Mercy Centre Lavington Ltd v Kristyn Thompson

LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 2000

Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 Hannah v Wonar Pty Ltd (1992) 34 AILR 333 House v King (1936) 55 CLR 499 Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New South Wales Industrial Court, CT92/1041, 10 March 1994) Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Morrison v Powercoal Pty Ltd (2003) 130 IR 364 Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 Scevola v WorkCover Authority (NSW) (Inspector Sealey) (2005) 142 IR 233 CASES CITED: Seda Pty Limited v WorkCover Authority of NSW (Inspector James) (2003) 130 IR 47 Tyler v Sydney Electricity (1993) 47 IR 1 U-RECT-IT Pty Ltd v WorkCover Authority of New South Wales (Inspector de Silva) [2004] NSWIRComm 266 Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2002) 123 IR 121 WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service (2002) 112 IR 245 WorkCover Authority of New South Wales (Inspector Tuckley) v Crown in Right of the State of New South Wales (Dept of Community Services) (1999) 96 IR 1 WorkCover Authority of New South Wales v Profab Industries Pty Ltd (2000) 100 IR 64 WorkCover Authority of NSW (Inspector Keniry) v Crown in Right of the State of New South Wales (Dept of Community Services) (2002) 120 IR 269 WorkCover Authority of NSW (Inspector Stewart) v Crown in Right of the State of New South Wales (Dept of Education & Training, Dept of Juvenile Justice & TAFE) (2002) 118 IR 207

APPELLANT Ms W Thompson of counsel Solicitor: Mr C Barton Freehills LEGAL REPRESENTATIVES:

RESPONDENT Mr R Reitano of counsel Solicitor: Mr P Pasfield Slater & Gordon

CORAM: Walton J, Vice- President Schmidt J Boland J

MERCY CENTRE LAVINGTON LTD v KRISTYN THOMPSON (BRANCH SECRETARY, AUSTRALIAN SERVICES UNION OF NEW SOUTH WALES)

Application by Mercy Centre Lavington Ltd for leave to appeal and appeal a decision of Chief Industrial Magistrate Hart given on 13 October 2005 in Matter Nos 20007162/05/2 and 22007154/05/2

1 These proceedings concern an application by Mercy Centre Lavington Ltd ("the appellant") for leave to appeal and to appeal a decision of Chief Industrial Magistrate Hart given on 13 October 2005 in which his Honour, on the basis of guilty pleas, convicted the appellant of two offences under s 8(1) of the Occupational Health and Safety Act 2000 and fined the appellants $15,470 and $11,830 respectively. The respondent in the proceedings is Kristyn Thompson, Branch Secretary of the Australian Services Union of New South Wales. The appeal is pursuant to s 105 of the Occupational Health and Safety Act 2000 and s 197 of the Industrial Relations Act 1996.

2 The prosecutions arose from two incidents that occurred at the appellant's residential group home facility at Dick Road, Lavington on 4 December 2002 and 19 October 2003 respectively. The facility is a voluntary residence that provides supported live-in accommodation for clients with mild to severe intellectual impairments who have challenging behaviour problems. The employee at risk was Ms Noonan who was employed by the appellant as the House Manager for the facility. 3 The alleged failures in relation to each offence were identical and were in the following terms: a) The defendant failed to provide and maintain systems of work or procedure for employees required to deal with clients of the defendant who became or were likely to become physically violent; and b) The defendant failed to provide such training, instruction and supervision to its employees in relation to dealing with clients of the defendant who became or were likely to become physically violent whilst in the care of the defendant. 4 The incident giving rise to the charge for 4 December 2002 related to an injury sustained by Ms Noonan, when a resident known as KK stabbed her in the left knee with a syringe that the resident had concealed in her hand. At the time of the injury Ms Noonan had entered the room of KK to assist her into evening clothes and KK appeared to be asleep on the floor. KK later told Ms Noonan that she had found the syringe in a public toilet. 5 The particulars of the charge were: (c) The defendant failed to provide and/or maintain any sufficient procedure, policy or system to ensure that Ms Noonan was protected against the risk of clients placed in the defendant's care physically assaulting her on 4 December 2002, in circumstances where Ms Noonan was required to deal with clients of the defendant who became or were likely to become violent in the ordinary course of her employment with the defendant on that day. (d) The defendant failed to provide Ms Noonan with any sufficient training, instruction and/or supervision in relation to her dealing with clients placed in the defendant's care to ensure that Ms Noonan was protected against the risk of clients placed in the defendant's care physically assaulting her on 4 December 2002 in circumstances where Ms Noonan was required to deal with clients of the defendant who became or were likely to become violent in the ordinary course of her employment with the defendant on that day. 6 The incident giving rise to the charge for 19 October 2003 related to injuries sustained by Ms Noonan when she entered the room of a resident known as DS and was physically assaulted by her. Ms Noonan was pulled to the ground, hit in the arms and stomach and grabbed savagely by the hair. Ms Noonan screamed for assistance and a co-worker, Mr Kevin Thomas came to her assistance. Ms Noonan was distraught following the attack. The particulars of the charge were: (c) The defendant failed to provide and/or maintain any sufficient procedure, policy or system to ensure that Ms Noonan was protected against the risk of clients placed in the defendant's care physically assaulting her on 19 October 2003, in circumstances where Ms Noonan was required to deal with clients of the defendant who became or were likely to become violent in the ordinary course of her employment with the defendant on that day. (d) The defendant failed to provide Ms Noonan with any sufficient training, instruction and/or supervision in relation to her dealing with clients placed in the defendant's care to ensure that Ms Noonan was protected against the risk of clients placed in the defendant's care physically assaulting her on 19 October 2003 in circumstances where Ms Noonan was required to deal with clients of the defendant who became or were likely to become violent in the ordinary course of her employment with the defendant on that day. 7 The evidence in the proceedings at first instance were two agreed statements of facts tendered by the respondent and an affidavit of Patricia Weekes, together with a bundle of documents tendered by the appellant. Sister Weekes was the Chief Executive Officer of the appellant's operations, with responsibility for the management of the Dick Road facility. Decision at first instance

