WorkCover Authority of New South Wales (Inspector Wilson) v Safdar Ghafoor and ATS All Time Security Pty Limited

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Lowe v The Queen (1984) 154 CLR 606 Markarian v The Queen [2005] HCA 25: 18 May 2005 Postiglione v The Queen (1997) 189 CLR 295 R v Gallagher (1991) 23 NSWLR 220 CASES CITED: R v Thomson, R v Houlton (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131 State Rail Authority (New South Wales) v Dawson (1990) 37 IR 110 Thorneloe v Filipowski (2001) 52 NSWLR 60 WorkCover Authority of New South Wales v David Karl Schrader (2002) 112 IR 284 WorkCover Authority of New South Wales v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247 WorkCover Authority of New South Wales v South Sydney Junior Rugby Club [2004] NSWIRComm 215 WorkCover Authority of New South Wales (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325

PROSECUTION: Mr D Fagan SC Ms P McDonald of counsel SOLICITORS: Criminal Law Practice Group

LEGAL REPRESENTATIVES: DEFENDANTS: Mr P Webb QC and Mr H Bauer of counsel SOLCITORS: BJ Murphy Angelovski & Associates

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Staunton J DATE: 2/12/2005

Matter No IRC 4906 of 2003 WorkCover Authority of New South Wales (Inspector Wilson) v Safdar Ghafoor

Matter No IRC 4907 of 2003 WorkCover Authority of New South Wales (Inspector Wilson) v ATS All Time Security Pty Limited (ACN 091 114 242)

Prosecutions arising pursuant to s 8(1) and s 26(1) of the Occupational Health and Safety Act 2000 respectively JUDGMENT [2005] NSWIRComm 430 1 This judgment should be read in conjunction with my judgment in WorkCover Authority of New South Wales (Inspector Wilson) v Chubb Security Australia Pty Limited (No 2) [2005] NSWIRComm 443. The two judgments together reflect my sentencing considerations and penalty with respect to the defendants in both matters. They are co-defendants in the overall factual matrix giving rise to their respective offences. 2 Although submissions in these matters was concluded some four months ago, the finalisation of the proceedings, insofar as considerations going to parity with respect to the co-defendant were concerned, was reliant on the conclusion of submissions in relation to the co-defendant Chubb Security Australia Pty Limited. That did not occur until very recently. 3 In these proceedings, Mr Ghafor, the personal defendant, was at the relevant time and still is, a director of the corporate defendant (ATS). ATS was a sub-contractor to Chubb Security Australia Pty Limited (Chubb) for the purposes of the work being performed by an employee of ATS on the day in question. Chubb is a major provider of security services that included, on 3 September 2001, the provision of cash in transit services. 4 On 3 September 2001, Mr Ahmed Rashid was employed by the corporate defendant as a security guard in carrying on its business of providing security services. That work included patrol work and cash in transit operations using soft skin vehicles. 5 On 3 September 2001, pursuant to a sub-contract agreement between Chubb and ATS, Mr Rashid was engaged in providing cash pick up services to Punchbowl RSL. In undertaking that job, Mr Rashid worked alone and was armed. 6 On that day, at approximately 12:30pm or thereabouts, Mr Rashid picked up sealed cash wallets from the Punchbowl RSL. As he left the club premises to return to his vehicle, Mr Rashid was attacked by a person intent on robbing him of the cash wallets. In the ensuing struggle, Mr Rashid was shot and fatally wounded by the attacker who fled with the cash and Mr Rashid's vehicle. The gun used to kill Mr Rashid was one carried by the attacker. 7 Following the incident and in addition to the police inquiries, investigations by WorkCover have resulted in the offences charged before this Court. The offences arise pursuant to the provisions of s 8(1) of the Occupational Health and Safety Act 2000 (the Act) and, in relation to Mr Ghafoor, the deeming provisions of s26(1) of the Act. The substantive offence under s 8(1) asserts that ATS failed to ensure the health, safety and welfare at work of it's employees and in particular Ahmed Rashid in that it failed: (i) to provide or maintain systems of work for the provision of cash in transit work that was safe and without risk to health and safety; (ii) to provide adequate information, instructions to its employees performing cash in transit work; (iii) to undertake an adequate risk assessment of the cash in transit work to be performed at Punchbowl RSL;

(iv) to provide or maintain safe equipment and plant to its employees performing cash in transit work;

(v) to adequately assess the safety features of equipment and plant supplied by its employees and which was to be used by employees in the performance of cash in transit work;

(vi) to ensure that its employees used safe equipment and plant when performing cash in transit work;

(vii) to provide adequate training to its employees performing cash in transit work;

