene of the incident and was given oxygen has he was having trouble breathing. He was taken to hospital. 15 The Agreed Statement stated that the PPE that was provided by the defendant was inadequate in various ways including: Helmets

[47]

19 Both the prosecutor and the defendant helpfully provided a written outline of their submissions, which were supplemented orally. There is no need to recount those submissions, even in summary form, because the issues that present themselves for consideration in these sentencing proceedings, and which are addressed in the submissions, are familiar ones and do not diverge from those that usually arise in such proceedings, except for three matters. Those three matters are: (i) whether there is any requirement to consider general deterrence given the defendant's submission that NSW Police is, in effect, sui generis; (ii) whether the defendant is entitled to a consideration under s 10 or s 10A of the Crimes (Sentencing Procedure) Act 1999; and, (iii) whether the Court should make an order under s 116 of the Occupational Health and Safety Act for the offender to carry out a specified project for the general improvement of occupational health, safety and welfare and, if so, whether this should be taken into account in setting any penalty. I shall deal with these matters in due course. 20 I turn to the charge. It is alleged, and conceded by the defendant, that the defendant failed in its duty to ensure the health and safety of its employees present at the incident on 15 and 16 February 2004 in three respects. First, that the defendant failed to provide such personal protective equipment to the employees, in particular those referred to in Schedule B to the Agreed Statement of Facts, so as to ensure their health, safety and welfare at work. Secondly, that the defendant failed to ensure the health, safety and welfare at work of its employees, in particular those referred on in Schedule C to the Agreed Statement, in that it failed to provide sufficient instruction, information and training to its employees in the use of and the proper operation of personal protective equipment so as to ensure their health, safety and welfare whilst at work. Thirdly, that the defendant failed to provide adequate training, information and instruction to the employees, in particular those referred on in Schedule D to the Agreed Statement, in relation to dealing with the incident so as to ensure their health, safety and welfare at work. 21 The charge, including each of the particulars, needs to be considered in the light of a "well established body of principles that have been developed by the courts over a long period of time". In Inspector Legge v Intercast & Forge Pty Limited [2006] NSWIRComm 182 I identified matters to which the Court should have regard in sentencing proceedings in this jurisdiction and I consider they provide a useful guide in these proceedings: 25 In the sentencing process in this jurisdiction there are a number of core matters (putting aside issues such as parity and totality, which will arise for consideration in individual cases) that must be consistently taken into consideration by the sentencing judge, in addition, of course, to those matters set out particularly in ss 21A and 22 of the Crimes (Sentencing Procedure) Act 1999 and s 6 of the Fines Act 1996. As to the relationship between the core matters that have been developed in this jurisdiction and the matters going to aggravation, mitigation and other factors identified in s 21A (1) of the Crimes (Sentencing Procedure) Act , it was stated in R v Way (2004) 60 NSWLR 168 at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c).

[53]

(6) Subjective considerations including such matters as a plea of guilty entered by the defendant, remorse, contrition, whether there are prior offences, cooperation with the investigating authority, measures taken by the defendant to prevent a re-occurrence of the breach, and assistance provided to any worker injured as a consequence of the breach: See Lawrenson Diecasting at 475. Maximum penalty 22 In light of the defendant's prior convictions the maximum penalty in this case is $825,000: section 12 of the Occupational Health and Safety Act; s 17 of the Crimes (Sentencing Procedure) Act. The offending conduct 23 Dealing with incidents of public or civil disorder is obviously a dangerous business, even for police who are properly trained and equipped. In these proceedings, the agreed facts demonstrate quite starkly how dangerous it is. There was clearly a risk of very serious injury to employees of the defendant from being hit by the various missiles being thrown at them over a period of many hours by a large and angry mob or being burnt by Molotov cocktails. Some 42 officers attending the incident were injured, although fortunately none seriously enough to be hospitalised for any length of time. 24 The failures by the defendant to ensure safety as particularised in the charge amount to serious failures. Given the dangers faced by police officers in dealing with a riot there is no question that they should be provided with the equipment that best protects them from injury and training in the use of that equipment as well as training in dealing with civil disorder incidents. Whilst the OSG had personal protective equipment, there was not enough of it. There was other personal protective equipment although it was defective or in some cases obsolete or otherwise inadequate or incomplete. As the prosecutor submitted, the very purpose of personal protective equipment was to protect employees against the risk of injury - the equipment that was provided did not achieve that result because it was either defective or incomplete. 25 As to the second and third particulars, some employees were trained in the use of that equipment, but again not all of them. Nor were all employees trained in dealing with civil disorder.

