WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service

PROSECUTION: Mr PA Johnson SC with Ms AF Backman of counsel SOLICITORS: Carroll & O'Dea Solicitors LEGAL REPRESENTATIVES: DEFENDANT: Mr G Inatey SC with Mr AA Henskens of counsel SOLICITORS: Colin Biggers & Paisley Solicitors

JUDGMENT: - 42 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR POMPILI) v CENTRAL SYDNEY AREA HEALTH SERVICE Prosecution under s15(1) of the Occupational Health and Safety Act 1983

1 This is a prosecution of the Central Sydney Area Health Service brought by Aurelia Pompili, as an Inspector of the WorkCover Authority of New South Wales, for a breach of s15(1) of the Occupational Health and Safety Act 1983 ('the Act'). That Act has been repealed, but the transitional provisions of the Occupational Health and Safety Act 2000, apply to these proceedings.

2 The prosecution concerned events which arose on 6 April 1997, during which nurses employed by the defendant at Rozelle Hospital were assaulted and injured by a patient, TR. An order that the patient involved in the incident be referred to in the proceedings by the pseudonym 'TR' was sought by the prosecutor, supported by the defendant and granted, I being satisfied that the Court had power to make the order, and that it was appropriate to do so in the circumstances here before the Court.

3 Such orders may be made pursuant to ss162 and 163 of the Act and also in the exercise of the Court's inherent or implied power, as a superior court of record. The Court has made such orders in both civil and criminal proceedings. (See X v NSW Department of Education and Training (1999) 89 IR 1, discussed in Stonham v Speaker of the Legislative Assembly of New South Wales (No 2) (1999) 90 IR 334 at 349 and WorkCover Authority of NSW (Inspector Batty v Crown in the Right of NSW (Department of Education and Training) (2000) NSWIRComm 181 at para [4].)

4 Such orders will not lightly be made, especially in criminal proceedings. In criminal proceedings the test is that discussed by the Court of Appeal in John Fairfax Group Pty Ltd & Anor v Local Court of New South Wales & Ors (1991) 26 NSWLR 131 and Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 452, para [51]. See also Witness v Marsden (2000) 49 NSWLR 429.

5 The test is concerned with the proper administration of justice in the proceedings before the Court. A conclusion that the order is necessary for that purpose does not mean essential, but involves a consideration of reasonableness (Pelechowski (at para [51]) and the unacceptable consequences flowing from publication of a name, (John Fairfax at 161 per Mahoney J).

6 Such orders have been made in relation to an alleged victim of extortion (John Fairfax); the identity of an informer (R v Smith (1996) 86 A Crim R 308); an accused ("Mr C" (1993) 67 A Crim R 562) and in the proceedings before Marks J in Batty, in relation to students enrolled in the support unit of a high school, who were involved in violence towards teachers employed at the school.

7 Here the parties relied upon the circumstances that TR was not a party to the proceedings, but was referred to in the charge because the offence was committed in a context which involved him; that he was then an inpatient at a psychiatric hospital operated by the defendant; that he was now in the community undertaking treatment and that publication of his name gave rise to a real prospect that his treatment would be detrimentally affected. There was also concern that publication of the name might disrupt the proceedings. It was submitted that the making of the orders sought in this case would make but a small inroad upon the open trial principle and that publication of the name would not advance the interests of justice. The approach adopted to identification of persons such as TR in the Protective division of the Supreme Court was also relied upon. (See B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440.)

8 In the circumstances of this case I was well satisfied that the submissions of the prosecutor, supported as they were by the defendant, made out a proper basis for the pseudonym order sought. It was for those reasons that the order was made.

9 The defendant was charged with 4 offences arising out of the events in question. The summons in these proceedings was filed in April 1999. After many preliminary proceedings, the hearing commenced on 11 February 2002. After the case was opened for the prosecution, the defence raised a number of concerns. This led to an adjournment of the hearing. The following day, it was announced that the summons in this matter was to be amended, following which a plea of guilty would be entered by the defendant to the amended summons and that an application would then be made by the prosecution that the other three prosecutions be dismissed. That course was followed.

10 The amended summons to which a plea of guilty was entered on 18 February provided: 'On the 6 April 1997 at Rozelle Hospital at Balmain Road, Rozelle, in the State of New South Wales, the defendant, being an employer, DID FAIL to ensure the health safety and welfare at work of all its employees and in particular John Carrick, Susan Walker, Jacqueline Turner, Philippa Mazoudier and Robert Lindsey contrary to Section 15(1) of the Occupational Health and Safety Act , 1983, in such case made and provided, in failing to maintain a place of work that was safe and without risk to health. The Particulars of the charge are: a) The defendant, at all material times undertook the control and hospitalisation of psychiatric patients at the Rozelle Hospital.

b) The defendant at all material times employed a number of nursing and other staff at the said hospital.

c) The defendant failed to maintain a place of work at Ward 25 to ensure that the Ward was safe and not a risk to health during the course of a critical incident.

d) Ward 25 had a window, a mirror and a picture frame all containing breakable glass.

e) The Defendant failed to provide a controlled entry point for Ward 25 in the event of a critical incident.'

11 The plea was accepted, the defendant was found guilty of the charge and evidence and submissions in relation to the plea were heard. A number of documents were tendered and evidence was called by the defendant from Mr Rowley, Acting General Manager of Mental Health Services of the Central Area Health Service and Mr Delaney, registered nurse. Mr Delaney was not required for cross examination.

12 It was common ground between the parties that the maximum penalty for the offence was $500,000 and that s51A of the Act did not apply to the offence, so as to increase the maximum penalty to $750,000. (See Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsey) (2000) 49 NSWLR 610; (2000) 99 IR 29). That position was advanced in circumstances where, at the time the offence was committed on 6 April 1997, the defendant had no prior convictions under the Act. In the intervening period prior to the hearing however, the defendant had been convicted of three further offences, one committed in December 1997, dealt with by a Magistrate, who had imposed a penalty of $15,000 in August 2000 and the other two relating to the same incident in December 1998. Those offences were dealt with by Hungerford J, who imposed penalties of $58,500 for each offence in December 2001. (See WorkCover Authority of New South Wales (Inspector Stewart) v Central Sydney Area Health Service [2001] NSWIRComm 326).

13 The application of s51A to this offence depends upon the proper construction of the section. That question was recently touched upon by Boland J in Inspector Low v Capral Aluminium Ltd [2002] NSW IRComm 12. There his Honour was called upon to consider the question of the application of the approach discussed by the Court of Appeal in R v Boney (Unreported; NSW Court of Criminal Appeal; Mahoney JA, Grove and Newman JJ; 22 July 1991) to offences under the Act. In doing so, his Honour touched upon the proper construction of s51A of the Act and the potential inconsistency of the approach in Boney, with that section. His Honour observed at [51] to [52]: 51 The inconsistency - or potential inconsistency - that I have in mind may be illustrated in the following way: Assume that a defendant commits a first offence under the Act in October 1998 and the offence comes before the court for sentencing in December 2001. In between those times the defendant commits other offences and in respect of each of them a conviction is recorded. Having regard to the previous convictions the court may, pursuant to s 51A, impose an additional penalty for the offence committed in October 1998. On Mr Harmer 's proposition, however, these previous convictions would be regarded as "interim convictions" to be considered only for the purpose of withholding leniency and not for the purpose of imposing additional punishment. Therefore, it would seem to follow from Mr Harmer's submission that the "interim convictions" could not be regarded as previous convictions for the purpose of s 51A.

52 It is difficult to express any concluded view about this issue because I have not had the benefit of hearing argument, but on the face of it the principle enunciated in Boney has the potential to clash with s 51A of the Act. My tentative view is that Boney does not apply to offences under the Act. In this regard I also note the observation of Hill J in Capral (29 July 1998) that "… offences under the Act do not require any mens rea or element of fault."

14 Despite these observations, it was submitted here by the prosecution, that because at the time this offence was committed in April 1997, the defendant had no prior convictions, s51A did not apply to the defendant when convicted of this offence in February 2002, even though at that time it had three convictions. It was argued to be relevant that each of those offences had been committed later in time than this offence and that at common law, a first offence would not be visited by a higher penalty, because of later offences and convictions.

15 Section 51A provides: 51A. Additional penalty for further offence against the Act

(1) A Court that convicts a person of an offence (the current offence ) against this Act may, if the person has previously been convicted of an offence against this Act (whether the same offence or another), impose as additional penalty in respect of the current offence not exceeding the following penalties: (a) if the current offence is an offence against section 15, 16, 17 or 18 of this Act - 2,500 penalty units in the case of a corporation or 250 penalty units or 2 years imprisonment, or both, in any other case, or (b) if the current offence is any other offence against this Act - 50% of the maximum penalty for the offence (that is, 50% of the maximum penalty that would apply but for this section). (2) For the purposes of section 47 (Summary procedure for offences), the maximum penalty provided in respect of an offence is, in the case of an offence to which this section applies, taken to include any additional penalty that may be imposed under this section.

