O'Sullivan v The Crown in the Right of the State of New South Wales - [2003] NSWIRComm 303 - NSWIRComm 1992 case summary — Zoe

NSWNSWIRComm

O'Sullivan v The Crown in the Right of the State of New South Wales

[2003] NSWIRComm 303

Industrial Relations Commission (NSW)|1992-06-30|Before: Walton J, Fisher CJ, Cullen JJ, Hungerford J, Bauer J

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Court

Industrial Relations Commission (NSW)

Decision date

1992-06-30

Before

Walton J, Fisher CJ, Cullen JJ, Hungerford J, Bauer J

Source

Original judgment source is linked above.

Judgment (222 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) [2003] NSWIRComm 303 PROSECUTOR Maurice Michael O'Sullivan PARTIES : DEFENDANT The Crown in the Right of the State of New South Wales (Department of Education and Training) FILE NUMBER: IRC 607, 608, 609, 610 and 611 of 2001 CORAM: Walton J Vice-President CATCHWORDS : Occupational health and safety - Sentencing - Findings of facts at trial - Disputed evidence - General principles - Risks to safety - General deterrence - Significance of injuries - Objective features vary for offences - Reasonable foreseeability or risk foreseen - Measures available to remove risk - Mitigating factors - Specific deterrence - Subjective features - Totality - Moiety - Apportionment of costs - Penalty - Orders Crimes (Sentencing Procedure) Act 1999 s21A Evidence Act 1995 s4(3) s48 s69 s87 s135 LEGISLATION CITED : Fines Act (1996) s122(2) Fines and Penalties Act 1901 s5(3) Industrial Relations Act 1996 s220 Occupational Health & Safety Act 1983 (NSW) s15(1) Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Cretazzo v Lombardi (1975) 13 SASR 4 Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) and Anor v Lane Industries Pty Ltd and ors (1993) 26 IPR 261 Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Inn Liasure Industries Pty Ltd (Provisional liquidator appointed) v DF McCloy Pty Ltd and Anor (No 2) (1991) 28 FCR 172 Inspector Barbosa v McDonalds Australia Limited [2003] NSWIRComm 196 Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, Glynn and Cullen JJ, 30 June 1992) Inspector Keniry v The Crown in Right of the State of New South Wales (Department of Community Services) [2002] NSWIRComm 349 J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, Western Australian Branch and Anor (No 2) (1992) 46 IR 301 Kimberley John Hughes v Western Australian Cricket Association (Inc) and Ors (1986) ATPR 48 Kirkby v A & M I Hanson Pty Limited (unreported, Hungerford J, 13 September 1994) Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Maurice Michael O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) [2003] NSWIRComm 74 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Maugher) (2002) 115 IR 78 Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 Pearce v The Queen (1998) 194 CLR 610 WorkCover v Kevin R Sheather Electrical Services Limited [2001] NSWIRComm 294 WorkCover Authority v MIM Transport Pty Limited (2002) 112 IR 81 WorkCover Authority of New South Wales v Waugh and Another (1995) 59 IR 89 CASES CITED : WorkCover Authority of New South Wales (Inspector Ford) v Warrah Ridge Pastoral Co. Pty Limited (unreported, Bauer J, 23 September 1994) WorkCover Authority of New South Wales (Inspector Ankucic v Crown in the Right of the State of New South Wales (Department of Education and Training) [2001] NSWIRComm 313 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (1999) 95 IR 383 WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd t/a Style Wise Interiors (2002) 113 IR 78 WorkCover Authority of New South Wales (Inspector Dowling v Overtop Pty Limited (1998) 86 IR 319 WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (No 2) [2003] NSWIRComm 40 WorkCover Authority of NSW (Inspector Lyons) v Warman International Ltd (2001) 105 IR 236 WorkCover Authority of New South Wales (Inspector Martin) v Byrne Civil Engineering Constructions Pty Limited (No 2) (2001) 109 IR 347 WorkCover Authority of New South Wales (Inspector Stewart) v The Crown in Right of the State of New South Wales (Department of Education and Training, Department of Juvenile Justice and TAFE) (2002) 118 IR 207 WorkCover Authority of New South Wales (Inspector Tuckley) v The Crown in Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (1999) 95 IR 383 WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd t/a Style Wise Interiors (2002) 113 IR 78 WorkCover Authority of New South Wales (Inspector Dowling v Overtop Pty Limited (1998) 86 IR 319 WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (No 2) [2003] NSWIRComm 40 WorkCover Authority of NSW (Inspector Lyons) v Warman International Ltd (2001) 105 IR 236 WorkCover Authority of New South Wales (Inspector Martin) v Byrne Civil Engineering Constructions Pty Limited (No 2) (2001) 109 IR 347 WorkCover Authority of New South Wales (Inspector Stewart) v The Crown in Right of the State of New South Wales (Department of Education and Training, Department of Juvenile Justice and TAFE) (2002) 118 IR 207 WorkCover Authority of New South Wales (Inspector Tuckley) v The Crown in Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1

