Inspector Sara Bestre v Jontari Pty Ltd; Inspector Sara Bestre v Tempo... [2007] NSWIRComm 190 | Case summary

1 Tempo Services Pty Ltd (Tempo) is a substantial operator in the cleaning services industry and over the years has held a number of contracts for the cleaning of Government premises including public schools. It has been the practice of Tempo to extensively use wholly owned subsidiary corporations as labour hire companies for the purpose of its cleaning business. In 2003, one such wholly owned subsidiary was Jontari Pty Ltd ("Jontari"): that company provided the workforce by which Tempo complied with its contractual obligations for the cleaning of Bonnells Bay Public School. In 2004, Gignen Pty Ltd ("Gignen") was the wholly owned subsidiary by which Tempo met its contractual obligations for the cleaning of Llandilo Public School. 2 In November 2003, Mrs Priscilla King was employed by Jontari as a cleaner working at the Bonnells Bay school. At approximately 6.00 am on November 2003, an unknown male entered the Administration block and assaulted Mrs King, putting his hands around her throat and dragging her into the Principal's office. In the course of demanding money, the intruder threw Mrs King to the ground, got on top of her, causing her glasses to be knocked off and, again, put his hands around her throat. Having been informed that money was not kept on the premises, the intruder attempted to sexually assault Mrs King and then left the premises. Arising from this incident, proceedings were commenced alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000 by Jontari and a breach of s 8(2) of the Act by Tempo. Allowing for differences in the statutory provisions both charges were particularised in the same way, as follows: (a) a failure to provide and maintain a safe system of work for cleaners working alone and/or in isolated areas; (b) a failure to provide an adequate communication system for cleaners working alone and/or in isolated areas; (c) a failure to properly assess the risks of cleaners working alone and/or in isolated areas; (d) a failure to provide adequate supervision to cleaners so as to ensure their health and safety while at work; (e) a failure to adequately inform cleaners of the risk of working alone or in isolated areas and to provide them with adequate instruction and training in systems of work or procedures so as to ensure their health and safety while at work; (f) as a result of these failures, Mrs King and other persons working at the site were placed at risk of injury. 3 On 14 October 2004, Mrs Rogers was employed by Gignen as a casual relief cleaner at Llandilo Public School. At some time after 5.30 am as Mrs Rogers was about to leave a room she had just cleaned, a man suddenly appeared and pushed her back into a classroom and sexually assaulted her in the walk-in storeroom. Arising from this incident, proceedings were commenced against Gignen alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000: a breach of s 8(2) of the Act was alleged against Tempo. In each case the particulars were in substance the same as the particulars provided in relation to the incident involving Mrs King at Bonnells Bay Public School. 4 The two sets of charges were heard separately, with the prosecution concerning Jontari and Tempo being concluded and immediately followed by the prosecutions concerning Gignen and Tempo. On 29 November 2006, in separate judgments, the Court found each defendant guilty of the various breaches alleged against them. This judgment deals with the evidence and submissions on sentence. 5 The prosecutor's evidence on sentencing was constituted by the tender of prior history records for each defendant. These records indicated that Tempo had one prior conviction for a breach of s.15(1) of the 1983 Act attracting a fine of $1,500 while the two subsidiary companies had no prior record. 6 For the defendants, affidavit evidence was provided by Mr Len Benson the Executive General Manager of ISS Facility Services Pty Ltd, formerly known as Tempo Services Pty Ltd. Mr Benson had been employed by Tempo for 13 years and had held his present position for some nine months: previously he was the occupational health and safety manager in the Department of Administrative Services and had been appointed as the Regional Manager North Coast of the Government Cleaning Services. He had been employed in the cleaning services industry for 18 years and had been a witness in the prosecution proceedings. 7 In relation to the structure of Tempo, Mr Benson stated that Tempo engaged subsidiary labour hire companies to assist in providing labour at various Tempo sites. In 2004, Tempo had 191 direct, 100 per cent owned subsidiaries and those subsidiaries owned an additional 48 subsidiaries, making a total of 240 companies in the group including Tempo itself. Since that time, Tempo had acquired 25 more companies, bringing the total of the Tempo Services Group to 264 companies. Jontari was incorporated in June 2001, was acquired the following day by Tempo and remained a 100 per cent owned subsidiary of Tempo. Gignen was incorporated in June 2004, was acquired by Tempo the following day and remained a 100 per cent owned subsidiary of Tempo. 8 It was Mr Benson's evidence that the major portion of Tempo's New South Wales workforce was recorded for payroll purposes under the names of the various wholly owned subsidiaries. Each subsidiary recorded and remitted the wages cost (including payroll tax, superannuation and workers compensation premium costs) and then re-charged back to Tempo. Mr Benson described Tempo subsidiaries as therefore effectively having no net assets and no net profit or loss: the subsidiaries did not enter into sales contracts but merely provided labour to Tempo which held the contract with the customers and called on its subsidiaries to provide the necessary labour. Mr Benson described this arrangement of employment being simply "an accounting treatment", so that a Jontari employee was a Tempo employee recorded in Jontari. For all operational intents and purposes, the employee was employed by the Tempo Group, managed by Tempo management, given Tempo Group training and wearing Tempo uniforms. 9 Since 2003, Tempo had taken many steps to reduce the risks of workplace violence. It had conducted workplace violence risk assessments at over 1400 sites and had reviewed its policies and procedures in that regard. In February 2007, Mr Benson met with the executive management team and representatives of the Group's lawyers and consultants to develop a strategy to deal with workplace violence issues. Advice was provided on occupational health and safety prevention strategies to reduce the risk of such workplace violence. 10 Mr Benson stated that he had been directly involved in implementing the Tempo strategy and in making changes to implement measures to avoid any incident of a similar nature occurring again. Tempo had given consideration to the following areas of improvement: implementation of advanced induction procedures; mandatory provision of duress alarms to all cleaners; investigation of alternative communication services; retraining in relation to safety procedures and workplace violence; liaison with school security providers; liaison with schools regarding risk assessments and reducing risk factors; liaison with the Department of Education concerning security of cleaners; implementation of team cleaning wherever possible; risk assessments conducted looking specifically at security of cleaners; and, changing safety policies to reflect mandatory rather than voluntary requirements. Tempo Management had looked at each of these areas and had introduced a number of changes. Details were given in relation to the steps taken by Tempo. 11 In relation to induction procedures, revisions occurred in the training programme from May 2004 with "enhanced" discussions about the risk of violence in the workplace and measures that Tempo management and staff were to take to reduce the risk of such events. The discussions included topics such as entering and leaving a site, locking doors and security gates, emergency procedures and telephone numbers, issuing personal alarms, procedures for cleaning external areas, and, working alone. In July 2005, Mr Benson advised general managers and operation managers that it was mandatory for all cleaners to be provided with induction training prior to commencing work at any Tempo site. The mandatory induction training had since been reviewed in March and April 2007. Tempo introduced a new policy under which each training co-ordinator was to provide training records to management for review upon the completion of induction training. 12 In May 2007, Mr Benson issued a policy directive requiring all employees to be issued with a personal alarm. From late November 2006, Tempo had ordered more than 3,000 personal alarms at a cost of $25,000. The personal alarms were being progressively distributed to employees together with training on violence in the workplace. The final batch of duress alarms was due at the end of July 2007 and distribution estimated to be concluded by August 2007. 