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

Industrial Relations Commission of New South Wales in Court Session

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

HEARING DATES: 07/25/2003 DATE OF JUDGMENT: 09/26/2003

PROSECUTOR Mr B Docking of Counsel SOLICITOR Ms J Wright Jones Staff & Co.

LEGAL REPRESENTATIVES: DEFENDANT Mr B Hodgkinson of Senior Counsel Mr M Shume of Counsel SOLICITOR Mr P Johnson Senior Legal Officer Department of Education and Training

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Walton J, Vice-President

26 September 2003 Matter No. IRC 607 of 2001 MAURICE MICHAEL O'SULLIVAN v THE CROWN IN THE RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING) Prosecution under s15(1) of the Occupational Health and Safety Act 1983 Matter No. IRC 608 of 2001 MAURICE MICHAEL O'SULLIVAN v THE CROWN IN THE RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING) Prosecution under s15(1) of the Occupational Health and Safety Act 1983 Matter No. IRC 609 of 2001 MAURICE MICHAEL O'SULLIVAN v THE CROWN IN THE RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING) Prosecution under s15(1) of the Occupational Health and Safety Act 1983 Matter No. IRC 610 of 2001 MAURICE MICHAEL O'SULLIVAN v THE CROWN IN THE RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING) Prosecution under s15(1) of the Occupational Health and Safety Act 1983

Matter No. IRC 611 of 2001 MAURICE MICHAEL O'SULLIVAN v THE CROWN IN THE RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING) Prosecution under s15(1) of the Occupational Health and Safety Act 1983

1 This matter concerns five prosecutions brought by Mr Maurice Michael O'Sullivan, General Secretary of the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("the prosecutor") against the Crown in the Right of the State of New South Wales (Department of Education and Training) ("the defendant") for breaches of s15(1) of the Occupational Health & Safety Act 1983 ("the Act").

2 Section 15 of the Act imposes the following obligation: (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees. (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails - (a) to provide or maintain plant and systems of work that are safe and without risks to health; (b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances; (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees; (d) as regards any place of work under the employer's control - (1) to maintain it in a condition that is safe and without risks to health; or (2) to provide or maintain means of access to and egress from it that are safe and without any such risks; (a) to provide or maintain a working environment for his employees that is safe and without risks to health and adequate as regards facilities for their welfare at work; or (b) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information:

(i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health; or (ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used.

3 The prosecutions arose out of two separate assaults by male students exhibiting violent behaviour at the Kurrambee School for Special Purposes, Werrington ("Kurrambee"). For the purposes of both the trial and sentencing proceedings students of Kurrambee relevant to the proceedings were referred to by their initials rather than full names. I adopt the same convention in this judgment.

4 The defendant entered a plea of not guilty to each of the charges and raised no objection to the prosecutions being heard together. The judgment of the Court was delivered in relation to all prosecutions on 31 March 2003: 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 ("the Trial Judgment"). The Court found the defendant guilty of three offences charged in the prosecutions brought in Matters IRC 607, 608 and 609 of 2001. In relation to those offences, the Court made the following findings:

(a) the offence was proved in Matters IRC 607, although the prosecutor did not sustain the charge in relation to particular (a); (b) the offence was proved in Matters IRC 608; and (c) the offence was proved in Matters IRC 609, although the prosecutor did not sustain the charge in relation to particular (c).

5 The Court found the defendant not guilty of two offences charged in relation to the prosecutions brought in Matters IRC 610 and 611 of 2001. Hence, those charges are not relevant for sentencing purposes.

6 A hearing in relation to sentence was conducted on 25 July 2003. This judgment deals with the appropriate penalty to be imposed, as well as the questions of moiety and costs.

The Charges 7 The charges in Matters IRC 607, 608 and 609 of 2001 are set out in full in the Trial Judgment but, for convenience, details of the charges are again set out below:

8 The charge in Matter No IRC 607 of 2001 was as follows: Between about 9 February 1999 and 6 April 1999 at the Kurrambee School for Specific Purposes, Werrington, New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular Lorraine Kay Griffiths, Janelle Crompton and Carmel Muggleton in that there was not provided adequate human resources contrary to section 15(1) of the Occupational Health & Safety Act 1983.

9 The particulars of that charge were that the defendant's "failures and/or omissions were any or all" of the following: (a) allowing the number of teachers and/or Teacher's Aides Special to comprise the available human resources; and (b) failing to provide additional human resources.

10 The charge in Matter No IRC 608 of 2001 was as follows: Between about 9 February 1999 at the Kurrambee School for Specific Purposes, Werrington, New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular Lorraine Kay Griffiths, in that there was not in place adequate emergency equipment to call for assistance contrary to section 15(1) of the Occupational Health & Safety Act 1983.

11 The particulars of that charge were that the defendant's "failures and/or omissions were any or all" of the following: (a) allowing [Ms Griffiths] to work in a classroom in which there was only an ordinary telephone system; (b) allowing [Ms Griffiths] to work in a classroom in which there was not fitted any form of duress alarm system; (c) failing to provide [Ms Griffiths] with a personal duress alarm; and (d) failing to provide the employee with a personal mobile telephone.

12 The charge in Matter No IRC 609 of 2001 was as follows: Between about 9 February 1999 at the Kurrambee School for Specific Purposes, Werrington, and elsewhere, New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular Lorraine Kay Griffiths, Janelle Crompton and Carmel Muggleton, in that there was not provided any or any adequate information and instruction in relation to student AK contrary to section 15(1) of the Occupational Health & Safety Act 1983.

13 The particulars of that charge were that the defendant's "failures and/or omissions were any or all" of the following: (a) allowing student AK to attend the school without any or any adequate information concerning any behavioural problems or details of any strategies which could assist the school staff to manage or control his behaviour; (b) failing to follow the procedure for enrolment in relation to student AK; and (c) failing to instruct that only male Teacher's Aides Special were employed in AK's class and females were not to be employed.

Findings of Fact at Trial 14 The Court made a number of findings of fact bearing upon the assessment of the culpability of the defendant in the Trial Judgment. I do not repeat those facts in this judgment, but they are relevant to the determination of sentence. However, I shall return to particular aspects of those factual findings (as well as applicable conclusions as to culpability) later in this judgment. It is sufficient at this point to broadly state the circumstances of the relevant incidents.

15 Kurrambee, as a School for Specific Purposes, is a school for children with physical, intellectual or psychological disabilities that preclude them from attending a normal school. There are three broad bands of students at Kurrambee: those with multiple disabilities, violent (or "challenging") students and students from support classes in mainstream schools whose needs had not been met.

16 Mrs Griffiths had been employed at Kurrambee since January 1982. Her duties as a Teachers' Aide Special involved assisting the teacher in implementing students' education programs. This could involve working in the classroom, playground or community and included toileting, washing, cleaning, feeding, positioning and behaviour management. Teachers' Aides were often required to supervise students without a teacher present, for instance, when a teacher had to leave the classroom briefly to assist a student.

17 In early 1999, the enrolment at Kurrambee of a fifteen year old boy, AK, was approved by the Penrith District Office of the defendant. Enrolment forms for AK were completed by his mother on 28 January 1999. However, those forms contained little, if any, information regarding AK's propensity to exhibit violent behaviour, or the potential intensity or severity of any such behaviour.

18 The defendant's brochure "Enrolment of Students in Government Service: A Summary and Consolidation of Policy August 1997" stated, amongst other things, that: ... it is the responsibility of the principal to ensure that an appraisal of the student's educational needs is carried out… 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.

19 The prosecutor and the defendant agreed that the defendant's policy for enrolling disabled students was not followed in AK's case. Adherence to that policy would have resulted in, amongst other things, consideration of the request for enrolment by a multi-disciplinary panel by reference to an appraisal report and an access request form. Following the established enrolment procedure would have given Mr Terry, the Principal, more knowledge about AK's behaviour, which he would have shared with his staff. In the event, he had no real information and was unable to make adequate arrangements to attempt to manage AK effectively.

20 In January 1999, a report was written by Mr Petrie, a consultant to the Department of Community Services, stating that AK was aggressive, that aggression could be expected at any time and that, when aggressive, AK would often physically injure others ("the Petrie Report"). The Petrie Report was placed on AK's school file, but was not discovered by any school staff until after the incidents leading to the present charges.

21 AK started school at Kurrambee on or about 29 January 1999. On 9 February 1999, the NSW Teachers' Federation had called a State-wide strike. Kurrambee was open to students on that day, however parents and guardians were informed that, if their child's teacher was not attending work that day, the school would only be able to provide minimal supervision, predominantly by Teachers' Aides. Mrs Griffiths was one of 22 staff members (including 15 Teachers' Aides) who attended work at Kurrambee on 9 February 1999 - ten staff members less than usual. Mr Terry was unable to accurately predict the number of students who would attend school on a strike day.

22 On normal days, the students played in the playground prior to entering classrooms. The usual practice at Kurrambee in the event of a strike was for teachers who were present to take their classes from the playground to their rooms, leaving the students without teachers, and any remaining staff, in the playground. Supervision arrangements could then be made for the day's classes, depending upon the staff to student ratio and the ages, abilities and behaviours of those remaining students. While this assessment was taking place, the students could remain in the playground and be supervised in a group.

23 However, on 9 February 1999, it was raining and the students were taken directly into classrooms as they arrived. This change in routine, coupled with the weather, unsettled the students. It also meant that conducting a "head count" and making arrangements for appropriate supervision of the students was more difficult.

24 Mrs Griffiths' classroom adjoined another classroom, separated by a bi-fold door. Mrs Griffiths agreed with Mrs Crompton, the Teachers Aide in the adjacent classroom, to open the door between their respective rooms in order to make supervision of the students easier. Amongst the students under the combined supervision of Mrs Crompton and Mrs Griffiths were:

(a) AK; (b) JB, a particularly difficult and violent autistic child who required one-to-one supervision at school; and (c) NK, a student without hands or legs who was restricted to a wheel chair.

25 Mrs Griffiths informed Mr Terry that she did not wish to be left alone with her class without a replacement teacher, nor in a shared arrangement with Ms Crompton without at least one teacher present. Mr Terry agreed, and his evidence was that he instructed Mr McKenzie to assist Mrs Griffiths.

26 Nevertheless, against her express wishes, Mrs Griffiths was left alone with the students in the combined classroom shortly thereafter: Mrs Crompton had left the room to pursue JB (who had absconded); Mr Terry was occupied attempting to make alternative care arrangements for JB and Mr McKenzie was continuing the head-count in other classrooms.

