Inspector Robert Littley v Franklins Pty Limited

Occupational Health and Safety - prosecution under section 8(1) of the Occupational Health and Safety Act 2000 - retail supermarket business - armed robbery - failure to enforce existing policy - failure to minimise risk of an armed robbery - early plea entered - co-operation with prosecutor - contrition - defendant found guilty of charge - penalty imposed - moiety to the prosecutor - costs as agreed or assessed CATCHWORDS:

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health and Safety Act 2000

Geoff Derrick v ANZ Group Limited [2005] NSWIRComm 59 Inspector Bestre v South Sydney Junior Rugby League Club Limited [2004] NSWIRComm 215 Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 CASES CITED: Inspector Robinson v JAF Management Services Pty Ltd [2003] NSWIRComm 468 South Sydney Junior Rugby League Club Limited v Inspector Bestre [2005] NSWIRComm 116

PROSECUTOR: Ms H MacAlister, solicitor SOLICITORS Carroll & O'Dea LEGAL REPRESENTATIVES:

DEFENDANT: Ms J Mansfield, solicitor SOLICITORS: Blake Dawson Waldron

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

INSPECTOR ROBERT LITTLEY V FRANKLINS PTY LIMITED (TRADING AS FRANKLINS)

Prosecution under s.8(1) of the Occupational Health and Safety Act 2000

1 In July 2003, a supermarket at Sutherland owned by the defendant was robbed after closing time. The thieves gained entry to the store by climbing a fence and entering through the delivery dock, which was open, contrary to the applicable policies. Three employees were threatened and approximately $18,500 was stolen, when an employee was forced to open the safe in the cash office. This judgment deals with the sentence to be imposed upon the defendant, which entered a plea of guilty to the offence charged under s8 of the Occupational Health and Safety Act 2000 ('the Act'). 2 The charge to which the plea was entered provided:

DID FAIL , on 24 July 2003 contrary to Section 8(1) of the 2000 Act, to ensure the health, safety and welfare at work of all of the Defendant's employees, and in particular, Hannah Keane, Lynette Wymer and Artie Lissa.

The Defendant failed to provide a safe system of work in that it

failed to adequately enforce an existing policy which required that the back dock roller door be closed at all times unless deliveries were being received, preventing unauthorised access; 2. failed to minimise the risk of an armed robbery or hold up by providing duress alarms/buttons for use by employees.

3 The statement of facts agreed provided: 1. At all material times the Informant was:

(a) An Inspector duly appointed under Division 4 Part 3 of the Occupational Health & Safety Act 1983 (NSW) ("the 1983 Act") and taken to be appointed as an Inspector under the Occupational Health & Safety Act 2000 ("the 2000 Act") by virtue of Clause 11 of Schedule 3 to the 2000 Act and are empowered pursuant to Section 106 of the 2000 act as extended by Clause 13 of Schedule 3 to that Act to institute proceedings in the within matter.

Franklins Pty Limited ("hereinafter referred to as the Defendant") is a company duly incorporated having its registered office C/- Messrs Blake Dawson Waldron Lawyers, Grosvenor Place, Sydney New South Wales and carried on business at the Franklins supermarket at the corner of Eton Street and Presidents Avenue Sutherland in the State of New South Wales (hereafter referred to as the "premises") at all material times.

On 24 July 2003, the Defendant occupied the premises and was conducting the Franklins supermarket business from those same premises. At the rear of the premises was an area known as the "dock". The dock area was the receiving dock where merchandise for the Defendant's business at the premises was delivered. The dock area also contained a storage area, the staff meal room, the general office and the cashier's office. The cashier's office measured approximately 2.5m x 2m x 3.7 in height. Access to the cashier's office was by inward opening interior door made of wood 820mm wide x 1.92 metres high affixed to a wooden frame.

On 24 July 2003, once the supermarket store had closed, Hannah Keane, a seventeen (17) year old checkout operator employed by the Defendant, was accompanied by Lynette Wymer, back-up head cashier employed by the Defendant with three (3) years experience at the premises, to the cash office to count the money from her drawer.

Ms Wymer subsequently discovered that a checkout operator from an earlier shift had left her drawer in the cash register. Ms Wymer then left the cash office to retrieve the drawer and informed Ms Keane that she would return in a couple of minutes.

