Objective Features
135Whilst the sentencing of an offender under occupational health and safety legislation involves the consideration of both objective and subjective factors, the primary factor to consider is the objective seriousness of the offence. Thus, in seeking to determine an appropriate sentence for a breach of occupational health and safety legislation, it is essential to consider the gravity of the offence when viewed objectively. Each offence has its own objective gravity, meriting at most a sentence proportionate to that gravity with the maximum sentence fixed by the legislation defining the limits of sentence for the most grave category.
136The assessment of the gravity of an offence under s 8 of the Act requires attention to be focussed upon the risk to safety and, viewing it objectively, the seriousness of the act or omission giving rise to the risk. This approach derives from the nature of the duties imposed by s 8 of the Act which are "directed to obviating actual risk to safety in the workplace even absent any actual incident causing injury either by eliminating the risk or by protecting employees from the dangers presented by the risk": Morrison v Powercoal Pty Ltd & Another (2004) 137 IR 253 at [100] and Cross City Tunnel at [195].
137In O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) [2003] NSWIRComm 74; (2003) 125 IR 361 at [140], it was stated:
... To put it another way, the employer fails to ensure the health, safety and welfare at work of its employees by failing to appropriately equip or protect them from risks inherent in their work ... notwithstanding that such risks may be caused by external factors, known or unknown. ...
138In The Crown in Right of State of New South Wales (Department of Education and Training) v O'Sullivan [2005] NSWIRComm 198; (2005) 143 IR 57 at [41] and [42], the Full Bench stated:
[41] It must be kept squarely in mind that the risk here pleaded was the risk of employees, in particular Mrs Griffiths, being assaulted on 9 February 1999 by students demonstrating aggressive and/or challenging behaviour and thereby suffering physical and/or mental harm. This was the relevant risk identified by Walton J and the appellant accepted that this was the risk but not one created by, or under the control of, the appellant.
[42] The fact that a risk was not created by, or under the control of, a defendant is not to the point. Many prosecutions under the Occupational Health and Safety Act involve risks not created by the defendant. The defendant's obligation under s 15(1) of the Act is to ensure the safety of employees. That may be done by eliminating, or preventing or minimising exposure to, any risk however it may have come about or, given the defence of reasonable practicability, by taking all reasonably practicable steps to ensure employees are not exposed to the risk.
139When constrained by the particulars of the charge before the Court, the relevant risk in the present matter was the risk of Mr Rodriguez, a client of On Track, becoming violent and assaulting On Track employees.
140In that respect, the charge was attributed to a defined group of employees, namely, Mr Corkhill, Ms Brooks and Mr Mitchell. The risk arose in relation to those employees at certain times during the charge period although, as contended by the prosector, particulars (3)(a) and (b) applied throughout the charge period when any of the particularised employees were at work.
141There is merit in the submission of the defendant that the measures particularised in the charge, if implemented, would not have, on the evidence, eliminated the risk. Professor Greenberg identified that there was a link between violence and mental illness, but that risk prevention was not "an absolute prediction". He advised that risk cannot be "eliminated" and that risks would fluctuate and change continually. He specifically stated that, if the "control measures" had been put in place prior to 27 June 2009, it was unknown and speculative to suggest that they would have changed the outcome on that date.
142Mr Docking submitted, however, that Professor Greenberg's evidence in relation to "control measures" was not given in the light of the Amended Application and that the measures stated in particular (2) would have eliminated the risk. This submission was, no doubt, predicated upon the notion that because no discharge summaries had been obtained by 27 June 2009, the adoption of the measure in particular (2) would have necessarily resulted in the staff of On Track "not dealing" with Mr Rodriguez. Hence, it was contended no risk would arise in that respect. That proposition may be accepted in its terms, but should be conditioned, for the purposes of sentencing, by an understanding of the context in which On Track operated. Had the discharge summaries been obtained and, therefore, no prohibition operated upon Mr Rodriquez's re-acceptance, the measures otherwise specified in the particulars to the charge would not have necessarily eliminated the risk, as defined above, having regard to Professor Greenberg's evidence, even though, as discussed below, On Track had an obligation, by the adoption of those measures, to control or minimise the risk.
