31 The likelihood of serious consequences arising in a bank robbery are obvious. Invariably, there is a combination of a threat of physical harm to the employees concerned accompanied by the presence of a weapon or suspected weapon. In the case of both hold-ups, the weapon of choice was a sledgehammer. In the case of the Guildford hold-up, one of the defendant's employees, Ms Huynh, was physically assaulted and the robbers threatened to kill her. That possibility was very real and it was indeed fortunate Ms Huynh was able to escape physically unharmed. The psychological consequences of such an occurrence are self evident in that Ms Huynh did not return to work for three weeks. Trauma counselling was provided for those staff who required it. At the Woy Woy hold-up, Mr MacMillan was physically confronted by the robbers when they gained access to the public area of the bank by smashing the bottom half of the front door with a sledgehammer.
32 It cannot be ignored that the defendant's obligation to provide a workplace free of risks to safety extends to all the foreseeable consequences that a bank hold-up represents, which includes the risks to the employee's psychological as well as physical safety. In my view, the defendant recognises that by the extensive policies, including educational and training programmes, in place in relation to security and bank hold-ups generally as well as the steps taken by the defendant to provide trauma counselling immediately following such incidents. The prompt provision of such services would do much to minimise any long-term psychological consequences for affected employees that the direct exposure to violence a bank hold-up represents.
33 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable.
34 It is evident from Ms Hunt's affidavit there were security measures already in place in both banks. Equally, there were simple and available remediation measures that could have been implemented prior to the incidents if proper risk assessments had been undertaken. These are identified in para [43] of the agreed facts in relation to the Guildford branch and paras [72] to [74] of the agreed facts in relation to the Woy Woy branch.
35 On the issue of steps to be taken to address risks to safety in the workplace, I endorse the comments of Boland J in Derrick v ANZ Group Limited (2005) NSWIRComm 59 at [28] as follows:
It may be the case that there are no practicable measures available to a bank to ensure that its employees are never put at risk of injury in circumstances where a robbery occurs. But that does not relieve a bank of the obligation to do all that is reasonably practicable to ensure safety.
36 Taking into account all relevant considerations, I assess the seriousness of the offence particularised as being in the mid to higher end of the penalty range.
37 As earlier identified in relation to the relevant sentencing principles applicable, the decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. There are no exceptional circumstances in this matter that would warrant excluding either factor in my sentencing considerations.
38 In saying that, however, it must be said that in relation to specific deterrence, the defendant is entitled to have such considerations tempered by its significant and commendable efforts in meeting it's ongoing commitment to workplace safety. That much is evident by the extensive details in Ms Hunt's affidavit together with relevant annexed material.
39 Taken together, Ms Hunt's evidence, unchallenged as it was, points to a defendant who has not only invested heavily in relation to workplace safety, and continues to do so, but does so in a comprehensive and ongoing manner. I am satisfied the defendant has proper and due regard to it's obligations to provide a workplace free of risk to safety. That it has pleaded guilty to the offence before me cannot be taken as evidence of any systemic or ongoing disregard for the workplace safety of it's staff or the public who use it's facilities. It represents a lapse in judgment in the area of risk assessment which, to it's credit, the defendant has acknowledged and acted upon.
40 The defendant is entitled to have taken into account the benefit of the early plea entered to the amended charge. The prosecutor conceded that. In assessing that, the Court is guided by the decision of R v Thompson; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. Those principles accord with the provisions of s22 of the Crimes (Sentencing Procedure) Act 1999. I assess that discount at twenty five per cent.
41 There are also additional subjective features which entitles the defendant to further favourable consideration in the sentencing process. I refer specifically to the defendant's cooperation with the prosecutor in relation to this matter together with the defendant's proper expression of regret for the stress the hold-up incidents created for the employees concerned. As well, the defendant's overall strong commitment to workplace safety is a factor that is a positive one for the defendant.
