SafeWork NSW v Crown in the Right of New South Wales in respect of the Ambulance Service of NSW

SafeWork NSW v Crown in the Right of New South Wales in respect of the Ambulance Service of NSW - [2023] NSWDC 134 - NSWDC 2023 case summary — Zoe

[12]

Auditing of restricted medications

As part of its investigation, SW examined ASNSW's auditing practises.
Between 1 July 2016 to 30 June 2017, the ASNSW Professional Standards Unit ('PSU') had conducted a state-wide audit to identify unusual patterns of Fentanyl use. The audit report was completed on 28 September 2017 ('Fentanyl Audit Report').
The Fentanyl Audit Report revealed that Paramedic Jenkins was the second-highest administrator of Fentanyl in the state.
The restricted medications register at Belmont Station showed that between January 2017 and November 2017, Paramedic Jenkins was the most common administrator of Fentanyl by a considerable amount. Paramedic Jenkins had administered Fentanyl on 59 occasions in that period. A considerable amount was left over after each administration. In the same period, the next highest administrator of Fentanyl at Belmont Station had done so on 18 occasions.
Paramedic Jenkins' Fentanyl administration habits were not escalated to relevant ASNSW management staff in accordance with internal auditing procedures.
The PSU provided the Fentanyl Audit Report to the Deputy Director of Operations of the Hunter and New England sector, Mr Jeff Hescott ('DDO Hescott') on 9 January 2018, together with a memorandum from the Acting Director of the PSU, Ms Alice Murphy ('AD Murphy').
In the memorandum, AD Murphy warned: 'High Fentanyl use, in particular where the entire vial was not used, often indicates a Fentanyl use problem by the staff member. This information is normally considered in relation to other concerns raised about their conduct… I ask that you use this information to see if local staff or managers have any other concerns that would indicate there are concerns with his Fentanyl use… the PSU will not monitor your enquiries, however if you believe any misconduct is identified please refer this misconduct issue to the PSU.'
DDO Hescott provided the Fentanyl Audit Report to Zone Manager Akester. It was not provided to Paramedic Jenkins' direct supervisor, Station Officer Wylie or to A/DDO Akester. DDO Hescott asked Zone Manager Akester to conduct an initial assessment. Zone Manager Akester delegated the task to DOM Liebregts.
DOM Liebregts conducted a retrospective documentation review in light of the Fentanyl Audit Report and produced a report on his findings ('Liebregts Report'). The Liebregts Report involved:

randomly reviewing 54 electronic medical records ('EMR') prepared by Paramedic Jenkins;
a review of the Incident Information Management System ('IIMS'); and
a Restricted Medication Incident Tool ('RMIT') audit.

It is agreed that in producing the Liebregts Report, DOM Liebregts did not:

interview Paramedic Jenkins, Station Officer Wylie or A/DDO Akester;
review Paramedic Jenkins' personnel file; or
refer to rosters or perform a Cyber Audit report to ascertain the frequency with which Paramedic Jenkins accessed the safe before, during and after his shifts.

The Liebregts Report identified that Paramedic Jenkins was regularly administering Fentanyl without obtaining a signature from a second witness. On 89% of the reviewed clinical records prepared by Paramedic Jenkins, more than half of the Fentanyl was leftover in the vial following administration of the drug. However, the Liebregts Report found no evidence to support a conclusion that Paramedic Jenkins' behaviour was indicative of personal medication use or addiction.
The Liebregts Report recommended that Paramedic Jenkins undergo further education with a Clinical Training Officer and that DDO Hescott advise the PSU that no misconduct had been found.
The Liebregts Report was approved and signed by Zone Manager Akester and DDO Hescott on 31 January 2018.
The Liebregts Report was not provided to Station Officer Wylie.
Zone Manager Akester stated that she did not know what was done to implement the recommendations of the Liebregts Report.
As at 9 April 2018, Paramedic Jenkins had not received any further education with a Clinical Training Officer.
Other relevant incidents that were not included in the Liebregts Report but uncovered by the SW investigation included:

In October 2017, a paramedic found a Fentanyl vial that had been tampered with and recorded the event in the IIMS. The responsible DOM determined that the incident was an 'unexplained breakage'.
On 22 January 2018, Paramedic Peter Clemenson ('Paramedic Clemenson') believed that he witnessed Paramedic Jenkins place a vial of Morphine into his private bag after treating a patient. Paramedic Clemenson reported the event to Station Officer Wylie. No IIMS report was completed in relation to the incident.
On 31 March 2018, A/Station Officer Bond discovered vials of Fentanyl that may have been tampered with. A/Station Officer Bond did not report the incident on the IIMS or escalate it to her supervisors.

In the months preceding April 2018, Station Officer Wylie and the DOMs did not notice any suspected tampering with restricted medication when conducting Restricted Medications Audit Tool ('RMAT') audits at Belmont Station.
On 8 April 2018 (the day before the tampered vials were discovered), A/Station Officer Bond conducted an RMAT audit of the safe at Belmont Station. She did not discover any evidence to suggest that restricted medication had been tampered with.
Similar RMAT audits conducted by DOMs and Station Officers at other stations in the Hunter Zone in the months leading up to April 2018 did not uncover any evidence of suspected tampering with restricted medication.
Compliance with RMAT auditing procedures was found to be inconsistent across different stations in the Hunter Zone.
Station Officers in the Hunter Zone did not have separate time allocated to them in which to perform RMAT audits of restricted medication. The RMAT audits performed by Station Officers were often interrupted by callouts.

[16]

Storage and handling of restricted medication

ASNSW procedures and policies for access to restricted medication were outlined in Parts 3, 4 and 7 of the MMPD and Checklists 1 and 2 of the MMOP which provided that: 1. Restricted medications needed to be stored in a safe at the station. 2. The safe was to be kept locked when not in immediate use. 3. Restricted medications needed to be signed out to the authorised clinician and not to a particular vehicle. 4. Each station needed to have a restricted medications register ('register'). 5. All transactions for restricted medications needed to be recorded in the register. All restricted medicine stock, breakages and mandatory stock checks were to be recorded in red. 6. The authorised clinician who opened the safe was responsible for recording transactions and entries in the register until they closed the safe. 7. On each occasion an entry was made in the register, the authorised clinician was required to count the stock in the safe and reconcile the balance in the register. 8. Each entry made in the register needed to be countersigned by a witness, who was required to physically witness the stock count. 9. At the beginning of a shift, the authorised clinician was required to take the restricted medication needed for the shift from the safe. In the presence of a witness, the physical stock check and reconciliation of the register was to take place after which both the authorised clinician and the witness needed to countersign the register. The safe was required to be locked after use. 10. At the end of a shift, authorised clinicians needed to remove all restricted medications from their vehicle and return them to the safe. Another reconciliation was required to be conducted in the presence of a witness and a record made in the register, countersigned by the authorised clinician and the witness. The safe was required to be locked after use.
The safes were electronic and had a cyberkey electronic locking mechanism, opened using an electronic key combined with an employee number and pin number.

[28]

The Offences

In respect of particular 30(a) of the Amended Summons filed 4 April 2023 regarding witnessing movement from the safe and the disposal of restricted medication, it is agreed that ASNSW in the Hunter Zone:

routinely failed to comply with its own policies and procedures in relation to the storage and handling of restricted medication;
occasionally failed to ensure that the removal of restricted medication from the safe was witnessed by a second clinician;
occasionally allowed clinicians to sign the register as a witness without actually having witnessed the removal or return of restricted medication from the safe, even when rostered as part of a dual crew;
occasionally failed altogether to ensure that clinicians witnessed and recorded the removal or return of restricted medication from the safe on the register, even when rostered as part of a dual crew;
did not always ensure the removal of the unused portion of the restricted medication from its original packaging before disposal;
failed to ensure that clinicians, including Paramedic Jenkins, always disposed of restricted medication in the presence of a witness;
failed to ensure consistent methods of disposal of restricted medication across different stations; and
failed to provide space on EMRs to document the witnessing of the disposal of restricted medication.