27 Mrs Griffiths described the students during this time as very restless, some throwing classroom objects around the room, some crying, and some screaming a lot. It was very noisy. The following events took place in a matter of minutes. JB (who had not yet absconded) became very agitated when another violent student, SH, repeatedly threw a heavy cassette player onto the classroom floor in the direction of NK, a student without hands or legs and who was restricted to a wheelchair. Mrs Griffiths moved NK away from SH to the adjoining classroom and then returned, only to be struck without warning by SH. Mrs Griffiths, by this time concerned at the threatening manner in which she perceived AK to be advancing upon NK, moved to stand between NK and AK in order to protect NK and was kicked on her upper right leg by AK.

28 It was at this point that JB, followed by Mrs Crompton, left the classroom. Mrs Griffiths was extremely anxious about supervising the remaining nine students by herself. AK immediately kicked Mrs Griffiths again and then, with both hands, raised a chair above his head.

29 Mrs Griffiths attempted to remove NK outside the classroom to safety, when her way was blocked by AK, who barred the door, again raising the chair above his head. Mrs Griffiths' evidence at this point was as follows: I swung [NK's] chair around so I could use the telephone on the classroom wall. I contacted Harry [Terry], and immediately [AK] kicked me in the back and the pain made me cry out. I was still holding the telephone, and Harry asked "Are you being attacked?" I answered "Yes". I was still standing with the telephone in my hand when Harry Terry ran into the classroom.

30 A map of the classroom indicated that the telephone was on a wall approximately two metres from the door. Mrs Griffiths had to face the wall, with her back to AK, in order to use the telephone. Mrs Griffiths gave evidence that, had she been aware of the Petrie Report and the potential for AK to behave violently, she would have used the telephone to call for assistance before Ms Crompton left the room.

31 Mr Terry travelled the intervening 65m as quickly as he could, restrained AK and sent Mrs Griffiths away. Mrs Griffiths, unable to stop crying, had some tea and then went home.

32 On 10 February 1999, Mrs Griffiths saw her general practitioner (Dr Roberts), who recommended that she lodge a workers' compensation claim, which she did, taking three weeks' leave. Contrary to her doctor's advice, Mrs Griffiths returned to work on 1 March 1999.

33 Further incidents occurred on 8 March 1999 involving Mrs Griffiths, although no offence was proven in these matters in relation to those incidents. However, for completeness, the facts surrounding the relevant events of 8 March 1999 are as follows: Mrs Griffiths was designated to supervise JB in the playground. JB undressed in the toilets and then ran back into the playground, at which point Mrs Griffiths retrieved his clothing and approached JB, intending to place the clothing on a nearby seat. JB unexpectedly swung around and grabbed Mrs Griffiths' glasses and threw them across the playground, scratching her face in the process. Mrs Griffiths, although upset, returned to duty after a brief visit to the first aid room until a further but insignificant mishap triggered uncontrollable crying. Mrs Griffiths was taken home, placed on workers' compensation for a period of months by Dr Roberts, whom she saw immediately, and did not return to work.

34 Subsequent incidents involving two other employees (Janelle Crompton and Carmel Muggleton) allegedly occurred in March and April 1999, however those employees were not called as witnesses and no offences were proven in relation to those incidents.

35 After 8 March 1999, Mrs Griffiths contacted the defendant's Employee Assistance Programme, a counselling service run by independent psychologists, providing up to six free counselling sessions in a two year period. She saw a psychologist (Dr Heggarty) on several occasions.

36 Mrs Griffiths was subsequently contacted by a staff welfare officer for Kurrambee in July 1999, who informed her that she would be contacted by a rehabilitation officer. The rehabilitation officer (Ms Nicholls) contacted Mrs Griffiths in August 1999 and referred her to a clinical psychologist (Ms Merrells), who she started seeing on 11 October 1999. In the meantime, in September 1999, Mrs Griffiths' was referred by Dr Roberts' locum to a psychiatrist (Dr Pusic), who she began seeing on a monthly basis.

37 Ms Merrells' evidence at trial established that in October 1999 Mrs Griffiths was suffering from post-traumatic stress disorder. The prosecutor's submissions on sentence, as they relate to Mrs Griffiths' medical condition, are dealt with later in this judgment.

Evidence on Penalty Evidence of the prosecutor

38 Mr B Docking, of counsel, who appeared for the prosecutor, tendered a document containing an extract from the WorkCover Authority of NSW 'Prior Convictions Database', which was admitted into evidence and marked exhibit 34A. The document sets out the prior convictions of the Crown in the Right of the State of New South Wales, including, but not limited to, those convictions relating specifically to the Department of Education and Training. An earlier, less specific version of this document had been tendered, objected to and provisionally marked as exhibit 34. This earlier document was admitted only insofar as it concerned those entities that could be described properly as the Crown in the Right of the State of New South Wales, that is, excluding other statutory authorities or agencies. Accordingly, exhibit 34A, which had been amended in light of this ruling to exclude statutory authorities or agencies that could not be properly described as the Crown in the Right of the State of New South Wales, superseded exhibit 34. The document was admitted over the defendant's objection insofar as it related to convictions of departments or agencies of the Crown other than the Department of Education and Training.

39 Mr Docking tendered an affidavit of John Joseph Cahill, Acting General Secretary of the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("the PSA"), which was admitted into evidence without objection. Mr Cahill gave evidence going to the issue of payment of a moiety to the prosecutor. His evidence was that:

(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.

(h) Aiding and encouraging members generally or particular groups of members in taking action directed to the improvement of salaries and working conditions. (i) For or in connection with any other lawful object or purpose authorised by Rules of the Association. 41 Mr Cahill was cross-examined by the defendant. He stated that he had spoken with Mr O'Sullivan regarding the matters generally, and specifically in relation to the payment of a moiety. Mr Cahill gave the following evidence: Q Based on what Mr O'Sullivan has told you, are the funds or percentage of any fine that the Court might impose going to be dealt with in accordance with rule 121 of the PSA Rules? A The answer is yes. Q How do you know that? A The PSA can only deal with any funds it has or it collects in accordance with its Rules, and were it to get an amount of money resulting from these proceedings it would deal with that amount of money in exactly the same way, that is, in accordance with its objects and its rules.

42 Mr Cahill also gave evidence regarding the membership coverage of the PSA in New South Wales in relation to the Department of Education. He stated in his evidence in chief: In schools, the Association has 6844 people as members. Other than in schools, … on the school [side] … we have 1065 members and on the TAFE side we have 1960 members, making a total of 9869 people. Of those school members, there are 550 people who are school assistances and 1294 persons who are teachers' aides.

43 Mr Cahill was cross-examined in relation to the number of Teachers' Aides employed by the defendant specifically in Schools for Special Purposes. Mr Cahill was not aware how many of the 1294 Teachers' Aides who were members of the PSA were employed by the defendant in Schools for Special Purposes.

44 The prosecutor sought to tender a statement of Mrs Lorraine Griffiths. An objection by the defendant as to the admission of the statement was upheld and hence the statement does not form apart of the evidence in these proceedings.

45 During his cross-examination of the defendant's witness, Mr Smyth King, regarding Mrs Griffiths retirement, the prosecutor sought to tender a further document regarding Mrs Griffiths' medical fitness to continue working for the defendant, however it is convenient to deal with the tender of that document after a discussion of the defendant's evidence.

46 Mr B Hodgkinson SC, of counsel, who appeared for the defendant, tendered a statement of Mr Brian Smyth King, Director Disability Programs, Department of Education and Training, signed on 24 July 2003. The statement, including annexures A - J, was admitted into evidence.

47 Mr Smyth King gave evidence regarding the role and activities of the Disability Programs Directorate of the defendant, stating that in 2001, 3,915 students attended special schools, representing 0.52% of the total student population, in addition to more than 20,000 students with disabilities who received support in TAFE. Most special schools have class sizes of 6, compared to the average class size in government primary schools (in 2002) of 26.5.

48 Mr Smyth King's statement included the following expression of regret: On behalf of the Department I would like to express my sincere regret in relation to the incident at Kurrambee School to Mrs Griffiths on 9 February 1999 in relation to her medical retirement from service with the Department subsequently. I wish to assure the Court that the Department has reviewed the circumstances of this regrettable incident. As a consequence the Department continues to develop policies and programs designed to maximize the safety and welfare of all persons providing education to students with disabilities.

49 Mr Smyth King gave evidence of the defendant's relevant systems and practices that were in place at the time of, and prior to, the incident involving Mrs Griffiths at Kurrambee in February 1999, as well as the steps that the defendant had taken subsequent to that incident occurring. The following summary of Mr Smyth King's evidence is a composite of the evidence he gave in that respect in his statement and in cross-examination.

50 As to the defendant's systems that were existing prior to the incident involving Mrs Griffiths on 9 February 1999, Mr Smyth King gave the following evidence: (a) students with disabilities may live in group homes as their primary place of residence, with decisions about a student's day-to-day schooling being made by residential care workers and group home managers. Such homes may not have a full complement of staff during school hours; (b) disabled students may be eligible to receive School Student Special Transport Services to assist with their transportation to and from school. There were guidelines regulating the provision of those services; (c) behaviour management plans were used extensively to address the behavioural needs and management of individual students in both mainstream schools and Schools for Special Purposes. Mr Smyth King gave evidence that behaviour management plans, previously described as "student behaviour modification programs", have been used by school counsellors since the early 1970s. Many staff in Schools for Special Purposes have particular training and expertise in developing behaviour management plans and, in some cases, behaviour management plans are devised in consultation with outside agencies. He stated that: The Department's Access and Participation Team provides specialist assistance to districts and schools in meeting the educational needs of students with complex disabilities who have high support needs, including those with challenging behaviours. The process for developing behaviour management plans fits the risk assessment framework of identifying a risk, assessing it, putting in place control and elimination measures then later reviewing the intervention.

51 Increases in the amount of money spent by the defendant on special education was one of the factors highlighted by Mr Smyth King in relation to changes that have occurred to the defendant's operations since the incident. Mr Smyth King gave evidence that the amounts spent by the defendant on education, including special education, had increased significantly, from $328.8 million in 1995 to $471.4 million 2000/01, $477.7 million in 2001/02 and $515.1 million in 2002/03. Providing funding for special education is an ongoing part of the defendant's activities and Mr Smyth King's evidence was that funding for special education had increased. However, I note that despite the increase in actual spending, as a percentage of total expenditure on education the special education budget was reduced from 9.15% in 2000/01 to 8.62% in 2001/02.

52 Mr Smyth King's evidence included an explanation of the on-going programs and services provided by the defendant, including: (a) engaging school counsellors, district officers and specialist behaviour teachers; (b) providing funding to assist schools employing Teachers' Aides (Special) and funding support for additional teacher and Teachers' Aide (Special) time; (c) providing special classes for students with mental health problems and autism and special schools for students with severe behaviour difficulties; (d) undertaking preventative programs such as the mentoring program on trial at Canterbury Girls and Boys High School, which have been successful in improving student engagement and reducing absenteeism and disruption.

