[2000] NSWIRComm 71
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Haynes v CI & D Manufacturing Pty Limited (No 2)
Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455
Latoudis v Casey [1990] HCA 59
(1990) 170 CLR 534
Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
Markarian v The Queen (2005) 228 CLR 357
Source
Original judgment source is linked above.
Catchwords
[2016] NSWCCA 37
Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610[2000] NSWIRComm 71
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Haynes v CI & D Manufacturing Pty Limited (No 2)Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455
Latoudis v Casey [1990] HCA 59(1990) 170 CLR 534
Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117[2005] NSWIRComm 61
Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 39
Nash v Silver City Drilling (NSW) Pty LtdAttorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399[2012] VSCA 82
R v Cage [2006] NSWCCA 304
R v MA (2004) 145 A Crim R 434[2004] NSWCCA 92
R v Miria [2009] NSWCCA 68
R v MMK (2006) 164 A Crim R 481[2006] NSWCCA 272
R v ThomsonR v Houlton (2000) 49 NSWLR 383SafeWork NSW v Cai [2018] NSWDC 398
Veen v R (No 2) [1988] HCA 14
Judgment (17 paragraphs)
[1]
P English (Prosecutor)
E Aitken (Defendant)
[2]
Solicitors:
Department of Customer Service (Prosecutor)
Ashurst (Defendant)
File Number(s): 2022/378486
Publication restriction: The names of any parties, and any reference that may identify a party are restricted from publication.
[3]
Background
The defendant has pleaded guilty to one offence contrary to s 32 of the Work Health and Safety Act 2011 (NSW) (WHS Act). By virtue of its plea, the defendant has admitted that it failed to comply with the primary duty to ensure the safety of workers, so far as reasonably practicable, and that its failure to do so exposed two Correctives Officers COF and COL, to a risk of serious injury or death.
At the time of the offence the maximum penalty for a contravention of s 32 of the WHS Act for a body corporate was 17,315 penalty units ($1,766,130): ss 32 and 245(1) WHS Act.
The prosecutor tendered the Prosecutor's Sentence Tender Bundle which became exhibit A, and a Victim Impact Statement (VIS) from COF which became exhibit B.
The defendant tendered an affidavit of Dr Anne-Marie Martin of 1 December 2024 which became exhibit 1, and an affidavit of Malcolm Brown of 15 November 2024 which became exhibit 2.
[4]
Brief Outline of the Facts
The contravention arises from an incident that occurred at the Mid North Coast Correctional Centre located at 370 Aldavilla Road, Aldavilla NSW (MNCCC) on 19 December 2020 (Incident). The MNCCC is a maximum, medium and minimum security correctional centre operated by State of New South Wales (Department of Communities and Justice, Corrective Services NSW) (CSNSW).
The Incident occurred when two inmates in the maximum-security section of the MNCCC - inmate NB and inmate DM ambushed Correctional Officers COF and COL by rushing them into the staff workstation (officers' station). COL was able to escape the officers' station, but COF was held hostage for more than six hours during which time he was subjected to, threatened with, and actual physical violence. The torture that COF went through was depraved and viscous, but I do not propose to detail his ordeal in the circumstances of this judgment on sentence. I will however refer to matters that are raised in the VIS later in this judgment.
At the time of the Incident, the known antecedents of the attacking inmates were as summarised below:
1. NB had an extensive criminal and custodial history, was described as having a propensity for violence towards staff and inmates, and had previously exhibited non-compliant behaviour.
2. DM had been in custody since 2017 and is currently serving a total sentence of 35 years and 6 months following convictions for murder, armed robbery and assault. He had been placed on several inmate behavioural plans as a result of his violent behaviour towards custodial officers and other inmates.
The hostage situation was resolved by the attackers agreeing to surrender in return for telehealth link-ups with a Justice Health staff member to review their suitability for the buprenorphine depot injection program.
