WorkCover Authority of New South Wales (Inspector Batty) v The Crown in the Right of the State of New South Wales

Industrial Relations Commission (NSW)|2000-09-08|Before: Marks J, Mr P

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of New South Wales (Inspector Batty) v The Crown in the Right of the State of New South Wales (known as New South Wales Department of Education and Training) [2000] NSWIRComm 181 PROSECUTOR PARTIES : WorkCover Authority of New South Wales (Inspector Batty) DEFENDANT The Crown in the Right of the State of New South Wales (known as New South Wales Department of Education and Training) FILE NUMBER: IRC2001 of 1999 CORAM: Marks J CATCHWORDS : Occupational Health and Safety prosecution - Plea of guilty - Penalty LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15(1) Crimes (Sentencing Procedure) Act s 10 Tuckley v The Crown in the Right of the State of New South Wales (Department of Community Services) (unrep 7 Sept 1999 IRC7324 of 1997) CASES CITED : WorkCover Authority of New South Wales v The Crown in the Right of the State of New South Wales (unrep 6 Dec 1999 IRC598 and 601 of 1998) WorkCover Authority of New South Wales v Profab Industries Pty Ltd (unrep 8 Aug 2000 IRC3741 of 1999) HEARING DATES: 08/28/2000; 08/29/2000; 08/30/2000 DATE OF JUDGMENT: 09/08/2000

PROSECUTOR Ms A F Backman of Counsel SOLICITORS OHS Prosecutions Branch, WorkCover Authority of New South Wales

LEGAL REPRESENTATIVES: DEFENDANT Mr P Menzies QC and Mr G P Craddock of Counsel SOLICITORS Legal Services Unit, NSW Department of Education and Training

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

WORKCOVER AUTHORITY OF NEW SOUTH WALES (Inspector Batty) v THE CROWN IN THE RIGHT OF THE STATE OF NEW SOUTH WALES (known as New South Wales Department of Education and Training).

Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

1 These are proceedings instituted by the prosecutor Inspector Ian Batty of the WorkCover Authority of New South Wales against the defendant The Crown in the Right of the State of New South Wales (known as New South Wales Department of Education and Training) alleging as against the defendant a breach of s 15(1) of the Occupational Health and Safety Act 1983 ("the Act"). 2 The proceedings were originally commenced by the issue of some 29 summonses alleging a variety of offences. The current proceedings became the subject of an amended summons filed in Court on 28 August 2000 to which the defendant pleaded guilty. The remaining summonses were withdrawn by the prosecutor and were dismissed. 3 The charge and the particulars of the charge contained in the amended summons are as follows: Between 6 May 1997 and 29 August 1997 at the Westport Technology High School at Findlay Street, Port Macquarie, 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 Katharine Crawford, Lyn Lugg, Kerry Armstrong, Phil von Schoenberg, Gail Crozier, contrary to Section 15(1) of the Occupational Health and Safety Act 1983. The Particulars of the charge are:

The defendant at all material times employed a number of teaching staff at the said school.
The defendant failed to provide such supervision as may be necessary to ensure that employees were not placed at risk of injury by violent actions occasioned upon them by "F" and "R", students of the support unit at the Westport Technology High School.
The defendant failed to provide or maintain systems of work to ensure the protection of employees from violent actions occasioned upon them by "F" and "R", students of the support unit at the Westport Technology High School.
As a result of the said failure, Katharine Crawford, Lyn Lugg, Kerry Armstrong, Phil von Schoenberg, Gail Crozier suffered injuries.

4 At the commencement of the hearing of these proceedings on 28 August 2000 I made an order suppressing the names of the two students of the support unit at the school. Accordingly, the extract from the summons reproduced above does not contain their names, but refers to them by initials which were used to identify each of them for the purpose of the proceedings.