53 Although Mr Smyth King described the provision of these programs and services as part of the defendant's ongoing activities, his evidence was not entirely clear in relation to when the specific programs and services he described in his statement were first implemented. Whilst it is clear that the defendant had provided a student welfare consultant to each of the defendant's 40 districts prior to the incidents involving Mrs Griffiths at Kurrambee in February 1999, and had implemented the mentoring program at Canterbury Girls and Boys High School after those incidents occurred, it was not clear when the remainder of the programs and services described were first implemented.

54 Mr Smyth King's evidence was that an additional $46 million would be spent between 2001 and 2005 to "help students with severe behaviour difficulties overcome their problems and remain engaged in education and training or make a successful transition to the workforce", increasing the total amount being spent each year to deal with behavioural issues in public schools to over $73 million. It was not clear whether this funding is part of the special education budget described by Mr Smyth King or in addition to it. However, it was clear that that funding would be spent extending the range of the existing services provided by the defendant, including:

(a) the establishment of 11 new schools; (b) the establishment of small "tutorial centres", where students with severe behavioural problems will work with specialist teachers to improve their literacy, numeracy and social skills; (c) 24 additional behaviour teachers and 22 Teachers' Aides (Special) to support young students who live too far away to travel to the new schools or centres; (d) 19 additional district guidance officers to work with students with behaviour difficulties; and (e) funding to increase transition programs for "students at risk".

55 Mr Smyth King was cross-examined in relation to the amounts spent by the defendant on employing Teachers Aides (Special) and on health and safety generally. Mr Smyth King was unable to answer questions regarding the actual amounts allocated to employing Teachers' Aides (Special) by the defendant generally or specifically at Kurrambee. Mr Smyth King was also unable to answer the prosecutor's questions as to whether any portion of the amounts referred to in Mr Smyth King's statement were, in fact, spent at Kurrambee. He gave evidence that the actual amount, if any, spent at Kurrambee on health and safety "would be a principal's decision".

56 In 2002, the Minister for Education and Training released a 10-point plan to improve special education services in government schools, covering issues such as reporting arrangements, training and staffing. In relation to staffing, Mr Smyth-King gave evidence that since 9 February 1999, the defendant had taken, and was continuing to take, active steps to review and improve its staffing arrangements. Specifically, "in 1999" the defendant had conducted a review of staffing for Schools for Specific Purposes (such as Kurrambee), resulting in a report written by Mr George Comino (the "Comino Report"). The Comino Report proposed a trial of an alternative model for allocating staff known as "resource based staffing". Trials were conducted in 13 schools in 2002 and were presently being conducted in 2003 in 51 schools.

57 In his statement, Mr Smyth King's evidence was that the defendant's policy concerning enrolment of students with disabilities was contained in the document "Enrolment of Students in Government Schools: A Summary and Consolidation of Policy" dated August 1997. Mr Smyth King was cross-examined regarding that document and he gave evidence that there had been no changes to that document since the incident at Kurrambee on 6 February 1999, or indeed since it was issued in 1997.

58 Mr Smyth King's evidence in his statement was that after the issue of the defendant's policy document in 1997, the defendant had issued the "Special Education Handbook for Schools" in February 1998, which supported the defendant's policies concerning the enrolment of students with special education needs and contained information about enrolment procedures, special education services, facilities and transport. Mr Smyth King's statement included the following explanation of this Handbook: The Handbook states that when a student with a disability presents for enrolment the principal must ensure that an appraisal of the student's educational needs is completed in consultation with parents and carers. Appraisal is the process of identifying the student's educational achievements, future goals, parent/carer expectations and the level and type of support needed to access the educational program. For some students this may have occurred in the year prior to the student entering primary or secondary school as part of the regular transition/enrolment process, or at another school. For other students, appraisal will need to be conducted at the time enrolment is sought.

59 According to Mr Smyth King, although the Handbook had been first published in 1998, it had been revised "in more recent years" with "additional information and material reflecting changes in practice". However, his evidence was inconclusive as to whether any such revisions or updates had occurred since the incident at Kurrambee in February 1999. Mr Smyth King was unable to confirm or deny whether the procedures in the Handbook had in fact been implemented, monitored or policed at Kurrambee.

60 Mr Smyth King gave evidence regarding the enrolment of AK at Kurrambee. He stated that Ms Julie Edwards, the Penrith District Student Services and Equity Coordinator, was pursuing placement for AK at Glenmore Park High School, and that: No transition program to Kurrambee School was arranged for AK because the expectation of DOCS and the Department was that he would be enrolled at Glenmore Park High School. Ms Edwards has no record or recollection of a discussion with Mr Terry about AK's enrolment. The Department established a support class at Glenmore Park High School for the six students to start in 1999 … The Establishment Form contained within Annexure G lists AK as one of the students who was to form part of the class. AK's mother approached Kurrambee School directly for placement.

61 The first paragraph set out above (being paragraph 30 of Mr Smyth King's statement) was admitted into evidence over the prosecutor's objections, firstly that the passage traversed facts that the Court had already found proven and, secondly that the passage included hearsay evidence. The evidence was admitted, subject to an evaluation of weight. The last sentence of that paragraph was admitted subject to the qualifications given by Mr Hodgkinson at the sentencing hearing that the statement was not in collision with the Court's findings at trial regarding the defendant's approval of AK's enrolment at Kurrambee, but rather was evidence only of the fact that the defendant has no other record of or explanation for that approval being given. Mr Smyth King was not cross examined in relation to this evidence.

62 Mr Smyth King gave evidence that the defendant had provided additional training and education since the incidents on 9 February 1999. In particular, State-wide training for school principals in matters of occupational health and safety took place in 2000, "in conjunction with the release of" a document entitled "The Occupational Health, Safety and Injury Management - A Guide for the Principal and Manager". In cross examination regarding this document, Mr Smyth King stated: Q Can you actually help by telling us what date that document came into existence? A That document is a general one in all schools in New South Wales and it has been put out into schools, it addresses areas of occupational health and safety [and] how it is management in schools. I can't tell the date on that specific document. Q Did it exist before the beginning of the school term beginning in 1999? You have not a clue whether it existed before or after the beginning of the school term in 1999? A Occupational health and safety is not my area, the area within the department I have specific management responsibility for.

63 According to Mr Smyth King, further training of principals took place in 2003. Mr Smyth-King's evidence was that this training "specifically deals with issues relating to students with challenging behaviour and includes examples of materials that would support a school in conducting risk assessments and the development of a risk management plans [sic]".

64 In cross-examination, Mr Smyth King stated that no directives have been issued at Kurrambee to the effect that a Teachers Aide Special should not be left alone with students and he was not able to confirm or deny whether there had been any specific changes or improvements to the emergency equipment provided to staff at Kurrambee since the incident involving Mrs Griffiths on 9 February 1999.

65 Mr Smyth King gave evidence that each principal should assess whether their school is able to remain operational in the event of a strike. Annexed to Mr Smyth King's affidavit is a copy of the memorandum to principals dated 4 February 1999 regarding the proposed Teachers' Federation strike on 9 February 1999. The memorandum stated: "Schools should be kept open, with closure occurring only in extreme circumstances."

66 During his cross-examination of Mr Smyth King in relation to his statement set out above regarding Mrs Griffiths' medical retirement from her position with the defendant, Mr Docking tendered a one-page letter from HealthQuest to the Department of Education and Training - Penrith District Office dated 18 October 2001, which was admitted into evidence. The letter confirmed that Mrs Griffiths was suffering from chronic Post Traumatic Stress Disorder, as a consequence she was unable to discharge her duties and that her disability "will in all likelihood prove permanent".

67 During his cross-examination of Mr Smyth King regarding the systems or processes adopted by the defendant in the event an employee was being assessed for medical retirement, Mr Docking sought to tender a bundle of documents which consisted of a 2-page letter from Ian Armstong, Staff Welfare Officer of the defendant's Penrith District Office to the Director of HealthQuest, dated 13 August 2001 together with a number of annexures ("the disputed documents"). The letter requested that Mrs Griffiths undergo a medical examination by HealthQuest to determine her fitness to continue her duties as Teacher Aide Special. The annexures consisted of:

(a) a formal Request for Services; (b) statement of sick leave relating to Mrs Griffiths; (c) "briefing notes" prepared by Mr Terry regarding Mrs Griffiths' workers compensation claim; (d) a number of completed forms relating to Mrs Griffiths workers compensation claim, including employee claim forms, employer's reports of injury, a statement of witness to an injury and medical certificates; (e) various letters and reports from Rehabilitation Case Management Pty Limited to the defendant's workers compensation insurer, Dr Roberts, Dr Pusic and to Mrs Griffiths; and (f) correspondence to Mrs Griffiths from the defendant's workers compensation insurer.

68 The witness identified the 2-page letter as being a referral from the defendant to HealthQuest.

69 The prosecutor submitted that the disputed documents were relevant as documents going to prove that the injury or emotional harm caused by the offences was substantial, thus evidencing the gravity or otherwise of the potential risk to safety flowing from the defendant's breaches. The defendant objected to the admission of the disputed documents into evidence.

70 The question of the tender was deferred to allow the defendant an opportunity to consider the contents of the disputed documents. The parties were provided an opportunity to make written submissions in relation to the tender of the disputed documents. The prosecutor's submissions in relation to the tender of the disputed documents were filed on 28 July 2003, and the defendant's submissions were filed on 4 August 2003.

71 In his written submissions, the prosecutor pressed the admission of the bundle of disputed documents and, in the alternative, admission of the 2-page letter which covered the bundle of disputed documents.

72 The prosecutor acknowledged the Court's finding in the Trial Judgment that the prosecutor had "failed to adduce any evidence that [any failure by the defendant to provide counselling or assistance as alleged in charge IRC 610 of 2001] caused Mrs Griffiths to suffer post traumatic stress syndrome, let alone evidence to prove the connection beyond reasonable doubt. In fact there was evidence that notwithstanding counselling, patients could develop post-traumatic stress syndrome. There was simply no evidence to establish her mental condition over the relevant period, nor any evidence to establish how that condition would have been affected, had the defendant acted in the manner suggested by the prosecutor". The prosecutor did not seek to traverse those findings.

73 However, according to the prosecutor, the disputed documents contained relevant evidence going to "proving that the injury or emotional harm caused by the offences was substantial". This, the prosecutor submitted, was an aggravating factor to be considered when determining sentence for an offence pursuant to s21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.

74 Section 21A of the Crimes (Sentencing Procedure) Act 1999 states: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(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.