Once released, COF was removed from the scene and received immediate medical attention from paramedics on site. He suffered multiple very serious injuries. He was taken to Port Macquarie Base Hospital for further assessment and was transferred, in a stable condition, to the Burns Unit at Royal North Shore Hospital in Sydney on 22 December 2020.
COL also sustained serious injuries and received treatment at Kempsey Hospital.
At the time of the Incident, COF and COL were employees of CSNSW. Following the Incident, COF resigned from his employment with CSNSW and COL was medically retired. Neither COF nor COL have returned to work and their prognosis remains unclear.
[5]
The Risk to Health and Safety
The risk to health and safety that existed at the time of the incident was the risk to workers, in particular COF and/or COL, suffering death or serious injury from being subjected to work-related violence involving prison inmates (the risk).
[6]
The Defendant's Duty
The defendant had a duty under s 19(1) of the WHS Act to ensure the health and safety of its workers, 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 reasonably practicable. The duty is positive, non-delegable, and requires duty holders to search for, detect and eliminate, so far as is reasonably practicable, risks to safety.
The defendant failed to take one or more of the following reasonably practicable measures to minimise (as it was not possible to eliminate) the risk:
1. Requiring and enforcing that when accessing inmate areas, staff at the MNCCC departed from and re-entered the officers' station only using the airlock doors.
2. Providing and enforcing a safe system of work or procedure which included requiring that hazardous chemicals, including undiluted Fincol, were stored securely at the MNCCC.
3. Providing and implementing a safe system of work or procedure which required that prison-made weapons, once detected at the MNCCC, were secured and/or disposed of to prevent further access by inmates.
[7]
Systems in Place at the Time of the Incident
The measures/systems that CSNSW had in place at the time of the Incident were:
1. The Custodial Operations Policy and Procedures which applied across the State in the Security and Custody Division of CSNS including, relevantly:
1. "15.1 Safe Work Practices", which set out the procedure for the storage, handling and disposal of sharps and contraband, including the requirement that sharps found were to be placed in puncture-resistant and leak-proof containers before then being preserved as evidence or disposed of, and that sharps had to be disposed of in a secured area away from inmate access;
2. "13.8 Crime Scene Preservation", which stipulated that sharps such as knives or razor blades found at the scene of a suspected serious incident should be placed into a sterile sharps' container;
3. "17.02 - Searching Correctional Centres", set out the procedure for effective searching of correctional centres and steps to follow where non-prescribed property (such as contraband or gaol-made weapons) were located; and
4. "16.11 - Security Risks, Manufactured Weapons, and Tools of Escape", which prohibited various items within correctional centres including metal buckets and certain gym equipment to prevent their use as weapons;
5. mandatory induction and ongoing training for all correctional officers through CSNSW Academy, including a core 12-week training program, which includes training on contraband (including gaol-made weapons);
6. the Security Operations Group (SOG) which operated across the State and provided the Governors of NSW correctional centres with proactive and reactive strategies to ensure the security, safety and good order of their facilities, and manage responses to emergency situations;
7. Immediate Action Teams comprised of specially trained custodial officers and maintained by CSNSW to respond to security and emergency situations and conduct search operations. The Immediate Action Teams were managed by the SOG;
8. policies, plans and systems developed and implemented at the correctional centre level, including local operating procedures and other plans. The relevant centre-based policies, plans and systems that were in place at the MNCCC include:
1. WHS Risk Registers for various risks within the correctional centre;
2. Local Operating Procedure - Hostage;
3. Contingency Plan (which set out the steps to be taken in hostage situations);
4. Internal Emergency Action Plan (which listed the actions to be taken by first responders in a hostage situation);
5. the High Security Inmate Management Committee (which reviewed inmates and made recommendations about the classification of inmates as Extreme High Risk Restricted, Extreme High Security or High Security, as well as regarding their placement, movement, program pathways and whether additional security arrangements ought to be imposed);
6. the Extreme Threat Inmate Management Committee (which sat underneath the High Security Inmate Management Committee and was responsible for identifying inmates who were posing an extreme threat based on indicators of violence, influence or reports from intelligence holdings about the inmate's involvement in terrorist and criminal organisations while in custody);
7. where inmates were identified as posing an extreme threat, the Extreme Threat Inmate Management Committee could initiate a Behavioural Management Plan and a Behavioural Management Contract or recommend that the inmate be placed in a behaviour management unit such as the High Risk Management Correctional Centre. Inmates who posed an extreme threat also had additional requirements placed on their visitors;
8. regular daily musters, and a requirement that each inmate was formally identified at least three times a day during the muster;
9. personal duress alarms which notified the monitor room when activated; and
10. a schedule of routine searches:
● daily random searches of cells for items such as gaol-made weapons;
● weekly searches involving the inspection of all bars, bolts, locks, fences and gates; and
● monthly searches which involve locking down an entire area of a centre and conducting a targeted search.