(3) This section applies even if the previous offence concerned was committed before the commencement of this section.

16 Mr Johnson SC submitted for the prosecution that there were two possible constructions of s51A available. That which the parties advanced and the alternate view, touched upon by Boland J, namely that the operation of s51A was only avoided in respect of a first conviction under the Act and that the section was concerned with record at the time of conviction of an offence, not at the time of its commission.

17 Mr Inatey SC, for the defendant, supported the submissions of the prosecution and also pointed to the practical consequences of the competing constructions in these circumstances. He also formally submitted that Capral had been wrongly decided, although acknowledging that it bound the Court as presently constituted. He argued that had the contrary construction contended for by the appellant in Capral been there adopted by the Full Court, namely that the section gave the Court a discretion as to whether to increase the maximum penalty, in this case the Court would exercise that discretion in the defendant's favour, given the circumstances.

18 The fact of an agreement between the parties to these proceedings as to the proper construction of the aspect of s51A which here arises for consideration cannot, of itself, influence the Court's determination of that question, although the submissions advanced must obviously be given proper consideration. The meaning of the section must be found in the language used by the legislature. Regard may also be had to a consideration of its purpose, particularly if there be some ambiguity or inconsistency in the section.

19 As observed by the Full Court in Capral, the construction of s51A is not without difficulty. In my view however, consistently with the approach adopted in Capral, both the language of the section and its purpose drive to the same conclusion, namely that in circumstances such as those which arise here for consideration, the section applies. The construction for which the parties contended cannot be accepted. The result is that contrary to the submissions advanced by the parties, the maximum penalty for the offence here in question is $750,000.

20 Section 51A(1) provides for an 'additional penalty', when the Court convicts a person where 'the person has previously been convicted of an offence under this Act'. Section 51A(2) has the effect of including such additional penalty in the maximum penalty provided by s47, for the offence in question. It follows that s51A(1) arises for consideration at the point when the Court is sentencing a defendant for an offence which has been made out. It is concerned with the maximum penalty which may be imposed for such an offence. The section only applies to cases where it is the Court which convicts a person of an offence. No provision is made for the imposition of such a higher maximum penalty in cases where it is a Magistrate who convicts a person of an offence under the Act.

21 The purpose of s51(A)(1) is relatively clear, namely to increase the maximum penalty otherwise prescribed by the Act, where, in proceedings brought before the Court, the offender in question has a record of prior offences. This is made even more clear by s51A(3), which provides that s51A(1) operates, even where the prior conviction offences were committed before the enactment of the section. As a matter of drafting, the statutory purpose could have been given effect in a number of ways. One, by reference to the person's record when the offence was committed. Another, by reference to the record at the time of conviction of the offence in question.

22 Of necessity, there will be a lapse of time between commission of an offence and conviction. There is a possibility, as here, that a person's record can change significantly in the period between commission and conviction. It will, of course, not always be the case that a person who has committed an offence, will be charged or convicted of that offence. Whether a person has a record of prior convictions is certain and readily able to be demonstrated either at the time of commission of the offence, or on later conviction. The same cannot be said of the commission of an offence.

23 The competing constructions of s51A which here arise for consideration would have different results, so far as maximum penalty is concerned, in the circumstances of this defendant. If the trigger for imposition of the higher penalty was the defendant's record at the time of the commission of this offence, s51A would not apply. When this offence was committed on 6 April 1997, the defendant had no prior record. If the trigger was the record at the time of conviction of this offence in February 2002, s51A would apply, because the defendant then had three prior convictions.

24 In my view, two considerations inevitably lead to the conclusion that it is record at the time of conviction, rather than at the time of commission of the offence, with which s51A is concerned. As noted, inevitably there is a delay between the commission of an offence and conviction. In some cases, as here, the delay can be of a number of years' duration. To construe s51A(1) as being concerned with a defendant's record at a time when the offence in question was committed, requires the introductory words 'A Court that convicts a person of an offence (the "current offence") against this Act may, if the person has previously been convicted of an offence …', to be read as providing 'A Court that convicts a person of an offence (the "current offence") against this Act may, if, at the time the offence was committed, the person has previously been convicted of an offence'.

25 It has long been accepted that it is wrong to read into a statute words which are not there, in the absence of clear necessity. (See for example Thompson v Gool & Co [1910] AC 409 at 420.) Here, it is impossible to see such a necessity arising. The construction for which the parties contend, would plainly not be necessary, in order to give effect to the purpose of the section. Nor is it possible to regard the inclusion of the words 'at the time the offence was committed' as being necessary to give effect to that purpose. It also cannot be concluded that the inclusion of those words are necessary, as involving a 'reading down' of words of general description, as discussed, for example, by Spigelman CJ in R v Young (1999) 46 NSWLR 681 at 687-8.

26 The second consideration is that the construction for which the parties contend, would appear give rise to consequences which do not accord with the intent of the section. The particular circumstances of this defendant illustrate this point, although obviously questions of construction cannot turn only upon the circumstances of a particular offence or defendant.

27 The offence here in question was committed in April 1997, at a time when the defendant had no prior convictions. A further offence was committed in December 1999. That offence was dealt with in proceedings brought before a Magistrate and hence s51A did not in any event arise for consideration. Whether proceedings are brought before a Magistrate, or the Court, is a matter for the prosecutor under the Act. If those proceedings had been brought before the Court, s51A would have arisen for consideration. It would appear, that on either construction, s51A would have had no application to the defendant's second offence, because both in December 1999 when the offence was committed and at the time of conviction in August 2000, the defendant had no prior convictions.

28 In 2001, when Hungerford J was considering the two offences committed in December 1998, on either construction s51A then had application, because at both the time of commission of those offences and at the time of that conviction, the defendant had a prior record. The section was there applied by his Honour, with the maximum penalty for each offence being $825,000.

29 It is at the time when this offence arises for imposition of penalty, having been committed first in time, but coming third in point of conviction, that a different result flows, depending upon the proper construction of s51A. The end result of the construction urged by the parties here would be that a defendant in circumstances such as these, who has committed a first offence the hearing of which before the Court is delayed until after later offences are dealt with to the point of conviction, does not attract the operation of s51A in relation to at least two of those offences.

30 That is, s51A is not directed to the first offence, because at the time that it was committed, the defendant had no prior convictions. The section is also not attracted to the offence (or offences, if more than one arises out of a particular situation) which is next committed, because at that time too, the defendant has no prior conviction, the first offence not yet having been dealt with.

31 By way of contrast, on the construction, which I take the view must be preferred, it is record at date of conviction of an offence before the Court which is relevant. Thus s51A is not attracted in relation to the first offence of which a defendant is convicted, but once a defendant has such a record, s51A is attracted whenever the Court is later sentencing the defendant in relation to other convictions, no matter when the offence was committed.

32 The practical consequences of the competing constructions of a statute cannot be ignored, especially if one construction appears consistent with the legislative intention. (See Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151 at 169-70 per Mason and Wilson JJ.) Here it must be concluded that the construction for which the parties contended does not sit comfortably with the apparent purpose of s 51A.

33 In coming to these conclusions, I have also had regard to the rules of statutory construction in relation to penal provisions. That the construction here jointly urged by the parties would lead to a lower maximum penalty for the offence in question, is a matter which has weighed heavily in my mind. Nevertheless, approaches such as that discussed by Gibbs J in Beckwith v R (1976) 12 ALR 333 at 339, cannot be overlooked: 'The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams (1935) 53 CLR 563, at pp 567-568 ; Craies on Statute Law , 7th ed. (1971), pp. 529-534. The rule is perhaps one of last resort.'

34 This approach was discussed by the Full Court in Capral at [41] to [52]. The approach there adopted further supports the conclusions which I have here reached. At paragraph [44], in considering the proper construction of that aspect of s51A there before it, the Full Court said that 'We consider that the most harmonious and rational construction of s51A, in terms of the approaches to construction referred to, is that the maximum penalty for a breach of, for example, s15 in the case of the conviction of a corporation which has previously been convicted of an offence against the Act was $750,000 at the relevant time.' In this case I cannot conclude that the ordinary rules of construction leave s51A in a state of doubt or ambiguity, which permits resolution of its construction in favour of the approach urged by the parties.

35 For the reasons given, I take the view that the proper construction of the section requires that it be read as being concerned with the defendant's prior record of convictions, as at the date of conviction of the offence in question, not as at the date of commission of that offence.

36 The statement of agreed facts tendered provided: 1. At all material times, the Prosecutor was an Inspector duly appointed under Division 4 of Part 3 of the Occupational Health & Safety Act 1983 and empowered under Section 48 of the said Act to institute proceedings in the within matter.

At all material times the defendant Central Sydney Area Health Service conducted a Psychiatric Hospital at Rozelle Hospital at Balmain Road, Rozelle, in the State of New South Wales, with its principal head office at Queen Elizabeth II Centre, 59 Missenden Road, Camperdown, in the State of New South Wales.

At all material times the Defendant undertook the control and hospitalisation of psychiatric patients at the Rozelle Hospital.