[56]

General deterrence 31 In Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 the Full Bench observed at [74]-[75] that: 74 We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm at [40] - [43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. ... Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act undeniable. 32 As I mentioned earlier, the defendant contended that there was no requirement for general deterrence because "there is only one defendant of this kind in NSW". In Inspector Covi v The Crown in the Right of the State of New South Wales No 2. [2004] NSWIRComm 400 a similar submission was made. At [26] I held as follows: 26 Mr Hodgkinson submitted that general and specific deterrence should not play a significant role in the determination of penalty. In relation to general deterrence, I disagree. In Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. Whilst there is only one NSW Police, that body is not alone in employing personnel to undertake hazardous operations as part of their employment. A significant rationale underpinning criminal penalties is to deter others from committing the same or similar offences. Any penalty imposed in this case will be in respect of an offence involving the defendant's failure to ensure the safety of an employee when he was undertaking a hazardous task. It is appropriate to include in the penalty an element for the purpose of deterring others, particularly those employers who are engaged in providing emergency services, from committing a similar offence.

[57]

Nothing has been put to me in these proceedings that would cause me to take a different view. I, therefore, consider there is a requirement for general deterrence. Specific deterrence 33 In Capral Aluminium the Full Bench observed in relation to specific deterrence at [76]-[77]: 76 On the other hand, the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence: see Ruby, Sentencing (5th Edition, Butterworths, Toronto, 1999) at 10. The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence… 77 In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonnell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] IRComm 53 at [46]. 34 The defendant submitted that as to specific deterrence this requirement had been met by its "comprehensive remedial action/section 116 plan." The details of this plan were set out in Volume 5 of the exhibit marked "1" in the proceedings. The plan consists of four projects. First, arising from a number of internal and external inquiries following the Redfern Riot a project was commissioned to investigate the current state of Public Order Training and Incident and Emergency Management Training. The investigation was conducted over four months and developed a series of recommendations for improvement in training for the NSW Police. The recommendations have been endorsed. I have read the report and the recommendations. 35 The second project involved the development of National Training Competencies/Standards for Operational Safety, Public Order and Police Driving. NSW Police is the lead agency on this project, which was due for completion in March 2007. The third project is the development of Australian and New Zealand Standards for Personal Protective Equipment for Public Order Management. NSW Police is also the lead agency on this project. The fourth project involved the development of the NSW Police Incident Command and Control System (ICCS). Training in the ICCS is being rolled out through the NSW Police, commencing with the development of Major Incident Response Teams and the Major Incident (Public Order) Commanders' Course. 36 In addition to these four projects, the Court was asked to take into account, in the context of whether there was a requirement for specific deterrence, the following: · The defendant had pursued those responsible for the riot and had been successful in obtaining a number of convictions. · There are now 824 OSG trained personnel State wide. · OSG personnel now have available a plentiful supply of new helmets, riot shields and leggings. · The Public Order and Riot Squad, a newly formed squad, has 65 members and is being raised to 100 members, all fully equipped. 37 The actions taken by the defendant following the Redfern Riot were executed speedily and comprehensively and were entirely fitting. In that respect, the defendant is to be commended. These actions have had a considerable influence on my deliberations in respect of specific deterrence and thus the weight I would otherwise have attached to it has been reduced significantly. However, for the reasons expressed in Capral I am unable to reduce it to zero. The defendant remains a large employer of persons who are engaged in one of the most dangerous occupations in the State and undoubtedly there will be future riotous incidents given that there are hundreds of public order incidents in the State per year, albeit most of them, fortunately, relatively minor. Subjective factors

[60]