[8]
Post-Incident Events
The measures implemented by CSNSW since the Incident are the:
1. Issuing of a Governor's Directive (No 5/2021) on 29 January 2021 prohibiting the entry into the officers' station via the common room door, and requiring the entry be via the airlock doors only.
2. Creation of a new Local Operating Procedure for the MNCCC titled "Securing and disposal of contraband" issued on 4 February 2021 which applies to securing and disposing of weapons (including gaol-made weapons). Prior to the creation of the Local Operating Procedure, a Governor's Directive (No 02/2021) was issued to a similar effect on 15 January 2021.
3. Engagement of third-party safety and risk management consultancy Greencap to undertake a Hazardous Chemical Storage Assessment which was provided in March 2021.
4. Following this assessment, a new Local Operating Procedure for the MNCCC was created titled "Safe Handling and Storage of Fincol at MNCCC" which was issued on 24 March 2021. CSNSW also issued a Safety Alert following the Incident regarding the misuse of Fincol by Inmates NB and DM.
5. Commissioning of an After Action Review into the Incident, completed on 21 January 2021, which resulted in a number of recommendations being issued, all of which have now been implemented.
6. Rolling out of various training, information and technical safety measures related to safety issues that arose during the Incident.
I accept that CSNSW's prospects of rehabilitation are good. CSNSW has demonstrated remorse for the Incident via its guilty plea and the evidence of Dr Anne Marie Martin, Deputy Commissioner (Security and Custody) CSNSW (exhibit 1). Dr Martin has attested to CSNSW's commitment to work health and safety.
[9]
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.
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; [2005] HCA 25.
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."
[10]
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; [2011] HCA 39 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 at pp 474-475.
The duties of the defendant require that they ensure the health and safety of workers as far as is 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 Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) [1988] HCA 14; (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; [2000] NSWIRComm 71 (Capral Aluminium) at [81].
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; [2005] NSWIRComm 61.
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; [2000] NSWIRComm 142 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; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 (Nash v Silver City Drilling). His Honour Justice Basten, under the heading "Assessment of Risk" said at [34]:
"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."
[11]
Matters that are Relevant to the Determination of the Culpability of the Defendant
The defendant manages the largest prison system in Australia and the vast majority of the correctional centres in NSW. I accept that the risk profile of its undertaking is incredibly complex. The individuals who present to, and interact with the defendant, often have complex personal histories and exhibit challenging behaviours and mental health conditions.
The risk was known to the defendant. While the nature of the work means that the risk cannot at all times be eliminated, it would have been reasonably practicable to have minimised it by the adoption of the measures which involved the creation and effective promulgation of appropriate policies and procedures.
The gravity of the risk was significant given the known criminal and custodial histories of inmates, and their well-understood tendency to arm themselves with gaol-made weapons (not limited to Inmates NB and DM. The hazard safety risk posed by undiluted Fincol was also well known to the defendant.