5 Section 15(1) of the Act is in the following terms: 15(1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

THE FACTUAL BACKGROUND 6 The parties agreed on a statement of facts in the following terms:

At all material times the Prosecutor was an Inspector duly appointed and empowered by Section 48 of the Occupational Health and Safety Act 1983 to institute proceedings in the within matter.
At all material times the defendant, The Crown in the Right of The State of New South Wales (known as New South Wales Department of Education and Training) operated from its head office at 35 Bridge Street, Sydney, in the State of New South Wales.
At all material times the defendant was responsible for the operation and management of public schools in the State of New South Wales including the West Port Technology High School at Findlay Avenue, Port Macquarie in the State of New South Wales.
At all material times the defendant employed a number of personnel at the said High School, including Katharine Crawford as the Head Teacher of the support unit, Kerry Armstrong as a Teacher in support unit and Lyn Lugg as a Teachers Aide in the support unit.
At all material times the defendant conducted a High School which undertook the teaching of school students from years 7 to 12 inclusive. As a part of this teaching process the school also conducted a support unit.
The role of the support unit at the said High School was to provide education for children from the intellectual disability moderate range and intellectual disability severe and profound range.
The head teacher of the support unit was Mrs Kathy Crawford. She had a staff consisting of four (4) full-time teacher positions and two (2) full-time teacher's aide positions. The head teacher of the support unit is answerable to the principal of the School in the same manner as other teachers at the school.

Students attending the support unit of the said school, included: (a) "F" "F" was autistic, and was enrolled at the High School in February 1995 after completing Primary School with a history of challenging behaviour including biting, hitting, pinching, kicking, scratching and urinating on others. The information regarding this behaviour was passed on through an exchange of information with support staff at the Port Macquarie Primary School to the Teachers at the High School. At the time when he first attended the High School he was only 154 cm tall and there was no other possible local placement for a student with autism. As at March 1997, "F" was very large, being approximately 195cm tall and weighing approximately 119kgs. On about 24 July 1996, "F" was suspended from the school. On about 3 August 1996 he was re-admitted to the school on the understanding that a behaviour modification program would be applied in order to eliminate the assaults upon students and staff. On about 3 September 1996 he was suspended following further assaults. He was readmitted on about 11 September 1996. On about 10 December 1996 he was suspended following further assaults. He was readmitted on about 13 December 1996. On about 20 February 1997 he was suspended following further assaults. He was readmitted on about 26 March 1997. On about 24 July 1997 he was suspended following further assaults. He was not readmitted to the school site. (b) "R":