8 The Chief Industrial Magistrate characterised both incidents as giving rise to consideration of issues of staffing levels and issues of appropriate planning in circumstances where individual residents were known to have a tendency to violent conduct. 9 In relation to the December 2002 incident, his Honour considered that it was clear that on an outing from the group home into the general community, there was insufficient supervision of KK to prevent her from accessing a public toilet and locating a used syringe, which she was then able to secrete on her person and bring back to the home. His Honour considered that the stabbing incident could well have had life-threatening consequences. He expressed the view that there was no evidence to indicate that the defendant had put in place appropriate planning for outings from the group home, to ensure that staffing levels were sufficient to prevent scavenging conduct by KK. His Honour stated at [44]: Whilst the defendant may well have had in place an appropriate system to ensure that hazardous objects were not left lying around the house there was in the view of the Court a failure to give appropriate consideration to the obvious risk entailed in excursions into the community especially in circumstances where such excursions were likely to include a need for toilet facilities to be available to residents of the house embarking on the excursion. 10 In relation to the October 2003 incident, his Honour considered that it exposed the risk imposed on the injured worker by virtue of the fact that DS was physically stronger and was able to overpower Ms Noonan and the fact that Ms Noonan had received very little training in self defence, including martial arts training, that may have enabled her to defend herself against DS. Hart CIM noted the "situation" for the injured worker could have been worse, but for the return of Mr Thomas who had been on an errand. 11 His Honour found that the incident in October 2003 did not give rise to a higher level of culpability because of the earlier incident. The Chief Industrial Magistrate was satisfied that both incidents indicated the existence of foreseeable risks in circumstances where appropriate remedial steps that were available to the defendant had not been adequately put into effect. In particular, his Honour held that the procedures put in place by the appellant failed to anticipate specific ways in which the staff might be subjected to physical violence. His Honour stated that a question arose as to whether excursions should occur, if there was inadequate supervision throughout the entirety of the excursion and concluded that the cause of the 4 December 2002 incident was because KK was "clearly not sufficiently supervised to avoid her finding the syringe." It was also concluded by his Honour that the 'inadequate supervision' arose because of the lack of planning by the appellant as to the level of staffing required to ensure the health, safety and welfare of both the staff and the residents.

12 Hart CIM took into account subjective considerations, including the pleas of guilty; the hazards involved in the appellant's operations; the fact that there were no prior convictions; and, the appellant's excellent occupational health and safety record. His Honour also had regard to the need for general and specific deterrence. His Honour found that each breach constituted an offence in the medium to high range. After discounting the penalties by 35 per cent for subjective considerations and then applying the totality principle, his Honour arrived at a total fine of $27,300, which was apportioned on the basis of $15,470 in respect of the 2002 incident and $11,830 in respect of the 2003 incident. The appeal

13 The matters appealed against were the whole of his Honour's decision and the penalty imposed. There were three grounds of appeal: (1) In sentencing his Honour took into account irrelevant matters that adversely impacted on the penalty determined. (2) The penalty does not reflect the true nature and quality of the offence. (3) The penalty imposed is manifestly excessive. 14 The relief sought was as follows: (1) Leave to appeal be granted; (2) The orders made by CIM Hart on 13 October 2005 in Case Number 20007162/05/2 and Case Number 22007154/05/2 be stayed pending the outcome of the appeal; (3) The appeal be upheld; (4) The fines imposed by CIM Hart in Case Number 20007162/05/2 and Case Number 22007154/05/2 be quashed; (5) Such reduced fine be imposed on the Appellant and on such terms as the Full Bench of the Commission considers just in all the circumstances; (6) Costs. The parties cases on leave