(a) the Evidence Act 1995 applied to the question of admissibility of the disputed documents; (b) pursuant to s48(1)(d), which I assume from the context should be a reference to s48(1)(e), evidence may be adduced regarding the contents of a document that is tendered as a "business record"; (c) once admitted, the 2-page letter falls within the "business record exception" to the hearsay rule pursuant to s69(1) of the Evidence Act 1995; (d) further or in the alternative to being a business record, the 2-page letter is admissible in order to establish that an admission had been made by a party pursuant to s87 of the Evidence Act 1995 being a document which contains a "previous representation" made by a person (in this case, Ian Armstrong) "relating to a matter within the scope of that person's employment or authority". 76 The defendant objected to the admission into evidence of the disputed documents on the grounds that the proposed tender, together with the prosecutor's submissions in support of the tender, represented new material which sought to cavil with the ruling made by the Court in the Trial Judgment as set out above.

77 The defendant submitted that the disputed documents referred to new medical evidence which was incomplete and inconclusive. Specifically, the defendant submitted that the disputed document identified a conflict within the medical evidence, but did not identify the medical practitioners who have formed conflicting views nor did it attach or include reports of those medical practitioners.

78 The defendant submitted that the Evidence Act 1995 should not apply for the purpose of assisting the admission of the disputed documents and argued that the prosecutor was being disingenuous in his reliance on the Evidence Act 1995 in light of the fact that "the Prosecutor sought to adduce hearsay evidence and supported its introduction into the proceedings by reminding the Court that the provisions of the Evidence Act do not apply to sentencing hearings."

79 It was the defendant's submission that, if the Court finds that the Evidence Act 1995 applied in relation to the question of admission of the disputed documents, the disputed documents should be excluded pursuant to s4(3) of the Evidence Act 1995 as they would "not be significant in determining a sentence to be imposed in the proceeding", and/or that they ought to be excluded as a consequence of the exercise of the Court's general discretion pursuant to s135 of that Act.

80 The defendant submitted that, if admitted, the disputed documents would not assist the Court, relying on the Court's comments in WorkCover Authority of New South Wales (Inspector Farrell) v MIM Transport Pty Limited (2002) 112 IR 81 at 76 that "for the Court to take matters into account in a way that is adverse to the interests of a defendant in sentencing proceedings it is necessary for the matter to be proved beyond a reasonable doubt".

81 The prosecutor submitted that a direction should be made pursuant to s4(1)(d) of the Evidence Act 1995 that the laws of evidence apply in relation to the admissibility of the disputed documents. Section 4 of the Evidence Act 1995 sets out the application of that Act, and states: (1) This Act applies in relation to all proceedings in a NSW court, including proceedings that: (a) relate to bail, or (b) are interlocutory proceedings or proceedings of a similar kind, or (c) are heard in chambers, or (d) subject to subsection (2), relate to sentencing. (2) If such a proceeding relates to sentencing: (a) this Act applies only if the court directs that the law of evidence applies in the proceeding, and (b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters - the direction has effect accordingly. (3) The court must make a direction if: (a) a party to the proceeding applies for such a direction in relation to the proof of a fact, and (b) in the court's opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding. (4) The court must make a direction if the court considers it appropriate to make such a direction in the interests of justice.

82 Having regard to s4(2)(a), prima facie, the provisions of the Evidence Act 1995 do not apply to these proceedings. The prosecutor sought to have a direction that the rules of evidence apply, presumably to further his argument that the disputed documents are admissible (for instance, as a business record pursuant to s48 of the Evidence Act 1995), and to avail himself of the exception to the hearsay rule in s69(1) of that Act.

83 I do not propose to make a direction of the kind sought by the prosecutor. These proceedings do not "involve proof of" the facts asserted in the document. Nor do I consider that that fact "is or will be significant in determining a sentence to be imposed in the proceeding". Moreover, I do not consider it necessary to make such a direction in order for the disputed documents to be admissible, let alone that the declaration be made "in the interests of justice".

84 Having regard to the way in which the prosecutor has sought to rely upon this material in these proceedings, I am satisfied that the disputed document contains relevant evidence of the injury suffered by Mrs Griffiths: see for example the observations of the Full Bench in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 where the Full Bench stated (at 453): The general duties created by the OH&S Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work.

85 Having established that the document is relevant, it is to be seen as, prima facie, admissible. Moreover, there is nothing in the material that would warrant the exclusion of the document on the basis that its probative value is outweighed by prejudice to the defendant. Indeed, there is, in my view, nothing in the document which could be seen as prejudicial in the relevant sense - that is, that there is nothing in the document that creates a risk that the evidence may be in some way misused.

86 However, having made those observations, it should be emphasised (as did the Full Bench in the extract from Drake Personnel set out above) that the consequences (or the potential consequences) of a particular incident do not, of themselves, dictate the seriousness of the offence or the amount of penalty. As was emphasised by the Full Bench in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Maugher) (2002) 115 IR 78 at [29] by reference to the judgment of Hungerford J in WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 at [43], the penalty imposed must be determined by reference to "the offence".

87 To again reiterate what was observed by the Full Court of the former Industrial Court of New South Wales in Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, Glynn and Cullen JJ, 30 June 1992) in which the Full Industrial Court stated (at 9) (and as approved in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476): The primary factor falling for consideration in relation to penalty, is the nature and circumstances of the offence . The result of the circumstances may be relevant in a very limited way, in the sense that it may illustrate the seriousness of the act or omission involved in the breach of statutory duty being assessed. Obviously a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences. (emphasis added)

88 The Full Court again in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 650 stated: The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety.

89 The defendant resisted the admission of the disputed documents into evidence, arguing that the documents do not assist the Court to determine sentence. While I am inclined to agree that the disputed documents have relatively little probative value in relation to determination of penalty in these matters, the admission of those documents will not unfairly prejudice the defendant. Accordingly, the disputed documents are admissible.

90 The prosecutor has gone to great lengths in the course of these proceedings to convince the Court that there is a "causal link" between the assaults on Mrs Griffiths and her medical condition. As I have indicated to the prosecutor in the course of the proceedings, I do not consider that such a link is necessary firstly for the disputed documents to be admissible in these proceedings or secondly to enable me to have regard to Mrs Griffiths' medical condition as a relevant manifestation of the gravity or otherwise of the potential risk flowing from the defendant's breach. However, the consequences that flow from the incident, and indeed the very fact of her injury, do not significantly add to my consideration of the objective seriousness of these offences. The gravity of the risk to safety flowing from the breaches in this matter is adequately demonstrated from the nature of the risk and the circumstances of the incident giving rise to the prosecution.

Submissions Submissions of the prosecutor

91 Mr Docking submitted that the three offences found by the Court to be proven were "extremely serious and significant".

92 The prosecutor adopted and sought to rely on the factual findings of the Court on issues of foreseeability in the Trial Judgment.

93 The prosecutor submitted that the primary factor to be considered when determining the appropriate sentences is the objective seriousness of each of the proven offences and that, particularly in cases involving a serious breach, subjective factors must play a subsidiary role in the determination of penalty.

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.

95 In relation to subjective features of the matter, the prosecutor submitted "it is difficult to point to any subjective circumstances that favours this defendant".

96 The prosecutor submitted that "when sentencing a defendant for multiple offences, the Court is required to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality".

97 The prosecutor filed "Submissions in Reply on Two Issues" on 11 August 2003, those issues being payment of a moiety to the prosecutor pursuant to s122(2) of the Fines Act 1996 and apportionment of costs.

98 In relation to the payment of a moiety, the prosecutor submitted that: (a) the payment of a moiety is an established practice and consistent with the historical background of the right of a prosecutor to receive a portion of the fine, the usual case being that a moiety would be accorded to the prosecutor unless good reason is otherwise shown, either as to cause or amount. The prosecutor cited Kirkby v A & M I Hanson Pty Limited (unreported, Hungerford J, 13 September 1994) and WorkCover Authority of New South Wales (Inspector Ford) v Warrah Ridge Pastoral Co Pty Limited (unreported, Bauer J, 23 September 1994) in support of these propositions. In the present cases, the defendant had not persuaded the Court that a moiety should not be ordered; (b) the prosecutor has provided evidence, in the form of the affidavit of Mr Cahill, as to why the Court should order payment of a moiety to the prosecutor. Mr Cahill's evidence established that the PSA undertakes widespread activities, including education, training, inspections and prosecutions in the area of occupational health and safety, at the PSA's expense. Payment of a moiety to the PSA to enable it to continue to fund such activities is good public policy; (c) Payment of a moiety contributed to both general and specific deterrence; and (d) The prosecutor "will remit any part of the fine ordered to be paid to him to the PSA to be dealt with according to its rules".

99 The prosecutor sought an order for costs in his favour, but with leave to apply to the Court to fix the quantum if agreement cannot be reached. In relation to apportionment of costs, the prosecutor submitted that: (a) The judgments of French J in Inn Leisure Industries Pty Ltd (Provisional liquidator appointed) v D F McCloy Pty Ltd and Anor (No 2) (1991) 28 FCR 172 at 173 - 174 and J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, Western Australian Branch and Anor (No 2) (1992) 46 IR 301 at 302 - 303 apply; (b) costs should follow the event and no apportionment of those costs should be made in the defendant's favour because all charges arose from a common substratum of fact requiring the same evidence irrespective of the outcome; (c) the result on costs should be the same as in WorkCover v Kevin R Sheather Electrical Services Pty Limited [2001] NSWIRComm 294; and (d) in the alternative, the prosecutor submitted there should be a minor apportionment of the costs recoverable by the prosecutor from the defendant, indicating an amount less than 50%, on the basis that the defendant "has not provided any real assistance to the Court to make out its contention that there should be any apportionment of costs".

100 The defendant made oral submissions on sentence at the hearing on 25 July 2003. Mr Hodgkinson submitted that the defendant undertakes a very difficult task of providing education services to severely disabled children, a task that it has a statutory obligation to undertake. The circumstances in which those education services are provided are very difficult to manage, for reasons including the fact that there are many varied and unpredictable factors which may trigger an inappropriate or violent reaction in a severely disabled child. In this context, the defendant submitted that the case is unique, and "it is a case where there is a conflict between the provision of appropriate educational services and the capacity to meet the very strict obligations of the Occupational Health and Safety Act". In making these submissions the defendant asserted that it is not seeking to cavil with the Court's earlier ruling in the Trial Judgment, but to highlight the various mitigating factors which are appropriate to consider.

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.

102 The defendant submitted that the above factors should be considered as balancing considerations of general and specific deterrence. In relation to general deterrence, the defendant submitted that the defendant operates in "a relatively restricted field", in that there are few other organisations providing education services to children with severe mental disabilities.

103 The defendant submitted that the defendant's past history should be considered having regard to the size of the defendant's operations, the number of schools it manages and the very difficult circumstances in which it operates. The defendant submitted that the approach the Court should take is, firstly, to give greater weight to prior convictions relevant to the Department of Education and Training (as opposed to prior convictions of the Crown generally) and, secondly, that the Court should consider whether prior convictions of the Department arose from a similar area of endeavour in a similar way. The defendant submitted that the Court should reach the same conclusion in relation to the defendant's prior convictions as it reached in relation to WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of New South Wales (Department of Education and Training) [2001] NSWIRComm 313.