The dock area was fenced off with a two to two and a half (2-2.5) metre high wire mesh fence, with one side of the fence bordered by a tubular handrail approximately one (1) metre high.

At approximately 9:10pm to 9:20pm, three (3) armed villains gained access into the dock area. The villains then entered the storage area through the open dock roller door. The three (3) villains entered the cashier's office and confronted Ms Keane. The villains wore balaclavas and were armed with hand guns and a knife. The villains demanded that Ms Keane open the safe present in the cash office but she was not able to do so. The villains caused Ms Keane to contact the back-up head cashier, Ms Wymer, who attended at the cash office and under force of arms was made to open the safe in the cashier's office. At the same time, Mr Artie Lissa a night packer observed what was occurring but before he could raise the alarm, one of the villains threatened Mr Lissa with a gun and ordered him to sit in the meal room.

Having gained access to the safe, the three (3) villains exited the premises, taking with them approximately eighteen thousand and five hundred dollars ($18,500.00) in cash and vouchers.

The New South Wales Police Service attended upon the scene but did not identify any potential offenders. To date, the Police have been unable to find the villains responsible for the robbery.

All three (3) employees threatened by the villains suffered shock and trauma and were provided with counselling. Ms Keane a seventeen (17) year old girl at the time of the robbery suffered post-traumatic stress and returned to work on 13 November 2003 after 3 1/2 months off work. Ms Wymer also suffered post-traumatic stress and was absent from work from work(sic) from 24 July 2003 to 15 August 2003 and continues in the employ of the Defendant.

12. The Defendant carried out its own post-robbery investigation.

13. After the robbery the Defendant initiated a number of steps in order to render the premises more secure.

14. The Defendant failed to provide a safe system of work in that the Defendant failed to enforce an existing policy which required that that(sic) back dock roller door be closed at all times unless deliveries were being received, preventing unauthorised access. On the said date at the said premises, the back dock roller door was left open facilitating access to the rear of the store and the cash office.

15. The Defendant failed to provide a safe system of work in that it failed to minimise the risk of an armed robbery or hold-up by providing distress/alarm buttons for use by employees.

4 A number of documents, including photographs of the store, were tendered. The defendant called evidence from Mr Martin John Money, its Loss Control Manager and Mr Robert Fredrick Snape, the Sutherland Area Manager. 5 It was the case advanced for the prosecutor by its solicitor, Ms MacAlister, that the evidence showed that a serious offence had been committed. The robbery which took place was foreseeable, given the substantial sums of money handled at the store, sufficient to attract the attention of persons of ill intent; the defendant had already identified the risk of such robbery and had implemented policies designed to minimise that risk. There were straightforward steps immediately available, which would have minimised the risk of such robbery. Various steps taken afterwards confirmed this. Given the serious nature of the breach in question, both general and specific deterrence must feature in the penalty imposed, notwithstanding the significant steps taken subsequently by the defendant, to ensure its safety obligations were met. 6 The prosecutor accepted that there were various relevant subjective matters present, which should be taken into account in determining penalty. They included that this was a first offence; the defendant's demonstrated commitment to safety; the significant measures implemented afterwards, to ensure safety; the co-operation afforded to the prosecutor and the early plea. 7 The case advanced for the defendant by its solicitor, Ms Mansfield, was that the incident had occurred in circumstances where the defendant had in place policies designed to ensure that its safety obligations were met. The failure which had resulted in the entry of the plea, was argued to be a failure to sufficiently enforce those policies, in the particular circumstances. 8 The defendant relied on the steps taken in response to the events of July 2004, to demonstrate its ongoing commitment to ensuring safety, both at this store and throughout its operations. 9 The offence was submitted to be one at the lower end of the scale, although it was accepted that general deterrence must feature as an element of the penalty imposed. It was argued, however, that specific deterrence was not necessary, given the defendant's adherence to its obligations, both before and after the event in question. It accepted that the risk of robbery was foreseeable for any retail operation dealing with cash; it had assessed the risk as a real one; but had taken the view that it was a risk likely to be infrequent, based on its experience in the industry and at that store. 10 Furthermore, the need for duress alarms at the store had been identified, but not introduced, because of a misjudgment as to the likelihood that a robbery might occur in the intervening period. 11 The defendant's propensity to re-offend should be judged as low on the evidence and its genuine contrition accepted. Given its co-operation and early plea, it should be afforded the maximum discount available and a penalty in the lower range imposed.

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.

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