13 In February 2007, the Tempo Management team began identifying the most suitable communication methods and devices. There were a number of considerations including geography, the number of cleaners working on site, working hours, the extent of indoor and outdoor work, proximity to possible assistance in an emergency, limitations on communications, where to wear the device, access to public telephones and the most likely source of assistance in an emergency. The issues were discussed at length with New South Wales managers to enable them to create a site risk profile. Additional information was to be collected from managers following the risk assessment to ensure that the most appropriate device was selected for each site and allocated to Tempo staff based on their needs. Following a March 2007 report, a range of communication devices were recommended allowing Tempo to assess each site and allocate the most appropriate communication device for that site. Tempo was currently assessing the use of two-way radios and mobile telephones. To ensure these devices were suitable for a particular site, management inspected the site, conducted risk assessments and spoke with trainers and clients as to the most appropriate instrument. 14 In 2004, Tempo had been a finalist in the best training programme for the WorkCover New South Wales Safe Work Awards. Tempo developed a formal training session for managers and support staff responsible for conducting workplace violence risk assessments with the Lennox Institute, a registered training organisation engaged by Tempo. All New South Wales managers and support staff were trained on site in December 2005 in the Hunter Valley in relation to the Safe "R" Clean Training and the workplace violence risk identification assessment plan. Between November 2003 and November 2006 Tempo conducted its safe work practice training at over 600 sites. Training for cleaners was conducted by Tempo by Tempo trainers and managers who had completed a certificate IV in training and assessment. The Tempo safe work practices were revised and accredited as competency based occupational health and training in 2004 and re-named safeRclean. The programme was further revised in December 2005 to include more specific training on workplace violence. A number of meetings were held between management and the consultants to improve violence management training on induction. Details of these developments and the courses adopted by Tempo were provided to the Court. 15 Mr Benson had been directly involved in drafting a violence prevention employee booklet. Violence prevention guidelines were developed in consultation with Tempo employees to assist with the identification and management of potential workplace violence situations. As part of the re-training programme, each Tempo employee was to be trained in violence prevention. The violence prevention programme had been discussed with managers, trainers, employees and the consultants. By June 2007 it was decided that copies of the prevention programme would be provided to each employee at Government contract sites and that a DVD would be developed to accompany the booklet. This involved issuing over 2,500 copies. The estimated cost of the implementation of this training was said to be approximately $85,000. 16 Tempo had instructed its managers and trainers to consult with schools when completing workplace violence risk identification and assessment checklists at each site. In February 2007, Mr Benson had attended the Annual Review of the New South Wales Government contract with representatives from the Department of Commerce, the Department of Education and Training and other Departmental representatives. At this meeting, he briefed them on the prosecutions and spoke on a number of topics including mandatory provision of duress alarms, the investigation of communication devices such as walkie-talkies, mobile telephones and two-way radios, liaison with security services, the implementation of team cleaning wherever possible, site security risk assessments and changing occupational health and safety policies to mandatory requirements. In May 2007, the Chief Executive Officer of Tempo, Mr Charles Blinkworth, requested the Director-General of Education to place security matters on the agenda for the next meeting. Tempo sought the Department's co-operation in co-ordinating security and cleaning functions so that all parties could work together and be in communication. Tempo sought a review of existing fencing and site security arrangements, an enhancement of those arrangements under a specifically targeted programme and an analysis of existing lighting, surveillance and alarm arrangements and improving those arrangements wherever possible. There had also been discussion about Tempo staff being provided with up-to-date contact numbers for the security services engaged for schools. The Department found difficulty in supplying that information in detail, noting that security patrols were random and that staff could make contact with the 24 hour security line. 17 From December 2004, Tempo reviewed the existing workplace violence: risk identification and assessment forms. In April 2005, Mr Benson contacted Inspector Bestre and Inspector Doyle in relation to the assessment checklist form. There was a discussion of the assaults on Mrs Rogers and Mrs King. Tempo informed the Inspectors of strategies that had been put in place after the assaults, including changes to the Occupational Health and Safety training, the risk identification and assessment checklist form. At this meeting, Tempo also informed the Inspectors that measures had been taken at Llandilo where, if two or more cleaners were at the site, it was a requirement for the cleaners to meet together, sign on together and work together for the first two hours. Personal alarms were issued to the cleaners and they were instructed to carry alarms at all times and, where work schedules were updated to include team cleaning, revised gate and door locking procedures and the monitoring of compliance was completed by the Area Managers. In June 2005, Tempo commenced the risk assessment of all sites for workplace violence issues: nearly 1500 sites had since been assessed at a cost in excess of $430,000. In June and July 2005, there were discussions with the Inspectors about compliance with improvement notices. The Inspectors accepted that the requirements of the notices had been met by Tempo. Mr Benson gave additional evidence as to the development of policies aimed at reducing the risk of violence at work sites, union consultation and the continuing review of Tempo policies in this regard. 18 In additional affidavit evidence, Mr Benson stated that Jontari was still in existence but was not used by ISS Facility Management Services Pty Ltd as a labour hire company and had no employees. From 28 January 2006, ISS Facility Management Services Pty Ltd no longer held the contract for cleaning services at Bonnells Bay Public School. The company Gignen was still in existence but it was not used by ISS Facility Management Services Pty Ltd as a labour hire company and had no employees. 19 Both the prosecutor and the defendants directed submissions to the findings made by the Court in the contested proceedings. Mr Benson gave extensive evidence in both cases. In 1996, he had prepared a discussion paper dealing with the security of cleaning staff noting that many staff had expressed concern regarding their security/safety at school sites because of the presence of unauthorised persons, having to work alone on a single cleaner site, having to work alone in a remote area at a multi-cleaner site, accessing areas where external lighting was inadequate, limited access to telephones and threats from unruly students during and after normal school hours. It was noted that the staff of Tempo worked at a variety of locations from large complex cleaner locations to remote single cleaner sites. Unauthorised persons on site included people using school premises to sleep overnight, people found on site being alcohol or drug affected, people who repeatedly visited a site for no apparent reason, people who used the school grounds as a thoroughfare and teenagers or children who utilised outdoor facilities on site. A survey of 114 cleaning staff and Area Managers led to a response in which 74 reported unauthorised persons on site as a cause for concern while 26 reported concerns due to working alone at a single cleaner site or in a remote area at a multi-cleaner site and four were concerned there was no access to telephones. Following the survey, Mr Benson made eight recommendations most of which were implemented. A document was jointly prepared by the company, the Department of School Education and the relevant trade union dealing with procedures to be followed when an unauthorised person was identified at a school site: that document was issued to all staff. The Department was to advise on current initiatives to reduce the number of unauthorised persons on school sites after normal hours; Tempo Area Managers were to investigate those sites where telephone access was not currently available and were to discuss it with the school Principal; Tempo was to investigate possible team cleaning and to review hours of duty at multi-cleaner sites where individual cleaners had raised concerns over security; some adjustments to cleaning times and working routines had already been made as a result of the survey results; reporting systems were to be implemented to ensure that senior management was made aware of all serious incidents including physical assaults. 