143The obligation falling upon On Track under the Act also required that it control and minimise exposure to the risk. Professor Greenberg's evidence was that, whilst limits existed in eliminating the risk of violence from mentally ill clients, it was possible to assess risk factors and to manage them by means of a more comprehensive and formal risk assessment and risk management plan. (The measures specified in the charges and the significance of the acquisition of discharge summaries are discussed further below.) Thus, even though the provision of a second staff member to attend upon Mr Rodriguez (per particular (3) of the claim) may not have necessarily led to a "different outcome" (noting that On Track's obligation concerned management of the risk), Professor Greenberg was, nonetheless, supportive of "prohibitions working with high risk clients" associated with such risk management plans.
144Particulars (2) to (4) of the charge stipulate measures available for implementation by On Track in relation to the risks arising in this case.
145Central to those measures was the acquisition of, and utilisation by On Track, of discharge summaries regarding Mr Rodriguez in the management of the risk. I agree with the prosecutor that those discharge summaries would have armed the management and employees of On Track with adequate information about the mental health, psychotic states and violent behaviour of Mr Rodriguez in order to protect On Track's employees by controlling or minimising the risk, as comprehended by the particulars to the charge.
146The discharge summary dated 26 May 2009 was available to On Track prior to and during the charge period but was not obtained by the organisation. That discharge summary noted that there was a moderate to high risk of violence when Mr Rodriguez was manic or psychotic. In the reasons for "referral - admission" section of the document, it was stated that Mr Rodriguez had "self presented [with] exacerbations of [it would appear, schizoaffective disorder]" and "primarily elevated [with] poor impulse control and childlike behaviour". Under the heading "Summary of Care Provided and Outcomes", the discharge summary refers to numerous outings on leave with "HASI/On Track workers", but that Mr Rodriguez was placed on a CTO from 27 May 2009. The discharge summary of 23 June 2009 indicated that the reason for the "referral - admission" of Mr Rodriguez included apparent verbal aggression towards a neighbour and a long history of Schizoaffective Disorder. The risk of violence was observed as "medium".
147The defendant made some additional submissions of an exculpatory character regarding the failure to obtain the discharge summaries which I shall consider below.
148On Track submitted that the acquisition of the discharge summary of 26 May 2009 would have been of little assistance because Mr Rodriguez was discharged on 26 May but, some 12 hours later, was readmitted to Lismore Base Hospital (on 27 May 2009). It was suggested that the discharge summary was, therefore, no longer valid from 27 May. However, this submission was advanced in the context in which On Track did not obtain the further discharge summary after Mr Rodriguez's discharge on 23 June 2009 (which, I note, did not become available until 1 July 2009). In this light, the discharge summary of 26 May would have equipped On Track staff with the most recent clinical information as to Mr Rodriguez. Whilst this information was, no doubt, reduced in its value by the further admission, it was, at least, of the static historical character that Professor Greenberg considered important in assessing risk. Furthermore, the acquisition of that discharge summary must have featured in any decision whether to re-accept Mr Rodriguez without the receipt of a discharge summary after his further admission on 27 May.
149It was also submitted by Mr Hodgkinson that, even though the discharge summary of 26 May 2009 indicated a moderate to high risk of violence, the discharge summary did not suggest that, if Mr Rodriguez was not in a psychotic state, he would become violent. The difficulty with that submission is the firm conclusion reached by Professor Greenberg that Mr Rodriguez, as a particular client of On Track, always posed a risk to the safety of its employees.
150On Track further submitted that the discharge summary associated with Mr Rodriguez's discharge of 23 June 2009 was, as earlier noted, not available until after the incident (on 1 July 2009) and that, in any event, the discharge summary did not require the injection of medication until 30 June. The discharge summary did not give any indication was as to particular measures which should be taken on Mr Rodriguez's discharge. This much may be accepted. However, it was not suggested by the defendant that the information provided in the discharge summary would not have alerted On Track and its employees to risks associated with Mr Rodriguez. Furthermore, the contention needs to be considered in the light of the second particularised measure that there should have been a prohibition on dealing with Mr Rodriguez until such time as the discharge summary was available to and obtained by On Track.