[52]

(a) He is Acting General Secretary of the PSA. The General Secretary, Mr O'Sullivan, who is the prosecutor in these matters, was on leave pending his retirement, and had recently suffered ill-health. (b) The PSA presently had approximately 42,000 members. (c) The PSA employed 26 Industrial Officers, 31 Organisers and 71 other staff in a variety of categories. (d) The PSA employed an Industrial Officer (Mr Terry Hannen) whose primary role was dealing with occupational health and safety matters, including (amongst other things) representing the PSA on two WorkCover Industry Reference Groups; acting as internal consultant to PSA industrial staff; providing direct assistance to PSA industrial staff and workplace delegates; liasing with WorkCover inspectors to resolve occupational health, safety and welfare issues; investigating suspected breaches of health and safety legislation in workplaces where PSA members were employed. Mr Hannen also conducted a two-day training course each month (and sometimes two per month) dealing specifically with occupational health and safety issues. He also conducted an occupational health, safety and welfare module in the PSA's introductory course for delegates. The PSA paid the travel and accommodation costs associated with PSA delegates travelling to attend such courses from outside Sydney. (e) The on-costs of employing Mr Hannen as of July 2003 were about $87,900, and the cost of conducting OH&S delegate courses between January 2002 and June 2003 was about $49,300. (f) A grant from the WorkCover Assist Program enabled the PSA to recruit a temporary OH&S Education Officer (Dr Pam Vievers) to design and conduct PSA membership training. Dr Vievers has designed an OH&S/Workers' Compensation Course for PSA members, and has delivered 12 such courses to PSA members since the beginning of 2003. The PSA may require the services of a permanent OH&S Education Officer, as it was under increasing demand to expand its training services. (g) If a moiety was granted "in favour of the office of General Secretary as a Prosecutor", he would remit those funds to the PSA to be dealt with in accordance with Rule 121 of the PSA Rules. 40 Rule 121 of the PSA Rules is in the following terms The funds of the Association shall be applied to the following purposes: (a) Defraying the costs of management of the Association. (b) Subscribing to any association or organisation with which the Association may, in accordance with these Rules, co-operate or affiliate. (c) Defraying the cost of publishing the Association Journal. (d) Defraying any expenses incurred in making or opposing any application to a Federal or State Board or Court of Arbitration or Industrial Appeal. (e) Making payments in connection with any matters prescribed by these Rules or affecting the general interests of members. (f) Paying such sums as may be determined by Central Council to a special fund or funds. (g) Acquiring by lease, purchase, donation, devise, bequest or otherwise any real or personal property necessary for the carrying out of any of the objects of the Association.

[89]

(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation, (b) the offence involved the actual or threatened use of violence, (c) the offence involved the actual or threatened use of a weapon, (d) the offender has a record of previous convictions, (e) the offence was committed in company, (f) the offence involved gratuitous cruelty, (g) the injury, emotional harm, loss or damage caused by the offence was substantial, (h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), (i) the offence was committed without regard for public safety, (j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence, (k) the offender abused a position of trust or authority in relation to the victim, (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bank teller or service station attendant), (m) the offence involved multiple victims or a series of criminal acts, (n) the offence was part of a planned or organised criminal activity. The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, (c) the offender was provoked by the victim, (d) the offender was acting under duress, (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, (j) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability, (k) a plea of guilty by the offender (as provided by section 22), (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23). (4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. (5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

[109]