15 Ms W Thompson of counsel, appeared for the appellant. She submitted the following factors were relevant to the present proceedings as to whether leave should be granted: (a) The matter is of such importance that it is in the public interest that leave to appeal be granted: see Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143; Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 at [12] and [13]; (b) There a real risk that the decision on appeal is wrong: see WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2002) 123 IR 121; and (c) The appeal raise important issues of law or principle: see WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64. 16 Ms Thompson referred to the matters relied upon in the appeal, they being: (a) His Honour took into account irrelevant matters in the determination of the objective seriousness of the offence, including making findings of fact which were not available to his Honour on the evidence before the Court or particularised in the charges. His Honour failed to take into account all of the matters relevant to the determination of the seriousness of the offence; (b) The penalty does not reflect the true nature and quality of the offence; and (c) The sentence imposed by his Honour was manifestly excessive. 17 In the alternative, it was submitted, if contrary to the primary submission it was held that the matters relied upon to determine the objective seriousness of the offences were available from the evidence, then it was asserted that his Honour erred in failing to give adequate weight to the appellant's systems of work and procedures in place at the time of the offences; the foreseeability of the offence; and other matters that were relevant to the culpability of the appellant. Had those matters been given appropriate weight by his Honour it was submitted the objective seriousness of the offence would not have been held to be in the medium to high range. 18 It was further submitted that there was sufficient error in the reasoning of his Honour and in particular, in relation to the reasoning for the determination of the objective seriousness of the offence, that it was in the public interest for leave to appeal to be granted. 19 Ms Thompson submitted that the reasons relied upon by his Honour to determine the seriousness of the offence had operational implications for the appellant's future conduct of its facilities for persons with intellectual disabilities and/or acquired brain injuries. In particular, it was submitted, the errors contained in his Honour's determination in relation to the issue of 'appropriate staffing levels' for care of residents at the facility as well as for staffing/supervision for any outside excursions by staff and residents, had significant ramifications for the future viability of the appellant's care services and its ability to provide such services to DADHC. 20 Mr R Reitano of counsel appeared for the respondent. He submitted that there was no basis for a grant of leave to appeal. Far less, he submitted, was there any reason why an appellate court would interfere in his Honour's exercise of the sentencing discretion. There were no errors that would ground a grant of leave. Mr Reitano contended that assertions about the alleged continued viability of the appellant's operations, were of no assistance on the question of leave to appeal. Leave to appeal 21 We are satisfied that there were a number of errors of fact committed by his Honour at first instance that cannot be allowed to stand. Accordingly, we grant leave to appeal. Nature and scope of the appeal 22 As Ms Thompson submitted, an appeal under Chapter 4, Part 7 of the Industrial Relations Act 1996 is to be determined on the evidence and material adduced in relation to the decision appealed against unless leave is granted to call additional evidence: See s 191 and the decision of the Full Bench in Scevola v WorkCover Authority (NSW) (Inspector Sealey) (2005) 142 IR 233 at [5] to [13] and the cases cited therein.

23 Further, as Ms Thompson correctly submitted, an appeal against sentence is an appeal against a discretionary decision. The approach to be adopted in an appeal from a discretionary decision is that in House v King (1936) 55 CLR 499. The Full Bench will intervene if an error of principle or a mistake of fact or law is established, whereby the sentencing discretion miscarried, or if the sentence is so excessive that the exercise of the discretion must have been affected by error: see Seda Pty Limited v WorkCover Authority of NSW (Inspector James) (2003) 130 IR 47 at [14] to [16] and the cases cited therein.

24 In relation to the incident of 4 December 2002 Ms Thompson observed that the amended particulars of the charge put the appellant's failures into two main categories, namely: (a) the sufficiency of the systems of work or procedure provided; and (b) the sufficiency of the training, instruction and supervision provided to its employees in relation to clients in the care of the Appellant that may become violent. 25 It was submitted that in determining that the primary cause for the December 2002 incident was the failure of the appellant to adequately supervise residents whilst on an excursion to prevent scavenging, it appeared that his Honour had applied the reference to 'supervision' in particular (d) in the pleadings. It was argued, however, that particular (d) referred to the failure of the appellant to provide Ms Noonan with sufficient supervision and did not extend to a failure by the appellant to adequately supervise the clients of the appellant. 26 It was further submitted that contrary to the CIM's findings, there was no evidence that established the following matters and/or allowed for an adverse inference to be drawn in relation to: (a) Whether KK had obtained the syringe whilst on an excursion organised by the appellant. (b) That as a result of KK obtaining the syringe, the supervision provided by the appellant to KK on community outings was 'inadequate' in that it failed to prevent her from accessing a public toilet. 