151 Whilst there are further issues bearing upon the objective seriousness of the offence (including mititgation), it is appropriate, at this juncture, to observe that, when the limitations upon On Track's capacity to eliminate the risk (in the manner described above) and the abovementioned submissions on mitigation concerning, inter alia, the failure to acquire the discharge summaries, are balanced against the aforementioned discussion of the merit or significance of those factors ([139] to [150]), I consider this component of the defendant's plea should only moderately temper the Court's assessment of the gravity of the offence, when viewed objectively: Workcover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor [2000] NSWIRComm 277; (2000) 95 IR 383 at [214] ('McDonald's') (citing WorkCover Authority of NSW v Atco Controls Pty Limited (1998) 82 IR 80 at 84 and 85).
152There are further factors bearing upon the objective gravity of the offence including aggravating factors. It will be convenient to deal with some related points in mitigation in the course of doing so.
153First, any assessment as to the culpability of On Track must be made by reference to the particular circumstances in which On Track operated. It is important to remember On Track's role in the HASI programme. On Track was not responsible for clinical management and assessment of mental health clients such as Mr Rodriguez. Its role was to provide an integration service for clients into the community and to provide rehabilitation and reintegration. It relied upon an Area Health Service to provide that assessment and make appropriate judgments about the risks of discharging mental health clients from hospital to live in the community or, for that matter, to participate in the HASI program. (The contribution of other entities will be discussed later in these considerations.)
154The consideration of the circumstances in which On Track operated must necessarily, however, also incorporate reference to the actual clients its staff were required to assist in the community (after their discharge). As On Track conceded, the nature of Mr Rodriguez's condition, and how that condition exhibited itself to both clinicians and laypersons, may have been the very reason why additional measures referred to in the charge were required to be undertaken. In this respect, the discharge summaries provided valuable additional information to make assessments and control the risk. This was particularly significant in the light of Mr Rodriguez's history of mental illness and violence which was, in part, known to On Track.
155Secondly, I agree with the submission of the prosecutor that it is relevant to the gravity of the offence that the defendant knew or should have known that Mr Rodriguez posed a serious risk to health and safety to its employees, yet the defendant allowed its employees to be exposed to serious risk of harm without the implementation of adequate measures, as charged.
156It is true that the records of On Track and the observations made by its trained staff did not indicate that Mr Rodriguez was slipping into a psychotic state or exhibiting signs of psychotic behaviour. Professor Greenberg agreed there was no record of any bizarre or delusional behaviour or speech, although he did note that there were limits to the capacity of the HASI workers to make clinical observations. It is also true that Mr Rodriguez may have slipped into the psychotic state shortly before the incident. His earlier behaviour, prior to 9 April 2009, had been quite acceptable and he had not exhibited violence towards staff members (he was also showing compliance with clinical support and drug taking). He was assessed as being well on his discharge in June 2009 and Ms Brooks had been careful in making a close assessment of him before he was taken from hospital (she assessed him as being suitable to take back into HASI).
157However, those considerations do not result in the conclusion that the risk was other than reasonably foreseeable. The defendant was aware of the risk having regard to information contained within the defendant's records prior to 27 June 2009, most notably, Mr Rodriguez's threat to a member of the public with a cricket bat (he does not seem to have hit the member of the public but threatened him, most probably by swinging the bat at the man). On Track's own Occupational Health and Safety Manual contained a policy statement under the heading "Security" which stated: "[d]ue to the sometimes unpredictable nature of On Track's clients there [was] a potential for behaviour to become unsafe on occasions within On Track".
158It was precisely that unpredictable nature of Mr Rodriguez and his history of mental illness and violent behaviour which made the risk of further violence, in the form that manifested itself in the actual incident, reasonably foreseeable. It was also reasonably foreseeable, in that context, that the absence of the discharge summaries may result in an increased risk for the employees of On Track because less information was available to be applied in the protection of employees.