94 It was submitted that the objective features of the matters which call for the imposition of a substantial penalty were as follows: (a) the maximum penalty available is $825,000 in respect of each offence; (b) the offences involved obvious and foreseeable risks, against which appropriate measures were not taken, even though such measures were available and feasible. Specifically, relying on WorkCover Authority of New South Wales (Inspector Stewart) v The Crown in Right of the State of New South Wales (Department of Education and Training, Department of Juvenile Justice and TAFE) (2002) 118 IR 207 (at [47] - [49]), the prosecutor submitted that: The issue is that a person such as AK should have been risk assessed. AK should never have been placed in the class on the day of the strike. If staff had known of the background of AK, the propensity to violence and unpredictable behaviour, they would have been able to make a proper and informed decision that would have seen AK excluded from that particular class. The victim had specifically asked on the day of the strike that a teacher remain present. At the time of the offences, adequate emergency equipment to call for assistance was hardly a revolutionary layer of safety. (c) there is a need for general deterrence; (d) The prosecutor relied on Capral Aluminium in submitting that this is not a rare case where appropriate weight does not have to be given to specific deterrence. In particular: i. given the nature of the defendant's activities, there is an ongoing risk of assault by challenging or aggressive students. The prosecutor again drew the Court's attention to WorkCover Authority of New South Wales (Inspector Stewart) v Crown in Right of the State of New South Wales (Department of Education and Training, Department of Juvenile Justice and TAFE) at [56] - [57]; ii. a public authority should not be treated more leniently than a private company; and iii. it is inconsistent with the requirements of the Act that the defendant permit its employees to be the subject of violent assaults. The prosecutor highlighted Inspector Keniry v The Crown in Right of the State of New South Wales (Department of Community Services) [2002] NSWIRComm 349 at [69] in relation to "the need to focus the defendant's attention upon the need for effective measures to be taken in relation [to] its employees performing duties in schools". (e) The gravity of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach. In this regard, the prosecutor submitted that "…on the new evidence [the Court] will be able to find proven beyond reasonable doubt a causal link between the two assaults (9 February, 8 March 1999) and the ultimate medical discharge of Mrs Griffiths as being permanently unfit because she was suffering post traumatic stress disorder". The purpose of making such a "causal link", according to the prosecutor, is to demonstrate the seriousness of the offences by showing the impact it has had on the victim. To this end, the prosecutor submitted that "one member of the Department [had] permanently retired on medical grounds and in circumstances which will undoubtedly scar her for life", citing in support of this submission WorkCover Authority of New South Wales (Inspector Keniry) v Crown in Right of the State of New South Wales (Department of Community Services) at [65]. (f) The prosecutor submitted that the Act requires employers to take a pro-active approach to protecting an employee's safety, particularly in an industry that is very dangerous or perhaps even inherently unsafe. The obligations mean that employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare. The prosecutor relied on Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210 in this regard. (g) The prosecutor pointed to the defendant's prior convictions, and while submitting that the defendant is "disentitled to the measure of leniency which would normally be given to a person of good character or a person without a prior criminal record", the prosecutor acknowledged that regard should be had to the size of the defendant's workforce, the number of work sites and the nature of the work carried out by the defendant and its employees.

[116]

101 In addition to the difficulties inherent in the provision of education services to disabled children, the defendant submitted that the following factors were also relevant: (a) the circumstances on 9 February 1999 were unusual because of the strike action; (b) Kurrambee was not in a position to simply close its doors on the day of the strike. Whereas it is easier for a mainstream school to inform parents and carers that they cannot accommodate children on days when there are staff shortages, "the various organisations that have responsibility for children of this kind … interact in a way that we would suggest doesn't create immediate flexibility"; (c) Mr Smyth King gave evidence of the steps the defendant had taken, and was taking, in relation to improving the services it provided to students and protecting the health and safety of its employees at work. According to the defendant, Mr Smyth King's evidence was deliberately directed at steps the Department of Education and Training as a whole had taken rather than on any specific steps that had been taken at Kurrambee, because he wished to place greater emphasis on addressing the risk rather than on the particular circumstances; (d) Notwithstanding the events surrounding AK's enrolment, the enrolment process, according to Mr Smyth King, involved the collection and dissemination of all available material prior to enrolment; (e) The process of assessing a disabled student takes a considerable period of time, and may be revisited from time to time depending on whether the student's behavioural responses to triggers have improved or changed or whether the triggers themselves have altered. It is difficult in these circumstances for the defendant to demonstrate an immediate improvement in the circumstances surrounding the gathering and dissemination of information about students; (f) The assessment process was in place for AK (which was evidenced by the various forms that had been completed). Those forms highlighted the potential need for greater resources, including human resources, to be allocated to the special classes being established at Glenmore Park High School, where AK was to be enrolled.