42 There is one outstanding matter between the parties. The prosecutor has made an application pursuant to s122(2) of the Fines Act 1996 (NSW) for an order that a moiety be paid to him of one half of the fine imposed.
43 The defendant opposes the making of such an order. In registering it's opposition to such an order, counsel did so mindful of earlier first instance decisions of this Court on the issue.
44 There have been a number of prior first instance decisions of this Court that have dealt with the issue of the allocation of a moiety of the penalty imposed to persons other than the usual statutory authority such as WorkCover as being within the scope of s122 of the Fines Act 1996: see the decision of Walton J Vice-President in O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) [2003] NSWIRComm 303 at [185] - [194]; Haylen J in Coombes v Patrick Stevedores Holdings Pty Limited [2005] NSWIRComm 56 at [101]-[111]; and Boland J in Geoff Derrick v ANZ Group Limited (No 2) [2005] NSWIRComm 145 at [3]-[25]. In each case, for the reasons stated, the Court ordered a moiety of one half of the penalty imposed to be paid to the prosecutor.
45 As reference to the cases referred to will attest, taken together, they represent an exhaustive consideration of this issue. I do not propose to repeat it in this judgment. Suffice to say, I would concur with the overall conclusion in those judgments that the prosecutor in this matter falls within the scope of s122 of the Fines Act 1996 and that the Court has the discretionary power to order a moiety in his favour.
46 The basis of the defendant's objection to the allocation of a moiety is a point that has not been previously considered in the above three matters referred to. As I have understood the contention put, it goes to one of perception in the overall administration of justice. That is, that the Court must have regard to the requirement that the system of justice should be administered in a way that is transparent and, as was submitted, 'does not give rise to a perception that persons who hold a position, statutorily recognised as a prosecutor, might benefit or their organisation might benefit'.
47 In summary, the defendant contended that to award the prosecutor both a moiety and costs created the opportunity for a windfall gain by the prosecutor and had 'the potential to raise a perception that the very fact of prosecuting might be for other than the legitimate purpose of pursuing breaches'. In making such a submission, counsel for the defendant was at pains to emphasise that no such inference could be laid at the feet of the prosecutor in this matter.
48 Somewhat in support of his general submission on this issue, counsel pointed to the decision of the New South Wales Court of Appeal in Hawkesbury City Council v Foster and Mushroom Composters Pty Limited [1997] 97 LGERA 12. In that matter, the appellant and the first respondent had sought a restraining order from the Land and Environment Court against the second respondent. The order was granted and later breached. The appellant and the first respondent then sought orders for the second respondent to be punished for contempt. The second respondent pleaded guilty and was fined. The council then made application seeking the payment of the whole of the fine imposed pursuant to s694(1) of the Local Government Act; and alternatively, to be paid a moiety of the fine pursuant to the Fines and Penalties Act. That application was dismissed by Pearlman J.
49 The council appealed to the Court of Appeal claiming the right of the council to recover all or part of the fine imposed by Pearlman J in the Land and Environment Court for contempt of an order, being an order granted in proceedings initiated by the Council. The appeal was dismissed with costs (Meagher and Sheller JJA, Mason P dissenting).
50 A reading of the judgment referred to makes it clear that the Court of Appeal was primarily concerned with the proper interpretation and application of s694(1) of the Local Government Act 1993 (NSW). To the extent that the Court considered her Honour's first instance decision not to exercise her discretion ordering the payment of a moiety under the then provisions of s5(3) of the Fines and Penalties Act 1901 (NSW), it was a consideration done almost in passing. Indeed, as Mason J said at 16:
Since, however, the Fines and Penalties Act delivers only a moiety of a fine to the informer, the council's preferred position is reliance upon s694(1) of the Local Government Act 1993. If applicable, this section would see the whole of the fine imposed on Mushroom Composters paid to the council.