(viii) to ensure that Chubb Security Australia Pty Ltd provided training to its employees who were performing cash in transit work. 8 The offence asserted in relation to Mr Ghafoor is pleaded in the exact same terms added to by the fact that Mr Ghafoor, as a director of ATS and pursuant to the provisions of s 26(1), is deemed to have contravened s8(1) of the Act. 9 The defendants have entered a plea of guilty to their respective offences. 10 The agreed facts tendered to the Court relevantly details the factual background to the offences in the following terms: [1] The first defendant carried on the business of providing security services including patrol work, static guarding and cash in transit work (from August 2001) conducted by security guards using soft skin vehicle, that is vehicles not protected by armour against gunfire from ordinary handheld weapons. [2] At all material times the first defendant was a subcontractor to Chubb Security Australia Pty Ltd [ACN 003 605 098] (Chubb). [3] At all material times the first defendant was an employer and employed Ahmed Rashid, Graham Pickering, Abdul Baroudi and Mursal Bille as security guards. [4] At all material times Safdhar Ghafoor (the second defendant) was a director of the first defendant. Chubb and Punchbowl RSL [5] On about 17 April 2001 Chubb entered into a Patrols Agreement no 27159 with Punchbowl Ex-Services & Community Club Ltd (Punchbowl RSL) whereby Chubb undertook to provide security services to Punchbowl RSL. The scope of the security services covered by the agreement included Chubb providing attendances at the premises of Punchbowl RSL at 1 Broadway, Punchbowl by its representatives. The attendances were to include three cash pickups on Monday, Wednesday and Friday and delivery of the cash to a bank. [6] In late April 2001, these security services were subcontracted by Chubb to State Security & Crime Prevention Pty Limited (State Security & Crime Prevention). Chubb's sub contracting relationship with State Security & Crime Prevention was governed by a subcontract dated 23 October 2000 and a Cash Transit Licensing Agreement made 7 May 2001.

[7] State Security & Crime Prevention performed the cash pickup work in respect of Punchbowl RSL until approximately the end of July 2001.

[8] On 7 May 2001 an employee of State Security & Crime Prevention, Alexander Geoffrey Meier, whilst performing the cash pick up work, was attacked and robbed while walking to his car after leaving the premises of Punchbowl RSL. [9] For approximately 2 to 3 weeks after the May robbery, the cash pick up from Punchbowl RSL was performed by two security guards. The run then reverted to being performed by one security guard.

Chubb and the first defendant. [10] On about 4 May 2001 the second defendant, on behalf of the first defendant signed a subcontract agreement no. 1906 with Chubb. Under the subcontract agreement the defendant undertook to assist Chubb in the conduct of its business of providing security patrol services, alarm responses and/or casual guarding services for clients of Chubb by undertaking such assignments as are given to it by Chubb in respect of its business. [11] Initially the first defendant assisted Chubb in the provision of night patrol services but not cash pickups. During late July the second defendant was contacted by Mark Seymour from Chubb who asked whether the second defendant was interested in taking on the cash pick up work. [12] The second defendant was aware that the cash pick up work had up to that time been done by State Security & Crime Prevention. [13] About a week later, the second defendant was contacted again by Mark Seymour who told him that the cash pick up work was available to the first defendant but it would have to start doing the work the next day as the contract with the previous security company had been cancelled. [14] The second defendant agreed and the first defendant commenced performing the cash pick up work (including for Punchbowl RSL) on 1 August 2001. This was the first time that the first defendant had performed cash in transit work. [15] Several employees who had worked for State Security & Crime Prevention became employees of the defendant in about August 2001.

[16] Mustafa Cheikho was employed as a security guard by State Security until about 29 July 2001. On the day that he lost his job with State Security, he received a telephone call from the second defendant at about 8pm in which he was invited to commence work for the first defendant. He accepted and commenced on the next day. He completed an application form, was interviewed by the second defendant and commenced work immediately after the interview. [17] During his employment with the first defendant, Mustafa Cheikho worked with another guard when performing his cash pick up runs. [18] Mustafa Cheikho asked the second defendant to allocate him to for a two man run because when he had previously worked for State Security & Crime Prevention he had been robbed. He decided that he was not going to do cash pickup work by himself again. [19] Graham Pickering was a security guard who worked for State Security & Crime Prevention until about 30 July 2001. When State Security & Crime Prevention ceased operation he was informed that the first defendant had taken over its runs. Pickering contacted the second defendant and arranged an interview for the purpose of obtaining employment with the first defendant. [20] After the interview he was employed immediately, conducting the same cash pickup runs he had previously done for State Security & Crime Prevention. He did not receive any training on the runs but thought that it was not necessary as he had conducted the runs previously.