20 In late October 1996, a set of guidelines was issued to staff with their payslips. The documents entitled "Working Alone - what you can do now!" contained 12 points and advised cleaners, amongst other things, to secure their car, park in well lit areas, to travel with other cleaners where possible to and from work, to secure the building when they arrived for their shift, to report broken locks and windows, to check if there was a working alarm system and who could hear it, to use one entry point, to check where the closest telephone was located and learn the emergency numbers and to check public transport timetables to minimise time spent waiting for public transport. 21 A late October 1996 memorandum recognised the recent trend towards violent activity, particularly at school sites and the importance of following the agreed procedure for cleaners when they felt threatened at work. Area Managers were to ensure that the procedure was known to Principals and cleaning staff and that cleaning staff had access to a telephone during working hours to call emergency numbers. The procedure also included locking themselves in the Administration building, calling police or security services and keeping details of the intruders. 22 In March 1997, staff had been advised by memorandum that Tempo had sourced and issued a small personal alarm for staff who believed they were exposed to the risk of assault. It was left to staff to determine whether they felt at risk and to apply for the issuing of the alarms. A further undated memorandum referred to recent events both in Australia and overseas that highlighted the need for staff to take precautions to reduce risk to their health and safety and referred to the procedures that had been issued and the steps to be taken by staff when they felt threatened by unauthorised persons on site. 23 In late November 2005, an information newsletter warned that there was an intruder in the Newcastle area over the previous few months and that four incidents had been recorded of a male person approaching cleaning staff in the early hours of the morning and exposing himself. There had been discussions with the police and the relevant union as to how the matter might be dealt with and cleaners were asked to be alert and on the lookout for strangers when they entered the grounds of a worksite, especially in the morning hours. They were instructed that if a person looked suspicious, they were not to leave their vehicle but were to drive to a telephone and ring the police or the Area Manager. They were given advice that, as a general precaution when arriving at a site, they should park their vehicle close to the entry point of the building in which they would be working and secure the entry door behind them. They were urged to be alert when moving between buildings and if they saw a stranger outside the building they were not to go outside but were to contact the police or the Area Manager. Again, staff were advised that personal alarms were available from their manager and were given advice as to how to obtain a personal alarm. Between 1994 and 2003, Tempo had issued a document dealing with safe work practices. A new edition of that document had been finalised in late 2002 which had been developed over a considerable period of time. In part that document dealt with safe work practices concerning access and site security and informed employees that they would need keys, a security card and a personal alarm. The document gave advice about parking and entering in well lit areas and raising complaints if the lighting was not adequate. It was stated that once inside the building external doors were to be kept locked where possible and that isolated areas should be cleaned during daylight where possible. Rooms that had been cleaned were to be locked as the cleaners were leaving them unless otherwise directed by the client. 24 Mr Benson gave oral evidence that Tempo had in excess of 4000 employees and used a number of subsidiary companies such as Jontari to engage these employees to fulfil Tempo's obligations under the Government cleaning contracts. Tempo supervised the employees of Jontari and those employees were issued with Tempo handbooks. The Area Managers were employees of Tempo and controlled and directed the staff of Jontari and Gignen (and a number of other labour hire companies used by Tempo). In 2003, the age profile of cleaners employed by Tempo showed that they were on average 55 years of age and 60 per cent of them were female. Mr Benson was not sure if the Working Alone document had been given to new starters but there was a folder kept on site containing safe working practices. 25 Mr Benson confirmed that team cleaning had not been introduced at Bonnells Bay at the time of Mrs King's incident but that following the attack team cleaning had been introduced to reduce the level of risk at the site. The incident at Llandilo Public School occurred almost 12 months after the Bonnells Bay incident. Between both incidents, Tempo's programmes had continued and although nothing had been added to those programmes, a risk assessment at Bonnells Bay had been conducted concerning changes to be introduced in the work schedule at that school. However, those changes were not introduced elsewhere. The risk assessment which was under-taken at Bonnells Bay had not been undertaken at the Llandilo school and Tempo did not publicise the Bonnells Bay incident. After the Bonnells Bay incident, nothing additional had been done by way of training cleaners in relation to security but attention was directed to the safe work practices document already in existence. No additional instructions were provided to supervise all cleaners regarding personal security. 26 Mr Benson was unaware of an incident in 2002 involving Mitchell High School at Blacktown. Improvement notices had been issued to the defendants in April 2005 concerning the Llandilo incident and WorkCover inspectors were aware of other notices issued to Tempo in relation to Bonnells Bay school and the Mitchell High School. The risk assessment dealing with Mitchell High School mentioned confrontation in various areas by unauthorised persons, intruders being locked inside during the lockdown and confrontation by persons entering the grounds. 27 In each case, the general evidence for the company was the same and the submissions were substantially the same except for those aspects peculiar to the particular site. In relation to the Tempo and Jontari proceedings, the history of Tempo's awareness of the risk of assault while working in the early or late hours at public schools was traced from the 1996 survey through to the Blacktown incident in 2002 and then the attack on Mrs King in November 2003. That history indicated that, by the time of the incident involving Mrs King, there had been incidents which raised fears for the safety of cleaners working alone at schools and that a number of Tempo's employees had raised concerns about their security while working alone. It was stated that those documents made it abundantly clear that it was foreseeable that cleaners working alone in schools and in isolated areas were at risk of assault. While it was accurate that no similar incident had occurred at Bonnells Bay school or at Llandilo school before these two incidents the subject of the proceedings and that Tempo employed hundreds of cleaners at many work sites, nevertheless, Tempo was aware of the potential for these employees to be subject to assault and foreseeability was therefore not an issue in the prosecution. It appeared that Tempo, acting on the concerns of its employees and having regard to at least two incidents, decided that the risk was relatively low and addressed that risk in various documents, including the Working Alone document and the safe work practices documents but they were inadequate responses to the nature of the risk. The documents gave little direction to the staff affected and left it up to staff, for example, whether or not they should apply for a duress alarm. Having identified the risk of assault of the cleaners working alone in schools or in isolated areas, it was concluded that, even given the relatively low level of incidents reported, the defendants' steps to address the identifiable risks were unsatisfactory and did not adequately address the nature of the risk. However, by late 2004 firmer directions and training were given by Tempo as to how staff could protect themselves, and team cleaning, meaning that employees would work together rather than separately in school buildings, had