The likelihood of the risk materialising was not insignificant given the inherent risks posed to corrections officers from working in close proximity with criminals convicted of serious offences. The risk included a risk of death.
There were straightforward steps available which could have been taken to minimise the risk. There was no policy or procedure in place at MNCCC requiring corrections officers to only enter and exit the officers' station using the airlock doors.
On 29 January 2021, Governor's Directive No 05/2021 was released which provides that "Effective immediately, no staff member is to access the pod directly from the office via pod office/common room door. Entry into pod common room must be done via the outer air-lock doors".
Enforcing the secure storage of undiluted Fincol in areas beyond the proximate access of inmates would have ensured that this hazardous chemical was not available for use by the attacking inmates against COF. The defendant's "Hazardous Chemicals - Risk Register - Fincol" current at the time of the incident (but not enforced) required that Fincol be "Store[d] locked up".
On 24 March 2021, the defendant implemented a new local operating procedure in relation to the Safe Handling and Storage of Fincol at MNCCC, which at [1.6], provides that "No part or full bottles of undiluted Fincol are to be left in any area other than the designated storage container". A Safety Alert in relation to Storage of Fincol was also issued following its use by the attacking inmates during the incident at the MNCCC.
[12]
Victim Impact Statement (exhibit B)
COF made a Victim Impact Statement which, at his request, I read out in open court. It was harrowing, and it gave a window into the enormous suffering that he has been through, continues to go through each and every day, and there does not seem to be any end in sight.
COF joined the CSNSW as he had a genuine desire to help people, having grown up in a community with high levels of unemployment, drug and alcohol abuse, lack of education and social services and the prevalence of generational trauma. He wanted to make his community better and end the cycle of poverty and abuse.
He now knows that there are some people for whom it is not worth trying to help as they cannot be bothered to help themselves and choose to abuse drugs and abuse others for their own means. In saying that, he refers to people like the attackers who made a choice to destroy his life and that of his partner, mother, brothers and sister, family and friends lives.
The suffering he experienced during and after the attack has been brutal. He thought he would die, he thought that if he did not, he would be blinded. During the attack he struggled to breathe, was writhing in pain, and felt his skin peel off due to the chemical burns from being doused in the undiluted Fincol, whilst being told by the attackers that they would kill him.
The scars on his body are a daily reminder of what he went through and tell a story of abuse and trauma, forced upon him by "two sadistic perpetrators".
Prior to the attack, COF's life was good, he was enjoying his career, had a devoted partner, a loving family and loyal friends. Since the incident, he has tried to overcome the mental and physical pain hurdles that have been thrown in his path, however some days he cannot.
COF currently has lost the feeling in his hands and feet, and a loss of vision, to the extent that COF has lost the ability to play his guitar, ride his motorbike and get a coffee at the beach. Nor can he enjoy reading a book, or getting his hair cut. He has a "constant urge to look over my shoulder, to remain in the present and protect what is close to me."
I find it very difficult to imagine the extent of COF's suffering. He went to work to do a job he enjoyed and to help make a difference, and as a consequence of the attack, he continues to suffer greatly. To my mind, here was a man devoted to his community and those with whom he worked, who's life has been irreparably damaged. COF went to work to protect the inmates of the facility, his co-workers and the community at large. To now find himself in the situation that he is in is devastating. He suffers an overwhelming sense of betrayal as everything he worked for has been taken away from him. He feels an enormous sense of shame in his home town.
[13]
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 is 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 Pty Ltd v Nash (2016) 93 NSWLR 338 (Bulga); [2016] NSWCCA 37 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 says:
"[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 Corrective Services.
[14]
Aggravating Factors
The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act. In order for this aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing).
COF and COL were vulnerable workers by nature of their employment: s 21A(2)(a).