[143]

128 As discussed earlier, the defendant's failure to provide adequate resources on 9 February 1999, represented an obvious risk to Mrs Griffith's safety. The gravity of that risk is plainly demonstrated in the following conclusions reached by the Court in the Trial Judgment: [148] The real culpability of the defendant, in the context of this charge, relates to Mrs Griffiths' position on 9 February 1999 once Mr McKenzie departed: one of two aides supervising ten students, each of whom was severely disabled, six of whom had severe behavioural disorders, three of whom were known to be violent (albeit that in the case of AK the extent may not have been known), one of whom was known to abscond regularly, and some others of whom were in wheelchairs. That position was simply untenable. [149] Mrs Griffiths herself knew it was untenable, and specifically requested the presence of a teacher: she advised Mr Terry that she did not want to remain in that divided classroom with another aide, on that day, without a teacher present. Mr Terry knew it was untenable: he agreed with Mrs Griffiths; directed Mr McKenzie to supervise the divided classroom; and immediately tried to remove JB from the equation. The evidence in relation to JB himself makes the unacceptable nature of the situation abundantly clear: it was well known that this student was likely to become violent or to abscond without notice and, in fact, he frequently required individual supervision. In the context of two other violent students, on a disrupted and therefore unsettling morning (making aggressive behaviour more likely on the evidence of Dr Stephenson), and vulnerable students in wheelchairs who would not be able to defend themselves, it was clear at the time that the situation had the very real potential (perhaps even likelihood) to overwhelm the two aides, which is what in fact happened. In a situation where one aide may have to engage or retrieve JB (a situation known to be likely at any given time) it was clear that the remaining aide would be in the invidious position of having to protect both herself and vulnerable students from potential violence (again, a well known risk, rendered more probable on the day of the incident by the unsettling circumstances) from more than one source while supervising nine severely disabled students five of whom suffered from sever behavioural disorders. In fact, Dr Stephenson gave evidence that it would be very difficult for one person to manage two violent students, because calming them down requires a fairly intensive individual approach. Mrs Griffiths' evidence that at any one time (on a normal school day with a teacher present), there would always be one disruptive student in a class of six severely disabled students, is particularly telling.

[149]

134 I accept the defendant's submissions that the provision of education services to severely disabled children, including children with severe behavioural disorders, is a difficult task at the best of times. However, s15 of the Act imposes a strict obligation to ensure the health and safety at work of the defendant's employees. That obligation is not lessened because the task undertaken by the defendant is a particularly onerous one. In my view, there were measures available to the defendant to avoid the risk. While I acknowledge that these measures were not necessarily simple or straightforward, some such measures are set out in the Trial Judgment as follows: [156] Although I agree that it would be impracticable to require the defendant to obtain additional staff at short notice in the event of a teachers' strike in order to maintain staffing ratios, the prosecutor's submissions on this particular of the charge make it clear that the allegation relates to the resource provided to assist Mrs Griffiths in relation to the students under her supervision that day. There were many options which were available to the defendant (in terms of reorganising resource or otherwise) which would have reduced or eliminated the risk of assault , ranging from ensuring that Mr McKenzie did not leave his post as responsible teacher in that divided classroom; allocating an additional staff member (perhaps Mr McKenzie) to supervise JB individually until he could be collected by his carers; placing students with a known propensity for violence in a separate area without vulnerable students with a higher concentration of staff; restricting access to students with a known propensity for violence and thus changing the resource ratio from the other side; to closing the school entirely, in view of the limited resource and intractable demands for supervision in a school such as Kurrambee. It is not the function of the Court to determine the precise measures which should have been taken (see WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd (No 1) (1999) 91 IR 119 at 126), but all of these measures were practicable and within the defendant's control on the day of the strike. The defendant did not suggest otherwise. The fact that the weather and the strike were outside the control of the defendant does not absolve it from taking measures which were within its control and which would have reduced the risk. In fact, the knowledge of those two exacerbating factors placed it under a greater obligation to protect against known risks which were consequently greater. (emphasis added)

