Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales

Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales - [2007] NSWIRComm 168 - NSWIRComm 2007 case summary — Zoe

[5]

Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Inspector Dennis Howard v Multiplex Constructions (NSW) Pty Ltd [2002] NSWIRComm 229 Inspector Jennifer Short v The Crown in the Right of the State of New South Wales (NSW Police) [2007] NSWIRComm 138 Inspector Legge v Intercast & Forge Pty Limited [2006] NSWIRComm 182 Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) [2006] NSWIRComm 356 Inspector Mayo-Ramsay v Caines Pty Limited & Ors [2006] NSWIRComm 223 Inspector Steven Jones v Walker Group Constructions Pty Ltd [2006] NSWIRComm 11 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 Markarian v R (2005) 215 ALR 213 CASES CITED: Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117 Newcastle Wallsend Coal Company Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) (2006) 159 IR 121 R v Thompson; R v Houlton (2000) 49 NSWLR 383 R v Way (2004) 60 NSWLR 168 Regina v Dib [2003] NSWCCA 117 The Crown in Right of State of New South Wales (Department of Education and Training) v O'Sullivan (2005) 143 IR 57 Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of the State of New South Wales (Department of Education and Training) (2001) 112 IR 1 WorkCover Authority of New South Wales (Inspector Benbow) v Converquip Pty Limited (2001) 106 IR 258 WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 3) (2002) 112 IR 141 WorkCover Authority of New South Wales (Inspector Martin) v Byrne Civil Engineering Constructions Pty Limited (No 2) (2001) 109 IR 347 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited and Another (No 2) (2000) 99 IR 163 WorkCover Authority of New South Wales (Inspector Tuckley) v The Crown in Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1

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1 Caines Pty Limited, at Gardiners Road, Rutherford, operated an oilseed crushing plant that extracted oil from a range of oilseeds, including cotton seed, sunflower seed and canola seed. On 6 December 1999 a fire and explosion occurred in a seed meal storage bin, known as bin D. As a consequence, three employees of Caines (Robert Anderson, Ronald Brooker and Geoffrey Terry) received fatal burn injuries. 2 The New South Wales Fire Brigade, represented by the Telarah Fire Brigade and the Hazmat Unit from Newcastle, was in attendance at the premises at the time of the fire and explosion. Ronald Jenkins, the Captain in charge of the Telarah Brigade, received burn injuries to his face and hands. 3 Caines and two of its directors were prosecuted for breaches of the Occupational Health and Safety Act 1983 and penalties were imposed: see Inspector Mayo-Ramsay v Caines Pty Limited & Ors [2006] NSWIRComm 223. The Crown in the Right of the State of New South Wales, in its capacity as the New South Wales Fire Brigades ("the defendant"), was also prosecuted for breaches of s 15(1) and s 16(1) of the Act. 4 The defendant claimed immunity from prosecution under s 78 of the Fire Brigades Act 1989. In Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) [2006] NSWIRComm 356 ('WorkCover v Fire Brigades') the Court held there was no immunity and the defendant was found guilty of the two offences. This decision deals with penalty. 5 It is appropriate to identify the personnel involved. There were a number of employees of Caines present at the time of the incident, including the three men who suffered fatal injuries. They were Mr Robert Anderson, Mr Ronald Keith Brooker, Mr Geoffrey Robert Terry, Mr Robert Jordan, Mr Jason Brooker, Mr Jason McKewen, Mr Richard Zambrowski, Mr Nigel Little, Mr Steven Hipwell and Mr Mark Price. The members of the Telarah Fire Brigade present were Captain Jenkins, Deputy Captain Neil Morriss, Retained Firefighter Michael Pilton, Retained Firefighter David Pilton, Retained Firefighter Darren Schofield, Retained Firefighter Walter Morris, Retained Firefighter Ronald Jarrett and Retained Firefighter Gary Armstrong. The members of the Newcastle Hazmat Unit attending the incident were Station Officer Gary Evans, Firefighter McCall and Firefighter Bear.