At all material times the defendant employed the following personnel at the said Rozelle Hospital: a) John Carrick, 34 years of age as a part-time registered psychiatric Nurse; b) Susan Walker, 48 years of age as a part-time registered psychiatric Nurse; c) Jacqueline Turner, 26 years of age as a registered psychiatric Nurse; d) Phillippa Mazoudier, 51 years of age as a registered psychiatric Nurse; e) Robert Lindsey, 44 years of age as a registered psychiatric Nurse

And a number of other personnel. Incident: 6 April, 1997

On Sunday, 6 April, 1997 at about 7.30 pm, TR, a patient at Rozelle Hospital returned from weekend leave. He was seen by Nurse Walker at about 7.30 pm and she assisted him to look for his clothes. At about 9.00 pm TR was re-admitted to Ward 25 and nurse Mazoudier gave him his medication which he appeared to take. At about the same time Nurse Lindsey described him as "settled" and each did not notice anything untoward in his affect or demeanour. At about 9.30 pm TR was talking with staff and appeared appropriate. At about 9.45 pm in Ward 25, Nurse Phillippa Mazoudier ("Nurse Mazoudier") who was on the first floor of the Ward heard loud crashing footsteps and shouting. She went down the hallway to investigate the noise. Suddenly the door of dormitory 3 was slammed twice and TR emerged naked and shouting. One arm was raised, he was holding his genitals with his other hand and was shouting "I've got to have sex". He then threw himself bodily at her and she fell against the hallway wall. She dropped the metal back medication chart that she was holding. She also dropped her keys and her duress alarm. She tried to retrieve the duress alarm but TR grabbed the metal back medication chart and threatened her with it. TR said he was going to kill her. Nurse Mazoudier pushed past him and shouted for help. She heard the metal back medical chart hit the wall. She then ran down the stairs shouting for help with TR running behind her shouting abuse. He kicked her down the last few stairs on the first flight and she landed on her knees on the first landing. She got up and kept running down the second flight of stairs. At that point Nurse Jacqueline Turner ("Nurse Turner") appeared at the bottom of the stairs and pressed her duress alarm. TR then proceeded to hit Nurse Turner around the head with closed fists. At the same time he was shouting sexual suggestions to Nurse Turner.

Another nurse, Nurse Susan Walker ("Nurse Walker") began to shout at TR to stop hitting Nurse Turner. TR then attacked Nurse Walker, hitting her on the left temple. TR then ran down the corridor again hitting Nurse Walker and pushing her into the door jamb. He then ran down the corridor and began to punch the framed picture at the end of the corridor. Nurses Turner and Mazoudier ran down the corridor towards him and shut the wooden door, effectively blocking off the L-shaped end of the corridor that now contained TR. (See photographs 9, 10, 11, 15, 16; and, Ward 25 Ground Floor Plan.) TR then began to throw himself against the door, trying to force it open, but both nurses were able to keep the door closed with their combined weight and strength. They could not, however, keep the door closed long enough to lock it. TR was on the other side of the door shouting abuse and, it would appear, breaking glass. At this point other staff arrived at Ward 25 and began to enter the Ward from different locations.

Nurse John Carrick ("Nurse Carrick") attended Ward 25 from the Observation Unit, accompanied by Nurses Lindsey and Watson. The three nurses entered through the rear of the Ward in the area of the L-shaped corridor. Nurses Lindsey and Watson immediately left by the same door locking it behind them leaving Nurse Carrick behind. Nurse Carrick was then confined in the L-shaped corridor with TR. He saw TR lying naked on the floor. TR was bleeding and there were splinters of glass all around the floor. TR stood up, grabbed Nurse Carrick in a headlock and rammed his head, running, into the exit door twice. He then began to punch Nurse Carrick about the face a number of times. Nurse Carrick was able to release the grip that TR had upon him and ran to the corridor's wooden door which appeared to have jammed. Nurse Carrick was banging his hands on the door and shouting for the door to be opened. This was the same door that was earlier held by the two nursing sisters Turner and Mazoudier to contain TR to the L-shaped corridor. TR then attacked Nurse Carrick again, throwing further punches. Nurse Carrick ran to the staff toilet to escape from TR. The window in that room was smashed and the full length mirror was also smashed with broken glass all over the floor. TR was behind Nurse Carrick throwing punches. Nurse Carrick ran back to the wooden door in the L-shaped corridor and tried to open it with his ENT key, however his hands were trembling and he could not get his key in the lock. TR then grabbed him with one hand. In his other hand he had a large piece of broken mirror and said to Nurse Carrick that he was going to cut him. At that stage Nurse Carrick was able to say to him "no, Trevor, no", and remove the glass from TR's hand. Nurse Carrick then used his key to open the exit door at the rear of the Ward and escaped out that door. At that point two other Nurses, Stuart Hendlen and Dean Blattener, arrived and were able to contain TR in the building and lock the door. Nurse Carrick then walked around to the Nurses Station inside Ward 25 where the other Nurses had congregated.

Suddenly, TR appeared in the Nurses Station in Ward 25. He was naked and screaming with arms waving in the air. Nurse McLuckie was closest to TR as he entered the office. She grabbed his right arm and called out to surrounding staff to "bring him down" which was the taught method in Critical Incident Positive Outcome Courses known as CIPO. The patient was brought down and immobilised in the staff area of Ward 25. A doctor attended and medication was administered to TR. Shortly thereafter he was conveyed to the Intensive Psychiatric Care Unit (IPCU) area. On the night and after the incident, arrangements were made for debriefing and defusing of the nurses involved.

As a result of the incident Nurse Carrick sustained cuts to the back of his right hand, cuts to his right brow and left shoulder and bruising to the head. He experienced nightmares and received counselling. Nurse Mazoudier received bruising to the left thigh and soreness in the back and head. She also experienced difficulty sleeping following the incident. Nurse Turner suffered soft tissue damage to the head and neck as well as headaches and psychological trauma. Nurse Walker suffered bruising to her forehead and cheek and received counselling. All four nurses required some time off work as a result of the incident.

At the time of the incident there were three female staff on duty in Ward 25, namely Nurses Mazoudier, Walker and Turner. A fourth Nurse, Nurse Lindsey had gone to the Admissions Centre, another section of Rozelle Hospital, in order to admit and convey a new patient to the IPCU. Staff arrived at Ward 25 in response to the duress alarm and in accordance with the duress alarm policy to render assistance.

At the time of the incident TR was 26 years old, approximately six feet tall and weighing between 15 and 16 stone. He had a six-year history of schizo-affective disorder and had been admitted four times to Rozelle Hospital.

Prior to 6 April 1997, TR had a number of admissions to Rozelle Hospital and had experienced a number of episodes of violence of varying degrees of severity towards both patients and staff, the last incident being in mid-February 1997.

Observation of patients at Rozelle Hospital was facilitated by the existence of levels of care in relation to patients. Decisions regarding care levels were made at the relevant time through consultation between the consultant psychiatrist, medical registrar, and the nurses. There were three levels of care available at Rozelle Hospital. These care levels were nominated Care Levels 1, 2 and 3 respectively. Patients placed on Care Level 1 required a minimum of one-to-one nursing observation. Care Level 1 was most frequently used for potentially suicidal patients or patients severely agitated or distressed. Patients placed on Care Level 2 required regular close observation to a maximum interval of 30 minutes. The rationale for this was to reduce the risk of absconding, as well as to reduce the risk of behaviour which placed the patient or others at risk of harm. Patients on Care Level 3 had the least restrictions placed on their movements. Under this level of care, patients were expected to inform staff of their whereabouts before leaving the ward area.

On 18 March 1997, TR was transferred from IPCU to Ward 25. From 25 March 1997 TR on the advice of a consultant psychiatrist, medical registrar and nurses, was placed on Care Level 3. In the week prior to 6 April 1997 he had been permitted to have a number of days of day "leave." Use of Breakable Glass in Ward 25

On 6 April 1997 Ward 25 contained glass, for example, in windows, mirrors and picture frames. A window, mirror and picture frame were located in or adjacent to the area of the L shaped corridor. Such items contained breakable glass which had the potential to be used as a weapon by patients in Ward 25. The location and existence of the glass constituted a failure by the defendant to ensure that its employees were not exposed to risks by use of the glass. During the course of the critical incident on 6 April 1997 TR used breakable glass from a mirror in the staff toilet in Ward 25 to threaten Nurse Carrick.

Following the critical incident of 6 April, 1997, glass windows were replaced by safety glass and safety film was placed over mirrors in toilet areas. On 2 May 1997 the staff toilet door was reglazed with safety glass.

At the time of the 6 April 1997 incident there was no controlled entry point for Ward 25 in the event of a critical incident. There were several doorway entry points to the Ward.

Following the critical incident of 6 April 1997 a controlled entry point into Ward 25 was established so that staff attending a critical incident meet at one location.