been introduced at Bonnells Bay. It was not until mid-2005 that a risk assessment had taken place at Bonnells Bay school leaving the defendants to modify their risk identification assessment and to ensure that all Area Managers had been trained in the risk assessment process. Induction training programmes were amended to improve discussions on the risk of violence in the workplace and the measures to be taken to reduce the risks. Following the Bonnells Bay incident, a number of measures were identified as being available to identify this type of risk: team cleaning was introduced; effective alarms were provided; proper risk assessments were conducted; induction training especially relating to working alone was introduced; work schedules were modified to ensure that cleaners worked together, including when working outside; work schedules were altered so that cleaners could start at the same time; steps were taken to move cleaning equipment from outside to an internal store area where access could be obtained within the security of the building; security grilles were introduced on windows; training in non-violent responses to threatening behaviour was introduced and consideration given to the introduction of instruments such as walkie talkies to permit communication between employees on the site. It was noted that these were simple and practical measures that addressed the risk that had been identified and known to exist since at least 1996. 28 In relation to the Bonnells Bay matter, the system in operation did not specify in any document that doors beside the front door were to be kept locked while working in the building and no such requirement was found in any of the defendants' documents. The system in operation did not address the issue of opening windows and in what circumstances they might be open. None of these measures were addressed in the defendants' systems and there was no evidence that a system of locking doors was enforced by management either at Area Manager level or above. There was no evidence of formal and unscheduled visits to ensure that all external doors were locked nor was there evidence of reinforcement of that approach, especially when found not to be followed. It was found that there were clear deficiencies in the defendants' system of work with the result that it failed to adequately address the risk of assault where cleaners worked alone in dark areas or in isolation. Although the concept of team working had been considered as far back as 1996, ultimately, that method was only introduced at sites where staff had raised their concern and no reason was advanced for that limited approach. The Court noted that it was difficult to understand why this protective step had not been taken in relation to all schools where there were present the elements of cleaners working alone in the early or late hours and in relatively isolated locations. There was something "almost blinkered or worse, possibly half-hearted, about these responses by the defendants - protection could be provided but only where cleaners complained or specifically requested assistance". 29 In the November 2003 incident involving Mrs King, an intruder had gained entry to the school building, had placed a hand around Mrs King's throat and had carried her into the Principal's office. She was assaulted in the Principal's office by the intruder who said he only wanted money. He had been told by Mrs King that there was no money at the school and she bit his hand. The intruder, who covered his face, told her to be quiet and to stay where she was, so Mrs King stayed in the room for a time until she thought the intruder had left and then raised the alarm. Mrs King did not have a personal alarm and had not been told about the existence of such a device. She had never been told that she should not work alone and had been told nothing about locking the door of the room in which she was cleaning. 30 The October 2004 incident involving Mrs Rogers occurred when she was leaving a particular room and a man suddenly appeared, opened a screen door, pushed her back into the classroom and sexually assaulted her in a walk-in store room. The intruder placed both hands on her shoulders and pushed her further into the classroom. Mrs Rogers screamed loudly in trying to attract somebody's attention and asked the intruder to stop but she lost her balance and fell to the floor crying, when the intruder opened the store room door and dragged her into that room. The Court had before it the District Court Judge's sentencing remarks in dealing with the intruder. While Mrs Rogers was being held by the intruder in the store room, two members of staff had entered the classroom next to the store room and, while the sexual assault was taking place, Mrs Rogers heard them and attempted to attract their attention by kicking objects within the store room but the intruder held his hand over her face. The intruder had been diagnosed with a serious mental illness and, at the time of the offence, it was stated that he experienced symptoms of psychosis such as auditory hallucinations. Evidence before the District Court showed that Mrs Rogers was involved in an incident which had been a significant ordeal from which she would continue to suffer extreme emotional trauma. Since the sexual assault she had suffered and continued to suffer panic attacks, was distressed and was very tired and anxious. It was said that she would continue to suffer from nightmares and was unable to resume work nor was she able to continue studies she was undertaking. Her social and domestic life had been significantly impaired and she had been diagnosed as suffering from post- traumatic distress disorder with moderate levels of depression and severe levels of general anxiety. At the time of sentencing in February 2006, Mrs Rogers was said to be currently undergoing therapy and would be required to do so for the medium to long term. 31 At Llandilo school in 2004, a risk assessment had been conducted which only identified the risk of tripping or falling. It was observed that, if a proper risk assessment had been conducted, use could have been made of the compound fencing in existence at that school so that gates could be locked which would not interfere with others but could act as a deterrent to an intruder. It was observed that the inadequacy of the risk assessment was highlighted by the fact that, just 11 months' earlier, Tempo had experienced the Bonnells Bay incident and prior to that the Mitchell High School incident and that the potential problem of assault had been identified as far back as 1996. Tempo had not asked the Education Department or the school Principal about the security system in operation at the Llandilo school that might be available to protect employees. It was further noted that, despite the nature of the incident that occurred in 2003 at Bonnells Bay, the evidence in relation to Llandilo school did not show any steps taken generally by the defendants to address the prospect of that risk of assault arising at other schools. The defendants' approach seemed to have been that they were entitled to regard each school as being without risk of assaultive behaviour because of its history of no similar behaviour and would only address the risk at a particular school after an assault had occurred at that school. It was only after the assaults at Bonnells Bay and Llandilo that the issuing of a duress alarm and its use during working hours was made a requirement by the employer. It was surprising that, in the 12 months following the Bonnells Bay incident, the defendants had not put into operation systems of work that addressed these risks and to do so as a general operational requirement for all schools and all its employees. There was no evidence of the Working Alone document being distributed to employees working at Llandilo school nor was there any evidence of the cleaners being inducted and instructed in site safety, including their own personal security, apart from an oral direction apparently given to Mrs Rogers that she was to lock the door behind her when working in a room. No similar instruction appears to have been given to the other cleaner working at that school and there was no evidence of that requirement being enforced by the defendants. In all cases, each aspect of the particulars relied on by the prosecution had been established. DELIBERATION 32 It was urged on behalf of the defendant, and not opposed by the prosecutor, that, for the purposes of sentencing, all matters should be heard together. The defendants' submissions pointed to the fact that all charges were particularised in the same terms notwithstanding the two separate incidents and locations and the period of time between each occurrence. 33 The defendants accepted that the initial and important considerations were the objective seriousness of the offence together with general and specific deterrence. It was submitted that, having regard to the large number of employees engaged in cleaning activities across the State and the large number of different locations, these two incidents represented a comparatively rare occurrence that was, in any event, being addressed by Tempo. Whilst specific deterrence might be a consideration, it was not a large consideration in the context of these offences. 