27 Ms Thompson submitted that there was no evidence regarding the sufficiency or otherwise of either the level of staffing provided for excursions by residents, or the level of supervision of a resident while in, or using, a public toilet or when toileting generally. In the absence of any such evidence, Ms Thompson contended, it was not open to his Honour to find that there was insufficient supervision of residents when on an excursion and further, that the alleged inadequacy arose from a lack of planning as to the staffing level required. 28 Ms Thompson added that the planning and consequent consideration of risks entailed in excursions into the community and the appropriateness of such planning or consideration was not particularised by the respondent in the charge, raised in the parties' submissions, addressed in the evidence, or raised by his Honour during the sentence hearing. Had the issue been raised, it was submitted, the appellant would have had the opportunity to lead evidence and to make submissions in relation to that issue. 29 In the alternative, the appellant submitted, that if there was evidence from which adverse inferences could be properly drawn by Hart CIM as to the level of supervision provided to clients on an excursion relevant to the charge as particularised, then in his determination of the objective seriousness of the offence, excessive weight was given as to how the syringe was obtained and insufficient weight was given to other matters relevant in the determination of the objective seriousness of the offence. 30 In particular, Ms Thompson contended that inadequate weight was given by his Honour to the appellant's systems of work and procedures in place at the time of the offence; the induction, training and/or supervision provided to its employees, as well as to the foreseeability of the risk. 31 In addition, the appellant noted that his Honour referred to and appeared to rely upon the consequences of the injury sustained by Ms Noonan in his assessment of the objective seriousness of the offence. It was submitted that the consequence of the incident did not, of itself, dictate the seriousness of the offence or the amount of penalty: see Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. 32 The systems of work and procedures in place at the time of the 2002 offence, and in relation to which the appellant contended the CIM had paid insufficient regard, were: (a) Each of the clients at the Dick Road facility were free to go about their normal everyday activities with support provided as assessed by DADHC and by the appellant's clinical team in accordance with each client's abilities and Life Plans (such as going to school, going to the shops or day programs); (b) DADHC in preparing the Life Plan for a client to be referred to the appellant, included details of the past behaviours of the client (resident), the triggers for the behaviours and the measures to be taken based on past experience. On receipt of the Life Plan from DADHC, the appellant's Clinical Programming Team (CPT) would evaluate the prospective client's needs, the available resources and compatibility with other clients. A decision was made after that process whether to accept or refuse the placement of the client. For an accepted client who exhibited challenging behaviours the CPT had the responsibility of designing and implementing behaviour management plans for use at the Appellant's facilities. (c) The management plans prepared for KK identified the risk of her becoming agitated and aggressive. The plans prepared for KK were discussed at fortnightly Staff Programming Meetings of which Ms Noonan was required to attend. Ms Noonan and other staff had access to the plans prepared in relation to KK and to the Life Plan. (d) The Appellant had in place a Behaviour Management Policy that set out techniques for the management of violent behaviour. Staff were consulted in the preparation of the Behaviour Management Policy, tabled and discussed at the fortnightly Team Leaders' Meetings, as well as Staff Programming Meetings, and where necessary revised. To monitor a client's progress and the effectiveness of the plans put in place the members of the CPT would attend the facilities and monitor the clients' progress and review the plans. (e) For every client who exhibited challenging behaviours, staff were required to complete behaviour recording charts and comment on the effectiveness of the reactive strategies put in place for that particular client. That is to say there was at the time of the incident a system for the recording and monitoring of the progress of a client for the very purpose of reviewing the effectiveness of the strategies for the management of each client. 33 In relation to induction, training and/or supervision, the Court's attention was drawn to a handbook provided to staff and revised in September 2000. The handbook referred to household safety precautions to be taken. Measures outlined included the storage and use of utensils and sharp objects such as scissors and knives. Safety staff representatives were required to do weekly checks of the houses and surrounds to ensure that no dangerous objects were exposed, or available to be used as missiles or weapons. 34 As to foreseeability, the appellant submitted that it was known prior to the 2002 incident that KK had a history of challenging behaviour and that past experience showed a tendency for her to collect objects so as to inflict harm on herself. However, there was no previous incident recorded either by the appellant or DADHC, of circumstances where KK had collected and used an object to inflict harm on someone other than herself. 35 Ms Thompson submitted that the evidence as to the past behaviours of KK and as to the procedures used by the appellant to identify the risks posed by each client and the development of specific strategies for the client with which the staff were familiarised, ameliorated not only the foreseeability of the risk, but also the CIM's finding that the appellant's procedures and systems were inadequate, because they failed to "anticipate specific ways in which the staff might be subjected to threats of physical violence..." or that "remedial steps that were available to the defendant had not been adequately put in place."