104 The defendant agreed that the maximum penalty in each of these cases is $825,000.

105 In relation to moiety, the defendant submitted that payment of a moiety is contemplated when the payment is to be made to a statutory authority (such as the WorkCover Authority) which has been set up for specific statutory purposes. The defendant submitted that this was the approach adopted by Hungerford J and Bauer J respectively in Kirkby v A & M I Hanson and Warrah Ridge. Section 122 of the Fines Act, which regulates the question of moiety, dictates that any moiety must be paid to the prosecutor - the Court's discretion being limited to considering the question of payment of a moiety generally. The defendant submitted that there was no evidence and no authority given in categorical terms that any amount paid to Mr O'Sullivan personally as prosecutor in these matters will, in fact, be delivered to the PSA, and neither is there a strict legal obligation on him to do so.

106 The defendant submitted that the issue of payment of a moiety is not "an issue at large, as one might consider culpability", and that the defendant's interest in making submissions on this issue was limited to informing the Court of the appropriate position to adopt in order to avoid falling into error.

107 In relation to costs, the defendant submitted that, while it is an established principle that costs follow the event, the prosecutor advanced a series of matters to the Court, each of which required individual consideration. Having dealt with each matter individually at trial, the Court should determine costs of each matter similarly. The defendant submitted that determining costs in this way encourages precision in prosecutions. There are good public policy reasons for such precision - firstly so that the charge can be known and, secondly, so that the Court may make an appropriate ruling based on relevant evidence.

108 In light of these submissions, the defendant submitted that there should be an apportionment of 50% of the costs recovered by the prosecutor from the defendant. The defendant submitted that the approach to apportionment should not be a mathematical one, and that regard should be had to both the charges and the way those charges were dealt with in the proceedings.

109 I have previously discussed the principles to be applied in relation to the sentencing of an offender under the Act; see for example, WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (1999) 95 IR 383 (at 427 - 433), which, as I observed in WorkCover Authority of NSW (Inspector Lyons) v Warman International Ltd (2001) 105 IR 236 (at [65]) must now be read in light of the more recent Full Bench authority in Capral Aluminium. More recently these principles were discussed and applied in Inspector Barbosa v McDonalds Australia Limited [2003] NSWIRComm 196. I adopt those statements of principle for the purpose of this judgment.

110 As is clear from a review of those authorities and as I observed in WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd t/a Style Wise Interiors (2002) 113 IR 78 (at [61]-[62]), one of the most significant contemporary statements of principle in relation to the determination of penalty in sentencing proceedings under the Act is to be found in the judgment of the Full Bench in Lawrenson Diecasting (at 474 - 475).

111 A foremost principle espoused in Lawrenson Diecasting is that the primary factor to be considered when determining an appropriate sentence under the Act is the objective seriousness of the offence charged, that is, the nature and quality of the particular offence charged. Subjective factors that mitigate the seriousness of the offence must be taken into account. However they must play a subservient or secondary role to the consideration of the nature and quality of the offence: see also WorkCover Authority of New South Wales (Inspector Martin) v Byrne Civil Engineering Constructions Pty Limited (No 2) (2001) 109 IR 347 at [19].

112 The recitation of principle in Lawrenson Diecasting has been followed on numerous occasions (see Newstart at [61] and the judgments there referred to). To that extensive list of decisions I should add the recent judgment of the Full Bench in Ridge Consolidated, where the Full Bench held: 28 Further, we would reiterate what was observed by the Full Court of the former Industrial Court of New South Wales in Hannah v Wonar Pty Limited (unreported, Fisher CJ, Glynn and Cullen JJ, 30 June 1992) in which the Full Industrial Court stated (at 9) (and as approved in Lawrenson Diecasting at 476): The primary factor falling for consideration in relation to penalty, is the nature and circumstances of the offence. The result of the circumstances may be relevant in a very limited way, in the sense that it may illustrate the seriousness of the act or omission involved in the breach of statutory duty being assessed. Obviously a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences. (emphasis added) 29 As was emphasised recently by Hungerford J in WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 at [43], the penalty imposed must be determined by reference to the offence.

113 I also note the approach to sentencing in Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 339 (which was followed by Hungerford J in WorkCover Authority of New South Wales (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333 and by me in McDonalds Australia Limited (2000) at 431) as follows: The approach to the determination of penalty in cases such as these is now well settled. The penalty must reflect the nature and quality of the particular offence; the level of penalty must, on the one hand, compel attention to occupational health and safety risks in order to ensure that persons are not exposed to such risks at their workplaces but, on the other, must not be oppressively high.

114 Noting that the offences differ in their nature and quality and that the charges relate only to failures on 9 February 1999, it is useful to commence a discussion of the objective seriousness of the offences by a broad discussion of the detriments to safety occasioned by the defendant in respect of the proven offences. Broadly stated, those risks to safety are threefold.

115 Firstly, there was a failure to provide adequate human resources on 9 February 1999. The nature of the risk associated with this failure is self evident: left alone to supervise a relatively large group of severely disabled students, many of whom were known to be violent (and some such as AK whose violence was undisclosed), Mrs Griffiths was exposed to a risk that she would be assaulted by one of the students and therefore suffer serious harm.

116 Secondly, there was a failure to provide Mrs Griffiths with adequate information or instruction regarding AK, including adequate information regarding the potential harm that she could sustain while in contact with AK. Again, the risk associated with the defendant's failure is clear: left alone to supervise AK, without knowledge of his potential to be violent, the triggers of his violence, the nature of his violent behaviour, the "incident prevention" measures that could be implemented, the appropriate responses to his behaviour and the responses which would invite aggression and must be avoided, Mrs Griffiths was exposed to a risk that she would be assaulted by AK and suffer serious harm.

117 The defendant conceded that its enrolment policy was not followed in the case of AK's enrolment at Kurrambee. As a result, no appraisal was conducted of his educational or support needs. No real consultation took place with AK's parents. There was no effective transition process to manage AK's enrolment at Kurrambee. The defendant's failure to follow its own enrolment policy demonstrates a manifest failure in the system of work that was in place to, inter alia, protect the safety at work of staff.

118 Nevertheless, further information regarding AK's behaviour was available prior to AK commencing school at Kurrambee. The Petrie Report set out in unambiguous terms the fact of AK's aggression, the nature of his aggressive behaviour, the broad triggers for his aggression and a warning that aggression should be expected at any time. However, the Petrie Report had been placed on AK's file at Kurrambee without the principal or any of the teaching staff seeing it. Again, the defendant's failure to ensure the dissemination of this crucial information to staff who would have contact with AK is a serious flaw in, or failure of, the defendant's procedures.

119 The risk to safety arising from the defendant's failure to provide adequate information or instruction regarding AK is clear. The inevitable effect of sending a staff member into a classroom with AK, without first arming that person with vital knowledge of AK's potential to display aggressive and violent behaviour and the nature of it was to create a risk to the safety of the employee having to manage that student.

120 Thirdly, there was a failure to provide adequate emergency devices to call for help to avert or minimise the risk of harm, the relevant risk to Mrs Griffiths on 9 February 1999 being this: having been placed by the defendant in a volatile situation where she needed to call for help, she was forced to use a fixed telephone, making her vulnerable for the period of time needed to use the telephone and exposing her to a risk that she would be assaulted by violent students and suffer serious harm.

121 Further, in each case, the risks were such that there was a high likelihood of serious injury of physical or psychological harm, which was, in part, demonstrated by the assault on Mrs Griffiths. As earlier mentioned, the gravity of the risk to safety flowing from the breaches in this matter is adequately demonstrated from the nature of the risk and the circumstances of the incident giving rise to the prosecution. I also note the premature retirement of Mrs Griffiths.

122 The maximum penalty is also relevant to the assessment of the objective seriousness of the offences. I find that (and the prosecutor and defendant agreed that), having regard to the defendant's prior convictions, the maximum penalty for each offence in these proceedings is $825,000 (see s51A of the Act and the Full Bench judgment in Capral Aluminium). It is a widely accepted view that the maximum penalty for an offence "reflects the 'public expression' by parliament of the seriousness of the offence … a large penalty indicates the gravity of the offence as perceived by the community". (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698).

123 Finally, before undertaking a particular assessment of the objective seriousness of each offence, it is necessary to make some comments in relation to general deterrence. The defendant argued that a message sent by the Court by way of general deterrence would be sent to a relatively restricted field, submitting that "we are not looking at a matter that is going to affect major aspects of industry, because there aren't many organisations or the like that look after this particular kind of area". I do not agree. The purpose of general deterrence in sentencing an offender under the Act is clear and well established. The Court in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388 stated that: The fundamental duty of the Court in this important area of public concern … [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace.

124 This statement was approved by the Full Bench in Capral Aluminium (at 643 - 644), where the Court also stated that "the need for general deterrence in relation to serious offences under the Act is undeniable". I note also the decision in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at 301 - 302 where the Court held: The purpose of the Act is well known and often referred to in judgments of this Court. In my view, it is important, when considering notions of general deterrence, that the Court be cognisant of the fact that the Act is for the benefit of the public generally and particularly employees at work. The goal is the prevention, deterrence and punishment of breaches of health and safety requirements. The notion of general deterrence is well understood. However, in my view, and in accordance with what was stated by the Full Court in Capral Aluminium (at pars 72-74), in cases such as this, it should be reiterated that "one of the main purposes of punishment, … is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment" (emphasis added): R v Rushby [1977] 1 NSWLR 594 at 597 per Street CJ citing R v Radich [1954] NZLR 86 at 87 (adopted by this Court in Capral Aluminium at par 72).

125 There is no doubt, and the defendant did not deny, that general deterrence is a relevant factor to be considered when assessing penalty. However, there is no warrant for a reduction in penalty because the industry is small and the potential deterrent effect is limited to only a few employers (which I do not concede in the present cases). Indeed, such an argument is misconceived. The imposition of a penalty that is consistent with the seriousness of these offences acts as a deterrent by compelling attention to the Act by all employers in the education sector and industry generally.

126 In any event, I am not convinced by the defendant's argument that the field is limited. In the present cases, the employer is the Crown in the Right of the State of New South Wales, through one of its administrative arms of government, the Department of Education and Training. It may be true that no other employer in New South Wales conducts its business on the same scale as the defendant or administers its business in the same manner as the defendant. However, it does not follow that there are no other employers in New South Wales who engage in the same industry, that is, providing educational services to disabled children. It is not difficult to envisage a wide variety of workplaces (other than the defendant's workplace) which involve employees caring for, or interacting with, disabled (and potentially violent) children.

127 I turn now to a consideration of particular aspects of each of the offences relevant to the consideration of their objective seriousness.

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.