(3) A Local Court may not make an order under this section unless it is satisfied that the cost of complying with the order does not exceed the jurisdictional limit of a Local Court when sitting in its General Division within the meaning of the Local Courts Act 1982. 42 The question of the application of s 116 arose in Cahill v State of New South Wales (NSW Police) No 2 [2005] NSWIRComm 400. In that case an employee of NSW Police suffered acute acoustic trauma after the siren of a police motor vehicle was sounded close to the employee's ear. NSW Police proposed an order under s 116 that involved it paying an industrial deafness consultant to undertake a project, in the form of a written study, on how to secure a general improvement of occupational health, safety and welfare in respect of acute acoustic trauma at places of work. This was to be in lieu of a fine. The application was refused for the reasons set out in the judgment. At [52]-[54] of the judgment I stated: 52 It seems to me that s 116 could be a useful tool in appropriate circumstances. The power to make such an order is discretionary. Any order made under s 116 would be in addition to and not in substitution for an order, for instance, under s 12 of the Act imposing a penalty. In this respect, I agree with what Mr Miller CIM said in Inspector George Hyland v Penrith City Council [2004] NSWCIMC 45. In that case the defendant submitted that in lieu of a fine being imposed, an order should be made under s 116 requiring the defendant to undertake a project. His Honour stated: Although I understand the defendant's argument that the money to be expended on a fine could be better spent elsewhere in promoting occupational health and safety the defendant must remember that it is before the Court for failing in its duty to ensure the health safety and welfare of all of its employees. In this regard the community through the Legislature has set heavy penalties upon an employer and others for failing to carry out their duties under the Act. The principal objectives of sentencing, such as deterrence, must also be borne in mind. To allow the defendant to carry out a project, which strictly under the Act it should do anyway to ensure its message of a safe work culture is in place amongst its workforce, in lieu of a fine is not in my view penalising the defendant for the breach of the law. 53 Section 112(2) provides that: Orders may be made under this Division in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence. 54 Section 112(2) reinforces the discretionary nature of the power to make an order under s 116 but makes it clear that such orders are in addition to any penalty or any other action (eg., an order under s 10 of the Crimes (Sentencing Procedure) Act ) that may be taken in relation to the offence. I do not consider there is any power to reduce a penalty imposed under the Act in consideration, for example, of the cost of a project ordered to be undertaken under s 116. An order under s 116 is not concerned with penalty but is in addition to a penalty and for an entirely different purpose to punishment, namely, achieving general improvement of occupational health, safety and welfare. 43 Nothing put in these proceedings causes me to take a different view to that expressed in Cahill v State of New South Wales (NSW Police) No 2 in relation to s 116. That is to say, there is no power to reduce a penalty imposed under the Act in consideration, for example, of the cost of a project ordered to be undertaken under s 116. 44 The question remains, though, whether I should make an order in any event for the defendant to carry out the projects earlier described. The projects would obviously contribute to an improvement of occupational health, safety and welfare within NSW Police. Whether that is what is contemplated by s 116(1) when it uses the word "general", I am not sure, because that matter was not the subject of argument. In other words, does the word "general" mean something more than occupational health and safety within the employer's place of work or undertaking?

[68]

(2) Any such action is taken, for the purposes of the Crimes (Local Courts Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender. 47 I do not accept that an order under s 10 is appropriate. As it was observed by the Full Bench in WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 at [45], s10 will be available only in rare, limited circumstances in proceedings under the Occupational Health and Safety Act. Where the risk to health and safety was known, where the breach had potentially very serious consequences for the health and safety of employees, where the risk was easily preventable, where the main factor to be considered in determining an appropriate penalty to be imposed is the objective seriousness of the offence, and where the subjective factors do not outweigh the objective considerations, there is no scope, in my opinion, to apply s 10. That is the case here. 48 As for s 10A, that was inserted into the Crimes (Sentencing Procedure) Act in 2006. In the second reading speech (Legislative Council, 21 November 2006, p 4326) the purpose of s 10A was explained: Schedule 1.9 makes a number of amendments to the Crimes (Sentencing Procedure) Act 1999. Item [1] creates a new sentencing option for courts by inserting new section 10A providing that the court may decline to make any further sentencing order other than the recording of a conviction against the person. This option addresses an anomaly in the sentencing regime to overcome situations where inappropriate sentences have been imposed such as fines of 50¢. Imposing very small nominal fines costs the courts, and State Debt Recovery Office, more to administer and recover, than the value of the fine; and where the offender is already serving a sentence of imprisonment, the fine is rarely recovered in any event. This amendment will address such cases. 49 Whatever may have been the legislature's intention regarding s 10A, for the reasons earlier expressed in relation to s 10, disposal of the proceedings under s 10A is not an appropriate course for the Court to take in this matter.

At a glance

Court

Decision date

Before

Source

Judgment (77 paragraphs)

Parties

Cases Cited (18)

Cited By (12)