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13 The evidence in the sentencing proceedings consisted of an extensive affidavit of Mr John Benson, Deputy Commissioner of the New South Wales Fire Brigades ('NSWFB'). Exhibited to his affidavit were the following documents: · NSWFB Annual Report 1999/2000 · NSWFB Corporate Plan 2000-2003 · NSWFB Corporate Plan 2005-2008 · Occupational Health and Safety - Standing Orders 1999 · Incident Control System SOG 1.1 Incident Control System · Incident Control System SOG 1.2 Incident Controller · Incident Control System SOG 1.6 Safety Officer · Communication SOG 2.3 Alarm Response Protocols · Dynamic Risk Assessment for Operations: The Safe Person Concept · Safety bulletin: 2006/18 Safety at Natural Gas Incidents · Safety bulletin: 2005/01 Use of intrinsically safe equipment at incidents · Safety bulletin: 2005/03 Hazardous Materials - Void Dusts · Operational bulletin: 2007 SCBA procedures, checks and skills maintenance · Operational bulletin: 2006 Orion four-head gas detector · Operational bulletin: 2006 Fires or overheating conditions involving Oil Seed Products · Terms of reference, Occupational Health and Safety Steering Committee · NSWFB Annual Report 2005/2006 · NSWFB Risk Management Policy 2004 · Report dated 21 August 2006 regarding implementation of recommendations by Senior Deputy State Coroner Jacqueline Milledge, with annexures · Letter dated 23 December 2003 from Acting Commissioner John Anderson to Deputy State Coroner Jacqueline Milledge · Silo Assessment Hazmat Team Technical Debrief: Cootamundra Silo Fire, January 12-19, 2007. 14 Additionally, the Court was provided with a folder containing the "Recommendations of Coroner [Jacqueline Milledge] in relation to the Incident at Caines Industries Rutherford, of 6 December 1999" and the actions taken by the defendant in compliance with the Recommendations. The folder also contained additional measures taken by the defendant relating to, but extending beyond, the Coroner's Recommendations. 15 Mr Benson is responsible for leading the development of strategic direction, planning and delivery of frontline emergency, disaster response and recovery services in the operational areas of fire suppression, hazardous materials response, non-fire rescue, natural hazards response, emergency medical support to Ambulance Services, terrorist attack consequence management, aviation and counter disaster and emergency management for the Fire Brigades to ensure the delivery of appropriate emergency service and disaster response and minimise the loss of life and property.

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17 Mr Benson described the organisation's corporate executive structure from 1999 and 2003 and its various methods of internal communications. In respect of occupational health and safety Mr Benson noted that prior to the commencement of these proceedings the Fire Brigades had no record of any prosecution action being commenced against it as a corporate entity at any stage in its history - that is to say since 1884 - for any breach of occupational health and safety legislation or its equivalent under previous legislation. He went on to describe the organisation's policies and systems relating to occupational health and safety up to 1999 and the improvements made since that time. He said the Corporate Executive Group had identified as one of its priorities for the next three year period up to and including 2008 that of ensuring its entire workforce and, in particular, all operational firefighters, were able to provide to the community of New South Wales the best possible service delivery whilst maintaining the highest standards of occupational health and safety. This stated priority, along with the overall commitment of the Fire Brigades to emergency risk management issues, was documented in the Corporate Plan 2005-2008. 18 The Deputy Commissioner also described the role and responsibilities of the Safety Officer, stating that: As part of the commitment to occupational heath and safety issues up to and including 1999, and specifically in relation to operational firefighting, an incident controller was required to appoint a safety officer for the specific purpose of minimising the risks of accidents and injuries to both operational firefighters and the community generally at such incidents by monitoring and enforcing safe working practices. The appointment of a safety officer by the incident controller was mandatory at all incidents that required the response of four (4) or more appliances as well as at large and/or complex sites and operations… With effect from April 2004 the role of a safety officer as a member of the Incident Management Team ("IMT") was completely reviewed and then further reviewed and updated in November 2005, with the particulars of when to appoint, qualifications for, and responsibility of, a safety officer being set out in an Incident Control System SOG (No.1.6)… It is now incumbent on the incident controller to appoint a safety officer at every incident involving:

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· Second Alarm calls or greater; · Complex or protracted operations; · Large (in area) sites; · Bushfires where and IMT is established; and · Other appropriate incidents as determined by the incident controller. Indeed for large and complex incidents more than one (1) safety officer may be appointed to that incident. Where this is the case one safety officer is appointed at a strategic level, with this safety officer advising the incident controller/IMT directly. Additional tactical-level safety officers are deployed at an incident to address incident-ground issues. By way of example, it may not be possible to see all areas from one point. Tactical safety officers are to be stationed to ensure all areas of activity are under review. The higher level safety officer becomes the overall coordinator and manages the communications and actions of the tactical safety officers. Importantly, a designated safety officer to an incident has delegated authority to stop or change any order, action or condition where, in the opinion of the safety officer, the lives and safety of emergency services personnel are at risk. Such circumstances are to be contrasted with issues concerning operational or fire fighting tactics which remain the responsibility of the incident controller… it is the duty of the safety officer to act immediately where there is a perceived imminent threat to the safety of emergency services personnel present at an incident… ... It is now the case, as in 1999, that there is specific and stated autonomy of action for the appointed safety officer, so as to carry out their duties, once appointed. However the language of the 1999 SOG allowed the safety officer to intervene if time did not permit consultations with the incident controller. Now the safety officer must intervene, then consult with the incident controller. This change in emphasis reflects the continued recognition by NSWFB that safety is paramount. Indeed it is made clear… that if any actions are taken by the safety officer, and which impact upon strategy and tactics, Commanders at the incident scene must be informed and the action plan reviewed by the IMT. 19 The Deputy Commissioner advised that the defendant had implemented a range of strategies to address identified gaps in the organisation's safety management systems, and to improve occupational health and safety governance and accountability through the operational restructure. As a result of the findings of an external audit undertaken in October 2006 the defendant established a senior Organisational Risk Management Committee to review all components of its existing safety management system, target high risk safety areas and oversee improvement projects. The defendant also established a new high level governance structure, the Occupational Health and Safety Steering Committee, chaired by Commissioner Mullins and has provided training and workshops for senior management on occupational health and safety legislation and compliance obligations. Further, the defendant reviewed and strengthened its incident reporting and investigation system and senior management accountability by directly referring all serious incidents to the Occupational Health and Safety Steering Committee for oversight by senior management, including the Commissioner. 20 It was further advised there has now been established an emergency services Occupational Health and Safety and Information Management Network that provides a forum to persons and corporations across the State. As well, since 2003, there has been distributed to all operational firefighters (both permanent and retained) a number of safety bulletins and operational bulletins that particularise information concerning safety issues. In addition, Mr Benson said the Fire Brigades has placed a high priority on the establishment of a new State Training College in order to enhance continued compliance by NSWFB firefighters with occupational health and safety requirements and to facilitate, in appropriate cases, return-to-work procedures, and generally, to improve work safety practices. 21 On the matter of training, Mr Benson indicated that induction and promotional training of NSWFB permanent and retained firefighters since 1999 has incorporated modules and assessments that emphasise occupational health and safety issues. In addition, the outgoing and mandatory in-station training includes topics that are intended to highlight occupational health and safety responsibilities. A summary was provided of the training regime for both permanent and retained firefighters at various levels within the NSWFB referring to the enhanced training focus with respect to occupational health and safety guidelines. The Deputy Commissioner said that the updated training regime has provided firefighters with a clearly defined understanding of their legislative requirements in relation to occupational health and safety in New South Wales. 22 The Court was advised that as part of the defendant's commitment to promoting safety awareness for all firefighters in operational settings, there was published in May 2005 and subsequently circulated, a document entitled "Dynamic Risk Assessment for Operations: The Safe Person Concept". The publication notes that its overall purpose is to introduce the "Safe Person Concept" to all NSWFB personnel with a view to reducing risks faced by operational firefighters and generally improving firefighting safety. The material contained within the publication outlines the occupational health and safety responsibilities of both firefighters and, more generally, NSWFB, as a corporate entity. Specifically the publication documents the components of dynamic risk assessment process as it applies to operational incidents and describes "the safe person approach".