129 Evidence was adduced at trial that the defendant had itself identified the risk generally (although not necessarily the specific risks that may arise in circumstances where staffing levels may be reduced such as on a strike day), and had contemplated the measures that could be taken to minimise the risk. In the Trial Judgment, the Court accepted the following facts: [30] A submission dated 15 December 1997 by Kurrambee to the defendant for additional resources noted that in the 1997 school year staff reported twenty five injuries from student violence (which included hitting staff with furniture and other objects, head-butting and scratching) sufficiently serious to be recorded in the school register. [31] Notes of staff meetings held on 5 November 1998 and 16 November 1998 reinforced the evidence that violence against staff and other students (particularly physically vulnerable students) had been a matter of concern for some time. Some solutions were suggested in a "brainstorming session" by staff, including the provision of a "withdrawal area"; inviting WorkCover to inspect and assess the school in the context of student violence against staff; requesting extra staff from the defendant; and training and development. According to Mrs Griffiths, as at 8 March 1999 none of these suggested solutions had been implemented.

130 The prosecutor submitted that all of the offences were "extremely serious and significant". The defendant did not argue that the offences were not serious per se, only that the objective seriousness of the offences should be considered in the context of, and balanced with, the difficult circumstances in which the defendant operates and the unusual circumstances on the day of the assault (including that there was a teachers' strike). In determining the appropriate penalty in this matter, I accept that there was an unexpected and unusual combination of circumstances on the morning of 9 February 1999, which contributed to the defendant's staffing difficulties. Nevertheless, I consider that, on balance, the defendant's failure to provide adequate resources constitutes a serious offence for the following reasons.

131 I am satisfied that the risk to safety posed by the defendant's breach was not only reasonably foreseeable, but that the risk of assault was 'known and avoidable'. Such a conclusion is inescapable, given the uncontroverted evidence that Mrs Griffiths was left alone to supervise dangerously violent students in circumstances where she expressly stated that she did not want to be left alone; the principal agreed she should not be left alone; and staff and management were aware that violent students could attack and injure a staff member.

132 It is appropriate to have regard to the foreseeability of the risk when determining the objective seriousness of an offence. The Court in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 stated that: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) , the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant.

133 The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature: Capral Aluminium at [82].

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)

135 As earlier mentioned, I have, however, taken into account in favour of the defendant the unexpected and unusual circumstances confronting the defendant on 9 February 1999, including the context in which those circumstances arose. I have no doubt that supervising and teaching students at Kurrambee is both physically and emotionally demanding. A significant majority of students at Kurrambee suffer from severe intellectual disabilities. As well as being intellectually disabled, many students suffer from physical disabilities such as autism, cerebral palsy, epilepsy and muscular dystrophy. There are some students who have psychiatric disabilities that none of the teachers are competent to manage. In those circumstances, teachers and staff (such as Teachers' Aides) are required to work with a student population that consists of children who are unpredictable and violent, as well as children who are immobile and therefore susceptible to attack by violent students. The difficulties associated with managing and carrying out such work are patently clear.

136 Further, the morning of 9 February 1999 was no doubt difficult and busy, escorting children to classrooms, assessing class sizes as more children arrived, making decisions about the most effective distribution of staff and students where there was a shortfall due to the teachers' strike, and supervising students, some of whom were agitated by the change in routine. I acknowledge also that the complex care and guardianship arrangements for many of the students at Kurrambee are such that it is not a simple matter for the defendant to close its doors in the event of a teachers' strike, or to refuse to accommodate particular students in that event. Group homes are not necessarily staffed in a way that enables students to easily return to the home during normal school hours. Even the issue of transporting severely disabled students back to their homes in such circumstances poses difficulties.

137 Whilst the consequences flowing from a breach of the Act may be relevant as a manifestation of the gravity or otherwise of the potential risk to safety, I would reiterate what was stated by the Full Bench in Hannah v Wonar (at 9), that a "breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences". I am more than satisfied that by leaving Mrs Griffiths alone in the circumstances of 9 February 1999, there was every prospect of serious consequences. Further, there was, in fact, serious consequences with Mrs Griffiths suffering physical injuries and psychological trauma.

138 I have already stated with approval the view expressed by the Full Bench in Capral Aluminium regarding the role of general deterrence in the sentencing process. General deterrence will feature in the assessment of penalty in this matter.

139 I have discussed earlier the nature of the risk associated with the defendant's failure to provide adequate information and instruction regarding AK. Evidence was given at trial 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.

140 The relevant finding at trial was that this is precisely what the defendant did. For the reasons set out below, I consider the defendant's breach a serious one.

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.

142 The availability of simple and obvious remedial measures to avoid the risk of assault is also a matter that demonstrates the seriousness of the offence: Lawrence Diecasting at [476] and Kembla Coal and Coke at 27.

143 In the present case, the type of steps that could have been taken included instituting a transition programme, requesting further information regarding AK's history from his legal guardian, the Department of Community Services, requesting more extensive information from AK's mother and improved communication between Kurrambee and the defendant's District Office regarding AK's enrolment at Kurrambee. At the very least, following the defendant's established enrolment procedure was an obvious step that could have been taken to avoid the risk. By doing so, it is likely that one or more of the steps set out above would have automatically followed and the necessary information would have been discovered or obtained and passed on to the principal and teachers. I acknowledge, however, that a system was present, but note that the system was inadequate to ensure that the information regarding AK reached the staff who were required to supervise AK at school. 144 This is not a case where the defendant had no systems in place as to provision of information. Rather this is a case where the defendant's systems were inadequate. The existence of settled safety systems is a factor which is relevant to the assessment of the seriousness of the offence, although any such system must also include searching for and identifying all possible risks and instituting safety measures to guard against those risks: McDonalds at 441.

145 There is evidence that the defendant had in place a system for the collection and distribution of important information regarding students. However, a flaw in that system, or an unfortunate combination of flaws, resulted in the system failing in relation to AK, leading ultimately to what was no doubt a horrific experience for Mrs Griffiths.

146 The system failures in this case were twofold - firstly, AK was allowed to attend Kurrambee without staff being given information concerning his behavioural problems or details of strategies to manage or to control him, and, secondly, the defendant failed to follow its own enrolment procedure. It is possible, and in fact probable, that the second failure was instrumental in causing the first.

147 The defendant has not suggested that it was impracticable or beyond its control to provide information to staff regarding AK's violent behaviour and ways to manage or control it. The existence of the Petrie Report on AK's school file demonstrates that the defendant understood the need for such information. The Petrie Report was commissioned by the Department of Community Services and prepared by an appropriately experienced and qualified person, prior to AK's enrolment at Kurrambee. The Petrie Report contained an extensive analysis of AK's violent behaviour, the triggers for such behaviour, and the appropriate (and inappropriate) responses to his violence. It is unclear how the Petrie Report came to be on AK's file at Kurrambee without being seen by the principal or staff at Kurrambee. The Court discussed in the Trial Judgment the importance of the Petrie Report at [159], stating: Before AK commenced at Kurrambee, another of the defendant's departments possessed a valuable, detailed report (Mr Petrie's report) on AK's propensity for violence and risk minimisation strategies, commissioned specifically for the purpose of promoting the safety of people who came into contact with AK. The evidence also established that, had the enrolment procedure been followed, this report would probably have been provided to the school; at the very least, the enrolment procedure would have established a formal channel of communication between AK's carers and the school.

148 At trial, the prosecutor adduced the following evidence of the defendant's failure to provide information: [160] In addition to submitting that Mr Petrie's report should have been made available to the school, the prosecutor submitted that the defendant should have obtained relevant information itself through functional assessment: even a preliminary functional assessment would have "identified the intensity of his aggression and violence and permitted steps to be put in place". Apart from the fact that the school had been advised that AK had a history of violence, the evidence of both Mrs Griffiths and Mrs Sparrow demonstrate that, even in his first few days of attendance, AK exhibited a worrying level of violence. Dr Stephenson gave evidence that an initial functional assessment interview with caregivers and teachers should be conducted immediately in the case of a student who exhibited violent behaviour, and that such an assessment could be usefully carried out before enrolment to identify aggressive behaviour. Again, one would expect that such an interview with caregivers in this case would have disclosed Mr Petrie's report.

149 The defendant did not dispute that its failures as particularised in the charge were established by this evidence.

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.

151 There is some doubt as to why and how AK came to be enrolled at Kurrambee rather than in a support class at Glenmore Park High School. The evidence provided by Mr Smyth King, which I accept, indicates that steps were being taken to enrol AK at Glenmore Park High School, that information regarding AK was "only sketchy", and that assessment of his skill level and needs would need to be carried out. The fact that the defendant may have intended that AK be enrolled at Glenmore and that further assessment would then have been carried out indicates that steps were being taken to ensure that the necessary information was collected and disseminated. On the other hand, having regard to the circumstances of this matter, those facts also demonstrate the inadequacies of the defendant's systems and processes. This is further demonstrated by the fact that the defendant can not account for how the enrolment policy failed and in particular how the Glenmore arrangements were not carried out.

152 One can only speculate whether the relevant information may have been disseminated had AK's enrolment at Glenmore Park High School proceeded. In the event, AK was enrolled at Kurrambee in circumstances where the established enrolment policy was not followed, and the Petrie Report was not provided - both of which represent failures in the defendant's system.

153 In the Trial Judgment it was found that: The relevant question … is whether the provision of [personal duress] alarms or mobile methods of communication would have prevented further risks arising. I am satisfied that the answer to that question is "yes". The limitations of an ordinary, fixed telephone system in a situation of direct threat by a determined and violent person are obvious…the defendant's failure to put in place adequate emergency equipment to call for assistance caused the detriment to Mrs Griffiths' safety on 9 February 1999 in that she had no choice … but to call for assistance from a fixed ordinary telephone system, thereby standing immediately in the vicinity of a dangerously violent student wielding a chair with her back to him, the very act said by Mr Petrie to increase the risk of assault. [172]-[174]

154 Further, the Court identified the potential risk to safety posed by the defendant's existing emergency system: [173] …The limitations of an ordinary, fixed telephone system in a situation of direct threat by a determined and violent person are obvious. Not only are they fixed; they can also be rendered inoperable by an aggressor.

155 In its consideration of culpability, the Court found that the provision of a portable duress alarm, rather than providing a fixed telephone for raising an alarm, was an obvious and practical step that the defendant could have taken to avoid or minimise the risk of assault. In the Trial Judgment, the Court stated: [173] … A portable duress alarm, connected to the main office, was certainly a practical step which could have been taken by the defendant to permit Mrs Griffiths to avoid further risk by calling for assistance in circumstances where she was unable to leave the classroom or reach the fixed telephone by the doorway without exposure to the risk of assault. The evidence established that there was always someone present in the administration area between 8:30am and 4pm, and that the staff were trained to respond automatically and immediately to any activation of the alarms in the shower block. Mrs Griffiths' evidence further established that she would have activated a portable duress alarm the instant Mrs Crompton left the room. Not only would activation of such an alarm result in external aid without the need for explanation; it would also gave given Mrs Griffiths more options to avoid confrontation. Left alone in dangerous circumstances, she would not have been obliged to make for a fixed point in order to call for help: she would have been able to manoeuvre between the divided classrooms, as circumstances developed, without sacrificing her very real need to call for assistance.