Information and Training by Chubb [21] There was an initial verbal indication by Danny O'Riordan, the operations manager from Chubb, to the second defendant that Chubb would provide training on cash in transit work to the first defendant and its employees. No such training was provided. [22] The defendants were not told by Chubb about the previous robbery at Punchbowl RSL which occurred during May 2001. Neither the second defendant not anyone else on behalf of the first defendant made any enquiry of Punchbowl RSL regarding past incidents relative to the safety of the cash pickup operation before commencing to provide the service (through its employees). [23] The first defendant received from Chubb client specification sheets, which gave details of the pick up sites. The client specification sheet for Punchbowl RSL provided instruction on whom to contact at the site, the time the patrol officer should arrive at the site, the service to be performed and the days this should occur. [24] The client specification sheet for Punchbowl RSL provided that the patrol officer would arrive on site Monday, Wednesday and Friday between the hours of 12.00 and 1.30 and take possession of a sealed wallet(s), transport the wallet(s) to the ANZ Bank at Roselands and deposit the wallet(s) with a teller. [25] Chubb instructed the defendants, via the client specification sheet, that the cash pick up work from Punchbowl RSL was to be performed using only one security guard. The first defendant conducted the cash pick up with only one security guard. [26] Chubb required the employees of the first defendant to wear a Chubb uniform and carry Chubb identification when performing security services on behalf of Chubb. [27] The Chubb uniform consisted of a shirt with Chubb signage on it and a Chubb bomber jacket.

Procedure for cash pick up at Punchbowl RSL [28] When the first defendant's security guard attended Punchbowl RSL he parked in the director's car park. The security guard proceeded to the front entrance of the Club. [29] The security guard was required to show his Chubb identification to the relevant Club representative at the reception desk. [30] The security guard would be accompanied to the office and would enter the strong room to receive the sealed satchels containing the cash to be delivered to the bank. [31] Clients of Chubb were supplied with a Chubb Protective Services document entitled Certificate of Banking/Escort Service. This document was a receipt issued by the security guard to the client. The first defendant was instructed by Chubb that the Certificate of Banking/Escort Service was to be completed at each cash pick up recording the site, name of the person from whom the cash was collected, the number of wallets and amount in the wallet. [32] During the three weeks during which Ahmed Rashid collected cash from Punchbowl RSL the amount of cash he collected was as follows:

Date Notes Coins Cheques Total 8 Aug 2001 7,700.00 7,410 276.70 32,840.60 10 Aug 2001 30,115 4,470 591.05 30,750.75 13 Aug 2001 43,490 300 2,107.25 45,600.25 15 Aug 2001 17, 030 4765 2,080.27 19,157.92 17 Aug 2001 28,760 4880 1,976.10 30,784.90 20 Aug 2001 43,685 210 2,393.55 46,080.65 22 Aug 2001 18,610 1,049.50 1,936.05 21,595.55 24 Aug 2001 29, 395 2505 1,684.40 31,104.45 27 Aug 2001 43,345 430 674.40 44,023.70 29 Aug 2001 12,450 716 1,425.25 14,592.10 31 Aug 2001 22,175 82.60 2,389.55 24,647.15 3 Sept 2001 50,951.25 4,340.35 55,291.60

[33] The security guard would leave the premises of Punchbowl RSL by using the side door which leads to a balcony and stairs which run down the side of the Club and then into the Director's car park. Ahmed Rashid [34] Ahmed Rashid commenced employment with the defendant as a security guard approximately 3 weeks prior to 3 September 2001. During the three weeks of his employment with the defendant Ahmed Rashid completed the same run No 221 which included the cash pick up at Punchbowl RSL. [35] To obtain employment with ATS Ahmed Rashid completed an application form and was interviewed by the second defendant. He had not worked for State Security & Crime Prevention and he had had little experience but during the interview the second defendant formed the view that Ahmed Rashid was very confident and very bright. [36] The application form completed by Ahmed Rashid has not been produced as Ahmed Rashid took his application from away to complete the details of his tax file number and it was never returned to ATS. [37] The training provided by the first defendant to Ahmed Rashid was primarily verbal. When Ahmed Rashid commenced work with ATS he was shown the work to be performed by another security guard Mustafa Cheikho. On two days Ahmed Rashid accompanied Mustafa Cheikho on a run. [38] The first defendant provided to Ahmed Rashid some written documents which included the following documents entitled: (i) Crisis and risk management; (ii) Personal security measures; (iii) Bomb detection and management; (iv) Vehicle security; and (v) 12345678 Security Performance Agreement [39] Prior to commencing work on a particular day, the security guards employed by the first defendant collected from its office running sheets containing details of the jobs to be completed from the defendant's office. ... details of the information contained in the running sheets were provided by Chubb to the first defendant. These running sheets were in turn issued by the first defendant to Ahmed Rashid. [40] In providing cash pick up services to Punchbowl RSL, Rashid was directed by the first defendant to work by himself. The work was designated by Chubb (and accepted by the first defendant) as a one man operation.

[41] No risk assessments of the sites (including Punchbowl RSL) at which employees of the first defendant were to pick up cash was undertaken by the first defendant. [42] Employees of the first defendant never received specific instructions or training in soft skin cash-in-transit operations. [43] Employees of the first defendant such as Mustafa Cheikho never received training from the first defendant in the supervision of other employees or in how to train other employees. [44] Employees of the first defendant were not provided with mobile telephones by the first defendant but used their own mobile telephones. [45] During the first week of performing cash in transit work, the first defendant requested its employees to use their own cars when performing the cash in transit work. [46] After the first week, the first defendant rented from Thrifty Rentals the cars used by the security guards in performing the cash in transit work. [47] The first defendant did not make any safety modifications to the cars. The cars did not have two way radios, duress alarms, drop safes or remote central locking devices.