[156]

141 There can be little doubt that the risk was reasonably foreseeable. This conclusion is inescapable based on the following extracts from the Trial Judgment: [163] … I do not believe that one can understate the importance of providing staff responsible for supervising a dangerously violent student with a report on that student's violence specifically commissioned by the defendant for the purpose of ensuring staff and community safety in another environment. [Mr Petrie's] evidence that it was more likely than not that the triggers recorded in the report would have made AK violent in any environment only emphasise the significance of the defendant's failure. Dr Stephenson gave evidence that ignorance of violent potential and the triggers for such violence leads to a greater risk of being a victim of that violence and that it would be highly undesirable to leave a person in charge of a class who had no background knowledge in how to deal with or avoid triggering aggressive behaviour by a student. Yet this is exactly what the defendant did. [164] A cursory glance at the report reveals the significant nature of the information that would have been available to the staff of Kurrambee (particularly Mr Terry and Mrs Griffiths) on 9 February 1999 and immediately suggests options which would consequently have been available to them. Indeed, both Mr Terry and Mrs Griffiths gave evidence of different actions they would have taken, which may well have averted the assault, had they known of the report's contents. Mr Terry would have decided that AK's presence was untenable (and acted accordingly), and Mrs Griffiths would have called for assistance before Mrs Crompton left. [166] ... In addition to the clear evidence of Mr Terry and Mrs Griffiths of the actions they would have taken with knowledge of Mr Petrie's report, it is clear that the report would have given them more options to prevent or reduce the risk of assault by AK. The most obvious example is the direction not to turn one's back on AK, the very act on the part of Mrs Griffiths which preceded the assault.

[164]

150 The defendant had in place an enrolment policy which identified the need for gathering information as part of the enrolment process. The Court accepted the following facts in the Trial Judgment: [42] …Had [the defendant's enrolment policy] been followed, Mr Terry stated that the request for enrolment would have been considered by a multi-disciplinary panel by reference to an appraisal report and an access request form. If enrolment were offered, copies of these documents would have been sent to Kurrambee at the same time the offer was sent to the parents. Parents would then contact the school to commence enrolment procedures. In consequence, Mr Terry would have known more about AK's behaviour, which he would have shared with his staff. As it was, he had no real information and was unable to make adequate arrangements to attempt to manage AK effectively. [43] The defendant's brochure "Enrolment of Students in Government Service: A summary and consolidation of policy August 1997", tendered by the prosecutor, contains the following paragraph: Enrolment of Students with Special Learning Needs Students with Disabilities … In each case, when a student with a disability presents for enrolment, it is the responsibility of the principal to ensure that an appraisal of the student's educational needs is carried out. For some students, appraisal will have occurred as part of a planned transition process. For others, the appraisal will take place at the time enrolment is sought. Appraisals will involve parents or caregivers and will entail consideration of the student's support needs in areas such as curriculum, mobility, social skills, personal care and communication. It will often involve consideration of supporting documentation from medical practitioners and other health and education professionals. District special education consultants are available to assist in this process, in particular, to identify the resources which may be available to support the enrolment. Requests for enrolment in special classes or special schools are considered by a district placement panel. The Special Education Handbook for Schools contains descriptions of services available, eligibility criteria for access to services and procedures to be adopted in enrolling students with disabilities.

[189]