"R" had a hearing impairment and at his previous school he was a main stream student who received considerable itinerant support from the Itinerant Teacher (emotional disturbance) and the Itinerant Teacher (hearing impairment). There was no assessment of either student at the school prior to them commencing as a student at the said High School. 9. On about 20 March 1997 "R" was suspended from the school after assaulting a staff member. On about 27 March 1997 he was re-admitted to the school. On about 30 April 1997 "R" was suspended from the school following a further assault upon a staff member. On about 5 May 1997 he was re-admitted to the school. On about 11 June 1997 "R" was suspended from the school following a further assault upon a staff member. On about 30 June 1997 he was re-admitted to the school. On about 29 August 1997, "R" was suspended from the school following a further assault upon a staff member. He was not re-admitted to the school site. 10. The assaults that had been occasioned to Katharine Crawford, Lyn Lugg and other persons by students from the support unit were recorded on a critical incident report and forwarded to the Principal, or in the Principals absence, the Acting Principal. 11. The defendant had a policy that critical incidents such as assaults upon staff were reported through the Principal to the District Superintendent and then to the head office of the defendant. 12. On the 11 June 1997 at the said High School an employee, Phil Von Schoenberg, a Teacher at the said school was assaulted by "R", a student of the support unit. He was pushed to the shoulder when he intervened in a tussle between "R" and another student over a pool cue. 13. On the 16 June 1997 at the said High School, Lyn Lugg, a Teacher of the support unit was assaulted by "F", a student of the support unit. 14. On the 16 June 1997, "F" was on a community access at the shops in Port Macquarie. He was with Lyn Lugg at this time and "F" entered a Newsagent and thrown (sic) the magazines on the floor. He was requested by Lyn Lugg to pick up the magazines and he refused. He was given a choice of picking them up or having a time out and he refused to pick them up. He was requested to come out of the Newsagency and sit on the seat which he then did, he then lashed out at Lyn Lugg with his hands hitting her on her forearms. He then stopped and started saying "sorry, sorry." The incident was reported to the Principal at that time. Lyn Lugg suffered shock, stress and anxiety as a result of being hit on that occasion. 15. On the 18 June 1997 at the said High School, Katharine Crawford, a Teacher at the school was assaulted by "F", a student at the said school. 16. On the 18 June 1997, "F" was under the supervision of Katharine Crawford. "F" went into the classroom during lunch where he was not allowed, as there was inadequate supervision at that location. He started to play a computer game and he was requested by Katharine Crawford to close the game down. "F" then grabbed her hand and pulled her towards him. He was given a time out and he quit the game. Katharine then moved near the doorway out of his range and "F" jumped up from the computer ran over to her stopping with his body against hers. She cringed at that time in fear of impending violence. Katharine suffered stress and anxiety as a result of the incidence (sic). This matter was not reported to the Principal but was recorded in the unit records. 17. On the 19 June 1997 at the said High School an employed Teacher, Gail Crozier was assaulted by "F", a student of the said school. 18. On the 21 July 1997, Katharine Crawford an employed Teacher of the said High School was assaulted by "F" a student at the said school. 19. On the 21 July 1997, "F" was under the supervision of Katharine Crawford when he was lying along the kitchen bench in the Home Science kitchen. He was asked to get down. He got down and then gave her a big hug lifting her feet off the ground. His intent was described as friendly although Katharine experienced a degree of anxiety. Katharine Crawford felt powerless because of "F"'s huge size. She experienced increased heart rate and severe anxiety. 20. On the 22 July 1997, Katharine Crawford, a Teacher at the said High School was assaulted at the said High School by "F" a student of the said school. 21. On the 22 July 1997, Katharine Crawford was with Kerry Armstrong, a Teacher, in the Computer Lab No. 2. Students of the unit were completing individual tasks on computers. "F" was sitting at a table ready to complete the maths work sheet and he then commenced laughed hysterically. He then ran around the room and then grabbed both Katharine's hands with one of his hands and held her neck at the throat with the other. "F" has then forced her to walk backwards with one arm around her neck. She was then forced to walk down the stairs with "F"'s arm holding her around the throat. She was then released by "F". "F" then grabbed her again and held her for a number of minutes. As a result of the assault Katharine suffered acute anxiety and stress and extensive bruising to her left leg. 22. On the 23 July 1997 at 11.05am, Katharine Crawford, a Teacher at the said school was assaulted at the said school by "F", a student at the school. 23. On the 23 July 1997, "F" requested a five minute time out by taking the clock on the wall and indicating 5 minutes on it. He grabbed Katharine's hand and pulled her down to where he was seated. 24. On the 23 July 1997 at 12.40pm whilst in class, "F" suddenly grabbed Katharine Crawford with both arms around her head and shoulders and then released her. As a result of the said assaults Katharine suffered an emotional breakdown, bruising and scratching around her neck area. She was then absent from work until the 24 November 1997. She was placed on rehabilitation and a return to work program which continued through until the end of February 1998. As a result of the assaults "F" was suspended from school once more. 25. On the 29 August 1997, Kerry Armstrong, a Teacher at the said school was assaulted at the said school by "R", a student at the said school. 26. On the 29 August 1997, Kerry Armstrong had entered the support unit foyer to assist Gail Crozier, a casual Teacher at that location, and attempted to have students leave the area. It became evident that "R" had assaulted a student of the support unit. Kerry Armstrong assisted Gail Crozier to evacuate the area and saw "R" walk up to the door and "R" then assumed a fighters stance towards Kerry Armstrong with fists clenched and raised and came towards her and said "and you shut up." Kerry Armstrong was fearful for her personal safety and that of other students. She then left the school and saw her Doctor, where she was diagnosed as suffering from severe stress. 27. The system of work in operation in the support unit was such as to permit the continuation of assaults by "F" and James "R" upon students and staff. Before during and after the period of the assaults by "F" and "R" (between 6 May 1997 and 29 August 1997), the school sought the advice of the Department of Community Services and the Autistic Association. Advice was provided by those bodies that might, in conjunction with changes to work practices, have resulted in the cessation of assaults upon students and staff by "F" and "R". The Department of Education and Training failed to ensure that those changes were implemented. As a consequence, the risk of, and incidence of, assaults upon students and staff continued.