159The prosecutor's analysis of the defects in the Consumer Safety Audit of 1 February 2009, when evaluated against the information provided in the discharge summaries and the defendant's records (and, in one respect, Professor Greenberg's analysis of the tenth admission by Mr Rodriguez), illustrates how the receipt of additional information would have enabled better control over the risk vis á vis the employees attending upon Mr Rodriguez.
160Thirdly, a related consideration is the availability of remedial measures that were relatively straightforward or simple. The steps specified in the particulars (especially particular (3)) represent such measures. Those measures were available to the defendant prior to the incident and would have minimised the relevant risk to safety. Indeed, following the incident, On Track reviewed and updated its existing home visiting policies, requiring, inter alia, home visits be undertaken by two staff members for the first two visits following an admission or incident involving violence and all relevant documentation (including discharge summaries) to be received prior to home visits being undertaken. Additionally, immediately following the incident, On Track, inter alia, implemented documented staff shift handovers and toolbox meetings and requested NCAHS ensure that, upon discharge, mental health clients are seem by a Community Health Workers within 48 hours.
161Whilst these responses by the defendant following the incident were laudable, the steps taken were such as to reveal in clear terms the simple and decisive remedial steps which may have been taken by the defendant to abate the risk. In such circumstances, the steps taken by the defendant after the incident are also demonstrative of flaws which existed in its previous systems: McDonald's at [226] (citing Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 at 36 ('Kembla Coal') and WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Industrial Relations Commission, NSW, Matter No. CT 1280 of 1995, Hill J, 2 April 1997) at 21 and 22) ('University of Sydney')) and Inspector Nicholson v Gallagher [2012] NSWIRComm 121at [50] ('Gallagher'). When taken in combination with the foreseeability of the risk to safety which I have earlier referred to, the fact that there were available to the defendant, prior to the incident, simple and straightforward remedial measures will significantly increase the gravity of the offence.
162Fourthly, a factor relevant to the assessment of the objective seriousness of the offence in this matter is the relationship between the seriousness of the injuries suffered and the gravity of the offence (Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 at [94]). Whilst the death of Mr Corkhill does not, of itself, dictate the seriousness of the offence or penalty, a breach where, as in this case, there was every prospect of serious consequences will be assessed on a different basis to a breach unlikely to have had such consequences. In this case, the occurrence of the death of Mr Corkhill manifested the degree of seriousness of the relevant detriment to safety arising from the failure to take adequate steps to control the risk.
163Fifthly, it is appropriate, in the context of a discussion of the objective seriousness of the offence, to also consider the maximum penalty for the offence (see Cross City Tunnel at [192(i)]). The maximum penalty for the offence, the defendant being a first offender, is $550,000.
164Sixthly, as submitted by the prosecutor, the fact that Mr Corkhill was a health or community worker and the offence arose because of his occupation. This should be taken into account as an aggravating factor in sentencing (per s 21A(2)(a) of the CSP Act) (however, this factor should not result in a duplication of considerations arising in relation to general deterrence).
165It may be noted that the prosecutor submitted that a range of mitigating factors were available, under s 21A(3) of the CSP Act, to be taken into account by the Court in determining the appropriate sentence in the present matter. Those factors are accepted and shall be considered below under the heading "Subjective Features".
166There are a variety of additional factors (that is, in addition to those discussed above) relevant to mitigation of the objective seriousness of the offence and the defendant's culpability.