36 For the appellant it was contended that his Honour had relied essentially on one aspect of the evidence, namely, how KK said she had obtained a syringe, in order to determine the objective seriousness of the offence in relation to the charge for the offence on 4 December 2002. In so doing, it was submitted, his Honour erred. 37 Turning to the incident of 19 October 2003, Ms Thompson referred to the finding that Ms Noonan was exposed to risk, because DS was physically stronger and Ms Noonan had received very little formal training in self defence, including martial arts training and that the risk to Ms Noonan was foreseeable. 38 In reaching this conclusion as to the seriousness of the offence Ms Thompson submitted his Honour failed to take adequate account of the evidence that demonstrated: (a) Ms Noonan had obtained a certificate in the Professional Assault Response Training after a three day workshop prior to commencing work with the Appellant; (b) Ms Noonan had represented to the Appellant when applying for the House Manager position that she was experienced in dealing with clients with challenging behaviours, including in physically dangerous situations; and (c) On or about 1 October 2003, Ms Noonan attended a martial arts course provided by the appellant with Zen Do Kai Karate Albury/Wodonga which was to assist her to manage clients with challenging behaviours following the 4 December 2002 incident. In or about October or November 2002, the appellant had also made martial arts training available to staff prior to the 4 December 2002 incident with the same martial arts company. 39 The appellant further submitted that in finding there was no evidence to demonstrate that the risks associated with violent residents overpowering one of the staff had been contemplated and planned for by the appellant with appropriate staffing levels or backup procedures, his Honour failed to give adequate weight to the evidence that: (a) The Appellant's systems of work and procedures involved a careful assessment of the client's challenging behaviours before accepting a client and on an on-going basis, including with regard to available resources and procedures. (b) A Life Plan was received for DS from DADHC. The CPT had also designed and monitored the implementation of a reactive strategy for DS. It was known that DS had a history of challenging behaviour which could escalate into violence. (c) Staff training in relation to DS and her behaviour was provided to staff including Ms Noonan on 16 December 2002. The training took 5-6 hours. (d) The progress of clients and how to respond to their challenging behaviours was discussed and monitored by the Appellant during various staff meetings. (e) Immediately after the incident on 19 October 2003, other staff attended the facility, including the Co-ordinator, demonstrating the effectiveness of the Appellant's staffing "backup" procedures. (f) On-call practices and Lifeplans formulated for clients addressed factors such as staffing and backup procedures. 40 In determining the seriousness of the offence his Honour also found that there were two other persons in the residence who were known to have violent tendencies. Ms Thompson noted that whilst the Agreed Statement of Facts revealed that there were two other intellectually disabled residents with challenging behaviours residing at Dick Road, it did not contain any evidence that it was known that they had violent tendencies. It was submitted that whilst residents had challenging behaviour problems, it was not necessarily the case that challenging behaviours were always indicative of violent behaviour. 41 His Honour found that the appellant's failure was due in part to staffing arrangements. The staff to client ratio at the time of the incident was 2:3. It was submitted that the adequacy of this ratio was not raised by the respondent in its particulars and further, that his Honour failed to sufficiently take into account the evidence as to the level of control exercised by the appellant in relation to funding of staff/client ratios. 42 Ms Thompson further submitted: His Honour also erred in that he did not sufficiently take into account when determining the culpability of the Appellant that this was not a case where the employer ignored the known risk of clients acting in a violent manner or failed to take any steps available to it that would have prevented the incidents occurring. The systems and procedures in place at the facility were comprehensive and indicated a very proactive approach to occupational health and safety by the Appellant. Further, the safety issues that had to be managed by the Appellant given the nature of its business were of a complex and difficult nature. Ensuring the rights of the residents and meeting the physical and psychological needs of the residents in its care necessarily impacts on the availability and range of safety measures that can be implemented by the Appellant. That is not to suggest however that compliance with the obligations imposed under the OHS Act 2000 was made subservient to those requirements. The Appellant's awareness of those obligations was demonstrated by the entering of the plea to the charges. Submissions for the respondent