7 A report of Associate Professor Stewart Einfeld, Associate Professor and Head of Department of Child and Adolescent Psychiatry at the Prince of Wales Hospital dated 1 August 1996 was tendered into evidence. This report concerned the student "F". This report reads as follows: "F" has several problems, namely intellectual handicap and also autism. The autism means that behaviour management strategies which would be applicable to other intellectually handicapped young people, need considerable modification. I have discussed "F" with Ms Jackie Roberts the Director of the Autistic Association of New South Wales, and has (sic) also been briefed on his difficulties. Whilst it is not possible, or appropriate for me, at this distance to be suggesting the specifics of appropriate behaviour management programmes, a few general points may be helpful.

Given communication impairments in autism which is especially necessary to ensure that rewards or adverse consequences used in behavioural programmes and the required behaviours to elicit these are clearly understood.
A high level of structure and predicability in the day usually reduces anxiety in autistic people.
It is best to be cautious about inferring motives or even ideation in the autistic person's thinking and rather focus on observable behaviour.
Autistic people feel more comfortable if the (sic) can control the level of interpersonal intimacy. That is, sometimes they have a wish to be isolated and sometimes wish to approach. It is best if the caring systems can accommodate this variability.
It is noted that behaviour is by report much more problematic at school than at home. This suggests that environmental context is an important mediating factor. In view of this, medication is not recommended at this time.