The injuries sustained by COL, and in particular COF were brutal, viscous and depraved, and for COF extended for a more than six-hour period. I am satisfied beyond a reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected, and that the injuries were substantial, and I have taken them into account as aggravating factors: s 21A(2)(b), (c) and (ca). I did not take these into account in assessing objective seriousness, as I am cognisant not to double count this as a separate measure.
[15]
Mitigating Factors
In Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench held the following:
"We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the 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 having regard to the past record.
Human experience indicates that the larger 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 very large company with some prior convictions may, on analysis, be better than that of a small 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 inquiry must remain the circumstances of the breach in question."
The defendant has been subject to prior convictions under work health and safety law: s 21A(3)(e) of the Sentencing Act. The defendant accepts that as a branch of the Department of Communities and Justice (DCOJ), as it was at the time of the incident, and that DOCJ had a number of convictions in respect of work/occupational health and safety laws.
The defendant submits and I accept that in the context of the size, nature and complexity of its undertaking (being the operator of 34 correctional centres across NSW), it does not amount to a significant record of previous convictions, and I will afford the defendant some leniency in that regard.
I accept that the defendant is reasonably unlikely to reoffend as it has undertaken significant changes and is even more focused than before on the health and safety of its workers: s 21A(3)(g) of the Sentencing Act.
I accept that the defendant has demonstrated its remorse and accepted responsibility for the offence: s 21A(3)(i) of the Sentencing Act. This is borne out in exhibit 1.
[16]
Costs
The issuing of costs against a defendant in both criminal and civil proceedings is not punitive, but rather compensatory to the prosecution: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543 (Mason CJ).
[17]
Penalty
I make the following orders:
1. The defendant is convicted.
2. The appropriate fine for the offence is $800,000 and that will be reduced by 25% to reflect the plea of guilty.
3. Accordingly, I order the defendant to pay a fine of $600,000.
4. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.
5. The defendant is to pay the prosecutors costs as agreed or assessed.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 20 December 2024
CSNSW accepts that both the pleaded risk, and the specific risk that manifested in the Incident, were foreseeable. Further CSNSW submits that the pleaded risk could not be eliminated.
The defendant asserts and I accept that these systems remain in place as at the date of the sentence hearing.
The relevant systems utilised at the MNCCC on the day of the Incident were:
1. The Extreme Threat Inmate Management Committee had issued a written warning to DM on 15 July 2020 due to previous violent behaviour and he had been placed on two Behavioural Management Contracts prior to the Incident.
2. The usual muster procedure had occurred on the day of the Incident.
3. The Immediate Action Team and SOG both assisted in responding to the Incident.
4. A full search of the MNCCC commenced at 12:36pm on the day of the Incident (approximately half an hour after the Incident started). This included searching inmates, cells and common areas;
5. Consistent with the Local Operating Procedure - Hostage, Contingency Plan and Internal Emergency Action Plan:
1. the area was secured;
2. access was restricted only to essential staff;
3. first responders sought to delay taking any significant action until the SOG arrived; and
4. a Command Post was established to coordinate the response.
CSNSW accepts it did not adequately respond to the pleaded risk as it failed to take the reasonably practicable measures that are particularised in par 9 of Annexure A to the AS. The reasonably practicable measures alleged were straightforward and inexpensive for CSNSW to implement.
CSNSW accepts that the potential consequences of the pleaded risk were very significant, as demonstrated by the injuries suffered by COF and COL and their ultimate departure from their employment with CSNSW. The gravity of the potential consequences of the risk weighs heavily in the assessment of objective seriousness in this case.
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) 145 A Crim R 434; [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) 164 A Crim R 481; [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).
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 of 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 Drilling at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include:
1. 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 materialise: Nash v Silver City Drilling at [34].
2. The availability of steps to eliminate or minimise the risk: Nash v Silver City Drilling at [34].
3. Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Nash v Silver City Drilling at [34] and [53].