43 In reviewing the findings of the CIM regarding the objective seriousness of the offence, counsel for the respondent submitted had his Honour had regard to the following: (a) Both charges arose in circumstances where it was known that individual residents had "a tendency to violence"; (b) One of the incidents - the stabbing incident with the syringe - "could well have had life threatening consequences" and did in fact have serious consequences for the worker; (c) That although the appellant had in fact taken steps to ensure hazardous objects were not left lying around, the appellant failed to guard against "the obvious risk entailed in excursions into the community"; (d) The 2003 incident raised considerations of staffing levels and training concerned with martial arts in circumstances involving a client who (again) was "known to have violent tendencies"; (e) The 2003 incident involved a failure to ensure that a member of staff was protected against the risk of being physically over powered; (f) The "situation" for the injured worker could have been worse but for the fortuitous return of another employee. 44 Mr Reitano submitted the appellant led evidence that in respect of KK it knew she was a resident prone to violence and specifically was prone to collecting objects to cause harm. Armed with that knowledge the appellant, it was submitted, did nothing. Counsel submitted that on the appellant's own submission even though aware of KK's tendency to violence it was, according to the appellant, to wait until some incident occurred where KK used her scavenged material to inflict actual harm on someone. It was submitted his Honour was correct in finding that the failings in relation to both the 2002 and 2003 incidents were failures in the appellant's "procedures" (systems) to anticipate the particular ways in which clients who were known to be prone to violence might make employees susceptible to the consequences of that violence. 45 In relation to the appellant's submissions, counsel for the respondent submitted: (1) The CIM was not distracted from an assessment of the nature and quality of the offence by engaging in an artificial search for the "cause for the incident"; he correctly focused upon the nature of the risk to which the appellant allowed its employees to be exposed. His Honour clearly addressed the possible consequences of the risk rather than the actual injury itself. The appellant's submission to the contrary was wrong. (2) The evidence in relation to how KK acquired the syringe was never in issue - namely that she got it from a public toilet. The appellant did not operate public toilets - they are found in the community at large. It followed as a reasonable inference that KK had acquired the syringe during an excursion into the community where there was a public toilet. The appellant's submissions as to the claimed lack of evidence should be rejected because the appellant itself referred to and presumably relied upon the fact of excursions into the community at large in its own submissions. (3) The appellant's complaint that had something about excursions into the community been particularised it would have had a chance to bring evidence is misconceived. The appellant was told by the charge that its systems relating to clients who may become violent were inadequate. It was also told that supervision was inadequate. The appellant had every opportunity (and took it) to demonstrate to the Court what its systems were and what its regime of supervision was. The evidence about how KK obtained the syringe was the appellant's. Presumably, that evidence was meant to discount the seriousness of the offence by showing that the appellant did not know how the syringe came to be in KK's possession. All the evidence did do, of course, was to highlight the deficiencies in the appellant's systems and in it staffing levels. (4) It was open to his Honour to draw inferences from how the syringe found its way into KK's possession that there were deficiencies in both the appellant's operating procedure and in its staffing levels. The appellant appears to concede the availability of that inference in its submissions. (5) The appellant relied on the "training" Ms Noonan received seven years before the second incident took place, her experience prior to commencing employment in 1997 and the alleged provision of 'martial arts training' where his Honour was told about a course by reference to that description and nothing else at all. That course may have occurred in 2002 or 2003 but nothing more was said about it. (6) It was necessary in the sentencing process for his Honour to precisely identify the appellant's omission(s) in order to determine the objective seriousness of the offence. Having identified those omissions it was necessary for his Honour to assess the nature of the risk (here known and obvious and certainly foreseeable), what could have been done to prevent the risk (here proper systems that guarded against it as well as proper and adequate training, supervision and instruction). Further his Honour needed to consider the nature of the steps the appellant could have taken to implement a proper system, provide adequate supervision, etc. It is wrong of the appellant to suggest that in determining the objective seriousness of the offence that his Honour was required to look at other (subjective) matters that informed the appellant's compliance with the Act in relation to matters not constituting the offence. To do so would have been in error. 46 The respondent submitted the penalty imposed by the CIM was well within the range of penalties that was open to be imposed by his Honour. The respondent acknowledged that the Court has generally discouraged comparisons to like or similar cases. Nevertheless, it was submitted there was a large body of authority in the residential care, group home and community services sector that established that offences of the kind here dealt with were to be treated seriously: see, for example, WorkCover Authority of New South Wales (Inspector Tuckley) v Crown in Right of the State of New South Wales (Dept of Community Services) (1999) 96 IR 1; WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service (2002) 112 IR 245; WorkCover Authority of NSW (Inspector Stewart) v Crown in Right of the State of New South Wales (Dept of Education & Training, Dept of Juvenile Justice & TAFE) (2002) 118 IR 207; WorkCover Authority of NSW (Inspector Keniry) v Crown in Right of the Sate of NSW (Dept of Community Services) (2002) 120 IR 269. The last authority related to six different offences involving various degrees of serious assaults. The range of penalties in that case was $31,350 to $59,850. Consideration - the 2002 offence