In respect of particulars 30(b)-(d) of the Amended Summons relating to auditing and reporting to identify potential Fentanyl misuse, it is agreed that between 9 April 2017 and 9 April 2018, ASNSW in the Hunter Zone failed to implement formal procedures and policies for: 1. unannounced independent station audits to assess compliance with restricted medication policies; 2. escalation processes for corrective action after any unannounced audit; 3. regular audits of restricted medication use as recorded by EMRs so as to identify atypical use; 4. responding to any identified patterns of atypical use of restricted medication; 5. regular trend reporting on reported incidents involving restricted medication; and 6. reviewing trend reports to identify potential misappropriation of restricted medication.
It is agreed that ASNSW's auditing procedures (outlined at paragraphs 75 and 76 above) were insufficient to identify instances of potential restricted medication misuse by its staff.
It is agreed that as at 9 April 2018, ASNSW's auditing procedures were insufficient such that: 1. the tampering of 44 vials of Fentanyl across the Hunter Zone was not discovered; 2. routine failings by ASNSW staff to witness and co-sign EMRs were unknown; and 3. Paramedic Jenkins' atypical use and possible clinical misuse of Fentanyl which would have demonstrated the possibility of his illicit consumption of that drug was unknown.
It is agreed that as at 9 April 2018, Station Officers could not access Cyber Audit tools to determine whether clinicians were accessing restricted medication safes outside their shift times. Although senior ASNSW staff had access to Cyber Audits, they were not routinely performed.
In respect of particular 30(e) of the Amended Summons regarding information, instruction and training in relation to restricted medication, it is agreed that between 12 January 2017 and 9 April 2018, managerial staff at ASNSW had not completed their three yearly certifications in respect of the MMOP and the MMPD which meant that not all staff had received training on those procedures.

[35]

The Defendant's Duty

The defendant had a duty s 19(1) of the WHS Act to 'ensure' the health and safety of its workers, so far as reasonably practicable. The duty requires the identification of risks in the workplace, so far as is reasonably practicable. The duty requires the identification of risks in the workplace and the adoption of measures to eliminate or minimise them, so far as is reasonably practicable (see Kirk v Industrial Commission of New South Wales [2010] HCA 1 at [34]). The duty is positive, nondelegable and requires duty holders to search for, detect and eliminate, so far as is reasonably practicable, risks to safety.
The reasonably practicable measures to control the risk are set out in paragraph 30 of the Amended Summons as follows: '[30] The Crown in the Right of New South Wales in respect of the Ambulance Service of NSW failed to ensure, so far as is reasonably practicable, the health and safety of workers, including Paramedic Jenkins, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate or, alternatively minimise, if it was not reasonably practicable to eliminate, the Risk: (a) Ensuring that whenever a paramedic was working as part of a dual crew, the removal from the safe, return to the safe, and the disposal of Restricted Medications was witnessed by another paramedic and the witnessing recorded on the Restricted Medications Register; (b) Conducting unannounced independent station audits to assess compliance with Restricted Medications policies (including policies relating to storage; maintenance of registers (including witness signatures), stock checks and integrity checks) to be conducted by an independent clinician and implementing an escalation process for corrective action; (c) Conducting regular audits of patterns of use of Restricted Medications as recorded in the eMR by paramedics to create trend reports so as to identify any atypical use which may suggest possible misappropriation and implementing an a policy to respond to and identified atypical use including by requiring notification to and consultation with the immediate supervisors of any paramedic identified as involved in such atypical use; (d) Creating regular trend reports on reported incidents involving Restricted Medications in the NSW Health Incident Information Management System to identify potential risks associated with the use of such Medication and reviewing these trend reports to identify potential misappropriation; (e) Providing every managerial staff member with line management duty for paramedics, specific training as to the contents of the MMOP and MMPD.'

