12 Consistently with the provisions of the Crimes (Sentencing Procedure) Act 1999, the determination of sentence in a case such as this must be approached from a consideration of the nature and seriousness of the offence in question, together with aggravating and mitigating factors.
13 The evidence shows that this defendant has been operating its retail supermarket business in New South Wales since 2001, when it acquired a number of stores. It now operates some 78 supermarket stores in the state and employs some 4,800 staff. The defendant's undertaking is plainly an extensive one.
14 The evidence demonstrated that the defendant had given close attention to ensuring that its safety obligations under the Act were met, in the pursuit of that undertaking. Regrettably, despite all of those efforts, a serious, foreseeable and indeed, foreseen risk, namely that a supermarket might be robbed, materialised as the result of an unfortunate conjunction of failures.
15 When this store was acquired by the defendant in July 2001, it paid attention to whether its safety obligations required that steps be taken to modify the store. By January 2002, various matters had been identified, including the need to modify the delivery dock, for reasons which included safety concerns; the need to create a more secure cash office in the store; the need to install duress alarms in the cash office and the need to install a cash tube system, so that cash need not be delivered through the store to the cash office and that the cash office did not need to be opened, to receive cash.
16 Consent of the landowner for these changes was delayed while a new lease was negotiated. The new lease was entered in October 2002 and in January 2003, a development application was lodged with Council. Quotes for the work were later obtained. The work had not commenced in July 2004, when the offence was committed. Some temporary safety improvements were implemented beforehand. They did not include the installation of duress alarms, or enhanced safety of the cash office or delivery dock. Safety was sought to be assured by the policy which required that the dock be kept closed, when deliveries were not being received.
17 On the night of the offence, the robbers gained access to the store by climbing over a wire fence and entering the store through the open delivery dock.
18 How the robbers gained access to the cash office was not clear. On the evidence, the door was not forced. It seems likely, in the circumstances, that entry was gained, either because an employee opened the door, or because the door was left open. It is unnecessary to come to any firm conclusion about this. The applicable policy required that two employees always be in the cash office together and that the door remain locked. On this night, contrary to this second policy, one of the employees had left the cash office to retrieve a drawer, when it was realised that a checkout operator had left a drawer in the cash register.
19 As the defendant accepted by its plea, had it attended to the implementation of the safety measures it had earlier identified as requiring attention and had it ensured that its applicable safety procedures were adhered to, particularly that requiring the dock to be kept closed when deliveries were not being received, the risk the subject of the charge would not have materialised. That risk was one which the defendant had identified. It had designed policies to ensure that it did not materialise, but had not enforced them adequately.
20 That the risk was a serious one, cannot be doubted. As it transpired, three employees were threatened in the store, at night, by men armed with hand guns and a knife. Two of the employees required time off work and counselling for post traumatic stress disorder, as a result of the robbery. That more serious injuries were not suffered, was fortunate. This must be reflected in the penalty imposed.
21 It also follows, as the defendant accepted, that general deterrence must be taken into account in here fixing penalty. I am unable to accept the defendant's submission that the circumstances are such, that specific deterrence has no role to play in the penalty imposed. True it is, that the evidence demonstrated that the defendant paid attention to its safety obligations before the robbery. That attention was, regrettably, entirely inadequate in the circumstances which arose.
22 One of the policies, upon which reliance was placed, was the Instore Induction Manual. It directed employees to adopt the 'COPS" method, if witnessing an armed robbery. 'S' stood for safeguard, in respect of which it was directed that the employee should 'activate alarm and call the Police after the offender has exited the Store'.
23 Activating the alarm was not possible in this case, because between July 2001 and July 2004, there was no duress alarm installed in the cash office, even though the defendant had identified the necessity for such an alarm and the training it gave its employees contemplated that such an alarm would be available in the event of a robbery. The assessment that a robbery was unlikely, provided no good excuse for the failure to provide such an important safety device. The explanation that the defendant had underestimated the possibility that the store would be robbed, before attention was paid to the safety improvements identified as necessary, but demonstrates the seriousness of the offence and the need for specific deterrence to feature in the penalty imposed. The need for the defendant to ensure that there is adherence to the safety policies it imposes by all of its employees, is another reason why specific deterrence here has a role to play.
24 I do accept in coming to that conclusion, that the attention the defendant generally paid to safety before the accident, and the steps taken afterwards in relation to safety at this store and throughout its operations, demonstrated a real commitment to meeting the obligations which the Act imposes. In the absence of such evidence, an even greater need for specific deterrence would have featured in the penalty imposed.
25 As the prosecutor accepted, there are also a number of matters which are properly to be taken into account in mitigation of the penalty. This is a first offence, by a defendant which has, as I noted, generally adopted a diligent approach to its obligations under the Act. I accept the submission that this is a defendant which is unlikely to offend again, given the evidence as to the extensive steps taken after the offence, both at this store and generally throughout the defendant's operations, to meet its safety obligations.
26 Not only was extensive remodelling of the store undertaken to improve safety, the defendant's policies were reviewed, with the assistance of external consultants. Extensive retraining of managerial and other staff was undertaken, as well as the employment of new staff, to enhance the safety auditing which the defendant regularly conducts.
27 The defendant provided assistance to the prosecutor and entered a plea at the earliest opportunity. I accept that the evidence of the steps taken after the accident, including by way of direct assistance to the employees involved and the defendant's approach to these proceedings, demonstrated its real contrition for what occurred. These factors must lead to mitigation of the penalty otherwise imposed.
28 I have taken all of these matters into account in determining penalty and note that I have, in this case, adopted the approach which I discussed in Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 at [29] to [31], in relation to the question of discount, for utilitarian savings flowing from the early entry of the plea.
29 I also note that while attention was drawn by the prosecutor to various decisions in which prosecutions had flown from circumstances involving robbery, no submissions were advanced that the circumstances there under consideration had any relevance to the matters which here arose for determination (see South Sydney Junior Rugby League Club Limited v Inspector Bestre [2005] NSWIRComm 116; Inspector Bestre v South Sydney Junior Rugby League Club Limited [2004] NSWIRComm 215; Geoff Derrick v ANZ Group Limited [2005] NSWIRComm 59; Inspector Robinson v JAF Management Services Pty Ltd [2003] NSWIRComm 468). I am satisfied that these decisions provide little assistance in the proper determination of the penalty here to be imposed.
30 Having all of these matters in mind, I have concluded that the appropriate penalty in this case is $94,250.
Orders
31 For all of the reasons given, I find the defendant guilty of the charge. The defendant is ordered to pay a penalty of $94,250, with a moiety to the prosecutor and the prosecutor's costs, as agreed or assessed by the Court in the absence of agreement. The parties have liberty to approach as to costs, if agreement cannot be reached.