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· Section 22, which provides that a guilty plea is to be taken into account on sentence, including when the plea was effectively indicated or entered. 31 The prosecutor referred to the judgment of Hungerford J in WorkCover Authority of New South Wales (Inspector Martin) v Byrne Civil Engineering Constructions Pty Limited (No 2) (2001) 109 IR 347 as representing the proper approach to sentencing for offences under the 1983 Act. After referring to WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited and Another (No 2) (2000) 99 IR 163 at [21]-[27], WorkCover Authority of New South Wales (Inspector Benbow) v Converquip Pty Limited (2001) 106 IR 258 at [42] and Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 at [82], his Honour stated at [19]: In summary, then, the proper approach in sentencing an offender is to consider the objective seriousness of the offence charged in terms of its nature and quality so as to compel attention to occupational health and safety risks but not so as to be oppressively high; matters subjective to the defendant, such as previous good industrial citizenship and the absence of prior convictions, whilst relevant rank in importance well behind the primary aspect of the nature and quality of the offence. Overall, a penalty is to be imposed so as to give effect to the clear policy of the Occupational Health and Safety Act , namely, the establishment of safe standards and the protection of the workforce. 32 I respectfully agree with his Honour and consider the same approach is to be adopted under the 2000 Act. Further, as the prosecutor also submitted, neither the principles discussed in Markarian nor the provisions of the Crimes (Sentencing Procedure) Act require a departure from the general jurisprudence of this Court with respect to sentencing offenders for breaches of the Occupational Health and Safety Act. As it was stated in R v Way (2004) 60 NSWLR 168 at [56]: [I]t 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). 33 The prosecutor also observed, and it is an observation with which I agree, that there is no standard discount figure that is to be applied with respect to subjective factors and that R v Thompson; R v Houlton (2000) 49 NSWLR 383 does not require otherwise. The subjective factors in each case must be weighed in the particular context and circumstance of each case, individually.

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35 The defendant, being the Crown in the Right of the State of New South Wales, has prior convictions. However the agency of the Crown involved in this case, namely the NSW Fire Brigades, has no prior convictions. It becomes necessary to consider the effect of s 121 of the Occupational Health and Safety Act 2000. It should be noted the 2000 Act commenced on 1 September 2001 and, by cl 13 of Sch 3 - Savings, transitional and other provisions thereof, Pt 7 - Criminal and other proceedings (which includes s 121) extends to proceedings, such as the present, under the 1983 Act. Section 121 provides: 121 Penalties in respect of proceedings against the Crown (1) In this section, penalty means: (a) the monetary penalty for an offence against this Act or the regulations, or (b) the amount payable under a penalty notice served in connection with such an offence, or (c) the amount payable under an order made under Division 2. (2) The penalty in respect of proceedings against the Crown is the penalty applicable in respect of offences committed by a corporation. (3) If that penalty differs for previous offenders, the Crown is a previous offender in relation to particular proceedings against the Crown only if the Crown is a previous offender in respect of the acts or omissions of the same responsible agency of the Crown (or any predecessor of that agency). (4) Enforcement proceedings under the Fines Act 1996 cannot be taken in connection with penalties imposed in respect of proceedings against the Crown. 36 The interpretation that has been applied to s 121(3) is that it is not applicable "to the Court's consideration of prior convictions of the Crown for the purpose of determining the appropriate sentence in relation to a charge as distinct from the determination of the maximum penalty for that offence" : see WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of the State of New South Wales (Department of Education and Training) (2001) 112 IR 1 at [66] per Walton J, Vice President. See also WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 3) (2002) 112 IR 141 at [15]-[17] per Hungerford J. In other words, s 121(3) is concerned only with fixing the maximum penalty; it does not otherwise address the determination of a penalty for a particular offence within the permissible range from zero to the relevant maximum amount: Police Service (No 3) at [16]. 37 It follows that the maximum penalty applicable in respect of each of the subject offences is $550,000. The penalty to be imposed is to be assessed having regard to all of the circumstances of the case against the continuum from 0 to 100 per cent of the maximum, with the maximum available to be applied in a "worst case".