34 I accept the prosecutor's submission that these offences are to be regarded as serious breaches of the Act. The risk at the core of the charges was the risk of cleaners, especially those working in isolated locations, being assaulted. The evidence showed that the majority of employees engaged in this type of work were female employees of more mature years who were allowed to work in circumstances where very little regard was had for their protection against assault from intruders and where their work circumstances were often working alone in either the early hours of the morning or in the late afternoon when school staff and students were not present. There was an absence of a proper risk assessment and only general suggestions made to staff about the way they might protect themselves against such eventualities including, if they thought it appropriate, to apply for the provision of a duress alarm. The two incidents occurred in late 2003 and late 2004, nearly 12 months apart. Tempo was aware from 1996 that staff had concerns about the presence of unauthorised persons on school premises during their working hours and was apparently aware, in a wider context, of the risk of assault when working alone, especially in isolated areas, leading to discussions between the relevant union and the Department of Education in its various manifestations. Very little had been achieved by way of appropriate risk assessment and positive directions to staff and assistance to them when an incident occurred in 2002 at a school in Blacktown leading to the issuing of improvement notices. That incident should have put Tempo on the alert that there was a real risk of such conduct occurring at its variety of workplaces but progress in developing procedures continued to be, at best, glacial. During this period, approaches such as team working had been considered and had even been implemented at some work sites, apparently primarily at the request of the employees, but had not become part of the required approach of the defendants, although that step was taken after the Llandilo incident. Having regard to the defendants' recent experiences in 2002 and 2003, it was inexplicable that the risk had not been appropriately addressed before the Llandilo incident in late 2004. The risk was foreseeable before the Bonnells Bay incident and the defendants accepted that the failure to act between the Bonnells Bay incident and the Llandilo incident might properly be characterised as an aggravating factor in relation to the last offence. 35 Apart from the foreseeability of the risk, consideration also has to be given to the nature of the risk. The possibility that staff working alone, often in isolated circumstances and usually in the early hours of the morning and thereby being at risk of assault by an intruder, realistically had to contemplate a wide range of behaviour from threats and actions putting an employee in fear of her safety to actual physical assault resulting in the infliction of serious injury. The range of possible behaviour had to include the very serious offence of sexual assault, as occurred to Mrs Rogers at Llandilo, with the consequences of extreme emotional trauma affecting her capacity to resume work and to continue her studies and the significant impairment of both her social and domestic life. The defendants were not entitled to take the view that the risk of assault, if it crystallised, would amount to no more than mild physical contact. While the defendants might have had regard to the infrequency of such incidents, having regard to the size of their workforce and the wide variety of locations at which the work was performed, the defendants, nevertheless, were obliged to take whatever steps would ensure the safety of their employees in such situations. The steps ultimately adopted by the defendants (principally Tempo) were modest, both in financial cost and in the application of management resources. Both offences are to be regarded as serious breaches and, because the defendants had been clearly put on notice of the seriousness of the risk after the Blacktown and Bonnells Bay incidents, it is appropriate to regard the Llandilo incident as the more serious of the two breaches. 36 General and specific deterrence are to be considered in relation to these offences. The cleaning industry involves many participants from significant and large companies to small operations. The penalties imposed in these cases will assist in drawing to the attention of industry participants the need to be diligent in considering the variety of risks that may confront their employees. In considering specific deterrence, it is to be noted that, long before these two incidents, Tempo was addressing the risk but, unfortunately, did not move quickly to take some simple steps to address the potential problem. It may have been that the absence of any incident up until 2002 directly involving Tempo lulled it into a false sense of security as to the reality of the risk but, from that point on, its obligation was to move promptly to address the risk. It is of some concern that the evidence in the sentencing proceedings indicates that there are still steps being taken to ascertain the most appropriate combination of alarms and instruments that should be made available to employees, although it is to be accepted that with a large number of work sites, differing combinations of instruments need to be considered. Specific deterrence will therefore play an important part in setting an appropriate penalty. 37 In relation to subjective matters, the defendants concentrated on the size of the workforce and the variety of places at which the work was performed as indicating the relative rarity of such events. Tempo has been in existence for some years and had one prior conviction arising from a matter commenced in 1996 that resulted in the Chief Industrial Magistrate imposing a fine of $1500 for a breach of s 15(1) of the 1983 Act. The prosecutor was unable to supply details of this offence and no mention was made of the particulars of this prior offence within the submissions for the defendants. Although the evidentiary position as to the previous conviction is unfortunate, it may be accepted that Tempo's record is a relatively good industrial record. On the other hand, Jontari was incorporated in late June 2001, while Gignen was incorporated in late June 2004. Both have ceased to be used by Tempo as labour hire companies and no longer have employees, but continue in existence. There was no evidence as to what function, if any, these two companies were to perform as part of the Tempo Group in the future or whether they would be likely to employ again, especially in the cleaning industry. As Mr Benson's evidence indicates, both are wholly-owned subsidiaries within the Tempo Group. The particular circumstances of these defendants are considered later in this judgment. Apart from the abovementioned considerations, little else was put regarding subjective factors and there was no evidence as to issues such as contrition and wider community participation by the defendants. It is accepted that more recently Tempo has committed more financial and physical resources in addressing the risks to employees. The limited subjective factors identified above will be taken into account in setting a penalty in relation to each of the breaches. In this context, Tempo faces a maximum penalty of $825,000 for each offence and the subsidiaries face a maximum penalty of $550,000. 38 An issue of some complexity arose in relation to the principle of totality and the way in which the labour hire companies, Jontari and Gignen, were to be treated. The initial submission for the defendants was that the labour hire companies were not only wholly-owned subsidiaries of Tempo but shared the same Board of Directors. Their role was limited to being the employer supplying labour to Tempo, thus permitting Tempo to fulfil its contractual obligations under Government cleaning contracts. When the two labour hire companies operated as employers, moneys received went through their books but they retained no assets and, although still in existence, they did not employ anyone and continue to have no assets. The offences charged against them and in relation to which they had been found guilty were particularised in exactly the same way as the charges brought against Tempo in relation to each incident. The initial submission for the defendants was that the approach adopted in Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 should be adopted and the close connection between the corporations taken into account to set a global penalty which might then be divided between the various defendants. In recognition of the fact that the approach in CI & D Manufacturing in relation to totality had been overruled in Inspector Green v Big RiverTimbers Pty Ltd (2006) 156 IR 341, the defendants' refined submission was that the close relationship between the companies remained a relevant consideration and that to impose full penalties on all three defendants in relation to these two incidents would be effectively to punish Tempo more than once for the same acts or omissions. 