175 For the purposes of assessing the weight to be given to the defendant's prior record in these matters, I adopt the following discussion of this issue in WorkCover v Department of Education and Training: [61] I consider that the Court is required to consider prior convictions of the Crown generally when assessing the appropriate penalty to be imposed for an offence under the Act. As was pointed out by Hungerford J in Tuckley, the Crown retains overall responsibility as an employer, notwithstanding the fact that it may structure its operations by dividing different areas of responsibility between departments or similar entities. Of course, the consideration of the prior record of a defendant is not a mechanical process which merely requires the Court to aggregate the number of convictions which have been recorded. The defendant correctly pointed out that, when considering the defendant's record, it is appropriate for the court to take into account the size, nature and diversity of its operations. In Haynes v C I & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455, for example, the Full Bench stated (at 456 - 457): We think that, having regard to the specific nature of the legislation, the past record upon which both the prosecution and defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions have regard to the past record. Human experience indicates that the large the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of a very large company with some prior convictions may, on analysis, be better than that of a smaller company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential enquiry must remain the circumstances of the breach in question. [62] A similar approach was adopted in McDonalds at 454. [63] The task before the Court is to consider whether, in light of all the circumstances of the defendant's operations, the offence in question constitutes an uncharacteristic aberration or manifests a continuing attitude of disobedience of the law: see Veen v The Queen (No 2) (1987) 164 CLR 465 at 477-478. I would add that prior convictions against the same department or statutory authority may generally be of greater relevance when assessing penalty. In this regard, I note that there have been three convictions recorded against the Department in the last two years. I note that two matters resulted in fines of $210,000 for two offences, and $80,000 in relation to one offence. Nonetheless, the overall record of the Crown must be considered. [64] The provisions of s121(3) of the Occupational Health and Safety Act 2000 ("the 2000 OH&S Act") do not alter that conclusion. The 2000 OH&S Act commenced after judgment was reserved in this matter (although I note that the terms of s121(3) were referred to by Mr Phillips in his written submissions by reference to the then proposed form of s121). However, the provisions of s121(3) of the 2000 OH&S Act apply in this matter by virtue of cl13 of Sch3, Savings, Transitional and Other Provisions of that Act. [65] Section 121 of the 2000 OH&S Act is in the following terms : (1) In this section, "penalty" means: (a) the monetary penalty for an offence against this Act or the regulations, or (b) the amount payable under a penalty notice served in connection with such an offence, or (c) the amount payable under an order made under Division 2.

[192]

(4) Enforcement proceedings under the Fines Act 1996 cannot be taken in connection with penalties imposed in respect of proceedings against the Crown. [66] The provisions of s121(3) of the 2000 OH&S Act are not applicable, in my view, to the Court's consideration of prior convictions of the Crown for the purpose of determining the appropriate sentence in relation to a charge as distinct from the determination of the maximum penalty for that offence. [67] Section 121 defines the word 'penalty' to mean (for the purposes of that section) the monetary penalty for an offence against this Act or the regulations, the amount payable under a penalty notice served in connection with such an offence or the amount payable under an order made pursuant to Div2 of Pt7 of the 2000 OH&S Act. The legislature has thereby confined the meaning of 'penalty' for the purpose of the section to the statutory maximum fixed in relation to various penalties under the 2000 OH&S Act. In the result, the opening words of s121(3), when read with the definition in s121(1), has the effect of confining the operation of that sub-section to the assessment of the maximum penalty in relation to prosecutions brought against the Crown (where the penalties may differ depending upon the existence of prior offences). [68] This conclusion is buttressed by the use of the expression "previous offenders" in the opening words of s121(3). The expression "previous offender" is defined in s4 of the 2000 OH&S Act to mean: previous offender, in relation to the maximum penalty for an offence, means a person who has, at any time before being sentenced for that offence, been convicted of any other offence of any kind against this Act or the Occupational Health and Safety Act 1983. [69] Section 12 of the Occupational Health & Safety Act 2000 specifically distinguishes, for the purposes of fixing the penalty for offences under that Act, between 'corporations' or 'individuals' having regard to whether those corporations or individuals have prior offences. [70] It is clear from the statutory context in which the expression "previous offender" appears and the definition of that expression in s4 of the 2000 OH&S Act that the legislature has identified a particular class of offender with respect to which a higher maximum penalty will apply. This class is described in the 2000 OH&S Act as a "previous offender". In this light, the use of the expression "previous offender" in the opening words of s121(3) reinforces the conclusion that the legislature intended to restrict the operation of that sub-section relevantly to the determination of the maximum penalty for an offence. [71] Finally, I note the apprehension of the defendant that undue weight may be given to the prior record of other entities of the Crown rather than the particular entity committing the offence. I consider that the approach adopted by the Court to the assessment of the prior record of the defendant (see paragraph 63, consistent as it is with the decision in Tuckley ) should obviate such concerns. [72] In the present case, having regard to the overall record and, in particular, to the operations of the Department, I consider the record of the Department of Education and Training and of the defendant generally to be reasonably good in light of the size and nature of its operations.

O'Sullivan v The Crown in the Right of the State of New South Wales

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