[36]

Sentencing

The penalty to be imposed must be one which will give overall effect to the policy of the WHS Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the WHS Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the WHS Act.
The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act') which include: 1. Section 3A which sets out the purpose of sentencing; 2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and 3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.
The Court is to approach a sentencing exercise on the basis of it being one of 'instinctive synthesis': Markarian v The Queen (2005) 228 CLR 357.
The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way: 'The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement.'
The charge in this prosecution is under s 33 of the WHS Act, and as such no allegation of risk of death or serious illness or injury is made as such matters are not an element of the offence (cf. 31 and 32 of the WHS Act). If I were to make any finding of that nature, I accept that it would offend the principle in The Queen v De Simoni (1981) 147 CLR 383.
The offending in the present case is in a unique category. The risk is a risk of misappropriation for consumption of restricted medications. Such misappropriation and consumption is a crime: Poisons and Therapeutic Goods Act 1996 (NSW); Drug (Misuse and Trafficking) Act 1985 (NSW). The reasonable practicability of any measures to address this risk must therefore be analysed in a context where the fact of criminal sanction (and consequential permanent loss of employment as a paramedic) has been an insufficient deterrent for the worker's behaviour.
Accordingly, the measures in this case are not to prevent an employee suffering injury as a result of the employee's own negligence, inadvertence or carelessness, but rather taking precautions to prevent a worker's intentional criminal conduct. Such conduct is committed by trained paramedical professionals who understand the dangers associated with the misuse of restricted medications including Fentynal.
Because it involves intentional criminal conduct, the risk is also one that has to be managed in circumstances where the worker can be expected to be taking care to conceal such offending from their employer, often using sophisticated means to do so.
To some extent, one wonders what else the defendant could do? During the breach period the defendant had in place extensive steps, programs and policies designed to ensure that the Restricted Medications were not used illicitly. The breach of the WHS Act can be summarised here, in my view, as a failure to take adequate steps to prevent knowingly unlawful conduct.
The defendant also confronts a difficulty in that the risk cannot be eliminated. To the contrary, it is imperative that the workers in this case (trained medical professionals with professional obligations) need to have ready access to restricted medications, including Fentynal, for the purpose of discharging their important public safety functions. Any measure aimed to reduce a risk to a worker cannot come at a cost of an increased risk to a patient or the community.
I accept that the context of the present offending therefore, can be readily distinguished, for example, from the types of measures that might be considered to be reasonably practicable to prevent a construction or manufacturing worker from wilfully or carelessly misusing a piece of equipment on the one hand, and from preventing a medical professional from having ready access to lifesaving medical equipment on the other.

[37]