167First, as a counterpoint to the discussion in [155] to [161], I accept that On Track had some established safe systems of work in place prior to the incident. Those systems were included in its policy in relation to home visiting which, as I have noted, required employees to, inter alia, complete an offsite safety checklist at the beginning of each shift outlining details of any home visits to be conducted and to undertake home visits during normal business hours by previously arranged appointments (with limited exceptions). The On Track Occupational Health and Safety Policy Manual further stated that home visits should be undertaken with the permission and at the convenience of the client and by placing certain details in an internal email calendar. A risk assessment was to be undertaken before clients' premises were entered and after enquiries were made as to whether other persons would be present and their relationship with the client. Unannounced visits were to be avoided, and On Track workers were prohibited from visiting clients alone if the client's behaviour was "deemed" or "could be considered" aggressive or violent. On Track's procedures for visiting HASI clients included a requirement that the client be telephoned before the visit to, inter alia, allow a 'phone-based' assessment of the client to be undertaken. Reference should also be made to On Track's extensive general Occupational Health and Safety Policies.
168As the Court noted in McDonald's at [219] (citing Kembla Coal at 33 and University of Sydney at 21) and, more recently, Gallagher at [48], whilst the existence of safety procedures and systems is a factor which is relevant to the assessment of the seriousness of the offence (and which may mitigate the objective seriousness of the offence), those systems must also include searching for and identifying all possible risks and instituting safety measures to guard against those risks.
169Overall, the existence of various policies and systems shows the defendant had endeavoured to deal with risks associated with visiting clients at home and will mitigate the objective seriousness of the offence. However, it is also apparent that those systems were not entirely adequate to deal with the risk occasioned in this case, as earlier discussed in this judgment and as illustrated by new policies and procedures adopted after the incident. For example, at the time of the incident employees were not prohibited from visiting clients for whom all relevant documentation (including discharge summaries) had not yet been received nor were they required to visit in pairs (except where clients were deemed 'aggressive' or 'violent'). The policy did not apply to employees of The Refuge.
170A second and related consideration was that the HASI workers, in accordance with the protocols developed by On Track, did observe Mr Rodriguez carefully during the time leading up to and during the charge period in a manner consistent with the assessment of risk. On Track's efforts to manage the risk were not confined to the mere publication of paper systems or policies but were given practical application at the workplace, including the keeping of records of observations and the holding of daily briefings. This casts the offence a different light than if On Track had simply failed to observe behaviour from Mr Rodriguez in such a way as to have increased the prospect of the risk materialising.
171There were two further matters raised by the defendant which were said to reduce the objective seriousness of the offence and its culpability in the present matter. Those matters concerned, firstly, the actions of Mr Corkhill and, secondly, the role of third parties.
172Prior to the incident, Mr Corkhill had worked regularly at The Refuge and was familiar with his duties there and the policies, in particular the Home Visiting Policy, to which he was required to adhere as an On Track employee. In attending the premises of Mr Rodriguez on 27 June 2009, Mr Corkhill did not conform to those policies. He was working that night at The Refuge, and was not rostered in a HASI-related capacity. He made no advance call to Mr Rodriguez or Ms Kennedy (and there was no emergency or crisis situation which would have explained the need for an unannounced visit to the premises). He made no contact with any other person before leaving The Refuge to attend the premises and used his own vehicle to do so.
173It is unknown why Mr Corkhill, despite having been rostered to work at The Refuge, attended the premises of a HASI client, Mr Rodriguez, on the night of the incident. It was agreed he was not on a frolic, however, the fact that Mr Corkhill acted outside the On Track Home Visiting Policy in doing so is a matter which goes to the objective seriousness of the offence in this matter. However, that conclusion must be considered in the context of the work regularly performed by On Track employees, which often involved an intermingling of both clients and work between the HASI program and The Refuge (evidenced, amongst other things, by numerous On Track case notes which referred to both Mr Rodriguez, a HASI client, and Ms Kennedy, a client of The Refuge). As such, it cannot be properly contended that Mr Corkhill had strictly defined roles, and worked exclusively as a HASI worker one day and a Refuge worker the next. Further, as noted earlier, On Track's policies were, in any event, inadequate.
174It was contended by the defendant that the Area Health Service contributed to the risk to safety in the present matter. That contention was premised upon the submission that the NCAHS had responsibility for the clinical needs and assessments of Mr Rodriguez, however, it failed in material ways to discharge that obligation.