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And at [135]: Whilst, as I have noted, there were elements of a relevant system of work within the defendant's operations, including some policies, procedures and information, there was no coherent system that was capable of being effectively deployed on the ground in the type of emergency that arose at Caines' plant on 6 December. However, even if the elements to which I have referred could be said to constitute a "system" it was, manifestly, not a system of work that was safe and without risks to employees and non-employees. 41 The Court also made the following relevant findings: · the steps the defendant had put in place for dealing with fires in seed oil extraction plants were ad hoc and in so far as ensuring safety was concerned, ineffective ([117]); · the defendant had failed to adequately turn its corporate mind to putting in place a safe system with respect to the prevention and/or the fighting of fires in seed oil extraction plants, including but not limited to the prevention and/or fighting of fires in seed meal storage facilities such as the seed meal storage bin, known as bin D ([117]); · there was no operational guideline in place dealing with the fighting of fires in oil seed processing plants and which informed and guided employees as to the matters that needed to be considered as part of a risk assessment ([119]); · there was no system requirement to conduct a comprehensive risk assessment and nothing in the form of an adequate checklist to address the peculiar features of a fire in an oilseed processing plant ([122]); and · the defendant failed to provide and/or maintain a safe work method for the conduct of monitoring for flammable gases as charged ([168]) and such gas testing as was performed was perfunctory despite the presence of numerous indicators consistent with the presence of a real and significant risk of the presence of combustible gases ([163]-[164]). 42 As it was earlier noted, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk. At [150] the Court found that the size of the fireball, the physical damage sustained to the plant and the injuries sustained by Captain Jenkins and the deceased, were evidence of the magnitude and gravity of the risk to which the defendant's employees were exposed. The same finding applies in relation to the Caines' employees. 43 In identifying what it regarded as mitigating factors the defendant submitted that there were "many factors that seriously hampered the level, and quality, of the response by NSWFB when its employees attended the Caines site at Rutherford on the morning of 6th December 1999". Specifically, it was submitted that Caines owned and occupied the relevant site and that it failed, comprehensively, to ensure the safety of its own employees and employees of NSWFB. The defendant referred to the Court's decision in Inspector Mayo-Ramsay v Caines Pty Limited & Ors where it was found, when assessing the seriousness of the offences proved against Caines, that: a) The design and construction of the plant at Rutherford and in particular the silo known as Bin D failed to take adequate account of the fire explosion risk inherent in the processes conducted in and about that plant; b) That the Defendant Caines knew that cottonseed meal would spontaneously combust at high temperatures and give off pyrolytic or volatile fumes and pyrolytic gases; c) Importantly that the Defendant Caines was on specific notice of the risks and "shortcomings" and the steps that it had to take to deal with those risks and the course of the construction and subsequent operation of the expeller plant, such notice being given by its insurer Zurich Financial Services Australia Pty Limited prior to the fire and explosion in meal Bin D on the morning of 6th December 1999. This report contained specific observations and recommendations with respect to hazard control/risk management at the subject site; and d) Despite such specific observations being made in each of the loss control reports prepared by Zurich the response by Caines was found by your Honour to be completely inadequate in addressing such identified risk and implementing the recommendations made to them by the authors of the Zurich report. In particular that Caines did not inform any of the employee representatives of the Occupational Health and Safety Committee at Caines of the existence of the Zurich reports and the recommendations thereto.

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52 The existence of simple and straightforward remedial steps, which could have been taken by the defendant to avoid the risk to safety, are relevant to assessing the seriousness of the offence. The use of the terms "simple" and "straightforward" may be somewhat misleading. It seems to me that if there are steps that could have been taken to avoid the risk, they are relevant to be taken into account regardless of whether they are simple and straightforward or hard and complicated. Of course, the simpler and more readily available the steps might be, if they were not employed to avoid the risk, the greater the likelihood is that a harsher assessment would be made as to the seriousness of the offence. 53 Deputy Commissioner Benson in his affidavit provided details of the steps taken by the defendant following the incident on 6 December 1999 to avoid it occurring again. At the general level these measures involved a much greater focus and priority on occupational health and safety than hitherto had been the case, including the implementation of a range of strategies to address identified gaps in the organisation's safety management systems and to improve occupational health and safety governance and accountability through the operational restructure, an updated training regime, which has provided firefighters with a clearly defined understanding of their legislative requirements in relation to occupational health and safety and improved methods of communication with firefighters. 54 More specifically, following the fire and explosion at the Caines Rutherford site, the Fire Brigades undertook an incident analysis involving a review of procedures and, as a consequence, in or about August 2001 Standard Operational Guidelines ('SOGs') for fighting fires in conventional and non-conventional silos were issued. In addition, training for both retained and permanent firefighters with respect to handling fires in silos was also introduced. Together with these SOGs, a guideline support document was also published to provide general background information and this was made available to all firefighters via the Fire Brigades' intranet. Additionally, the Brigades has upgraded the role and responsibilities of safety officer as members of Incident Management Teams. An incident controller is required to appoint a safety officer for the specific purpose of minimising the risks of accidents and injuries to both operational firefighters and the community generally by monitoring and enforcing safe working practices. 55 The steps taken by the defendant following the Caines' tragedy involved a comprehensive mix of measures, some relatively simple and straightforward and others requiring the input of quite considerable time and resources. In my opinion, however, all of the remedial measures taken by the Fire Brigades were reasonably practicable and given the defendant was aware of the risks presented by silo fires, the measures could have - and should have - been taken before 6 December 1999. I have taken this into account in assessing penalty. Deterrence