3 September 2001 [48] On 3 September 2001 Ahmed Rashid performed security duties including Cash-in-Transit at Punchbowl RSL. On that day to perform this work he borrowed a motor vehicle from a friend Moeen Arshad as the car to be provided by the first defendant had broken down. The motor vehicle used by Rashid was a Ford Meteor Sedan Registration No. PCL 538. [49] The motor vehicle was a soft skin vehicle and was not modified to include any security devices such as remote central locking, two way radio or a drop safe. Mr Rashid was not provided with a panic alarm. [50] At approximately 12:30 pm on 3 September 2001 Ahmed Rashid arrived at Punchbowl RSL Club to carry out a cash pick up. He parked his motor vehicle in the director's car park which is adjacent to the Club building. This procedure was a repetition of the routine Mr Rashid had followed in collecting cash from Punchbowl RSL three times per week, over the preceding three weeks. [51] After picking up the cash Ahmed Rashid completed and signed a Certificate of Banking/Escort Service no 081350.

[52] He left the club premises to return to his motor vehicle. As he approached the motor vehicle he was attacked by a robber. A struggle ensued, Mr Rashid was fatally wounded when he was shot once in the upper back and once in the lower back; the attacker decamped in Mr Rashid's motor vehicle, with the cash. [53] Julius Adnan was a banking clerk employed by Punchbowl RSL who was at work on 3 September 2001 and described what he saw: (A18) "Two guys were struggling right beside the car, the chaps, the security guards car. The other person was holding a gun in his hand a pistol, then at the time I was sure it was a hold up. The only words I heard was "give me the bag, give me the bag." something like that. I could see the security guards head and there was blood on his head. The other guy took the car and drove away very quickly." [54] Simone Moody was an office clerk employed by Punchbowl RSL. She described the robbery on 3 September 2001 as follows: (A16) "I was at the from reception desk then Ahmed came to the front desk to see me and I told him to go into the counting room because Julius was already in there, done the procedure. Then I was talking to some one, and walked out in front of the desk, I didn't even see Ahmed leave but from the time he left to the time he got down to his car I heard some one say he was getting held up. I ran to the window to see what was happening and seen them both fighting over the bag, so I ran over to the door where Ahmed came out by the window, in that time I saw Ahmed fall to the ground and the guy in the car already reversing out of the drive way." [55] Mr Rahsid died as a result of the gun shot wounds. [56] After the robbery and killing of Ahmed Rashid, the cash pick up work from Punchbowl RSL by means of a single guard driving a soft skin vehicle ceased. The collection of cash from the Club is now conducted by Armaguard, using up to 4 security guards and an armoured vehicle.

[57] On 4 September 2001 Paul Price on behalf of Chubb informed Punchbowl RSL in writing that Chubb was terminating the agreement effective immediately. [58] On 5 September 2001 Inspector Batty issued Prohibition Notices Numbers 140601, 140602, 140603 and 140604 on the first defendant. The Notices prohibited the first defendant from collecting and transporting cash. [59] On 5 September 2001 Chubb informed the first defendant that it was cancelling the arrangement with the first defendant whereby the first defendant performed the cash pickups at Punchbowl RSL. 11 What is also relevant for the purposes of the offences concerning the defendants is that the cash in transit work being done by Mr Rashid was what was known as 'soft skin' cash in transit work. In general terms, what that expression refers to is cash in transit work being undertaken using standard type motor vehicles as opposed to armoured cars or trucks specifically designed and built for security of cash transports. On the day Mr Rashid was attacked, robbed and fatally wounded, he was driving a Ford Meteor Sedan that he had borrowed from a friend. 12 In addition to the agreed facts, the prosecutor tendered the following documentation without objections: (i) Tender bundle of documents tabbed A to P inclusive. I will refer to them as necessary in this judgment; (ii) 63 photographs; (iii) ASIC historical document with respect to ATS as at 30 June 2005. 13 On behalf of the defendants, the affidavit evidence of Mr Ghafoor as well as documentary material was tendered without objection. Mr Ghafoor was required for cross examination. Relevant principles

14 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account. 15 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]: ... it is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather were intended to provide 'further guidance and structure to judicial discretion.' 16 The starting point for considerations as to penalty is the objective seriousness of the offence charged. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision of Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474 as follows: ... it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence'... 17 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646 as follows: The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence. 18 On the issue of foreseeability, the Full Bench in Capral also stated: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: ... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation. 19 It is also necessary to consider the damage and injury suffered in the context of the evidence and 'in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence.' ( Capral at 650). On that point the Full Bench in Capral stated: We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales (Inspector Hannah) v Albury City Council (1999) 90 IR 397 at 408-409, Lawrenseon Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and Page v Walco Hoist Rentals Pty Ltd (No 2) (at 22). 20 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 21 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c). 22 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220.) Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure: ... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender.