175As earlier mentioned, clients of HASI are also clients of the Area Health Service which was responsible for coordinating clinical mental health care including the provision of a full range of mental health services to clients based on their clinical needs. Mr Cleary was a coordinator for the Area Health Service in that respect. His role included making a proper assessment of the mental health needs of clients, including Mr Rodriguez.
176The NCAHS is not before the Court and, thus, any conclusions of the Court as to that entity or its employees must, necessarily, be limited and affected by that caveat. However, on the evidence in these proceedings, there does appear to be a failure to provide On Track with, upon Mr Rodriguez's admission to the HASI program, relevant information regarding his history of violence.
177Further, at the time of the incident, the NSW Health Policy Directive - Discharge Planning for Adult Mental Health Inpatient Services (dated 16 January 2008) operated with respect to Mr Rodriguez.
178That Discharge Policy included a summary in the following terms:
The discharge planning for adult mental health inpatient services presents a structured and standardised process for ensuring safe and successful transition of people with a mental illness from time of admission to hospital to post discharge ...
179Furthermore, cl 5.3 provided:
Clause 5.3 of NSW's Discharge Policy Directive directs that:
Discharge planning must include an assessment of the risk posed by the consumer to the health and welfare of others, including any risk to children who are in contact with the consumer. Prior to discharge, a formal assessment of risk of harm to others must be conducted. Indicators of risk include threatening statements and/or a history of violence against others. This risk and a response must be documented in the discharge care plan and relevant MH-OAT modules. Where the risk is valid, staff should notify the local Police on the basis that they have reasonable grounds to believe there is a serious and imminent threat to a member of the public.
180The Discharge Policy Directive ('DPD') required NCAHS to prepare a Care Plan and a Discharge Care Plan (both defined in the Policy). A component of the "Mental Health - Outcome and Assessment Tools (MH - OAT) Mental Health Clinical Modules" was that discharge summaries were to be completed on or before the day of discharge. All consumers were required to have an individual care plan. On the evidence before the Court, at the time of and prior to the discharge of Mr Rodriguez by LAMHU from hospital in May and June 2009, LAMHU did not provide information or documentation to On Track in compliance with the DPD. According to Ms Crayden's evidence, the Care Plans prepared for Mr Rodriguez dated 15 April and 29 May 2009 were inadequate. Nor was a copy of the CTO of May 2009 provided to On Track.
181To these considerations may be added that which has already been discussed, namely, that the discharge summaries of May and June 2009 were not provided to On Track. (Mr Hodgkinson submitted that the discharge summaries were to be provided within seven days contrary to that specified in the Discharge Policy, but, in any event, discharge summaries for Mr Rodriguez's discharge on 23 June 2009 was required to be provided before 1 July 2009.)
182In culmination, the evidence would tend to indicate that the relevant clinical provider, namely, NCAHS, did not provide all relevant clinical information about the status of Mr Rodriguez to On Track which may have affected the safety and security of staff.
183These are matters that cast a light upon the culpability of On Track: see as discussed in Cross City Tunnel at [242]. Its arrangement, as part of the HASI program, permitted On Track to rely upon the NCAHS to provide clinical information about Mr Rodriguez and to rely on its judgments as to the safety of staff upon his discharge. Subject to the discussion below, these are also matters mitigating the seriousness of the offence.
184This factor in mitigation needs, however, to be considered in context. Without unnecessarily repeating what has gone before, the measures particularised in the charge and, in particular, the prohibiting with Mr Rodriguez until such time as relevant discharge summaries were available would have controlled the risk, regardless of the actions the HCAHS did or did not take. On Track had a responsibility under the Act to be proactive. It may have (at least under the authority given by Mr Rodriguez), sought the discharge summaries but failed to do so. (With respect to the 23 June 2009 summary, as I have noted, it may have prohibited contact by its employees with Mr Rodriguez until such time as the summary was obtained.) Furthermore, it had obtained, on its own part, information about Mr Rodriguez's violent history which was directly relevant to its obligations to its employees under the Act.