It is alleged that the defendant CENTRAL SYDNEY AREA HEALTH SERVICE has breached section 15(1) of the Occupational Health and Safety Act 1983 on 6 April 1997 at Rozelle Hospital, Balmain Road, Rozelle in the State of New South Wales in that being an employer it failed to ensure the health safety and welfare at work of all its employees and in particular John Carrick, Susan Walker, Jacqueline Turner, Phillippa Mazoudier and Robert Lindsey contrary to Section 15(1) of the Occupational Health and Safety Act 1983 in such case made and provided, in failing to maintain a place of work that was safe and without risk to health.

(a) The defendant at all material times undertook the control and hospitalisation of psychiatric patients at the Rozelle Hospital.

(b) The defendant at all material times employed a number of nursing and other staff at the said hospital.

(c) The defendant failed to maintain a place of work at Ward 25 to ensure that the Ward was safe and not a risk to health during the course of a critical incident.

(d) Ward 25 had a window, a mirror and a picture frame all containing breakable glass.

(e) The defendant failed to provide a controlled entry point for Ward 25 in the event of a critical incident. 37 Mr Rowley's evidence went to various matters, including the operation of the hospital, as well as the defendant's other services; its general approach to occupational health and safety matters, including staffing, training, policies and expenditure; the mandatory training given to all nurses employed at the hospital in Critical Incident Positive Outcomes ('CIPO'); the operation of the hospital's duress alarm system; the assessment and treatment of patients at the hospital; the physical environment and operation of Ward 25, where the events in question occurred and various other matters.

38 Mr Rowley's evidence demonstrated the defendant's commitment to its obligations under the Act, as well as under other relevant legislation such as the Mental Health Act 1990, which on his evidence requires that patients receive 'the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given'. This was consistent with the provisions of s4 of the Mental Health Act, which provides: 4. Care, treatment and control of mentally ill and mentally disordered persons (1) The objects of this Act in relation to the care, treatment and control of persons who are mentally ill or mentally disordered are: (a) to provide for the care, treatment and control of those persons, and (b) to facilitate the care, treatment and control of those persons through community care facilities and hospital facilities, and (c) to facilitate the provision of hospital care for those persons on an informal and voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis, and while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care. (2) It is the intention of Parliament that the provisions of this Act are to be interpreted and that every function, discretion and jurisdiction conferred or imposed by this Act is, as far as practicable, to be performed or exercised so that: (a) persons who are mentally ill or who are mentally disordered receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given, and (b) in providing for the care and treatment of persons who are mentally ill or who are mentally disordered, any restriction on the liberty of patients and other persons who are mentally ill or mentally disordered and any interference with their rights, dignity and self-respect are kept to the minimum necessary in the circumstances.

39 The evidence in relation to TR's behaviour on April 1997 and indeed earlier, during his admission as a patient at the hospital, graphically illustrated the difficulties confronting the defendant in adhering to all of its statutory obligations, when dealing with patients such as TR.

40 The defendant's plea of guilty demonstrated an acceptance of its failure to adhere to the absolute requirement of s15(1) of the Act, that it ensure that its employees not be exposed to risks to their health or safety, as the result of the conduct of its undertakings. The threats and assaults to which various of the defendant's nursing staff were subjected by TR on 6 April, as outlined in the agreed statement of facts, amply demonstrated that failure.

41 Despite the fact of the defendant's plea, a number of matters were at issue between the parties on the evidence led by the defendant in relation to its plea, including the defendant's commitment to safety at this workplace; the foreseeability of the risk which arose on 6 April and the adequacy of its response to the risk to which its employees were then exposed.

42 It cannot be doubted on the evidence that this defendant had a genuine concern as to safety matters, which it pursued in a proactive way. The defendant employed some 8,000 staff at various hospitals, community health services and in a number of community mental health teams. It employed some 40 staff solely in order to facilitate the provision of a safe work environment in various ways, including by providing advice to senior management and staff as to the development of health and safety systems and programmes. This employment alone equated to an annual recurrent expenditure of $2.3million. In addition, more than 50 security officers were employed, as well as 10 general staff, employed to develop programs and training in health and safety matters. Other employees were also involved in safety matters in a variety of ways, including in undertaking training and refresher programs.

43 Numerous committees operated as to various safety matters at the defendant's workplaces. They met regularly and reported monthly to the general manager; safety issues were regularly discussed by other employees, in-service education is conducted; safety audits were conducted with the assistance of outside consultants; hazard inspections were conducted and recommendations followed up. Manual handling was attended to by way of policy, equipment design, a code of practice and ongoing training. Occupational hygiene exposures were identified, measured and training provided; compliance with vaccination programmes was monitored and accidents are investigated and analysed.

44 The evidence in relation to TR was that he had been a patient at the hospital who had, on a number of earlier occasions, been involved in violent assaults upon nurses employed by the defendant, both while admitted to Ward 25, where the events of 6 April occurred and in other wards. On 6 April, he attacked four of the nurses referred to in the charge and threatened one of them with broken glass.

45 When TR was first admitted to Rozelle hospital in 1996, he was suffering from laceration injuries, having thrown himself through a window at his home. After his admission to Rozelle he attempted to break glass and at least one occasion succeeded in breaking glass, during a number of violent outbursts, both while admitted to Ward 25 and in other wards. That in such circumstances, it was foreseeable that TR might use glass which he had successfully broken when suffering from an episode which led him to assault nursing staff, can readily be appreciated and undoubtedly helped explain why the guilty plea was entered by the defendant. Since the early 1990's it had been recognised that the use of breakable glass in psychiatric wards was inappropriate. The defendant's safety policy expressly dealt with this.

46 New facilities are built using unbreakable glass. The defendant had adopted a policy of replacing broken glass with unbreakable glass at the hospital, rather than a policy of its complete replacement for a number of reasons, including the cost of replacement, the planned closure of the hospital and the fact that there had been no incidents of patients breaking glass and using it to threaten others at the hospital.

47 The evidence demonstrated that the defendant responded to the offence in a number of ways, including consideration being given to the replacement of breakable glass at the hospital and the alteration of the duress alarm policy.

48 The defendant's approach to the presence of glass in Ward 25, both before and after 6 April, was the subject of serious criticism by the prosecution. Mr Rowley's evidence was: '60. Within the general policy context of 1997 and in light of the fact that the Hospital was to be relocated, it was not thought timely for the Hospital to make major capital expenditure in and around April 1997.

All new psychiatric facilities are now built with safety/laminated glass. However, this was not the case when Ward 25 was built. Prior to and at April 1997 there was a general policy within the Hospital that any glass broken in Ward 25 was to be replaced with strengthened glass or perspex.

I was involved in the decision in late 1997 to upgrade the IPCU ward to replace all glass with non-breakable substances. Quotes were obtained which from my recollection was about $40,000 for the work. A special submission was then made to the Deputy CEO of the Service to approve the expenditure of those funds. There was no special allocation of funds to the Hospital to perform that upgrade. The funds had to be "found" within the repairs, maintenance and replacement portion of the Hospital's budget which is about $500,000 per annum.

Based upon my experience with the installation of Perspex in the IPCU it would cost around $50,000 to replace all of the glass in Ward 25. To take out all glass in Rozelle Hospital and replace it with Perspex would probably be in the order of $1-2 million. These are funds which could not be found within the budgetary system operating in the Hospital since 1997. The glass in the window and mirror broken by TR have been replaced with non-breakable substances. The picture damaged by TR was removed from the wall and has not been replaced.

The emphasis on dealing with critical incidents at the Hospital is on early detection and treatment. By utilising preventative measures, escalation into violence is minimised.

The presence of glass within Ward 25 was related to the experiences of patient aggression to that point in time. The escalation to a psychotic episode in a short period of time which is reported in relation TR on 6 April 1997 (15 minutes) is unprecedented in my experience. Usually patients will give signs that they are slipping into a psychotic episode of that kind over a period of time. These signs can usually be identified by nursing staff. In the usual case a patient showing warning signs is put in a seclusion room or IPCU. Drugs may be administered to stabilise the patient's condition before a violent episode occurs. However, according to Nurse Mazoudier, TR was presenting in a normal, coherent fashion only about 15 minutes before he had his episode on 6 April 1997.

All of the staff in Ward 25 are experienced registered psychiatric nurses (the highest level of trained nurse). None of them observed any signs of an impending psychotic episode by TR. My searches indicate that there has never been a previous incident in the Hospital where a patient has smashed and used glass to threaten or assault staff or others in the course of a psychotic episode.

49 Ward 25 is a general admission acute ward, which is an unlocked facility. The IPCU unit is an intensive unit designed for short stay treatment and stabilisation of patients who risk injury to themselves and others. It is a locked facility, as is the Special Observation Unit, where non violent patients at risk of self harm are treated. These two wards are designed for patients who are not stable. On the evidence, the defendant is not always able to admit unstable patients to those wards, because of bed constraints. The hospital has other acute admission wards and various rehabilitation wards,

50 As was submitted by Mr Inatey, the defendant's guilty plea evidenced its acceptance that the breakable glass, referred to in the charge, was involved in the breach of its obligations under s15 of the Act which occurred on 6 April. That acceptance reflects the fact that TR, having had a violent outburst in Ward 25 and not being restrained by the nurses on duty there, then had access to breakable glass present in the ward, which he broke and used to threaten Nurse Carrick while attacking him. Nurse Carrick actually sustained cuts to his hand, brow and shoulder. How those cuts were inflicted was not clear on the evidence.