47 In relation to the 2002 incident, the appellant was correct in submitting that there was no evidence in relation to: (a) Whether KK had obtained the syringe whilst on an excursion organised by the appellant; (b) That as a result of KK obtaining the syringe, the supervision provided by the appellant to KK on community outings was 'inadequate' in that it failed to prevent her from accessing a public toilet. 48 His Honour appears to have assumed that because Ms Noonan took clients shopping and took them on other outings into the wider community, that KK participated in one of these outings and was able to obtain the syringe in a public toilet on one of these outings.

49 Even if it might have been inferred that the only way KK could have been in a public toilet was when she participated in an outing, this overlooks the possibility she may have gone to a public toilet when she absconded about which there was also evidence. There was no evidence before his Honour regarding the sufficiency or otherwise of either the level of staffing provided for excursions by residents, or the level of supervision of a resident while in, or using, a public toilet, or when toileting generally. It was not open on the evidence for his Honour to find that there was insufficient supervision of residents when on an excursion, or that the inadequate supervision arose from a lack of planning as to the staffing level required for an excursion. 50 In any event, in relation to supervision, neither the charge nor the particulars of the charge alleged a failure by the appellant to provide adequate supervision of residents, but rather a failure to provide Ms Noonan with any sufficient supervision in relation to her dealing with clients. 51 Notwithstanding this error, we observe that the appellant pleaded guilty to an offence involving a failure to provide and maintain any sufficient procedure, policy or system to ensure the safety of Ms Noonan and a failure to provide Ms Noonan with any sufficient training, instruction and or supervision to ensure her safety against physical assault by clients who were known to be capable of violent behaviour towards others. In the context of what occurred, these were not insignificant failures. 52 The appellant's failures were causative of a risk of assault on an employee, Ms Noonan, by a client, KK. The circumstances giving rise to the risk were that KK was able to obtain a syringe without the appellant's knowledge. As the appellant accepted in submissions on appeal, its guilty plea flowed from an acceptance first there was not a sufficient system or procedure in place to ensure KK was not able to obtain the syringe, nor was there a sufficient system or procedure in place to prevent KK using the syringe to assault Ms Noonan. Moreover, the appellant had pleaded guilty to a failure to provide Ms Noonan with sufficient training, instruction and/or supervision in relation to her dealing with KK, who was known to become violent. As a consequence of the appellant's failures to ensure the safety of Ms Noonan, she was stabbed with the syringe. This injury does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Hannah v Wonar Pty Ltd (1992) 34 AILR 333; Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New South Wales Industrial Court, CT92/1041, 10 March 1994 at 4); Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464; Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [31]-[33]. In the present case, the risk of physical assault included the risk of being stabbed. Ms Noonan's stabbing injury manifested a serious risk. 53 KK had a history of physical aggression towards staff and other clients. She had an obsession with knives, scissors and other sharp objects. It was reasonably foreseeable that KK might obtain a sharp instrument (for instance, whilst on an outing or on the occasions she absconded) and thereby a risk might arise in the form of a physical assault on staff with that sharp instrument. That such a risk was foreseeable necessarily required the appellant to take steps to prevent it, or take every reasonably practicable step to ensure that it did not arise. The appellant had failed to take these steps, which were straightforward and were introduced after the assault. They included: (1) KK remaining in a supervised environment at all times; (2) In the event KK absconded, on her return she was to be directed to her bedroom by a staff member without touching her. If necessary, a second staff member was to assist; (3) KK was to be directed to disrobe and shower, at which time staff would search her clothing for sharp objects. 54 This was not a case, however, where the employer ignored the known risk of clients acting in a violent manner or failed to take any steps available to it that would have prevented the incident occurring. Ms Thompson, in her submissions, described the systems of work and procedures in place at the time of the offence for managing clients and their challenging behaviours and these were summarised earlier. Ms Noonan was familiar with these systems and had read KK's Lifeplan and the re-active strategy document to assist Mercy Centre staff in dealing with KK when she exhibited challenging behaviour. The documents identified KK's obsession with sharp objects, her capacity to become physically aggressive and that she had absconded. The material also explained how to deal with KK, if she threatened with a weapon. 55 Whilst his Honour acknowledged that the appellant did not lack procedures in relation to safety and that "the defendant had endeavoured to put in place appropriate systems of induction of training and education in relation to Occupational Health and Safety", it was not apparent that his Honour gave sufficient weight to the systems and procedures in place at the appellant's place of work, in his overall assessment of the objective seriousness of the offence. In order to make an objective assessment of the seriousness of an offence it is necessary to have regard to those factors adverse to a defendant's position and those that are favourable. In the present case, whilst the appellant's failures constituted weaknesses in its overall system and procedures, which must be regarded as serious, given the potential consequences for the safety of staff, Sister Weekes' affidavit and the accompanying bundle demonstrated that significant attention had been paid by the appellant to putting in place systems and procedures that were designed not only for the welfare of the client, but also the safety, health and welfare of staff. 56 We note that the Clinical Programming Team has a significant input into the design, implementation and monitoring of these systems. This team comprises Sister Weekes - a clinical psychologist who holds a PhD in clinical psychology, a behaviour management specialist, residential house coordinators and other staff who specialise in disabilities. The systems and procedures in place indicated a proactive approach to occupational health and safety by the appellant. 57 In our opinion, his Honour had not properly weighed in the balance of relevant considerations in determining the objective seriousness of the offence, the evidence of Sister Weekes regarding the systems and procedures in place to protect staff from clients with violent tendencies. Accordingly, we consider his Honour erred. Consideration - the 2003 offence 58 In relation to the 2003 incident, Hart CIM found: (1) Ms Noonan had received "very little formal training in self defence including martial arts training which may have enabled her to defend herself against the physically stronger DS". (2) There was no evidence to demonstrate that the risks associated with violent residents overpowering one of the staff had been contemplated and planned for by the appellant with appropriate staffing levels or backup procedures. (3) There were two other persons in the residence who were known to have violent tendencies. A question arose as to whether Mr Thomas (Ms Noonan's co-worker at the time of the incident) would have been able to physically control the other two inmates who were prone to violence. (4) The appellant's failure was due in part to staffing arrangements. (5) Mr Thomas was delayed in rendering assistance to Ms Noonan because he had left the house to attend to an errand. 59 As to the first finding, Ms Noonan had: (a) Obtained a certificate in Professional Assault Response Training after a three-day workshop in January 1997. (b) Had represented to the appellant when applying for the House Manager position that she had experience in dealing with "challenging behaviour/assaultive clients" and presented a reference to the effect that over a 12 months period she had coped extremely well during trying and often physically dangerous situations due to challenging behaviours displayed by clients. (c) On or about 1 October 2003, Ms Noonan attended a martial arts course provided by the appellant with Zen Do Kai Karate Albury/Wodonga which was to assist her to manage clients with challenging behaviours following the 4 December 2002 incident. In or about October or November 2002, the appellant had also made martial arts training available to staff prior to the 4 December 2002 incident with the same martial arts company. 60 As to his Honour's view that Ms Noonan had received very little self-defence training and more of it may have enabled her to defend herself against DS, we consider that there was a sufficient basis for his Honour to reach that conclusion. 61 However, given the paucity of evidence about improvements in training that may have been appropriate it is a factor that should not feature significantly in assessing the objective serious of the offence. 62 As to the second finding, that there was "no evidence" to indicate that the risks associated with violent residents overpowering one of the staff had been contemplated and planned for by the appellant with appropriate staffing levels or backup procedures, it is apparent that his Honour was mistaken. A significant amount of the appellant's systems and procedures were directed to minimising the risk of staff being subject to assault by a client and this was evident from Sister Weekes' evidence. In particular, it was known that DS had a history of challenging behaviour which could escalate into violence; the Clinical Programming Team had designed and monitored the implementation of a reactive strategy for DS; five to six hours of staff training in relation to DS and her behaviour was provided to staff, including Ms Noonan, on 16 December 2002; and, the progress of clients and how to respond to their challenging behaviours was discussed and monitored by the appellant during various staff meetings. 63 There was an extensive "Lifestyle and Intervention Plan to Assist [DS]". This included a section on "How to assist [DS] in the event of a challenging incident". It provided advice on the warning signs to look for in DS's behaviour that might lead to violence and stated, "Don't put yourself or others where it will be difficult to leave if required". There was also the following advice: Under no circumstances are staff members to put themselves in situations where physical assault is likely. 64 Ms Noonan had read DS's file, which included the Lifestyle and Intervention Plan and reactive strategies to be followed when DS exhibited challenging behaviour. 65 In so far as staff levels and back up are concerned, the ratio of staff to clients was 2:3. At the time of the incident there were three clients in residence and two staff workers, Ms Noonan and Mr Thomas. Contrary to his Honour's finding, the evidence was that Mr Thomas was present in the group home when the attacked occurred, the residents and staff having just returned from purchasing groceries.