8 A report of 29 January 1999 from Ms Potts, a psychologist with the defendant relating to "F" notes a significant improvement in his behaviour. It also notes that this has been achieved significantly following his suspension from school in July 1997 when a home programme was implemented and subsequently expanded. It was said that this programme "was collaboratively planned, monitored and reviewed by a learning support team including (his) mother, Department of Education and Training and Community Services personnel and was based on the advice provided by the Autistic Association assessment and the programme Officers and Speech Therapist from Community Services Disability teams." 9 Evidence was given on behalf of the defendant by Valerie Fay Derks. Ms Derks is a community worker employed by the Department of Community Services and holds a Bachelor of Nursing degree. She commenced working with the student "F" in about September 1996. She described him as being autistic with an intellectual disability in the moderate to severe range. She said that "F" required very clear communication, that he had a significant communication delay in his expressive and receptive language, that he was required to have routines, a very clear programme of direction and that he was unable to display or express feelings or pick up on feelings or expressions of other people. Ms Derks' role was that of case manager/case coordinator, and she assisted the family in considering the range of services that would assist "F" and his needs. She was aware that "F" had been suspended from school because of violent behaviour and she became involved in attempting to deal with this at the school level. 10 Ms Derks met with a number of staff at the support unit at Westport Technology High School. Meetings were conducted on a number of occasions in the Principal's office which were attended by executive administration, district office staff and staff of the support unit. Ms Derks' initial meetings were with Ms Katharine Crawford who was in charge of the support unit. Ms Derks said that she offered the support unit assistance from her programming staff "which primarily look at behaviour intervention and support" and also assists with funding as well as assistance from the Autistic Association in the conduct of assessments. Ms Derks said that Ms Crawford and the other teaching staff in the support unit resisted these offers of assistance which would have involved her department's staff coming into the school environment and undertaking assessments, and making a thorough assessment of the environment in which "F" was attending the support unit. The resistance was said to be based on the fact that support staff knew what they were doing and had expertise in the field. There was also resistance to the idea of taking a video of "F"'s attendance at the support unit to enable everyone to assess what was happening to him and his interaction. Ms Derks said that she commenced regular meetings at the school from September 1996 and that they intensified towards the end of 1996 and through the beginning of 1997. She and her officers concluded that there was a "repetitiveness" in the programme developed for "F" at the school which she thought created boredom and frustration both of which could lead to incidents involving "challenging" behaviour. Ms Derks thought that the Principal and the school executive was supportive of the changes that she was advocating and she thought that the Principal and his executive endeavoured to mediate and negotiate with the staff at the support unit, but they resisted all efforts for the Department of Community Services to become involved. 11 Later the Teachers' Federation became involved as well and it was the agenda of its representatives that the student "F" be banned from the school because of the danger which he posed to the teachers. 12 Ms Derks said that as part of her work she endeavoured to prepare an "incident prevention response plan" which was rejected by the staff of the support unit although it had the support of the school executive including the Principal. 13 Ms Derks was also aware of the other student involved, "R". She said that he had a moderate intellectual disability and a hearing problem. She also offered her department's services to the support unit at the school for this student but they were rejected completely by the teachers through the union. 14 By about March or April 1997 the situation had been reached that the teachers of the support unit through the union did not want either student to be in attendance at the school because of their behavioural problems. 15 In cross examination Ms Derks said that the resistance which she encountered to her involvement with the support unit was not confined to the person in charge of that unit but extended generally to the totality of the staff including teacher's aides. Nevertheless there was a deal of cooperation in that Ms Derks attended at the school on many occasions to discuss problems associated with the management of "F" and the support unit participated in a number of assessments instigated by DOCS including initial participation in a suggestion that "F"'s activities should be videoed. 16 Ms Derks also said that the resistance which she encountered was supported by a representative of the Teachers' Federation. 17 Ms Derks conceded in cross examination that optimal management of "F"'s autism required the use of a predictable repetitive regime and it was more difficult to maintain such a regime in a school environment. "F" had been integrated into the mainstream art classes, a situation which was quite different from the environment which he otherwise experienced at home and different also from the environment within the support unit itself. 18 Overall I am left with the impression of Ms Derks' evidence that whilst there were areas where she encountered resistance from members of the support unit, there were areas where there was extensive collaboration and cooperation. For reasons which will become apparent, it is not essential that I make any specific findings in this area. I comment, however, that it seems to me that it is more likely than not that the tension which occurred did so gradually as part of an evolving process. 19 There was also some documentary evidence tendered in the course of the proceedings which throws some additional light on the circumstances surrounding the events which gave rise to the initiation of these proceedings. 20 A memorandum prepared by Ms Crawford concerning a meeting on 2 August 1996 re "F" referred to his "very dangerous violent behaviours", the unpredictability of his behaviour and the potential risk to staff and students that this posed. The memorandum makes reference to the need to acquire support for those endeavouring to assist "F" but tellingly makes these comments: "there is nothing in anybody's job description which includes being assaulted …. There is no programme which will eliminate violence overnight …. It may be that enrolment in a mainstream high school is not the most appropriate placement .…". That memorandum is dated one day before "F" was re-admitted to the school, as shown in para 8 (a) of the Agreed Statement of Facts. A report prepared by officers of the Department of Community Services re "F" dated 22 August 1997 sets out a history of that department's involvement with "F". He had first been referred to DOCS on 6 August 1996 with a history of "physically assaultive behaviour which had escalated since 30 April 1996. The behaviour had been mainly occurring at the school and was putting "F"'s placement in jeopardy." The DOCS personnel used a programme known as "The Positive Programming Model" in order to assist "F" in his behavioural problems. The report described an assessment of his behaviour and was critical of strategies used by staff at the support unit to manage "F"'s situation. The report noted that the head of the support unit seemed wedded to the "Choice Theory Reality Therapy M Model". There is also a notation that the head of the support unit did not agree with methods used by the Autistic Association. However that person had attended with a representative of DOCS, "F"'s mother and a teacher's aide at a meeting with representatives of the Autistic Association in September 1996. 21 There is reference in the documentation to additional resources being made available through the Department of Education including the provision of 100 hours for a teacher's aide for "F" in February 1997. However the documentation indicates that the teacher's aide was ultimately made available in April 1997 for the whole class and was not to be dedicated solely for "F"'s management. 22 There is mention in that memorandum of arrangements made to take a video of "F" in April 1997. It appears that a video was taken which led DOCS personnel to criticise the support unit's programme. An extract of a statement made by Ms Crawford refers on 14 April 1997 to a DOCS video suggesting that it is "a political exercise", that it is taken only intermittently and suggesting that the person operating the equipment "has an already formed opinion that it must be something we are doing and that the behaviour must be 'frustration' based. She will not listen to either Kerry or myself when we explain our perception of the causes and nature of the violent behaviour." There is also a note that the chairperson of the Occupational Health and Safety Committee was asked to approach the WorkCover Authority of New South Wales for an inspection. A later notation by Ms Crawford on 16 April 1997 says that she asked for videoing to cease "when it causes major disruption to the learning conditions of other students and we perceive the intent of selective videoing to be other than as negotiated." This was reported within a DOCS document as demonstrating an unwillingness by the support unit for "F" to be observed in class. 23 A memorandum to DOCS dated 3 March 1997 jointly signed by the Acting Principal of Westport Technology High School and Ms Crawford expressed concern that there had been three critical incidents by way of assault initiated by "F". It indicated that the Occupational Health and Safety Workplace Committee at the school had recommended to the Principal that he not return to the school until a full assessment of "F" had been carried out by DOCS and "a comprehensive and effective behaviour management programme across all environments has been developed and implemented." There was mention also for the need to implement strategies to eliminate violence. Furthermore the memorandum noted that: "Mainstream teachers have expressed their fear of "F" both within integrated structural settings and the playground. It has been decided that "F" be withdrawn from integrated classes." 24 On 16 September 1997 Ms Derks wrote to the Principal of Westport Technology High School indicating that a home education programme being undertaken by "F" appeared to be successful and recommending that "F" return to the school environment. She also recommended that suggestions made by Ms Kershaw of the Autistic Association following a recent assessment should be implemented by the school. It was suggested that a specific educational programme be designed to cater for "F"'s needs and that a male as opposed to a female work with him. 25 There was tendered into evidence a detailed assessment by Ms Kershaw of the Autistic Association of New South Wales, dated 16 September 1997. Ms Kershaw was of the opinion that there were some measures which might be taken to reduce the incidents of the aggressive behaviour about which she had been told. She also suggested a number of protective strategies that could be taken by school staff. The report is both impressive and comprehensive. It is not, however, necessary that I refer to its content in detail. It postdates the periods of the course of conduct described in the amended summons.