51 The agreed evidence was that after 6 April, glass windows in Ward 25 were replaced with safety glass, safety film was placed over mirrors in toilet areas and the staff toilet door was reglazed with safety glass. It was Mr Rowley's evidence which made it clear that it was all breakable glass in the ICPU unit which was replaced, not in Ward 25, where the incident occurred.

52 It follows from the evidence that continued access to such glass by violent patients is problematic, given the defendant's plea to this particular charge. In so far as the steps taken by the defendant after 6 April have not ensured that patients such as TR when admitted to Ward 25, may not have access to breakable glass, the defendant has not taken steps necessary to ensure that the breach of s15 of the Act to which it has pleaded guilty, has been remedied. Neither the fact that in 1997, it was thought that the hospital was to be relocated, (which has not yet occurred and does not even now seem likely to occur soon, building of the new facility not having yet commenced), nor that the cost of replacement of the glass in question was then thought to be high, could provide any obvious basis for a contrary conclusion to be reached.

53 The continuation of the defendant's previous policy of replacement of glass only when it was broken, when it has been accepted by the defendant since the early 1990's that psychiatric facilities should be built with safety/laminated glass, and given its guilty plea to this offence, appears to be an inadequate response to the risk identified in 1997 in relation to Ward 25. The risk posed by violent, unrestrained patients having access to breakable glass, is now not only foreseeable, but one which has actually led to the safety of staff having been seriously jeopardised. As Mr Johnson SC submitted, a dire risk to their safety arose in April 1997. It was Mr Rowley's evidence that since 1997, there has fortunately been no repetition of a nurse being threatened with glass broken by a violent patient. On the evidence, I cannot be satisfied that this has resulted because all of the risks posed by the presence of breakable glass has been removed by the defendant's actions. The obligation imposed by the section is an absolute one. Mr Rowley's explanation that the defendant is still waiting to move the hospital to a new facility, does not provide an answer to any continuing breach of the obligations imposed by the Act, especially given that in 2002, there has still been no date announced for the closure of the facility or the commencement of building a new one.

54 There was also a deal of evidence about the way in which those nurses who responded to the duress alarms sounded during the incident on 6 April 1997, gained access to Ward 25. After having assaulted all three of the nurses then on duty in Ward 25, both upstairs and downstairs in the building in which the ward is located, TR was confined at the end of a corridor, in a part of the ward where patients ordinarily could have access, because it was not locked off, but in which staff usually had cause to go, rather than patients.

55 Other nurses responding to the alarm raised, were coming from various directions outside Ward 25. Their workplaces were located in different buildings, various distances away. The policy in place at the time involved those responding to adopt the 'fastest entry point' approach, to ensure that there was no delay in providing assistance to staff who were already involved in a critical incident. Given the evidence as to what occurred on 6 April, a speedy response to any duress alarm being sounded was plainly important. Mr Delaney gave detailed evidence about the policies developed to deal with aggressive incidents at the hospital, how they had been developed by the defendant and why. Prior to 6 April 1997, there had been no problems with the 'first entry point' aspect of the relevant policy.

56 Mr Delaney was highly qualified in critical incident management. He was involved in the development of Rozelle Hospital's training programme in aggression management in 1990, then funded by the Department of Health. This led to the development of the CIPO 5 day workshop, since implemented at Rozelle, which has been used to train over 1,000 nurses and other health professionals. The course teaches varies strategies and is the subject of continuing evaluation. Mr Delaney has also given similar training to employees of other employers and in 1997, was a preferential trainer with WorkCover. Mr Delaney's evidence, as to this included: '16. The following are examples of intervention strategies which are taught as appropriate responses to aggressive situations: a) Crisis communication and negotiation which is the most appropriate response when staff are being verbally abused;

b) Withdrawing from the scene to a place where observation can still be maintained, enabling staff to assess the situation and arrange for back up before any further intervention is carried out;

c) Evasive self defence is an appropriate response when physical contact and/or injury are occurring and when situations are escalating or when there is not a capacity and/or a team response;

d) Physical intervention and controlling self-defence is an appropriate response to aggravated assault only where serious injury has been inflicted or threatened. This is only taught within the context of an organised team response.

17. Two must fundamental and relevant skills which are taught at the CIPO course, in my opinion, are evasive self-defence and physical intervention. Physical intervention involves staff initiating a group response to critical incidents in a least restrictive fashion by appointing a leader and then implementing a team strategy to develop a response. Evasive self-defence trains people how to get away from or otherwise deal with crisis situations. These skills are adopted once an incident has developed past the stage where the aggressive incident can be managed by communication.

18. The nurses are taught that if they are attacked they should initially attempt to verbally deescalate the situation. If this fails and they are one to one with a violent patient, they are to use break away or evasive self defence to leave the situation and sound a duress alarm. Nurses are taught to approach violent patients in a team after the alarm has been raised. At least 3 people should be in the team and each member has a specific role which is agreed before approaching the patient. The most appropriate nurse in the team (because either they know the patient are the most experienced person) will usually be agreed to be the team leader. The team leader's role is to speak with the patient in an attempt to de-escalate the situation. If that fails the other (at least 2) team members take hold of the patient's arms and either escort the patient away (to seclusion) or if unco-operative bring the patient to the ground. This is the same approach whether the patient attacks the staff or the staff initiate a response. Group simulations pertaining to these situations are practiced on a regular basis in the five day CIPO and refresher courses and the ward based in service courses.

19. The course also teaches management and prevention of critical incidents by way of the identification and accurate assessment of potentially aggressive and violent patients and incidents. Aggression identification includes identifying early warning signs as well as the ongoing assessment of aggressive behaviour.'

57 Mr Rowley gave evidence about how nursing staff are usually able to identify signs that patients are slipping into psychotic episodes. This permits various preventive steps to be taken, such as medication or placement into a seclusion room or the ICPU. This explanation appears in paragraph 65 of his affidavit, earlier quoted. Evidence of TR's history of critical incidents at Rozelle Hospital, was also led. Before April 1997, he had been admitted to Ward 25 and other wards and while there, he had assaulted nurses and in some case others. This record suggested that before 6 April 1997, the usual method of detecting signs that TR was slipping into psychotic episodes, had not enabled the defendant to prevent critical incidents arising in connection with TR, nor to ensure that when they did, nursing staff were not put at risk by him when following the defendant's policies in relation to critical incidents. This evidence too explained the defendant's acceptance that it had committed the offence charged on 6 April, even though on that occasion TR had slipped into a psychotic state during a short period of time and without warning.

58 A particular difficulty which arose in relation to the entry point to Ward 25 on that day, at a time when TR had already assaulted the three nurses on duty there, who had not restrained him, but had confined him in a locked section of the ward, was that Nurse Carrick and two other nurses entered the ward via a locked back door, when responding to the duress alarm which had been sounded. These nurses had no information as to what had occurred to that point, who was involved or where TR was located. They could not see into the ward, before entering through the door. After he entered, Nurse Carrick found TR lying naked on the floor, surrounded by broken glass. TR then attacked without warning. The agreed evidence was that the two other nurses had already withdrawn, leaving Nurse Carrick behind alone, trapped with TR in the locked section of the ward. Nurse Carrick was then seriously assaulted by TR, who also threatened him with broken glass, before he could escape. That Nurse Carrick was not more seriously injured, was a matter of very good fortune in the circumstances.

59 Mr Delaney explained how the 'first point of entry' aspect of the policy was altered in response to this event and what consideration was given to how it should be altered. His evidence was: '34. WorkCover directed after the incident that there be a single entry point designated for Ward 25. The designation of single entry points to wards is controversial in practice and there is an absence of data in international literature regarding this practice. Upon consideration of the WorkCover direction, it was my opinion that there often needs to be several possible entry points once the location of the critical incident is identified. Following this incident I formed the view that on balance it was desirable to have a critical incident assembly point identified outside Ward 25 (a "controlled point of entry") for those responding to a critical incident to come to prior to entering the ward.

35. Even a controlled point of entry for Ward 25 is not and was not in April 1997 without controversy. It is and was my opinion that in a given situation you could lose critical time trying to contain a critical incident by nurses assembling in a single point prior to entering the ward.

36. I was asked by the Hospital to do a post incident management review in respect of the incident on 6 April 1997 which I conducted with Clair Edwards.

37. We recommended that a designated controlled entry point be identified for Wards at the Hospital and that staff be made aware of this change to the Ward entry though inductions/orientations to the Hospital. Otherwise, after the review I found the actions of nurses Mazoudier, Turner and Walker to have been appropriate and in accordance with their training.'