23 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends . ... (emphasis added) 24 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]: ...The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice...

25 Overall, I observe nothing in Markarian that precludes me, properly in my view, from identifying a discount for the entry of an early plea of guilty. Additionally, to the extent that there are subjective and mitigating features relevant to the defendant, they are matters which also should be considered in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular s 21A(1) earlier referred to. Considerations

26 Neither defendant has any prior convictions under the Act. Accordingly, with respect to ATS, the maximum penalty I can impose is $550,000. In relation to Mr Ghafoor, the maximum penalty is $55,000. 27 The Full Bench in Capral said at 650 that 'a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences'. 28 Further, as was stated in Capral, the presence of foreseeability 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. (Lawrenson Diecasting at 476). 29 The very nature of the work being undertaken by Mr Rashid carried significant risks to safety that were obvious and the risk of injury clearly foreseeable. That Mr Rashid was armed highlighted the risks involved in transporting cash in a way and, during the transfer from the Club to the bank, at a time when the person transporting it was most vulnerable to attack. 30 If anything, the inherently dangerous nature of the work being undertaken by Mr Rashid on 3 September 2001 was exacerbated, in my view, by the system of work in place in which the cash in transit work was being undertaken. For example: (a) It was a one man operation; (b) The security guard attended on the same days each week, including a Monday when the Club's takings from the weekend had to be banked; (c) The security guard attended the Club at the same time each cash collection day i.e. between 12:00 and 1:30pm; (d) The security guard parked in the same car park that is the Club's director's car park which was not secured but had open access to the street; (e) The security guard performing the work was conspicuous as he was required to wear Chubb uniform; (f) Overall, there was no variation in how the work was performed when substantial amounts of money were required to be taken to the bank. As well, the security guard was not provided with adequate plant and equipment such as engine immobiliser or remote central locking. 31 On any view, to echo the words of Boland J in WorkCover Authority of New South Wales v South Sydney Junior Rugby Club [2004] NSWIRComm 215 at [15], the circumstances in place on 3 September 2001: ... presented themselves almost as an invitation for the premises to be robbed and, in the process, for employees to be placed at serious risk of harm. That a robbery might occur and that employees might be placed at risk was obvious, in my opinion. 32 Compounding the obvious foreseeability of serious risk of harm, of which Mr Ghafoor was aware, was that one of the employees of ATS, Mr Mustafa Cheiko had, before the incident involving Mr Rashid in September 2001, requested Mr Ghafoor to allocate him to a two man run for cash in transit work. After the incident involving Mr Rashid, Mr Ghafoor became aware that the reason for Mr Cheiko's request was that he had previously been robbed when doing such work alone for his former employer. 33 It is also relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable. 34 Counsel for the prosecutor contended, and I agree, there were simple remedial steps that could have been implemented. They included: (i) The use of a second guard when performing the cash in transit work; (ii) Variation in the times and procedures adopted in the picking up of the cash; (iii) The undertaking of a risk assessment; (iv) The undertaking of inquiries of both Punchbowl RSL and Chubb of whether there had been previous robberies; and (v) The introduction of proper training of employees. 35 Since the incident involving Mr Rashid and in his capacity as a director of ATS involved in the day to day running of the business, Mr Ghafoor has certainly undertaken a number of initiatives in order to address those matters highlighted in the incident involving Mr Rashid. First and most importantly, ATS has ceased doing cash in transit work. That decision was taken following the incident involving Mr Rashid. The corporate defendant now does general gatehouse security and some patrol work. All work undertaken is unarmed. As well: (i) ATS now employs a person to undertake staff training; (ii) ATS has undertaken the necessary management and operational reviews to be granted a Certification Audit by SAI Global Assurance Services. The scope of the certification covers a Quality Management System for the provision of security services in the form of unarmed static guards and patrols; (iii) ATS has also been awarded a Certificate of Compliance by the Australian Security Industry Association. 36 Overall, I am satisfied the defendants have acted responsibly to put systems in place to ensure the provision of a safe security service business. All the initiatives have required considerable expenditure on the part of ATS. Nevertheless, together with the remedial measures identified, they are matters that were all available to be undertaken prior to the incident involving Mr Rashid. 37 On the evidence of Mr Ghafoor, the impression is that his decision to set up ATS was predominantly motivated by what he perceived was a positive commercial opportunity with the advent of the Sydney Olympic Games. Having made the decision to enter the industry via the corporate vehicle of ATS, Mr Ghafoor was more intent, it would seem, in growing the company than concerning himself with attention to detail, including matters such as risk assessments together with adequate training and instructions that an employers legislative obligations to provide a safe system of work demands. 