156 I am satisfied that not only was the risk reasonably foreseeable, it was actually foreseen, thereby increasing the overall seriousness of the offence: Warman International. Duress alarms were fitted in the shower block at Kurrambee and the defendant had taken steps in the past to investigate the suitability of one type of personal duress alarm. Indeed, Mr McKenzie's evidence was that a trial of personal duress alarms at Kurrambee was "motivated by the attendance of a particularly violent student at the time".

157 During the trial, evidence was given regarding the use and availability of personal duress alarms. This was described in the Trial Judgment as follows: [101] The prosecutor called a probation officer, Mr Peter White, to give evidence that at the time of the assaults personal duress alarms existed. The alarms could be worn around the neck or in the pocket, and were activated by pressing a button, whereupon they emitted a loud noise. Mr White had seen other personal alarms with the facility to activate a blue flashing light in a separate room or to activate a signal in a separate building, such as a nearby police station. It was not clear from the evidence whether these alarms were fixed or mobile, or whether they would identify their location. The range over which these devices worked was not given, the witness having only seen them operate over short distances within the same building, when potential rescuers knew in advance the precise location of the person activating the alarm.

158 Other than Mr McKenzie's evidence regarding the unsuitability of the particular type of duress alarm trialed, the defendant did not offer any explanation for its failures as particularised in this charge. In submissions at trial regarding a possible defence to the charge, the defendant conceded that: [170] … it would not make any submission to the effect that provision of such equipment was not reasonably practicable. Nor did it make any submission that the provision of such equipment would be beyond its control…

159 I note in this respect the observation of the Court in 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 at 12 as follows: It would have been all too easy to have provided Ms Cleary with a duress alarm or mobile telephone with a panic button which would have enabled her, at the time she first became concerned for her safety … to call for help without having to rely on the likely unavailable, but certainly impracticable facility of an ordinary telephone handset which could have been rendered unworkable by the client even if Ms Cleary could have reached one of the two handsets available. The situation was exacerbated by the fact that Ms Cleary was alone in the group home with the client …

160 Similarly to Tuckley, the defendant in this matter could have easily provided Mrs Griffiths with a portable duress alarm, mobile telephone or panic button. Mrs Griffiths' evidence was that had she had a duress alarm, she would have used it and possibly avoided further injury. As it was, the equipment provided to her was manifestly inadequate to protect her safety in the event of assault by a violent student. The fact that there were simple and practical steps which could have been taken to avoid the risk, and that the defendant had investigated and was aware of those steps, contributes significantly to my assessment of the seriousness of the offence.

161 Having regard to the matters discussed above regarding the defendant's failure to provide adequate alarms, it is appropriate to interpose a discussion of specific deterrence at this juncture.

162 In this respect, I shall apply the principles in relation to specific deterrence as set out in Capral Aluminium at [71] - [80]. In particular, I reiterate what was said in that case at [77] that: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (Court of Criminal Appeal, 19 August 1997, unreported) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (Court of Criminal Appeal, 8 December 1995, unreported). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely reactive: WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future.

163 Having regard to those principles, I consider that these are not cases where specific deterrence should be disregarded, for instance because the risk of re-offending is low or non-existent, or as a result of the rehabilitation of the defendant. Rather I consider that this is a significant basis for specific deterrence.

164 Evidence was adduced at the sentencing hearing to show the extent to which the defendant has shown itself to be diligent and proactive since the incident on 9 February 1999. Mr Smyth King's evidence indicates that the defendant is committed to improving and enhancing the services it provides to disabled children, and the Court has seen evidence of the extensive financial resources that have been, and continue to be, allocated to this task. In addition, the defendant has shown that it is actively investigating and reviewing important aspects of its operations, such as staffing levels and enrolment procedures. These actions are commendable. However, despite the significant resources available to the defendant, and the significant expenditure of time and money by the defendant, there is little evidence of any steps having been taken at Kurrambee to address the real and obvious risks to safety which were made manifest in the assault on Mrs Griffiths, and which presumably continue to exist.

165 As to the introduction of duress alarms or other emergency devices at Kurrambee, the defendant has done little in the face of a known and avoidable risk, where simple and straightforward steps are available to minimise that risk, and in circumstances where the risk had, in fact, manifested itself on several occasions, including the assault on Mrs Griffiths which led to the present prosecution. There was no evidence that any such steps had been taken since the assault on Mrs Griffiths to prevent the same or similar risk arising in the future by means of alarm systems. Mr Smyth King's evidence was inconclusive in this regard. He was unable to say whether the defendant had made changes to the ordinary telephone system in the classroom in which Mrs Griffiths' worked, or whether personal alarms or mobile telephones had been issued to Teachers' Aides (Special) at Kurrambee.

166 The defendant's failures to act in this area confirms the need for specific deterrence. I refer to the judgment of the Full Bench in Capral Aluminium at [76], where it was stated: ...the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence.

167 Further, the defendant did not offer any evidence of the precautions it had taken to minimise the risks associated with the provision of human resources, or limitations on human resources, at Kurrambee. Although evidence was given that the defendant was conducting trials of a different model for allocating staff, Kurrambee was not participating in those trials, and no evidence was presented of the outcomes of those trials other than that a revised profiling instrument had been developed which teachers described as having "high levels of validity and reliability across school and contextual settings". In cross-examination, Mr Smyth King gave the following evidence: Q Has any directive been issued now that is to say that [if] there was a strike, a Teacher's Aide (Special) such as Mrs Griffiths should not be left alone in a school such as Kurrambee? A No

168 As to the 'information' charge, there also appears to be little done to ensure there are no further breaches of the Act relating to a failure to provide adequate information. Further, there is evidence that the type of deficiency that led to the defendant's breach in the present case appears to still exist at Kurrambee. In 2000, after the incident that gave rise to these prosecutions, the defendant undertook an audit of enrolment procedures at selected Schools for Special Purposes, including Kurrambee. In this regard the Trial Judgment included the following finding: [45] In the case of Kurrambee, the auditor concluded that the school files were poorly documented. For example, six of the seven students enrolled after March 1998 lacked Appraisal Reports or indeed sufficient information to verify their disability classification. The auditor noted that relevant student information had been sent to the District Guidance Officer but did not appear on the school files, suggesting a break down in local registry procedures. In all, the classification of approximately 75% of the students could not be verified due to the fact that few students were subject to a formal annual review.

169 On balance, I agree with the prosecutor's submission that, given the nature of the defendant's activities, there is a potential risk of re-offending of the type that occurred and that specific deterrence should feature in my assessment of penalty (although I will balance this consideration against the subjective features to which I now turn).

170 The Court heard from Mr Smyth King, who expressed regret in relation to the incident involving Mrs Griffiths. I accept that measure of contrition.

171 I note that little evidence was adduced by the defendant as to its response to the assault on Mrs Griffiths. Mr Hodgkinson submitted that the defendant's evidence in this regard should properly focus on the risk, rather than the particular circumstances of the incident.

172 The Court heard evidence from Mr Smyth King regarding the defendant's efforts to improve workplace safety generally. The defendant commits significant funds to the provision of special education in New South Wales. That funding contributes to, amongst other things, increased human resources and the development of programs to assist schools to deal with and overcome students' behavioural problems.

173 According to Mr Smyth King, there have been some changes to the defendant's practices following the incident involving Mrs Griffiths. He gave evidence that school principals have undertaken further training, including training that deals with issues relating to students with "challenging" or violent behaviour. Some preventative programs have been implemented, such as the mentoring program at Canterbury Girls and Boys High School. I have taken these matters into account, together with the defendant's overall endeavours to improve special education services by allocating additional funding, in my consideration of the subjective features of these matters.

174 As to the question of the defendant's prior record, I indicated at the sentencing hearing on 25 July 2003 that the approach adopted in WorkCover v Department of Education and Training may be appropriate to these matters. Counsel for the defendant agreed with that approach and there was no contrary submission advanced by the prosecutor.

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.

(2) The penalty in respect of proceedings against the Crown is the penalty applicable in respect of offences committed by a corporation.

(3) If that penalty differs for previous offenders, the Crown is a previous offender in relation to particular proceedings against the Crown only if the Crown is a previous offender in respect of the acts or omissions of the same responsible agency of the Crown (or any predecessor of that agency).

(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.

176 Since that judgment, a further conviction has been recorded against the defendant (as the Department of Education and Training), resulting in a fine of $105,000. I do not consider that that conviction should result in any different approach to the defendant's prior convictions than WorkCover v Department of Education and Training, and none was suggested by the prosecutor or defendant in this matter.

177 I turn now to the question of totality. The principle of totality is described in Warman (at 339) (applying WorkCover Authority of New South Wales v Waugh and Anor (1995) 59 IR 89) as follows: The principle of totality allows a court when sentencing to avoid a straight-forward arithmetical addition of sentences appropriate to each individual offence where the offences are similar, thus avoiding doubling of penalty by enabling the judge to consider a single overall penalty which includes the circumstances of a second or further offence.

178 The proper approach to the application of the principle of totality is found in the decision of the Full Bench in Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 which considers the High Court's ruling in Pearce v The Queen (1998) 194 CLR 610. The Full Bench held that: [23] The effect of Pearce is that, in sentencing a defendant for more than one offence, the Court is required to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. It is only after determining an appropriate sentence for each offence that the Court should consider whether the sum of the separate sentences properly reflected the totality of the criminality involved. [29] In an appropriate case, however, it may still be appropriate to impose a single penalty for multiple offences under the Act, but only as the result of the operation of the principle of totality after separate penalties have been assessed for each offence. However, we consider that the preferable course is that separate penalties should be imposed after the principle of totality is applied. [51] In view of our conclusion that the two offences contained very substantial common elements, it could not be considered that the deduction made by her Honour was appropriate and sufficient. In a case such as this, the totality principle must be applied to ensure that the defendant is not punished more than once for the common elements of the offences and that the resultant penalty is appropriate to the overall criminality of the offences for which the defendant is being sentenced.

179 I consider the appropriate penalties in these matters are as follows: In Matter IRC 607 of 2001 a fine of $110,000; In Matter IRC 608 of 2001 a fine of $110,000; and In Matter IRC 609 of 2001 a fine of $90,000.

180 Having regard to the separate penalties, and taking into account the common elements in the three offences by applying the totality principle, the total fine should be reduced to $160,000. That penalty reflects the overall criminality of the defendant and also the discount I have determined for mitigating factors and subjective features in favour of the defendant. Given that I consider that the offences are not equal in their degree of seriousness, the penalties to be imposed in relation to each offence are therefore: In Matter IRC 607 of 2001 a fine of $56,000; In Matter IRC 608 of 2001 a fine of $56,000; and In Matter IRC 609 of 2001 a fine of $48,000.