51 In his judgment dismissing the appeal, Meagher JA considered her Honour's decision in relation to the payment of a moiety to the council, and said as follows at 21:
The next ground of appeal concerned her Honour's refusal to make an order under s5(3) of the Fines and Penalties Act 1901 (NSW), which provides:
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.
Her Honour's reasons were as follows:
I am not, however, prepared to exercise my discretion in the council's favour by directing the payment of a moiety of the fine to it. The council has a statutory duty to enforce the planning law of this State, and the actions it took in these proceedings were in furtherance of that duty. That is far from the rationale of s5(3). As I noted in the February judgment, provisions such s5(3) are designed to encourage common informers to sue for breach of statutes by allowing the informer to recover part of the resulting penalty. A provision such as s5(3) is not designed to reward a party bringing proceedings in the discharge of its ordinary functions. Furthermore, s5(3) is not designed to reimburse a party for its costs, and in this case the costs of the council in bringing the proceedings were the subject of a costs agreement between the parties.
I can detect no error in what her Honour says. Nothing is overlooked. Nothing is mis-stated. The result is, far from being unreasonable, perfectly plausible…
52 In his judgment, Sheller JA said that the exercise of her Honour's discretion under s5(3) of the Fines and Penalties Act 1901 'is not shown to have proceeded on any wrong principle. This Court cannot interfere'.
53 Section 129 of the Fines Act 1996 wholly repealed the Fines and Penalties Act 1901 on and from 1 July 1998. As is clear, s5(3) of the Fines and Penalties Act gave her Honour a discretion in the allocation of a moiety, as does s122(2) of the Fines Act 1996.
54 Notwithstanding the submissions made by counsel for the defendant, it is clear the discretion exists for the Court to order the payment of a moiety to a union secretary who has the power to initiate prosecutions under s106(1)(d) of the Occupational Health and Safety Act. The prosecutor is the Secretary of the Finance Sector Union of Australia, Commonwealth Bank Officers Section, New South Wales Branch.
55 Pearlman J determined not to exercise the discretion available to her under s5(3) of the Fines and Penalties Act 1901 because, she said, the 'council has a statutory duty to enforce the planning laws of this state and the actions it took were in furtherance of that duty ... provisions such as s5(3) are designed to encourage common informers to sue for breach of statutes by allowing the informer to recover part of the resulting penalty.' As Mason J said in Hawkesbury City Council v Foster and anor at 14:
There is no magic in the expression 'common informer'. It means no more than a private person suing for private benefit to recover a statutory penalty. The expression 'common informer' is only used to distinguish that person from a state or official informer, such as the Attorney General or a Director of Public Prosecutions.
56 Given that description, it is arguable that a person such as a union secretary is a 'common informer' for the purposes of the Occupational Health and Safety Act. The legislature clearly intended such persons to have a specific power to initiate prosecutions under the Occupational Health and Safety Act. Given the manifest involvement of unions in relation to workplace safety, such a role is not surprising. There is no legislative or other basis, in my view, for a union secretary, rightfully exercising that power, being denied the allocation of a moiety of the fine imposed as a result of such a person exercising a clear statutory power.
57 Counsel for the prosecutor stated in submissions that it was the intention of the prosecutor that the moiety will be used for the purposes of occupational health and safety prosecutions. That was a proposition that was accepted by counsel for the defendant and, as such, I accept it as a statement to which I can attach due weight.
58 In all the circumstances, I am satisfied that I should make the order for the payment of a moiety in favour of the prosecutor as sought.
59 In relation to the offence before me and taking account of all relevant considerations, including those identified by ss21A and 22 of the Crimes (Sentencing Procedure) Act 1999, I determine a penalty of $162,500.
60 Accordingly, I order as follows:
(i) The defendant is guilty of the offence as charged.
(ii) I impose a penalty in this matter of $162,500.
(iii) I allocate a moiety to the prosecutor of one half of the penalty imposed.
(iv) I order the defendant to pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be further listed before me to be dealt with.