38 It is also clear, to a significant extent, Mr Ghafoor relied on Chubb both as to the job specification and risk assessment. As he expressed in cross examination: Q. I am asking is it the case neither you nor any of your company employees when you started to work with Chubb went out to the sites such as that at Punchbowl RSL to look at where the officers would park and how far they would go to the door, what the situation was for him to exit the car park and how much money he was collecting on each occasion. Did anybody ever analyse that? A. I wasn't allowed to go, I was told this is Chubb client and this is Chubb work and as for his client to understand Chubb security guard so I was under the impression Chubb has done the assessment and I am just employing the security guard. Q. Is it the position then, that you did not make any of those queries directly of the clients because you were in a subcontracting position and understood you were obliged to leave all contacts with the clients with Chubb? A. Yes I understood it was Chubb's operation operationally and I was supplying the manpower. ... A. ... So I wanted them to train my security officials and they promised they would do it and very quickly but whether there was no time for them to do it or whether it was because the incident happened, I don't know, but I have pursued this matter many times. Q. In any event putting aside the question of training, did you not perceive as a principle of your own business, before sending any of your employees out to collect cash, you needed to satisfy yourself either by direct inquiry at the site where the cash was picked up or pursuing questions with Chubb, what were the conditions bearing upon the security and risks in which the pick up would be undertaken? A. As I said before, I relied on Chubb's operation and, I was told I was dealing with a very big company and they must have carried out these operations and this job specification in my understanding was the one, I get it after the risk assessment. 39 There is no evidence to contradict Mr Ghafoor's expressed view as to how he perceived Chubb's role and, for his part, I accept it as correct. That, however, does not excuse the defendants. Their respective obligations under the relevant legislative provisions is clear and non-delegable. Those obligations were accentuated when ATS and Mr Ghafoor agreed to undertake the cash in transit work on Chubb's behalf in 2001. ATS held itself out as being able to provide such services. The work involved the employees wearing firearms and working, often alone, in circumstances where the risk to safety was high. The introduction of firearms while carrying large sums of cash would, and should, have alerted the defendants to the need to ensure proper training and risk assessment of the job at hand. Apart from sending Mr Rashid out for two days with a fellow employee in order to 'learn the ropes', Mr Ghafoor took no other steps to address the obvious risks to safety that Mr Rashid's work entailed. That Mr Ghafoor, on behalf of ATS, failed so abysmally to address those issues is evidence, in my view, of Mr Ghafoor's lack of any real experience of the dangers of cash in transit work coupled by his desire to 'grow the business'. That latter factor blinded him to the real and foreseeable risks to safety that the cash in transit work with live firearms represented. 40 Any uncertainty Mr Ghafoor felt about the work to be done, as specified by Chubb, or lack of training promised but not delivered by Chubb, were never pursued by Mr Ghafoor on behalf of ATS. Given the concerns he now expresses as to certain aspects of the one man cash in transit operations existing in 2001, it was open to Mr Ghafoor to refuse the work at that time until his concerns were satisfactorily addressed. That was not done and Mr Rashid paid the price with his life. 41 Counsel for the defendants submitted I could not be satisfied beyond reasonable doubt there was a causal connection between the failures that constituted the plea of guilty and the death of Mr Rashid and that the concession of liability for the offences that the pleas of guilty represented did not concede any such causal connection. 42 In my view, it is not necessary for me to determine beyond reasonable doubt a causal relationship between the risks to safety to which the defendant has pleaded and any specific death or injury that arises. They are matters which arise to be considered as part of the objective seriousness of the offence. 43 Decisions of this Court have made it abundantly clear that the mere occurrence of an accident causing injury to an employee is not in itself sufficient to establish the commission of an offence. This well established proposition was expressed by the Industrial Relations Commission in Court Session in State Rail Authority (New South Wales) v Dawson (1990) 37 IR 110 and particularly as follows at pp120-121: Although s15(1) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard of beyond reasonable doubt, that the employer failed to meet the obligation cast on him by the section. In other words, the mere fact that an accident occurs involving an employee, but without more, does not establish any liability in the employer; and that is so unless some casual nexus be established between the breach of statutory duty and the detriment occasioned to the employee. We agree in that respect with the observations by Grove J in McMartin v The Broken Hill Proprietary Company Limited ((1998) unreported) to the effect that 'it is necessary that a casual nexus be shown between such a breach and the fact of detriment to safety.' 44 While that decision refers to s15(1) of the Occupational Health and Safety Act 1983 no different approach arises in relation to s8(1) of the Occupational Health and Safety Act 2000. 45 By entering a plea of guilty, the defendant has acknowledged that causal nexus. The issue of causation goes directly to the guilt of the defendant to the offence to which it has entered its plea of guilty. By entering its plea, the defendant has embraced without demur its failures as pleaded and, in doing so, has accepted the causal link between them and risks to the health and safety of its employees that arise as a result of the failures particularised. As was stated by Walton J Vice President in WorkCover Authority of New South Wales (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325 at para [43]: It is not necessary to arrive at a precise conclusion as to how the accident occurred. It is now axiomatic that the general duties created by the Act are directed at obviating risks to the health and safety of persons in the workplace rather than to the circumstances or causes of a particular accident. 