Objective Seriousness of the Offence

The primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120 at [27]: '…The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of offending.'
Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474-5.
The duty of the defendant requires that it ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the duty requires the identification of risks in the workplace and an assessment of measures to address such risks.
The gravity of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No. 2) (1988) 164 CLR 465.
The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 ('Capral Aluminium') at [81].
The affidavit of Clare Louise Beech sworn 30 March (exhibit 1) provides very important and relevant descriptions of the defendant's operations. Director Beech is the Executive Director - Clinical Systems for the defendant. She has been a paramedic and working with the ASNSW in March 2007 despite commencing her tertiary studies in paramedics and ambulance management in 2003. In my view, she is imminently qualified to express the matters contained in exhibit 1. Paragraph 25 of her affidavit is illustrative of the relationships between paramedics: 'Managing the risk of fentanyl misuse/abuse is a complex matter, made difficult by a number of practical factors in the work performed by paramedics, including the following: a. access to and use of Restricted Medications is a necessary and integral part of the functions performed by paramedics in delivering a health service to the NSW public. Access cannot be completely prohibited, and even the implementation of systems of control which may limit or delay access must be considered carefully in light of their potential to impact on NSW Ambulance's service delivery; and b. the "culture of trust" which exists between NSW Ambulance paramedics. By a "culture of trust", I refer to the trust which develops given the nature of their workflow and the time demands in responding to emergency calls, and the act that paramedics typically working in pairs rely on other trained and qualified health professionals. While it is obviously important that a level of trust in your co-workers be maintained to ensure effective service delivery, the risk posed by potential diversion and misuse/abuse of Restricted Medication and the need for monitoring cannot be discounted in this context.'
I am satisfied that ASNSW had in place policies and procedures with regard to witnessing, auditing and monitoring the use of Restricted Medications during the breach period, however, they needed some amending, which has been done.
An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117.
Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31].
The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 ('Nash v Silver City'). Justice Basten at [34], under the heading 'Assessment of Risk' said: 'The sentencing judge commenced his consideration with the proposition that '[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely.' However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors.'
His Honour further observed at [42]: 'The culpability of the respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent's responsible officers knew or ought to have known.'
I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272.
The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]-[18] (Latham J).
The following matters are relevant to determining the culpability of the defendant: 1. The risks associated with Restricted Medications, in particular relating to their abuse, misuse and persons developing a physical or psychological dependence were well known as at 'the breach' period and were the subject of legislation and regulations. 2. ASNSW was aware that acute and chronic misuse/abuse of Fentanyl could lead to impaired cognitive function and impair the capacity of paramedics to perform their required functions. 3. During the breach period the defendant was aware of the potential for its staff, and in particular paramedics, engaging in conduct including theft, trafficking and use of drugs of dependence, such as Fentanyl, as a result of the Operation Tone Report. 4. To address such risks the defendant had a series of policies, directives and operating procedures in relation to the Restricted medication that were operative during the breach period. They are as follows: 1. Access to restricted medications. 2. Storage and handling of restricted medications. 3. Administration of restricted medications. 4. Disposal of restricted medications. 5. Suspected tampering of restricted medications. 6. Drugs and alcohol. 7. Auditing of restricted medications, including monthly random audits and trend reports. 1. ASNSW were aware that the effective implementation and enforcement of their systems for the management of Restricted medications was vital to ensure the safe and appropriate use of the medications by ambulance staff and paramedics. As such the risk was foreseeable and known to ASNSW during the breach period which is evident from the documented systems that it had in place at the time. 2. I find that ASNSW was aware that there was a risk that paramedics could misappropriate Restricted Medications whilst working, including Fentanyl, for their own illicit consumption and that there was a risk that such conduct may cause impairment to the workers' judgment, either by way of acute intoxication or because of impairments associated with long-term drug misuse that could affect their capacity to undertake their required functions, including driving and providing medical assistance, with a consequential risk of harm to themselves. 3. Whilst the defendant concedes that the risk was known, I accept the defendant had taken significant measures to meet it prior to the breach period. 4. The prosecutor concedes (PWS at [33]) that the implementation and enforcement of its existing systems for the removal of Restricted Medications from the safes, their return to safes and the appropriate disposal of Restricted medications by paramedics was a suitable and available measure. These procedures are described in the MMOP and the MMPD. 5. There is no allegation that the method of disposal of restricted medications and the policy with regard to the same constituted a breach of the WHS legislation. 6. After the breach period, ASNSW amended its requirements as to the witnessing process which is set out in the PTB at tabs 15 and 16. 7. These documents included additional requirements to the witnessing process, which in summary required two clinicians to witness the drawing up, administration and discarding process, and such procedures be recorded and signed by the witness. 8. ASNSW also amended their systems to include unannounced audits of stations performing inspection of records and signatures, stock cheques and integrity checks, and also of trend reports. Furthermore, specific training as to these checks was provided to all relevant personnel, particularly with management staff. 9. Although the damage or injury caused by the breach does not of itself dictate the seriousness of the offence or the penalty, I accept that here, the breach created circumstances where there was a real prospect of serious consequences. In this instance there were possible consequences that clinicians, including Paramedic Jenkins, could misappropriate Restricted Medications, such as Fentanyl, whilst working, for their own illicit consumption. 10. Importantly however, the risk was one that could only be minimised not entirely eliminated. 11. I accept that the measures that were available to minimise the risk were not simple and low cost, contrary to [42] of the PWS, but were resource-intensive and required ongoing analysis and reassessment about the extent to which they were continuing to minimise the risk. 12. There were strong countervailing factors that needed to be balanced in assessing the practicability of the implementation of any potential measures designed to address the risk, including the need for paramedics to have ready access to medications, the need to ensure public safety, the need to avoid delay in the provision of public health services (including medications), as well as measures involved in managing a large number of workers across a large geographical area. 13. The relevant works undertaken by the offender's employees will always necessarily involve a degree of trust to be given to trained medical professionals and relies upon a culture of trust between paramedics and their managers working together. Such culture, while important to produce effective outcomes in high-pressure situations, can present as a practical impediment in the implementation of potential measures as well as impacting how efficacious they are.
I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: 'It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.'
Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).
The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31-32 of the WHS Act: Nash v Silver City at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include:

The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Ibid [34];
The availability of steps to eliminate or minimise the risk: Ibid [34];
Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Ibid [34] and [53];
Whether the risk was known or ought reasonably have been known to or identified by the offender;
Whether the risk was an obvious or clear one; and
The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ).

As a consequence of the matters set out above, I am of the view that this is an objectively serious offence. The seriousness of the foreseeable harm to a worker was known. However as conceded by the prosecutor, ASNSW had measures in place to mitigate the risk, prior to the breach period.

[38]

Deterrence

In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.
General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the Court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).
When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.
The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]-[75] which said: '[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. … [75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.'
General deterrence must be a significant feature of the sentence imposed upon the defendant. It can be appropriately used to direct the industry's attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with working in an environment where Restricted Medications are essential.
The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the WHS Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors.
The prosecutor submits that it is appropriate that the penalty imposed on ASNSW communicates a message to other PCBUs that handle Restircted Medications of the necessity to ensure that measures are implemented to address the risks associated with workers misappropriating Restricted Medications for their own illicit consumption.
The ASNSW submits that whilst accepting that ordinarily general deterrence looms large in sentencing under the WHS Act, in these circumstances it would take on less prominence. Further, it is submitted that the risk in the present case involves a highly specific risk of trained health professionals misappropriating medications, and that the risk in this case has limited application to other occupations and other sectors, such that general deterrence is of more limited application.
I accept that to be the case in this prosecution. The breach that the ASNSW has entered a plea if guilty to is of such a unique failure and involves only one employer to whom the message needs to be enforced, cannot be compared to the message that needs to create general deterrence to a group of employers such as the building industry. I have taken that into account in coming to my determination of the appropriate sentence.
In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend. I note that the ASNSW continues to procure, possess, store, handle, administer and dispose of Restricted Medications as part of its operations to provide ambulance services in NSW, and in particular the Hunter Zone.
Staff of the ASNSW including paramedics continue to be required to access, possess, handle, administer, dispose of and document the use of Restricted medications, in particular Fentanyl, whilst carrying out their work. It is therefore apparent that the hazards and risks associated with the misappropriation of Restricted Medications by ASNSW staff whilst working, for their own consumption, that were identified as part of the offence, are still likely to arise.
Against those factors, I find that the need for specific deterrence is reduced by the fact that the ASNSW has no prior criminal history and by the extensive ameliorative measures that have been taken to date. Such steps also give me confidence that the ASNSW has very good prospects of rehabilitation. Nonetheless, there still needs to be an element of specific deterrence.

At a glance

Court

Decision date

Source

Judgment (41 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (25)