60 It was a part of the prosecution's case that the need for such a controlled point of entry was readily foreseeable and easily provided for in 1997. The defendant's plea accepted that the absence of a controlled entry point at Ward 25 on 6 April had involved it in a breach of the obligations imposed by s15 of the Act. The evidence demonstrated a sound basis for that acceptance. The duress policy made clear that such a controlled point of entry was already provided for in relation to another ward - the rehabilitation ward. I Mr Delaney also gave evidence as to the competing considerations arising in connection with this policy and the controversy, as to which approach was preferable, in the interests of safety,.

61 It was the case advanced for the prosecution, by Mr Johnson SC, appearing with Ms Backman of counsel, that the offence was a serious one, there having been an obvious or foreseeable risk to safety, against which appropriate measures were not taken, even though those measures were available and the risks foreseeable. The gravity of the potential risk to safety flowing from the breach was also a relevant measure of the gravity of the offence and the culpability of the offender.

62 Here, it was submitted that the offence was objectively very serious. Ward 25 was used to house psychiatric patients in various states of illness and distress. While particularly aggressive patients might go to the ICPU, Mr Rowley agreed that the ward was a high risk area. The defendant was aware of the risk of violent incidents involving patients in that ward, including TR, which were relevant to the risk which he posed to the health, safety and welfare of its employees. Staff were provided with duress alarms to deal with such risks.

63 The use of breakable glass in a window, mirror and picture frame in the ward exposed the employees to risk of broken glass being used as a weapon by a patient. Broken glass was in fact, used by TR against Nurse Carrick. That risk was readily avoidable by use of safety glass and film, a simple and effective step available prior to 6 April but not used.

64 TR's record demonstrated that the defendant was aware before 6 April that he had attempted to break or had broken glass during violent episodes. That record also demonstrated that even when the usual telltale signs of such an impending episode had earlier been present, the steps described by Mr Rowley as available to prevent violence on the part of a patient had been used as a reaction to TR after he had already become violent rather than preventing him from becoming violent. These incidents were relevant to an assessment of the seriousness of this offence. They demonstrated a repeated inability on the part of the defendant to 'nip the problem in the bud' when TR became violent, so as to ensure the safety of staff. This was known to the defendant, appearing from its own records. Mr Rowley's evidence of the nurses' ability to prevent TR becoming violent, was clearly a matter of hope, not expectation in the case of TR.

65 It was, however, submitted that this offence did not turn on TR. There was a clear and identifiable risk without his presence. His presence was relevant, however, to an assessment of the nature and seriousness of the offence in fact committed.

66 The evidence was that there was knowledge that breakable glass in the ward posed a risk to safety and that the steps taken after 6 April had not removed that risk. The idea, some 5 years ago, that the hospital was to relocate did not remedy the defendant's failure to attend to the risk. While breakable glass remained on the premises, the risk of re-offending remained. This gave rise to the need for specific deterrence to feature in the sentence imposed (Capral at p59). The Court could not be confident on the evidence led that the defendant had properly attended to the risk to safety in question. The evidence as to cost could not give any comfort in that respect.

67 As to the controlled point of entry, it was submitted to have been clearly foreseeable that unless there was a coordinated response to a duress alarm, ad hoc entry to the ward could expose nurses to grave risk of injury. While Mr Delaney might have considered the pros and cons of the policy in place, there was no evidence that staff were alerted to the potential risks posed by such entry. The risks which arose there from were significant and readily foreseeable and placed Mr Carrick at grave risk, from which he was fortunate to have extracted himself.

68 Other submissions were advanced as to the timing of the plea and the nature of the discount properly flowing there from, which I do not repeat.

69 It was the case advanced for the defendant, by Mr Inatey SC, appearing with Mr Henskens of counsel that the nature of the defendant's operation was relevant to an assessment of the nature and quality of this offence. There was unchallenged evidence as to its undertakings and the proactive approach it adopted in relation to safety matters. Given the number of people employed specifically to deal with safety matters, it would not be accepted that the risk to safety here in question was as readily foreseeable as had been submitted.

70 The defendant recognised the dangerous nature of the work performed by its employees at this hospital. Hence it had instituted training in those dangers and the duress alarm system. It was a pioneer in this area. Its proactive approach continued after this offence. The policies in evidence demonstrated a well planned, staged approach to critical incidents. When violence was threatened, physical restraint was approached in a team way in relation to those 4% of patients, who posed such risks.

71 Nurses employed at this hospital were required to deal day to day with patients with psychiatric conditions which made their behaviour difficult to predict. They were trained in such work and the defendant continued to retrain them in relation to the difficulties such patients posed. Course evaluation continued.

72 As to the evidence in relation to glass and entry points, it did not demonstrate reckless behaviour, but rather omissions, when available resources had to be applied to a problem. It was accepted, with the benefit of hindsight, that the defendant had fallen short in its obligations in this respect.

73 It was, however, relevant that the charge here referred only to three pieces of glass. They were in an area not usually attended by patients, had been smashed and replaced. There was no evidence that glass in areas to which patients usually had access was broken during the incident, or that it continued to present a danger. It should be assumed that if it did, such evidence would have been led. While there was evidence that breakable glass remained in Ward 25, there was no evidence that it was accessible to patients. No conclusions could be reached as to what dangers were posed by that glass.

74 The current policy, as it had been at the time of the offence, was to replace broken glass in Ward 25 with unbreakable glass. That was conditioned by the proposal in 1997 to relocate the hospital; and the cost of replacement and the fact that there had never had been a risk posed by the presence of glass in the ward and there had not been one since.

75 It was relevant in that context that the events involving TR on the day in question were very unusual, given his stability in the preceding weeks. While TR had been violent in the past, he had not previously erupted in such a flagrant manner over such a short period of time. This bore upon the objective seriousness of the offence. The unusual eruption precluded the defendant from utilising the training methods put in place for staff.

76 As to the entry point after the incident, an assessment was made as to the policy, in a proactive way. There was a rationale for the previous policy, based on international experience. A single entry point has been controversial, but after this event, was implemented after consultation with the WorkCover Authority. It followed that the matter of foreseeability was not as simple as the prosecutor submitted.

77 As to the circumstances involving Nurse Carrick, it was relevant that the other two nurses left him behind, a matter which should be taken into account in the defendant's favour. (See WorkCover Authority of New South Wales (Inspector Tuckley) v Crown in the Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1 at 13).

78 It was also submitted that there were vast points of distinction between the offence in Tuckley and that here in question. In Tuckley the offence occurred at a home not intended or designed for people with psychiatric illnesses, but those with developmental disabilities. The assault in question had been committed by a person who demonstrated behaviour consistent with schizophrenia and with a history of sexual assaults. There were no psychiatric nurses there employed and the nurse in question had been left alone at night, with inadequate telecommunication equipment and no emergency procedures in place. The offence was there found to have been 'of a most serious nature and to an extreme degree. The assessment made was that the offence was a mid-range one. It was submitted that a comparative analysis of the circumstances would lead to the conclusion that this offence was of a less serious nature.

79 It was also argued that it would be accepted that the plea was entered at the earliest possible opportunity. It would not be accepted that the plea had followed only from the fact that the prosecution case was strong. A discount in accordance with R v Thomson was sought.

80 As to later record, it would not be accepted that this demonstrated any propensity on the defendant's part. The defendant was a good occupational health and safety citizen and it would not be accepted that specific deterrence should play much of a role in the penalty determined.

81 In a plea such as this, the Court is concerned with the nature and quality of the offence in question when assessing the appropriate penalty to be imposed. It was the submission of the prosecution that the offence, in terms of relative seriousness to a worst case, placed it in the mid-range of the scale of penalty available. Comparisons were drawn with the circumstances dealt with by Hungerford J in Tuckley at 13 - 14.

82 The defendant submitted that on analysis, such a comparison was not apt and that this offence fell into the 'middle of the mid to lower range'. It was conceded that the offence had been a horrific experience for the nurses involved, but the comparison with the offence in Tuckley was submitted to be inapt.

83 I am satisfied on the evidence that this was a serious offence, involving risks to safety which were foreseeable, but not to the same degree as the offence which arose for consideration in Tuckley. That conclusion particularly flows from the evidence as to this defendant's generally proactive approach to safety matters, the presence of relevant policies and training of the employees involved and the evidence of at least some of the steps taken by way of response to the risk to safety which occurred on 6 April.

84 The defendant led evidence in its case, in order to make good its submissions as to various aspects of the plea. This included evidence in relation to its general approach to safety matters and in particular, how it met its competing obligations in relation to critical incidents, where patients were involved in violent assaults upon staff. The competing obligations were those the defendant owed to patients under the Mental Health Act and those owed to its employees under the Act. As I have already noted, the evidence left no doubt how difficult the balance of these obligations is. The plea of guilty evidenced an acceptance by the defendant that on 6 April, in the critical incident which occurred on that day involving TR, it had failed to meet its obligations under s15 of the Act to its employees. The agreed statement of facts and other evidence to which I have referred, demonstrated a sound basis for that acceptance.