66 His Honour seemed to think, given his view that the offence was in the medium to high range, that the staff to client ratio of 2:3 indicated a serious failure on the part of the appellant in terms of the provision of adequate staffing levels. At [45] of his decision he stated: In circumstances where DS was physically capable of overpowering Ms Noonan a question looms as to whether Mr Thomas would have been able to physically control the other two inmates who were prone to violence. There was no evidence before the court to indicate that such matters had been contemplated and planned for with appropriate staffing levels, backup procedures or self defence training to ensure that a member of staff, including the injured worker, was protected against the risk of being physically overpowered. 67 As the appellant submitted, however, whilst the Agreed Statement of Facts revealed that there were two other intellectually disabled residents with challenging behaviours residing at Dick Road, it did not contain any evidence that it was known that they had violent tendencies. Whilst the appellant catered for persons with challenging behaviour, that did not necessarily mean that such behaviour indicates violent tendencies. Challenging behaviour, according to Sister Weekes' evidence, may include any behaviour that limits a person's access to ordinary settings, activities and services, or substantially interferes with the community's acceptance of the clients, disrupting their lifestyle and that of their families and carers. The term "challenging" may also refer to the challenge faced by the individual's family/guardian, staff members and other people to provide support in an ethical, appropriate and effective manner. 68 In the absence of evidence that the two remaining residents were prone to violence, the ratio of two staff to three clients would not appear to support a conclusion that there was a serious failure on the part of the appellant in terms of staffing levels. Accordingly, we do not consider it was open to his Honour, on the evidence, to conclude in relation to the 2003 offence that a penalty in the medium to high range was appropriate because of "the more general and ongoing issue of appropriate staffing levels and appropriate planning to deal with residents with known violent behaviours." In our opinion, the nub of the appellant's breach in relation to the 2003 incident was, a failure to provide sufficient instruction and/or supervision to Ms Noonan in relation to approaching DS alone in her room, shortly after DS had displayed signs of aggressive behaviour. 69 After being assisted by Mr Thomas, Ms Noonan also phoned another support worker who arrived within a space of five minutes. A third support worker arrived within ten minutes. We note that following the 2003 incident the Mercy Centre introduced personal distress alarms, and mobile phones for use in group homes and in vehicles, as well as placing a cordless phone in each home. The need to do so was indicative of a gap in the appellant's system for protecting staff against clients who may become violent. Penalties 70 We consider that the errors we have identified in the decision at first instance led to his Honour reaching conclusions as to the objective seriousness of the offences on the wrong premises. This brings us to the question of the amount of the fines imposed at first instance.

71 In relation to the breach that occurred in December 2002 his Honour imposed a penalty of $34,000, which after discounting for subjective factors was reduced to $22,100. For the October 2003 breach, a penalty of $26,000 was imposed and this also was reduced to $16,900 after taking into account subjective considerations. Applying the principle of totality his Honour arrived at a total fine of $27,300 and this was apportioned as $15,470 for the December 2002 offence and $11,830 for the October 2003 offence. 72 We think it is questionable that the principle of totality is applicable to the two offences. It is not readily apparent that the two offences could be regarded as part of the one criminal transaction. Nevertheless, whilst the Full Bench indicated some doubt about the applicability of the totality principle, it was not raised on appeal by either party and given our conclusions regarding penalty, we do not propose to take the issue any further. 73 One other matter that deserves comment is his Honour's view that the offences warranted penalties in the medium to high range. Given the maximum penalties for each of the two offences was $550,000 it is impossible to so describe the penalties imposed by his Honour. We consider his Honour meant "medium to high" in the context of the jurisdictional limit available to him, namely, $55,000: see U-RECT-IT Pty Ltd v WorkCover Authority of New South Wales (Inspector de Silva) [2004] NSWIRComm 266.

74 The respondent had asserted that the maximum penalty for the 2003 offence was $825,000, it being, in the respondent's submissions, a second offence. Again, in light of the approach we have taken to penalty we see no need to determine a matter that was put no higher than an assertion. 75 Whilst we have concluded that his Honour erred as to the bases upon which he arrived at his conclusions regarding the objective seriousness of the two offences, and whilst we consider the amount of the penalties was at the upper end of the range that was available to his Honour for these offences, we are not convinced that the penalties determined by the CIM were outside the range of penalty that was acceptable given the gravity of the two offences. 76 Whilst the appellant had adopted a conscientious and proactive approach to safety, there were significant gaps in this approach that made it possible for a client to inflict potentially very serious injuries on staff members. The risk of injury from physical assault by a client was readily foreseeable and could have been easily avoided, as demonstrated by the remedial steps taken by the appellant following the two incidents. We believe also there are important considerations going to general and specific deterrence. 77 It might be expected that if an appellate court was to come to the view that in the exercise of the judge's discretion at first instance, there was no error as to sentence then there would be little utility in granting leave to appeal, notwithstanding errors of fact or law made by the primary judge in the course of the reasoning process leading to the sentencing determination. In many cases that might be so, but not in all. 78 It would be apparent from this decision that there were a number of mistakes regarding the facts upon which his Honour determined the seriousness of these offences. It is evident from his decision that his Honour considered that one of the causes of the risks to health and safety in relation to the two offences was inadequate staffing levels. As we earlier found, that conclusion was not supportable on the evidence. Such a wrong finding by his Honour was submitted to have significant ramifications for the future viability of the appellant's care services and its ability to provide such services to DADHC. Having regard to the appellant's operations, which is the provision of a community service to vulnerable and disadvantaged persons in society, it is in the public interest that the errors of fact which were demonstrated be corrected on appeal. 79 In summary, we find that Hart CIM erred in several respects as to the facts relied upon in assessing the objective seriousness of the offences. Notwithstanding those errors, in view of the conclusion we have reached as to the appropriateness of the penalty imposed upon a proper approach to sentencing, we have decided this matter represents an appropriate case for the exercise of our residual discretion not to re-sentence the respondents (WorkCover Authority of NSW (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 160 at [63]. Accordingly, the orders made by his Honour as to conviction, sentence, moiety of the fines and costs at first instance will be allowed to stand. The period determined by his Honour of 28 days in which to pay the fines should properly apply from the date of our judgment. Orders

80 The Court makes the following orders: (1) Leave to appeal is granted. (2) The appeal is upheld to the extent identified in this decision. (3) The stay order made on 16 November 2005 is dissolved.

(4) Each party shall pay its own costs of the appeal.

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