39 The development of the jurisprudence in this aspect of the Court's jurisdiction requires some brief explanation. In Haynes v CI & D Manufacturing, a Full Bench of the then Industrial Court, on appeal, set about the task of setting an appropriate penalty in circumstances where there had been a workplace fatality at premises owned by CI & D Industries Pty Ltd and leased to the associated and wholly-owned company CI & D Manufacturing Pty Ltd. Both companies had been prosecuted under the 1983 Act pursuant to s 16 and s 15 respectively. The direct management of the workers was undertaken by CI & D Manufacturing but CI & D Industries was the supplier of management services and the owner of the site and thus had responsibilities for safety under the Act and, in particular, s 16 of the Act. Of this set of circumstances, the Court observed, at 457: In a number of cases decided under the OHS Act where the corporate structure of the defendant has been shown to be little more than the means of distribution of earnings arising from personal exertion, or where, as a matter of corporate structure, the burden of any fine levied would fall on one person or one family group ownership, the Court has seen it appropriate to impose a fine substantially less than if the corporation was functioning as a company with assets of a substantial kind. (See Gordon v MIJO (NSW) Pty Ltd; Ford v Warrah Ridge Pastoral Co Pty Ltd (unreported, Bauer J, 23 September 1994, Matter No CT 1109 of 1993); Robins v CT Plumbing Pty Ltd (unreported, Fisher P, 16 December 1991, Matter No 522 of 1991) and Mauger v Krcmar Engineering Pty Ltd (1993) 47 IR 359). We consider that as precent has developed there are two strands to the consideration of fines under the OHS Act. The first comes into play when the defendant is an individual and there is no corporate structure. Where the defendant is a company with the structure as above considered, the principles and approach adopted in the cases above cited are to be applied. . . . Should the prosecution of the closely related companies attract one penalty or two penalties assessed as against each company? The evidence available showed that Manufacturing at the time of the accident employed at the Somersby plant about nine workers and that for purposes related to company structure was a company wholly-owned by Industries. The personnel on whom the ultimate responsibility for ensuring the supervision of the employees rested at the time of the accident were the same. We have come to the view on the evidence that the connection between the two companies was so intimate that it is permissible to view the offence in a global way. We are of the view that an appropriate penalty in all the circumstances would be a total fine of $30,000. We have considered whether it was within the authority of the Court to order the payment of the fine as if the respondents were jointly and severally liable for the total amount ... . We have been unable to come to the view that such a course is open to the Court. In determining the way in which the totality of the fine should be apportioned, we have decided that Manufacturing and Industries are so clearly linked that each should bear the fine equally - $15,000 by Manufacturing and $15,000 by Industries. 40 In the case of Inspector Green v Big Rivers Timbers, the Court was engaged on an appeal against a penalty imposed by the Chief Industrial Magistrate in 2005. The Court noted that Big Rivers Timber Pty Ltd and Big River Timbers (Veneer) Pty Ltd were involved in the manufacture of plywood and flooring. The first respondent controlled the business activities and owned the relevant plant while the second respondent was operating an employment company for the veneer and engineering divisions in relation to the particular employee affected by the incident giving rise to the prosecution. The first respondent had been charged pursuant to s 8(1) of the Act while the second respondent had been charged pursuant to s 8(2) and s 10(2). On appeal, the Court held that his Honour the Chief Industrial Magistrate had misapplied the principle of totality by treating the two corporate defendants as one entity for the purposes of sentencing because they were interlocked, meaning that they were closely related corporate entities having common governance and operation. The respondents conceded that the principle of totality did not operate in relation to corporate defendants simply because they had common directors and shareholders. While noting that concession, the Full Court, nevertheless, canvassed a number of authorities dealing with the principle of totality to demonstrate its limited application to the same defendant facing multiple charges and the need to scrutinise the matters to avoid the possibility that the defendant was being penalised more than once in relation to common factors or elements in the charge and to ensure that the aggregate sentence or penalty was just and appropriate. In conducting this review of authority, mention was made of the decision in WorkCover Authority (NSW) v McDonalds Australia Ltd (2000) 95 IR 383, where the proposition was rejected that the two corporate offenders ought to be treated as one entity for the purposes of imposing penalties under the Occupational Health and Safety Act. That proposition was rejected on the basis that the matter there under consideration did not concern a single offender facing multiple charges, but involved two defendants facing different charges. Although there was a common sub-stratum of fact, nevertheless, the defendants contributed differently to the offence. The Full Court also observed that, in the situation where there were a number of defendants that were commercially connected, including directors, the principle of totality was not applicable but that it was appropriate to consider the respective culpabilities of the various entities and, where there were overlapping responsibilities, the Court could ensure there was a proper apportioning of the responsibility. 41 Following this review of authorities, the Full Court noted that the appellant prosecutor sought that the judgment in Haynes v CI & D Manufacturing be overturned on the issue of totality: that request was acceded to. The Full Court stated that it was not permissible, under the principle of totality, to treat two corporate respondents (distinguished by their separate incorporation) as a single entity for the purposes of sentencing and, to the extent that the Full Bench in CI & D Manufacturing adopted a different approach, as a matter of law and principle, the Full Bench was wrong. 42 There was no suggestion in the present proceedings that the decision in Big Rivers Timber was in error, nor was there any application that it be referred to a Full Court for reconsideration. Clearly, what the Full Court said in relation to the principle of totality was, with respect, correct: the principle deals only with a defendant found guilty of multiple offences. The Full Court carefully noted that the special circumstances in Haynes v C I& D Manufacturing had been distinguished in McDonalds Australia Ltd and had proceeded to declare Haynes v CI & D Manufacturing as erroneous to the extent that the Full Bench in that case applied the principle of totality. In the passages that have been reproduced from Haynes v C I & D Manufacturing, the Full Bench refers to approaching the setting of a penalty in a global way having regard to the intimate connection between the two companies but only in relation to considering and then rejecting the proposition that the two companies could be made jointly and severally liable for the one penalty. It was in this context that the Full Bench referred to determining the way in which "the totality of the fine should be apportioned". It is not apparent from those passages that the Full Bench applied the principle of totality rather than applying a general approach of fairness and apportioning culpability: nor do the cases referred to earlier by the Full Bench in support of that approach, in terms, rely on the principle of totality. It may be for this reason that the Full Court in Big Rivers expressed itself cautiously by holding that, to the extent that the decision in Haynes v C I & D Manufacturing applied the principle of totality, it was wrong. 