85 The defendant argued that account would be taken of Mr Rowley's view, that the risk to safety which arose that day from TR's behaviour, was unpredictable and unprecedented and had prevented implementation of the applicable policies. He formed this view in the light of earlier critical incidents in which TR was involved in Ward 25 and other wards. They had occurred at times when TR was known to be in an unstable state, unlike 6 April, when he had been stable for a period of several weeks. It was a view formed however, without an apparent appreciation by Mr Rowley, that during such earlier violent incidents, TR had attempted to break glass and had on at least one occasion been successful in doing so.

86 The history maintained by the hospital in relation to TR amply demonstrated the volatility of his behaviour. This was consistent with Mr Rowley's evidence as to the behaviour of other patients and that Ward 25 was a high risk area. On a number of occasions before 6 April, in Ward 25 and other wards, TR had attacked and injured nursing staff and others. In those earlier incidents warning signs, if present, had not led to TR being prevented from injuring others, by the adoption of the strategies Mr Rowley described, such as restraint, placement in seclusion, admission to the ICPU unit or administration of medication, before TR reached the point where he acted with aggression. It follows from Mr Rowley's evidence, that TR was a patient who fell into an unusual category, in that those measures were reactions to his violent behaviour, rather than preventative. In the light of that history, it cannot be doubted that on 6 April, the possibility of TR being involved in another critical incident in which he would attack and injure nursing staff, was readily foreseeable. It also cannot be doubted that before 6 April, TR had been in a stable condition and that his psychotic episode on 6 April came on suddenly. The possibility that TR, like other patients, would suffer from another episode was, nevertheless, one of which the defendant plainly had to be both aware and prepared to deal with, on a basis which ensured staff safety.

87 The defendant's relevant polices were tendered, including the 'Mental Health Critical Care manual', as a part of the defendant's explanation of the approach which it adopted to safety matters. In paragraph 6.7, the manual notes that upon admission, a patient's prior history of aggression must be assessed and documented by nursing and medical staff, amongst other matters. In relation to critical incidents, the document emphasises staff and patient safety and like Mr Delaney's evidence earlier quoted, emphasises that physical intervention is to be used as a last resort when there is 'imminent danger', in which case restraint 'may be an appropriate choice' (clause 7.3.) In clause 7.2.4, it is said: Physical Intervention In any potentially aggressive situation, physical control is only to be utilised as a last resort. In some incidents it may be the safest option, where both the patient, staff member or others may sustain serious injury if the situation is allowed to progress to actual aggression and violence. At each state of the intervention explain to the patient what you plan to do, tell the patient what you would like them to do and request their co-operation. (refer to Physical Restraint Chapter)

88 Mr Delaney gave evidence of the ongoing training which staff received in relation to the defendant's policies and their implementation. The circumstances of this offence, particularly given TR's history at the hospital, demonstrated that the implementation of these policies and training on 6 April, was such that the defendant's obligations to TR were given an emphasis inconsistent with the obligations which the Act imposed in relation to safety of employees. That is a possibility against which the defendant must plainly be on guard. The Act requires the defendant not only to have appropriate policies in place in relation to the risks to which its undertaking exposes staff, and to train staff in such risks, but it must also ensure that the policies and training are implemented and are effective in ensuring safety.

89 Given the evidence as to the conditions from which TR and other patients treated at Rozelle suffer, and the fact that the defendant and those whom it employs are dedicated to the care and treatment which such people require, it can readily be appreciated that staff might be slow to move to physically restrain a patient. That, indeed, would seem consistent with the policies in evidence. Empathy, care and even pity for such patients are, however, not a proper basis upon which employees may be permitted to place themselves into danger. There can be no doubt that in a situation where the choices facing the defendant are physical intervention in order to ensure that a patient is restrained from hurting others and a risk to the health, welfare or safety of employees, if such steps are not taken, the absolute obligations imposed upon the defendant by s15 of the Act, require that safety of employees be preferred.

90 No matter how dedicated to patient welfare a nurse or other employee might be, it is inconsistent with the requirements of the Act, that the defendant permit them to be the subject of physical assault, or indeed repeated physical assault, by patients who are not restrained from harming others. Employment on such a basis is not permitted by the Act.

91 The evidence which the defendant led was that it is only a small percentage of patients who give rise to risk of assault of staff and others to whom the defendant owes obligations under the Act. That fact does not, however, detract from the need for the defendant to ensure that its obligations are met, when such patients are admitted at Rozelle Hospital.

92 The evidence was that TR assaulted the three nurses on duty in Ward 25, one after another, without being restrained. They succeeded, with difficulty, in isolating him at one end of the ward. The three nurses who entered that locked area from outside Ward 25 in April 1997 were unaware that at that point, TR had already seriously assaulted three other nurses. That knowledge was plainly important. Given the applicable policies, it would have affected their response to TR, given his actions to that point. TR was also not restrained by those nurses. The end result was that nurse Carrick was trapped alone with him, seriously assaulted and threatened with broken glass, before fortunately making good his escape. No attempt to restrain TR was made until he later appeared at the nurses station in Ward 25, without warning and still in a psychotic state. How much later this was and how TR had come to move past the locked door, which had been confining him to the part of the ward where he had broken the glass, was not clear on the evidence.

93 It follows that the necessity for restraint of TR could not have been apparent to the three nurses who entered via the back door of Ward 25, in accordance with the defendant's point of entry policy. That lack of knowledge, plainly put those nurses at risk. The duress alarm had only alerted them to the fact that assistance was required with a critical incident occurring at Ward 25. Under that policy, the responding nurses had no other information prior to coming into contact with TR. They were not aware that it was he who was involved in the incident; of his condition; that he was then locked in the area where they found him; that he had there broken glass or that he had already assaulted a number of staff. These difficulties readily explain why the point of entry policy was later altered by the defendant, particularly when consideration is given to how that policy here interacted with the defendant's policies and training in relation to restraint of patients.

94 TR's patient history records that when first admitted, TR was suffering from laceration injuries, as the result of having thrown himself through a window at his home, for which he was treated after admission. While Mr Rowley was not aware of this, TR later attempted to break glass during critical incidents which occurred in Ward 25 and other wards. On at least one occasion he was successful. The defendant's records showed that on 6 April he was again successful, breaking the glass identified in the charge in Ward 25 and then using broken glass to threaten Nurse Carrick. In the case of a patient with a history of making threats against staff, violently assaulting staff and others, who had access to breakable glass in the wards in which he was admitted and a propensity to break such glass during a critical incident, that broken glass might then be used as a weapon to threaten or injure staff if the patient was not restrained, seems entirely foreseeable.

95 The evidence as to the defendant's policy of building new psychiatric units with unbreakable glass and the practice of replacing broken glass at Rozelle Hospital with safety/laminated glass, tends to confirm the accuracy of this conclusion, as does the written policy in place.

96 The policy entitled 'Occupational Health and Safety Policies and Central Sydney Area Health Service', being the defendant's policy relating to occupational, health and safety matters, deals in clause 5.3 with the topic of glass. There was an issue between the parties as to whether this policy dealt with glass only in the context of intruders, or on a more general basis. The reference to glass in clause 5.3 provides relevantly 'wherever foreseeable install laminated glass or fit shatter resistant film to existing glass'. This appears in the 'Minimising the Risks' section of clause 5.3.6 of 'Safety and Security: Minimising the Risks'.

97 A fair reading of the policy cannot, in my view, lead to the conclusion that it was concerned only with dangers which intruders to the hospital might pose in a variety of ways, including in relation to broken glass. The document suggests that the policy is concerned with glass as a safety risk on a broader basis. Other parts of the document are plainly dealing with obligations to staff on a more general basis. If the policy were not to be so read, it would suggest that there was a curious omission by the defendant in its written policies about such matters, in the context of its obligations under the Act to staff and patients and its practice in relation to glass replacement.

98 Given the evidence as to the defendant's proactive commitment to ensuring that its obligations under the Act were met, including the many people it employed to ensure that this occurred, I think such an omission most unlikely. In any event, however the policy is to be properly read, Mr Rowley's evidence demonstrated that it was not observed by the defendant in Ward 25.

99 After the offence on 6 April, the defendant replaced all the breakable glass in the ICPU unit, where TR had previously broken glass during an incident in which he assaulted staff, after which he was successfully restrained. The defendant adopted a different approach in Ward 25, where this offence actually occurred, replacing the glass broken and removing the picture involved, and thereafter continuing the pre-existing replacement policy. Given the agreed statement of facts and Mr Rowley's evidence, it can not be concluded that all breakable glass to which patients such as TR might have access has been removed from Ward 25. In response to the prosecution's criticism of how the defendant dealt with the risks flowing from patient access to breakable glass, it was submitted for the defendant to be relevant that the defendant had only been charged in relation to the glass mentioned in the summons and that there was no evidence from which it could be inferred that patients in Ward 25 still had access to breakable glass.