Moiety 181 Section 122(2) of the Fines Act (1996) is in the following terms: 122 Payment of share of fine to prosecutor (cf Fines and Penalties Act 1901 sec 5 (3)) (1) This section applies where: (a) the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and (b) the prosecutor is not a police officer. (2) The court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor.

(3) For the purposes of this section, "fine" does not include an amount of the kind referred to in section 4(1)(e) or (f).

182 Section 5(3) of the Fines and Penalties Act 1901 was in the following terms: (3) Where the Act imposing or authorising the imposition of a fine, penalty or forfeiture makes no direction as to the application thereof the court before which such fine, penalty or forfeiture is recovered may, where the informer or other person prosecuting or suing for the same is not a member of the police force, direct that such portion of the fine, penalty or forfeiture as the Court thinks fit (but not exceeding a moiety thereof) shall be paid to the informer or other person prosecuting or suing for the same.

183 In Kirkby v A & M I Hanson, the Court considered the meaning of the word 'moiety', as well as the operation of the Fines and Penalties Act 1901. As to the meaning of 'moiety', Hungerford J said "I have always understood a moiety to be a one-half share: see Re Angus' Will Trusts". Similarly, Bauer J in Warrah Ridge stated (at 9) that: There seems no good reason to take the word "moiety" for the purposes of New South Wales legislation as meaning other than "one half portion" of a given or named subject (see Kirkby v A & M I Hanson Pty Limited ). This meaning is reinforced by the relevant legislation which permits the tribunal to direct a portion of the fine levied, "but not exceeding a moiety thereof". The word is similarly used to mean "one half" in the Conveyancing Act 1914 ss36A and 66G(4), the Local Government and Other Authorities (Superannuation) Act 1927 ss6 and 13, the Navigation Act 1901 s169 and the Trustee Act 1925 s 87.

184 This is the approach that has been consistently adopted by this Court, and it is the approach I propose adopting here.

185 A question was raised by Mr Hodgkinson as to whether the prosecutor in this matter, as General Secretary of the PSA, falls within the scope of s122 of the Fines Act 1996, and therefore whether this Court has capacity to order a moiety in his favour. In my view, an affirmative answer should be given to both questions.

186 The PSA is an industrial organisation registered pursuant to s220 of the Industrial Relations Act 1996. As such, the General Secretary of the PSA is authorised by s48(1)(c) of the Act to initiate a prosecution under the Act. Thus, the informant O'Sullivan is a prosecutor for the purposes of these proceedings and is thereby a prosecutor for the purposes of the Fines Act 1996 as the Fines Act 1996 applies "where the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered". I am satisfied that the prosecutor falls within the scope of s122(1)(b) of the Fines Act 1996, being a person who is not a police officer.

187 I do not accept the defendant's argument that the payment of a moiety is limited to statutory authorities such as the WorkCover Authority. There is no such statutory limitation imposed by the Fines Act 1996.

188 I reject the defendant's argument that it is not appropriate to order payment of a moiety to an individual in these circumstances. Mr O'Sullivan, in his capacity as General Secretary of the PSA, is authorised to prosecute breaches of the Act. This is what he has done in the present cases. Mr Hodgkinson for the defendant argued that money paid to the prosecutor "can never be received on behalf of the organisation because there is no power to make that order. The only power is to give it to Mr O'Sullivan. It may be that he determines that money should go to the PSA but that is not as a consequence of the order being made." I do not agree. There was adequate evidence presented at the hearing of these matters as to the prosecutor's authority to lay the charges by virtue of his office in the PSA, and that the rules of the organisation governed the receipt of any money by him. In my view, the evidence demonstrated that Mr O'Sullivan will make payment of any moiety of the fine to the PSA which is an organisation whose resources appear to have been expended in the bringing of this prosecution, and will be expended in the future in ensuring compliance with the Act. Further, I consider the PSA Rules (by their terms, by implication or by the duties residing in Mr O'Sullivan as an officer) are such as would require Mr O'Sullivan to pay the moiety to the organisation.

189 Further, I consider that the provision of a moiety in these matters is entirely consistent with the principles governing the making of such orders. The PSA Rules state that the objects of the PSA include, amongst other things, the promotion of "the interests of the Public Service in matters relating to employment in the Public Service". I have no doubt that health and safety is one such matter. The evidence presented by Mr Cahill revealed the PSA's extensive activities in the area of occupational health and safety. As with the WorkCover Authority, those activities are principally self-funded. In its consideration of the application for payment of a moiety to the WorkCover Authority, the Court in Kirkby v A & M I Hanson held (at 16-17): The WorkCover Authority has to self-fund its important functions, I emphasise as laid down in the statute, and consistently therewith I think the public policy so stated would be furthered by appropriating a penalty obtained at the instance of the WorkCover Authority by way of moiety to it. A penalty fairly represents, in my view, a legitimate and valid source to permit the statutory functions of the WorkCover Authority to be carried out; it may not properly be described as a "windfall". I accept the submission of counsel for the prosecutor that the industrial community would accept as valid part of any penalty being utilised for the purposes of the WorkCover Authority. I propose to allow a moiety in this case. Indeed, having in mind the activities of the WorkCover Authority in preventing injuries at the workplace and the development of healthy and safe workplaces I would need to be persuaded in any particular case that a moiety should not be ordered . (emphasis added)

190 Similarly, the Court in Warrah Ridge held (at 8) that: The functions of the Authority are set out in Part 2 Division 3 of the WorkCover Administration Act and need not here be particularised. In summary, they are principally workers compensation and occupational health and safety in all their aspects. The Authority is self-funding. It derives its funds from levies made on employers in relation to workers compensation insurance or self insurance arrangements. Thus the Authority does not receive funds from consolidated revenue (except with respect to minor fees paid for particular agency work) and must fund its work from its own resources. That work includes inspection for work site safety and prosecutions for breaches of the Act. The aims and purposes of the Act reflect a legislative policy and public interest in workplace safety and compensation and rehabilitation of injured workers.

191 Similar public policy considerations arise, in my view, in relation to the moiety sought by the prosecutor in these matters having regard to the statutory recognition of the PSA as a prosecutor, the evidence of its occupational health and safety activities and its prosecutorial functions. I consider that the grant of the moiety would further the objects of the Act and the maintenance of occupational health and safety at the workplace. It is a legitimate and valid source to permit the PSA to carry out its occupational health and safety functions consistent with those objects. It does not represent a windfall to the PSA.

192 Further, I note that the Court in Ferguson v Nelmac granted a moiety to the informant in four matters, where the informant was the Secretary of the CFMEU (New South Wales Branch).

193 In Warrah Ridge, the Court stated (at 18) that: Having regard to the historical background of the right of a prosecutor to have a portion of the fine recovered, the practice in this Commission and the reason for the granting of moieties, I am of the view that the exceptional case would be where the prosecutor was not accorded a moiety …

194 Having regard to the decisions in Kirkby v A & M I Hanson and Warrah Ridge, and the established practice in this Court, I agree with the prosecutor's submission, that in the absence of any compelling reason not to order a moiety, or to limit the amount of any such moiety, the usual case is that the Court's discretion to order a moiety is exercised in favour of a prosecutor. I am satisfied by the evidence before me that an important function of the PSA is contributing to the prevention of injuries and promotion of health and safety in the workplace, and that the PSA commits a significant amount of time and resources to this function. Further, I accept the evidence of Mr Cahill, Acting General Secretary of the PSA, in relation to the manner in which any funds received by way of a moiety would be dealt with by the prosecutor, and in turn by the PSA in relation to the maintenance and promotion of occupational health and safety at the workplace.

195 In the circumstances, I am persuaded that a moiety should be ordered in these matters.

196 The prosecutor seeks an order for costs without any apportionment, on the basis that there was a common substratum of fact applicable to all five of the charges before the Court. Alternatively, he contended that there should be a minor apportionment of costs.

197 The defendant acknowledged that the prosecutor is entitled to a costs order, but argued that an apportionment of those costs is appropriate in these matters. There was no dispute between the parties about the Court's discretionary power to apportion costs.

198 In a successful prosecution, costs may be awarded to the prosecutor on the basis that 'costs will follow the event': WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (No 2) [2003] NSWIRComm 40 at [19]. However, costs may be apportioned in certain circumstances. The relevant general principles in that regard are contained in the judgment of Toohey J in Kimberley John Hughes v Western Australian Cricket Association (Inc) and Ors (1986) ATPR 48, subject to the qualifications in Cretazzo v Lombardi (1975) 13 SASR 4, namely: (a) Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order; (b) Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which it has failed; (c) A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law; and (d) Notwithstanding the above, the interests of justice may not be served if parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case.

199 I note also the decision of the Full Federal Court in Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) and Anor v Lane Industries Pty Ltd and Ors (1993) 26 IPR 261 at 272 as follows: Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion for the trial judge. Mathematical precision is illusory and the exercise of the discretion will often depend upon matters of impression and evaluation.

200 The prosecutor failed in respect of charges IRC 610 of 2001 and 611 of 2001. Those charges alleged breaches of s15 of the Act, the respective particulars of which were (very generally) failure to provide adequate counselling and failure to provide adequate training in self-protection or communication strategies. Little evidence was adduced by the prosecutor to support either of these charges, resulting in less time being spent hearing those matters. In my view, the two charges that failed were discrete matters which, although having some proximity to the factual circumstances giving rise to all prosecutions, were in some respects distinct from the charges on which the prosecutor succeeded. In the circumstances, I consider that this is an appropriate case for apportionment of costs.

201 In relation to the manner in which costs should be apportioned, Mr Hodgkinson submitted that the approach to apportioning costs should not be a mathematical one, and that 50 per cent was the appropriate balance. Having regard to both the manner in which the charges were dealt with in the trial and their outcomes and the failure by the defendant as to additional matters raised by it (such as the issue of a moiety) and taking into account the sentencing proceedings, I do not consider that 50 per cent represents the true balance in these matters. Even on a mathematical analysis, which I do not propose as the means for determining costs, there is no basis for an apportionment of 50 per cent.

202 I propose making an order for costs in favour of the prosecutor, with an apportionment of the costs recoverable by the prosecutor from the defendant (that portion of costs being 70 per cent).

203 I make the following orders: 1 The defendant is fined the following amounts, with a moiety in each case to the prosecutor: (a) As to Matter No IRC 607 of 2001, a fine of $56,000; (b) As to Matter No IRC 608 of 2001, a fine of $56,000; and (c) As to Matter No IRC 609 of 2001, a fine of $48,000; 2 The defendant shall pay 70% of the prosecutor's costs as agreed or in default as assessed.

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