43 The proper treatment of closely related defendants has raised some difficulty from time-to-time in the exercise of this part of the Court's jurisdiction. Members of the Court, have, on occasions, raised with the prosecutor the rationale for charging both the corporate entity and the director in circumstances where the evidence has disclosed that the incorporation of the business is little more than an action taken, usually on the advice of a financial consultant, and is the means by which a person or a family has chosen to conduct its business. Those queries have usually been met with a reply that the principle of totality is available to ensure that the aggregate penalty is appropriate. That rather loose and imprecise reference to the principle of totality has disguised difficulties with cases of this nature. It cannot be doubted that it is within the realms of the responsibility of the prosecutor to decide what charges are to be preferred and against what entities. The clarification by the Full Court in Big Rivers of the circumstances in which the principle of totality applies should result in prosecutors closely examining what entities are charged or what charges are continued where the evidence demonstrates a close connection between two defendants involved in the same incident. An important question that often arises in such circumstances is: what ends of justice are served by multiple prosecutions? Different circumstances may lead to different answers to this question, but it is a question that should be considered. 44 In Inspector Green v Metropolitan Administration Services Pty Ltd and anor [2005] NSWIRComm 12, reference was made to what was regarded as the two extremes of approaches demonstrated by reference to matters decided under Occupational Health and Safety legislation in this jurisdiction. One extreme was described as the approach in Haynes v C I & D Manufacturing and the other end of the extreme seemed to be the judgment in McDonalds Australia Ltd, namely, that the principle of totality could not apply to multiple defendants but only to one defendant facing multiple charges. In Metropolitan Administration Services Pty Ltd, the Court was faced with the situation of two corporations and a director being found guilty of a breach of the Act arising from the same incident in circumstances where the two corporations were owned by the same shareholders and shared common directors. The Court resolved what was seen to be the conflict in the decided cases by adopting an approach that ameliorated the aggregation of penalties which would otherwise have been imposed on two corporate entities which were closely related by way of identical shareholders and that shared common overall management in circumstances where only one incident gave rise to the proceedings and where there was a large degree of overlap in the factual circumstances which created the breaches. 45 As already observed, it may be that there is no direct conflict in the authorities and that the Full Court in Big Rivers stepped in to clarify the position and to eliminate a degree of imprecision that had crept into the way in which parties approached the sentencing task in circumstances where there were separate but closely related defendants who had been found guilty of offences arising out of the same incident. It was always the case that those circumstances did not give rise to the application of the totality principle. However, it has been said that there is a common thread of the requirements of equity, fairness and equality of justice that underlines the various principles of proportionality, consistency, parity, comparability and totality. 46 The present matters represent another refinement of the issues that faced the Court in cases such as Haynes v C I & D Manufacturing and Inspector Ritchie v Metropolitan Administration Services Pty Ltd. In the present case, the defendants' evidence was that Tempo effectively stood in the shoes of the employer: the cleaners wore Tempo uniforms, were dealt with under Tempo systems and worked in accordance with Tempo procedures and were managed by Tempo supervisory staff. The only role of the labour hire companies, Jontari and Gignen, was to be the employing entity but exercising no actual control over the employees. Although there was no precision in the evidence as to how this arrangement operated, the effect of the evidence was that the labour hire companies, wholly owned subsidiaries of Tempo, were mere conduits and that the costs of hiring labour were met in such a way that the labour hire companies acquired no assets. Mr Benson, as the Group General Manager, was not cross-examined on the details of these arrangements and the prosecutor was content to allow the matter to proceed on the basis of the minimal amount of information provided by the defendant through Mr Benson. A question from the Court as to the purpose of Tempo operating multiple labour hire companies as wholly owned subsidiaries was met with the response that it was not unusual to encounter labour hire arrangements in the workplace and many of those arrangements reflected a corporate preference for the labour hire company to be a separate corporate entity within the group structure. That is the state of the evidence before the Court together with the evidence of Mr Benson that while Jontari and Gignen continued to exist, they no longer engage employees and they have no assets. It was also asserted by Senior Counsel for the defendants that the burden of the penalties imposed would be borne by Tempo alone. From that evidence it appears that, at least at the time of the incident in each matter, and possibly for the entirety of the period that they acted as labour hire companies for Tempo, neither Jontari or Gignen exercised, in fact, any control over the employees or treated them, in their day-to-day work, as employees. The de facto employer was Tempo and it was that company that entered the cleaning contracts and was responsible for undertaking the cleaning and to do so provided Tempo uniforms for the cleaners, established their system of work, gave directions to the cleaners as to how the work was to be performed and used Tempo Area Managers and supervisors to promulgate the Tempo system. The labour hire companies were engaged solely in providing employees for Tempo work and the directors were the same directors as those on the Board of Tempo - there was no independent or arms length directors engaged in running some other or wider business. 47 In McDonalds Australia Pty Ltd, the approach in Haynes v C I & D Manufacturing was regarded as something of a special case: the facts in the present matter certainly qualify it as a most unusual case with quite special features. 48 Given the unusual nature of the relationship between these defendants, the question arises as to what sentencing options are properly open to the Court having accepted that, in terms, the principle of totality does not apply in relation to the subsidiary companies. It is appropriate in this particular exercise to return to some basic concepts. Section 3A of the Crimes (Sentencing Procedures) Act 1999 sets out the purposes for which a Court may impose a sentence on an offender. Those purposes include: ensuring that the offender is adequately punished for the offence; preventing crime by deterring the defendant and others from committing similar offences; protecting the community from the offender; promoting the rehabilitation of the offender; making the offender accountable for their actions; and, to denounce the conduct of the offender. It is the Court's duty to reconcile and rationalise these purposes in considering the sentence appropriate to the particular offence. In R v Engert (1995) 84 A Crim R 67, Gleeseon CJ, at 68, after discussing the purposes of punishment as set out in Veen v The Queen (No 2) (1988) 164 CLR 465, stated: A moments consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate ... . It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise. 49 The need to ensure that the offender is adequately punished for the offence is essentially linked to the concept that the sentence must ultimately reflect the objective seriousness of the offence. In the present case there is no doubt that each offence is a serious breach of the Act for reasons already set out. However, in a real sense the breaches are those brought about by the actions and omissions of Tempo and not of the conduit entities. It may be argued that Tempo has chosen its own corporate structure and if that left it open to charges in relation to the same incident in relation to itself and its wholly owned subsidiaries, then so be it. However, the circumstances of each case are to be scrutinised in the sentencing process: not every wholly owned subsidiary or closely related defendant charged in relation to the same offence will be a mere conduit exercising no control and playing no part in the day to day employment relationship. Further, while it may be for the prosecutor to lay charges that cannot limit the Court in the way in which it approaches the sentencing exercise. A related consideration is that while the wholly owned subsidiaries acted as mere conduits, in fact they had the power to exercise control over the employees and did not do so. In the circumstances of the present case that type of analysis has little potency because the directing minds of the corporate entireties were the same persons: they chose to have the labour hire entities act without control and as mere conduits and chose to use Tempo as the de facto employer and in a practical sense standing in the shoes of the employer. The seriousness of the offence of the labour hire entities has to be judged in that context. 