46 The tragic outcome of the accident that occurred on 3 September 2001 clearly threw up in sharp relief the risks to safety that existed as part of the defendant's system of work in relation to cash in transit operations. To the extent that the outcome was what it was is, as I have earlier stated, a matter that goes directly to the objective seriousness of the offence before me. 47 Given all of the above, the culpability of the defendants is considerable and renders the offences as objectively very serious. 48 The Full Bench decision in Capral makes it clear that general and specific deterrence are factors that should be given weight in the sentencing exercise in all but exceptional circumstances. As was said in Capral at 643-644: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process. 49 Given the nature of the industry, general deterrence is a relevant consideration. As was said by Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388: I…would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. 50 While I accept that the defendants have done much to minimise the possibility of re-offending, I am not persuaded that specific deterrence can be totally disregarded in my sentencing considerations. It is relevant on this issue to note that ATS has ceased cash in transit operations. The security work now being done by ATS employees does not, as I understand it, involve the need to carry firearms. That does not mean that risks to safety are no longer present in the working environment for ATS employees. Overall, however, the absence of firearms and cash in transit operations should lower the potential risks to safety such that it is unlikely employees of ATS will be confronted with similar factual circumstances to those constituting the offence before me. 51 On behalf of the defendant, submissions were made as to the respective defendants financial means. The historical company records of ATS as held by the Australian Securities and Investments Commission (ASIC) reveals that the personal defendant, Mr Safdar Ghafoor, is both a director and secretary of the corporate defendant. The only other director of the company is Mr Ghafoor's brother, Mr Asif Ghafoor. Mr Asif Ghafoor currently resides in Pakistan although, as I understand the evidence given, he has resided in Australia until relatively recently. It would seem he has played some role in relation to ATS in the past, particularly in overseeing the company's accounts. At the moment, he plays no active role in the affairs of the company. The evidence would point to ATS being only a small company currently employing four people as well as Mr Ghafoor. He works in the business on a day to day basis and draws a salary/director's fees from the company's accounts. 52 I have before me the income tax returns for ATS for the financial years ending 30 June 2002 and 2003 respectively. Additionally, I have the personal income tax returns for Mr Ghafoor for the financial years ending 30 June 2002, 2003 and 2004 respectively. 53 Taxation returns do not by themselves provide a complete financial picture relevant to an individual or corporation. Overall, when considering the material available, it would appear the corporate defendant has traded profitably, albeit modestly, in the 2003 tax year. For example, in that tax year ATS earned a gross income of $1,657,604. After expenses were deducted, the defendant ATS was left with a declared taxable income for the year of $19,528. 54 Two items accounted for over ninety per cent of allowable expenses for the defendant in the 2003 tax year. One was sub-contractor and commission expenses of $741,856. The other item was simply identified as 'All other expenses' and amounted to $842,938 - over 50 per cent of the defendant's income. I have no way of knowing what that expression represents. 55 There is no evidence before me as to the financial circumstances of ATS after the 2003 tax year, now some two years ago. On the evidence of the personal defendant, the company continues to trade. As earlier indicated, it is only a small company but, guided by the 2003 tax return, it does sub-contract nearly fifty per cent of its work. According to Mr Ghafoor, that approach 'cuts down administration costs ... it is competitive and we are not a big company and we cannot charge top dollars so it gives us a bit of an edge'. 56 A consideration of Mr Ghafoor's personal tax returns for the three years submitted reveals that his only source of income is the wages/director's fees he receives from ATS. Again, those sums are modest. For example, in the 2004 tax year, Mr Ghafoor's taxable income was $39,850 based on a total income of $40,250 identified as director's fees. The major asset of Mr Ghafoor is the family home and contents. According to Mr Ghafoor, the mortgage on that property is $280,000 approximately. The value of the property was not disclosed. 57 On the relatively limited financial information available, it would appear that the personal defendant Mr Ghafoor is, for all practical purposes, the alter ego of ATS in that the assets of ATS (such as they are) are in a real sense the assets of Mr Ghafoor and his wife. 58 Because of that alter ego relationship between the corporate and personal defendants, I accept that any penalty imposed on the corporate defendant will have an impost on both defendants. Nevertheless, it is not possible to be definitive as to the true financial position of the corporate defendant because of the paucity of information provided and which is now some two years old. As was said by the Full Bench in WorkCover Authority of New South Wales v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247 at [51]: ... where a defendant desires to plead incapacity to pay as a determinative issue in the imposition of penalty, it behoves the defendant to discharge the onus that such a submission invokes by placing before the Court all of the information it relies upon in support of that submission in order for the Court to give that information proper consideration in the exercise of its sentencing discretion. 