4. Whether the risk was known or ought reasonably to have been known to or identified by the offender.
5. Whether the risk was an obvious or clear one.
6. The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398 at [55] (Russell SC DCJ).
However, I accept that it is the risk that I am assessing the seriousness of, and not its manifestation. In Nash v Silver City Drilling, his Honour Justice Basten dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying at [53]:
"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."
The secure storage of confiscated sharps and gaol-made weapons in areas beyond the potential access of inmates would have ensured that additional items of this nature could not have been discovered by the two attacking inmates and used by them to injure COF. At the time of the incident, there were no policies or procedures in place at the MNCCC requiring that contraband be secured in a location away from potential access by inmates.
Since the incident, a new local operating procedure in relation to the Securing and Disposal of Contraband at MNCCC dated 4 February 2021 was introduced, which at [5.1], requires that discovered contraband should be left in situ where possible and the cell or area secured, and that the Immediate Action Team (IAT) will attend when able to photograph and seize the item(s), utilising a sharps container or evidence bag as appropriate. Weapons are then to be secured in IAT offices (ie in non-proximate locations to inmate pods).
The prosecutor and counsel for the defendant are aligned with regard to most matters relevant to the sentencing process and the issues to be dealt with. It is agreed that the defendant had knowledge of the potential risks and the serious consequences that may follow a breach, and that there were straightforward ways that the risk could be minimised. It is also agreed, and I accept, that there was no way to eliminate the risk. Further, given the size of the defendant and it's operations, the past breaches do not amount to a significant record with which I also agree.
At the time of the breach, there were extensive systems in place to attempt to minimise the risk. These systems were layered, at a Statewide level and at the MNCCC level, as described by Mr Brown in exhibit 2, particularly at [38]. There were Statewide systems across all CS facilities.
Both inmates had been previously identified as dangerous and the risk that they created was known.
The heart of the offending is the lacuna in the policies with regard to the storage of the undiluted Fincol, a hospital-strength disinfectant. The defendant concedes that the manner in which it was stored was inadequate. The plea of guilty accepts that it was not safely stored.
The defendant also concedes that there was not a time requirement as to the disposal of gaol-made shivs, and that allowed the attackers to utilise those to threaten and harm COF and COL.
It is important to note that it is not alleged that the defendant caused the violence to occur, but that the defendant caused the workers to be exposed to the risk. Furthermore, the defendant accepts that despite all the systems that were in place, there was a gap, and that gave rise to the risk.
When considered in combination, the matters set out above point to an objectively serious example of an offence of this kind. Owing to the duration of the incident, the seriousness of the injuries, both physical and psychological, occasioned to COF (especially) and COL, and the simple and inexpensive measures available to minimise the risk, I find that the objective seriousness lies above the mid-range.
I further accept that the defendant had detailed and significant measures in place to address the many and varied risks present in its undertaking, including the pleaded risk. The defendant submits that the nature of its undertaking and these systems are relevant and should be taken into account in assessing its culpability for this offence, which I have done in coming to my sentence.
The people that he trusted, and his family trusted, have betrayed him. Knowing that, COF wonders how he will ever trust anyone again. He wonders how he will ever get on with his life as he feels chained in his own prison as a direct consequence of the barbaric assault he sustained on 19 December 2020. As he states "I went to work that day to make a difference, and I left a very different person. And not for the better."
I feel privileged to have had the opportunity to read the eloquent and incredibly upsetting, statement made by COF. I personally thank him for showing such bravery to write those words. I sincerely hope that once this proceeding is over, and as the days go by, his suffering may lessen.
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.
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 accept the defendant co-operated with SafeWork NSW during its investigations: s 21A(3)(m) of the Sentencing Act.
The defendant entered a plea of guilty shortly after the Amended Summons was filed in court. Such a plea of guilty demonstrates remorse, and I will allow a deduction of 25% for the utilitarian value of the plea in accordance with the principles set out in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and s 21A(3)(k) and s 22 of the Sentencing Act.