50 In relation to deterrence, it may be argued that the imposition of penalties on the labour hire entities would act as a general deterrent but that principle is not to be confused with a view that corporations should not structure themselves in this way. Having regard to the unusual nature of the relationships between these corporations, it is highly debatable whether separate penalties imposed on the labour hire entities would act as any more of a deterrent than the penalties to be imposed on Tempo, standing as it does at the corporate apex of these arrangements. In relation to specific deterrence, it is unlikely that a penalty imposed on the labour hire entities would act as a deterrent in their future activities, not only because for at least the present time they are not employing anybody but also because the controlling mind is that of Tempo and Tempo will be penalised having regard to this aspect of sentencing considerations. 51 The same considerations apply to the purposes of protecting the community from the offender and promoting the rehabilitation of the offender. The community will best be protected against unsafe working systems in those cases by Tempo addressing the necessary elements of a system of work that will ensure that cleaners are protected from assaultive behaviour. In the same way, it is the actions of Tempo that will demonstrate its rehabilitation and its capacity to continue as a corporation abiding by the requirements of occupational health and safety legislation. 52 To make the offender accountable for their actions and to denounce the conduct of the offender, similarly requires attention to be paid to the actions and omissions of Tempo. To recognise the harm done to the victim and to the community also directs attention to the acts and omissions of Tempo especially in circumstances where staff were treated as Tempo employees, wearing the Tempo uniform and being directed in the Tempo system of work by Tempo Area Managers and supervisors. In a very real sense, Mrs King and Mrs Rogers, as victims of the assault, are likely to look at Tempo as failing to adequately protect them rather than the labour hire entities that appear not to feature in their day-to-day work or at all, except as to payroll services. 53 Having regard to all of the abovementioned matters if the approach is taken to assess the relative culpability of the offenders, again the focus is upon the acts and omissions of Tempo. The labour hire entities were never acting with any independence and they performed precisely as Tempo required them to perform - as mere conduits for activities for which Tempo was wholly responsible. There is an artificiality about any suggestion that the labour hire entities, as the legal employer, had the power to act independently and impose safe systems for the engagement of their employees by Tempo. This may be a valid expectation where there is in existence the usual labour hire relationship and where there is corporate independence. In the unusual circumstances of this case it is simply folly to proceed on the basis that the directors of Tempo, acting as directors of the wholly owned subsidiaries, would direct their relationships with Tempo so as to impose conditions that Tempo may not have addressed in order to seek changes to systems of work of Tempo which they regarded as being inadequate in ensuring the safety at work of the cleaners. 54 The setting of an appropriate penalty for Jontari and Gignen has presented certain complexities and unusual factors that has made the decision a difficult one. I am, however, unable to see how the various purposes of sentencing are achieved or the system of promoting workplace safety is enhanced by imposing full penalties on each of the wholly owned labour hire companies in the circumstances shown to exist by the evidence. The notions of fairness equity and justice and the many considerations which inform the sentencing exercise do not appear to be well served by a penalty of substance that would treat these defendants as equally culpable as Tempo. The inappropriateness of applying the principle of totality might be met by the approach in Hayes v C I & D Manufacturing to the extent that approach does not involve the application of the principle of totality, but there is a degree of artificiality about that approach. In the course of argument regarding the effect of the Full Court decision in Big Rivers, the Court raised the issue of proceeding under s 10 of the Crimes (Sentencing Procedure) Act 1999 having regard to the unusual nature of the case but that query elicited no specific response from any party. Jontari and Gignen, at the time of each incident, had been quite recently incorporated for the particular purpose required by Tempo. Each defendant had no prior convictions and there was no adverse evidence as to their general corporate conduct, although the nature of each offence is to be considered a serious breach and cannot be appropriately described as an offence trivial in nature. The evidence suggests that they will no longer engage employees and there is room to conclude that they have good prospects of not offending again. For the reasons canvassed above, I conclude that there are extenuating circumstances and a variety of factors that make the application of s 10 appropriate in relation to these defendants. In view of the fact, however, that there was no evidence as to whether, in the future, Jontari and Gignen would again act as labour hire companies and engage employees, the preferable course, pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, is to make an order discharging the defendants on condition that they enter into a good behaviour bond for a term of two years. That course, at least, appears to be expedient having regard to all the circumstances and permits the activities of the subsidiaries to be monitored over the period of the bond. The defendants' attention is drawn to the provisions of s 97, s 98 and s 99 of the Crimes (Sentencing Procedure) Act 1999. 55 In relation to Tempo, each offence is a serious breach: general and specific deterrence will form a necessary part of the final penalty imposed. In each case the mitigating factors are relatively modest but those matters that have been identified will be taken into account. In relation to the two offences and having regard to the concession made by the defendant as to aggravation as a factor, the second offence is to be considered as a more serious breach having regard to the foreseeability of such an attack and the need for the defendant to take prompt action to address the risks demonstrated to exist by the Blacktown incident in 2002 and the Bonnells Bay incident in 2003 (see WorkCover Authority v Graincorp Operations Ltd [2002] NSWIRComm 49). 56 Approached on this basis, the Court would impose a penalty of $135,000 in relation to the 2003 offence and a penalty of $165,000 in relation to the 2004 offence. That approach has to be tempered by the application of the principle of totality but again there are some unusual aspects of the matter, including the second breach being regarded as a more serious offence. The second offence is a separate offence arising nearly 12 months after the first offence and involved a different school. Tempo was well placed to take steps to minimise the risk at Llandilo but failed to do so. Nevertheless, the particulars of the two offences are identical and expose the same deficiencies in the defendants' system of safety. It may well have been open to the prosecution to particularise these two incidents as part of the one alleged breach and if that course had been taken, the Court would still need to consider the overall criminality arising from the two incidents. In all the circumstances the principle of totality should be applied to the two Tempo breaches under s 8(2) resulting in a fine of $70,000 in relation to the first breach and a fine of $85,000 in relation to the second breach - a total fine of $155,000. Having regard to Tempo's position on culpability and the fact that it will bear the burden of the penalties imposed, the costs of both proceedings will be borne by Tempo and no order for costs will be made against the subsidiary companies. This approach also reflects the manner in which the cases were conducted with the primary focus being on the Tempo system of work. ORDERS 57 (a) In relation to Inspector Bestre v Tempo Services Ltd - Matter No IRC 5844 of 2005: (i) the defendant, Tempo Services Ltd, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in Matter No IRC 5844 of 2005; (ii) the defendant is fined the sum of $70,000 with half that sum to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in the sum as agreed or, in the absence of agreement, as ordered by the Court.

Inspector Sara Bestre v Jontari Pty Ltd; Inspector Sara Bestre v Tempo Services Pty Ltd; Inspector Jessica Doyle v Gignen Pty Ltd; Inspector Jessica Doyle v Tempo Services Pty Ltd

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Cases Cited (7)

Cited By (4)