185A further issue arising from the affidavit of Ms Crayden was the lack of investigation and prosecution of NSW Health/the Area Health Service (although it was expressly noted by Mr Hodgkinson in oral submissions that the Court was "not asked to go behind the decision as to whether somebody was or was not the subject of a prosecution"). A related issue concerned the failure to obtain evidence from certain doctors treating or diagnosing Mr Rodriguez. These issues were said to create a basis for genuine grievance and to warrant a conclusion that the objective seriousness of the offence was accordingly less.
186These issues stand apart, in my view, from the assessment about the contribution of other entities to the risk which I have discussed above.
187It should not be the role of the Court to undertake a procedure which may be tantamount to conduct a trial of an entity which is not before the Court: Cross City Tunnel at [243] (see also McDonald's at [160]). In my view, in occupational health and safety matters, for the Court to be in any way concerned with decisions as to who is to be prosecuted, and for what, would compromise the integrity of the judicial process, in particular, the independence and impartiality of the Court and the public perception thereof: Newcastle Wallsend Coal Company Pty Limited and others v McMartin (No 2) [2007] NSWIRComm 125 at [39] (by reference to the judgment of Gaudron and Gummow JJ in Maxwell v The Queen (1996) 184 CLR 501 at 534.
188On these bases, and given the defendant pleaded guilty to the charge contained within the Amended Application for Order, the question as to the lack of prosecutions of other entities in relation to the offence in the present matter, to the extent that it was an issue raised in these proceedings, is not a matter which may be properly taken into account by the Court in the process of sentencing (in contrast to the contribution of other entities to the risk which has been taken into account).
189Before concluding this discussion of objective factors, it is also appropriate to consider deterrence (see Cross City Tunnel at [192(iii)]). It was submitted by the prosecutor that both general and specific deterrence should loom large in any sentencing exercise.
190I accept that, as submitted by Mr Hodgkinson, there is a strong public interest in having services such as those provided by On Track. However, it is necessary to ensure that the penalty properly reflects the need for general deterrence so as to draw attention to those operating in the community services sector, in particular those dealing with mentally ill and vulnerable members of society, as to the appropriateness of implementing systems of work which obviate (so far as is possible) or minimise the risk to employees of injury from violence inflicted by mentally unstable and unpredictable clients. It is also in the public interest that these entities operate in such a manner as to minimise risks arising from their clients, particularly in this context, in relation to their staff. Accordingly, general deterrence is important in relation to this offence.
191Whilst I accept there were systems in place prior to the incident, and there have been significant further steps taken by the defendant since the incident, to ensure the safety of its workers, specific deterrence must be a relevant factor in sentencing given the defendant continues to be a major employer in its undertakings. The defendant has three branches and, at the date of the sentencing hearing, employed 278 people with approximately 179 full-time equivalent employees. In such circumstances, in accordance with the principles stated in Cross City Tunnel (at [193]), specific deterrence will be factored into any penalty imposed upon the defendant.
192The defendant must be sentenced having regard to the offence for which it is convicted, factors which establish and mitigate the seriousness of the offence or exculpate the defendant and any relevant circumstances surrounding the offence. Senior counsel for the defendant has pointed to the difficulties which confronted On Track in eliminating the risk together with the factors which, to varying degrees, mitigated the seriousness of the offence or exculpated the defendant. These factors should be regarded as significant and have the impact of ameliorating what may otherwise constitute a very serious offence. However, I consider that the offence, as charged, when considered in the light of the factors discussed above which aggravate or establish that the seriousness of the offence must result, overall, in a conclusion that, viewed objectively, the offence is, nonetheless, a quite serious one.
193Without depreciating from my earlier discussion of objective factors, some particular matters may be raised. Mr Rodriguez had a history of violence and mental illness known to the defendant. On Track had a statutory obligation to manage and control risks of violence from Mr Rodriguez which it failed to do in the manner particularised in the charge and as discussed in this judgment. The risk was, in the circumstances I have discussed above, reasonably foreseeable and there were simple remedial measures available to control and minimise the risk. There was every prospect of serious consequences arising from the breach of the Act.