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(iii) the Defendant's demonstrated long-standing, thorough and ongoing commitment to occupational health and safety issues and responsibilities. 58 Mr Kite said the defendant accepted that there would be a necessary element of general deterrence included in the penalty. However, for this purpose the observation was made that the Fire Brigades was but one of only a very limited number of entities in this State that was engaged in essential firefighting activity. 59 I note counsel's acceptance that there should be an element of general deterrence included in the penalty and I propose to do that. In so far as specific deterrence is concerned, the matters put forward by senior counsel for the defendant as to why the specific deterrent element ought be minimal if not zero are entirely relevant and appropriate to be taken into account by the Court in fixing penalty. There is no escaping the fact that for a large organisation engaged in one of the State's more hazardous activities it has an excellent record in that there are no recorded breaches of the occupational health and safety legislation. Moreover, it has taken timely, comprehensive and appropriate measures to avoid a repeat of what occurred on 6 December 1999. In this latter respect, I note Deputy Commissioner Benson's evidence concerning the defendant's conduct at two silo incidents at Cootamundra and Temora in January and April 2007. One would have to conclude those emergencies were handled with a high degree of professionalism and minimal risk to firefighters and the local community. 60 In the circumstances, it is open to the Court to conclude, and I do so, that the chances of the defendant re-offending are slight. However, as the Full Bench in Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 observed at [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 … or because the offender will not have the opportunity to commit a similar offence in the future… However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in the case of offences under the Act. At least where the offender continues to be an employer, risk to safety or its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may incur both by omission and omission. Employers are required to maintain constant diligence and take all practical precautions to ensure safety in the work place. Subjective considerations Plea

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74 As the majority observed in Newcastle Wallsend Coal Company Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) (2006) 159 IR 121 at [584], the correct approach to sentencing in circumstances where the totality principle arises for consideration involves taking each of the offences and, having regard to all of the relevant circumstances including the objective and subjective factors, arriving at a separate penalty for each offence. It is then open to the sentencing judge to apply the totality principle, which requires consideration of the overall criminality involved in the offences and which requires that regard be had to the principle that a defendant is not to be punished more than once for elements which are common to the offences as well as ensuring the aggregate sentence or penalty is just and appropriate: Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 at [37]. Once the totality principle had been applied it will then usually be appropriate to fix separate penalties for each offence. 75 In my opinion, having regard to how the charges were framed, the evidence in the proceedings and the Court's findings regarding the objective and subjective factors, there is no basis for distinguishing between the gravity of the two offences; they should attract the same penalty. 76 For the offence committed against s 15(1) of the Act I consider that, in all of the circumstances, the appropriate penalty is $170,000. Given my view that the two offences should attract the same penalty, for the offence committed against s 16(1) the penalty is $170,000. 77 As I have noted, under the totality principle a defendant is not to be punished more than once for elements that are common to the offences and, as well, the aggregate sentence or penalty is to be just and appropriate having regard to the overall criminality involved. In a technical sense, s 15(1) and s 16(1) are constituted by different elements but the intention of both sections is the same, that is, to place obligations on employers to ensure the health and safety of persons where those persons are at the employer's place of work, and those obligations apply equally to employees and non-employees. It is arguable, therefore, that where two offences have been committed, one under s 15(1) and the other under s 16(1) and the offences are of the same level of seriousness so as to attract the same amount of penalty, that to do other than apply one penalty to both offences would be to breach the totality principle. 78 One the other hand, if the defendant has breached its separate obligations to both employees and non-employees, it is arguable that applying the penalty for one offence to both offences would not reflect the overall criminality involved. 79 Having regard to all of the objective and subjective factors relevant to the two offences, there can be no doubt that, notwithstanding the significant subjective considerations in favour of the defendant, the offences were most serious. In my opinion, although there is a significant overlap between the elements of the respective offences, an aggregate sentence of $170,000 would not properly reflect the overall criminality of the offences. Accordingly, I have decided the offence under s 15(1) should attract a penalty of $100,000 and the offence under s 16(1) should attract the same penalty, making a total of $200,000.

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