59 Ultimately, I can place little weight on the evidence provided. I do accept however, the defendants are of relatively limited means but not of such limited means and impecuniosity as contemplated by Walton J Vice-President in WorkCover Authority of New South Wales v David Karl Schrader (2002) 112 IR 284 at [86]. Rather, the approach I propose to adopt to the imposition of penalty with respect to the defendants is in accord with the observation of Wright J President in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210 where his Honour observed: ... whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty ... the penalty should reflect the objective seriousness of the offence. 60 The principle of parity in the sentencing process becomes relevant in these proceedings when comparing the respective roles of ATS and Mr Ghafoor with that of Chubb in the context of the factual circumstances of the respective offences. 61 The approach to be considered in parity in sentencing is well settled. It is a matter to be determined having regard to the circumstances of the offences, the role of the co-offenders and their respective degrees of culpability: see Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295. 62 In my view, the culpability of the respective co-defendants is equal. In coming to that view, it is necessary to assess that issue in the particular context of the respective role of Mr Ghafoor and ATS when taken together with that of Chubb in the overall factual matrix of the offences. 63 The culpability of ATS and Mr Ghafoor centres around their direct responsibility for the system of work undertaken by Mr Rashid and the failure of ATS and Mr Ghafoor to properly and critically risk assess the work to be done at the direction of Chubb as well as insist on proper instruction and training from Chubb for Mr Rashid. As the agreed facts disclose, there was a significant contractual relationship between ATS and Mr Ghafoor on its behalf and Chubb. Central to the relationship was the undertaking by ATS of cash in transit operations. ATS held itself out as professionally capable of doing cash in transit work. Those operations were conducted in accordance with a system of work devised and insisted upon by Chubb. Nevertheless, it was ATS and Mr Ghafoor who had the direct responsibility to ensure the system of work that was devised by Chubb was assessed as free of risks to safety to it's employees. Given the obvious shortcomings that system encompassed, the failure by ATS and Mr Ghafoor to raise those matters with Chubb and, if need be, refuse to do cash in transit work until they were addressed are the central factors underpinning the culpability of ATS and Mr Ghafoor. 64 In the determination of penalty, the defendants are entitled to have taken into account the pleas of guilty entered. In assessing the impact of the plea, the Court is guided by the principles established in R v Thomson; R v Houlton (2000) 49 NSWLR 383. Those principles are well settled and require no elaboration. Those principles are reinforced by s22(1) of the Crimes (Sentencing Procedure) Act 1999 that requires, in sentencing an offender who has pleaded guilty, the Court to take that fact into account as well as the timing of such a plea. As a consequence, the Court may impose a lesser penalty. 65 The prosecution contended that no discount should be given for the defendants' pleas of guilty given that they were not entered at an early stage. 66 It is correct that the pleas of guilty were entered only a matter of a couple of weeks before the time listed for hearing. The matters were referred to me in May 2004. There was some initial delay awaiting the outcome of police and coronial investigations into the robbery and shooting of Mr Rashid. In October 2004, the matters were listed for ten days from 11 July 2005 as pleas of not guilty. The pleas of guilty were entered some nine months later. 67 While the delay in entering the pleas was considerable, I believe the defendants should receive some discount for the pleas that were ultimately entered. It would appear that, to some extent, the late entry of the pleas was due in large part to the tardiness on the part of the defendants' solicitors in briefing counsel. This was not done until relatively late in proceedings and the pleas of guilty quickly followed. 68 As well, there was a considerable saving in Court time by the defendants entering the pleas when they did. Overall, I assess the utilitarian value of the pleas as warranting a discount on penalty of twenty per cent with respect to each offence. 69 There appears to be no evidence to suggest the defendants failed to cooperate with the WorkCover authorities in relation to these offences. As well, the defendant has taken positive steps to address it's occupational health and safety responsibilities as the earlier steps detailed in para [33] above attests. They are matters that entitle the defendants to further favourable consideration by way of mitigation in my ultimate penalty determination. 70 I accept that whatever penalty I impose on the corporate defendant will have to be met from the assets of Mr Ghafoor. He is very much the alter ego of the corporate defendant in a financial sense. 71 Taking into account all considerations to which I have referred, I determine penalty in these matters as follows:

(1) Matter No IRC 4906 of 2003: WorkCover Authority of New South Wales (Inspector Wilson) v Safdar Ghafoor : Prosecution arising pursuant to s8(1) and s26(1) of the Occupational Health and Safety Act 2000:

(2) Matter No IRC 4907 of 2003: WorkCover Authority of New South Wales (Inspector Wilson) v ATS All Time Security Pty Limited (ACN 091 114 242): Prosecution arising pursuant to s8(1) of the Occupational Health and Safety Act 2000:

I determine a penalty of $140,000. 72 I make the following orders:

(1) Matter No IRC 4906 of 2003: WorkCover Authority of New South Wales (Inspector Wilson) v Safdar Ghafoor : (i) The defendant is guilty of the offence as charged. (ii) I impose a penalty in this matter of $21,000. (iii) I allocate a moiety to the prosecutor on the usual terms.

(2) Matter No IRC 4907 of 2003: WorkCover Authority of New South Wales (Inspector Wilson) v ATS All Time Security Pty Limited :

(i) The defendant is guilty of the offence as charged. (ii) I impose a penalty in this matter of $140,000. (iii) I allocate a moiety to the prosecutor on the usual terms.

(3) In relation to both matters, I order the defendant to pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment.

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