100 I have some difficulty with that submission. It was the defendant which led evidence as to what it had done in relation to breakable glass after 6 April. Mr Rowley explained that it had adopted different approaches to ICPU and Ward 25, because of cost considerations. Ward 25 is an acute admission ward, which Mr Rowley conceded was a high risk area. The ICPU is the most secure ward. Had all the breakable glass to which patients may have access in Ward 25 been replaced, Mr Rowley undoubtedly would have said so, as he did in relation to the ICPU. Mr Rowley mentioned in his affidavit that expert advice was sought after the incident in relation to various matters, but not in relation to the question of glass. In cross examination, his evidence as to what was done in Ward 25 was: Q. So nearly five years has past since the incident involving TR in April 1997. Is it the policy with breakable glass at Rozelle hospital still the same, namely, it's only put in as a replacement for breakages breaks? A. We have replaced the glass all in the ICPU.

Q. In the observation unit? A. Some of the glass has been replaced, yes.

Q. Ward 25? A. Again so much of the glass that has been broken.

Q. That is the glass that was broken by TR on 6 April? A. That's correct.

Q. So that is now safety or laminated glass? A. The parts that broke, yes.

Q. But it's the position, isn't it, that Ward 25, as the acute admission ward, could have someone who would have a violent outbreak at a very short notice, that is so, isn't it? A. That's correct.

Q. And, therefore, the location of breakable glass in Ward 25 constitutes a continuing risk to the safety of staff in that ward, that is so, isn't it? A. Most of the glass that has been replaced is in the downstairs area, that's where the majority of patients spend their time.

Q. Well, the sleep upstairs? A. The sleep upstairs, yes.

Q. And there are staff up there from time to time? A. That's correct.

Q. And indeed the incident involving TR on 6 April 1997 started upstairs as you understand it? A. Yes.

Q. And patients are able to, if they are on care level 3 within Ward 25, to walk upstairs and downstairs within the ward, isn't that so? A. That's correct.

Q. Care level 2, the same? A. Yes, they are on observation. They have to be checked every 30 minutes by a nursing staff member.

Q. I want to suggest to you again that the location of breakable glass in Ward 25, even now, constitutes a risk for the health and safety of employees at that workplace, what do you say to that? A. Well, again taking, looking at previous records, there has been no use of glass in any critical incident prior to it, or since that incident.

101 On this evidence, it must be concluded that the defendant's evidence as to the response it took in relation to the risk posed by breakable glass at the hospital, was not a complete one. The evidence does not permit the conclusion that there has been complete attention to that risk. On Mr Rowley's evidence, cost presented a practical problem for the defendant, particularly given its intention to relocate. That intention has however, still not been acted upon. Nor was it submitted for the defendant that such difficulties provided any defence under the Act, for any continuing breach of the obligations imposed upon the defendant. It is a matter of good fortune that the events of 6 April have not been repeated. On the evidence it cannot be concluded that this has resulted from removal of the risk.

102 It was accepted by both parties that the penalty should include an element for general deterrence, but they disagreed as to whether specific deterrence was a necessary element. While I have reached the conclusion that the defendant had a strong general commitment to safety, I am satisfied that the penalty should contain an element for specific deterrence. In coming to that conclusion, I have had regard to the defendant's considerable expenditure upon the employment of staff and outside experts concerned with safety matters, and that relatively few patients present with problems of the kind displayed by TR. The risk to staff safety here demonstrated, particularly given the defendant's prior experiences with TR, was plainly a serious one. It is necessarily also to take into account the conclusions which I have reached in relation to the defendants' response to glass replacement.

103 As to mitigating factors, I am satisfied on the evidence that the defendant demonstrated contrition in relation to the offence, as evidenced by its co-operation with the WorkCover Authority; the steps taken to engage external experts to advise in relation to nurse numbers in Ward 25, and a multidisciplinary review of TR's treatment. There was also participation in a committee comprised of representatives of WorkCover, the Nurses' Association and the hospital, to review all concerns raised in relation to the incident.

104 The defendant's review of the controlled point of entry was also a relevant consideration and must be accepted as evidencing the defendant's continued relatively high attention to safety matters. As to the defendant's response to breakable glass in the hospital, I am unable to take the same view, that it reflected a high level of attention to the risk to safety revealed by the events of 6 April.

105 As to the defendant's record, in fixing penalty, it is appropriate to have regard to the fact that at the time this offence was committed, the defendant had no prior record. This is a different question to the application of s51A of the Act as to the maximum penalty available. I also accept that like in the offences dealt with by Hungerford J in WorkCover Authority of New South Wales (Inspector Stewart) v Central Sydney Area Health Service [2001] NSWIRComm 326, this was an offence of omission rather than commission. The defendant's later offences are, however, relevant to a consideration of what leniency might properly be afforded the defendant. Those are all matters which must be taken into account in determining penalty and I have done so.

106 The prosecutor accepted that the defendant was entitled to have its plea taken into account, but there was an issue between the parties as to the size of any discount which should flow, having regard to the time at which the plea was entered. I am satisfied that the prosecution case in relation to the amended summons was a strong one. Nevertheless, having regard to the history of the prosecutions which flowed from the events of 6 April 1997, which included the laying of four charges, each pursued to the point of opening of the four cases, which were to be heard together by agreement; the adjournment of the hearing to permit the defendant to raise with the prosecution its concerns that the opening had departed from the offences as particularised; the subsequent amendment of this charge, in a number of significant ways; the immediate plea to that charge and the prosecutor's application for the dismissal of the other three charges, I am satisfied that the plea should be regarded as a relatively early one.

107 The recent decision of the High Court in Cameron v The Queen [2002] HCA 6 (14 February 2002) is also a relevant consideration in this context. The majority, Gaudron, Gummow and Callinan JJ, observed at [11] to [15]: 11. It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v The Queen it was said: "a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case." (1998) 194 CLR 656 at 663-664 [22] per Gleeson CJ, Gummow, Hayne and Callinan JJ. It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.

12. Although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial [Siganto v The Queen (1998) 194 CLR 656 at 663 [22] per Gleeson CJ, Gummow, Hayne and Callinan JJ. See also R v Gray [1977] VR 225 at 231]. The distinction between allowing a reduction for a plea of guilty and not penalising a convicted person for not pleading guilty is not without its subtleties, but it is, nonetheless, a real distinction, albeit one the rationale for which may need some refinement in expression if the distinction is to be seen as non-discriminatory.

13. It is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another's plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the pragmatic and objective ground that the plea has saved the community the expense of a trial. However, the same is not true if the plea is seen, subjectively, as the willingness of the offender to facilitate the course of justice.

14. Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.

15. This treatment of the matter is consistent with what in their joint judgment in Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 478-479 Gaudron and McHugh JJ identified as the general considerations which result in particular treatment being treated as discriminatory. One aspect of the legal notion of discrimination "lies in the unequal treatment of equals" (1990) 169 CLR 436 at 480. The "equals" here are those required to plead guilty or not guilty; they stand as equals before the criminal law and processes of Western Australia. But is the differential treatment of such persons and the unequal outcome with respect to sentence the product of a distinction which is appropriate and adapted to the attainment of a proper objective, here the facilitation of the course of justice by the willingness of the accused to plead in a particular fashion? The answer, as indicated above, is in the affirmative.

108 In this case I am satisfied that the plea evidenced not only remorse and acceptance of responsibility, but also a willingness to facilitate the course of justice.

109 This approach, it must be noted, is somewhat different to that adopted by the Court of Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 386, which was applied by the Full Court in WorkCover Authority of NSW (Inspector Sheppard) v State Rail Authority of NSW [2001] IRComm 179 and following cases. In the circumstances of this case, I take the view that the difference in approach has no practical effect, even though the plea here was entered after the trial had commenced. That plea must be taken into account - see s 22 of the Crimes (Sentencing Procedures) Act 1999.

110 I assess all of these factors as calling for a discount of 20% in relation to the plea and 5% as to the other matters, of a fine fixed at $240,000, as properly reflecting the defendant's culpability and all of the other matters I have dealt with. This brings the offence into the upper level of a low to mid-range offence, reflective of the serious risk to safety which here occurred, leading to actual injury to a number of employees, who were most fortunate not to have been more seriously hurt.

111 The appropriate fine is thus fixed at $180,000. The prosecutor is to have a moiety of the penalty. The usual order as to costs would be that the defendant shall pay the prosecutor's costs in relation to this summons, as agreed or assessed. The question of costs in relation to the three summonses dismissed, was also raised by the defendant in closing submissions. If the parties cannot reach agreement on that matter, they have liberty to approach within 21 days.

112 I make the following orders: 1. The defendant is found guilty of the offence charged and a conviction is entered accordingly. 2. The defendant is fined an amount of $180,000, with a moiety to the prosecutor. 3. The defendant shall pay the prosecutor's costs as agreed or assessed. If agreement cannot be reached, the parties have leave to apply to have the Court to fix the quantum of costs. Such leave is to be exercised within 21 days of the date of this judgment. ------------------------

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