The objective seriousness of the offence. 26 This is one of the most significant matters to be taken into account when assessing penalty. It is clear that over a period of many months a number of employees of the defendant were subjected to physical assaults at the hands of two students of the support unit, predominantly the student "F". Some of the assaults were serious. Most of these assaults were reported to the Principal or Acting Principal of the school. If the District Superintendent and Head Officer were not made aware of these assaults then this would have been a breach of the defendant's policy (see para 11 of the Agreed Statement of Facts). In any event it is clear from the documentary evidence to which I have referred that persons in a higher authority than the head of the support unit were aware of the behavioural problems, at least those manifested by the student "F" well before the commencement of the period referred to in the amended summons. 27 I conclude that at all relevant times the defendant through its officers was aware of the propensity for violence at the hands of these students, and it did not take steps to preclude, at least after the first incidents, further assaults on staff. As Mr Menzies QC who with Mr Craddock appeared for the defendant freely admitted, this was the reason why the defendant pleaded guilty to the charge in the amended summons. 28 The defendant relied upon the failure of the members of the support unit to embrace suggestions made by DOCS personnel and the failure of members of the support unit to adopt suggestions made by the Autistic Association of New South Wales as mitigating circumstances. It is clear that tension developed between officers of the Department of Community Services (DOCS) and teachers within the support unit as to the most appropriate programme for the two students in question, in terms especially of the best means of managing their violent behaviour. These tensions remained unresolved at all time. No doubt the members of the support unit and particularly Ms Crawford believed vehemently in their own assessment as to the most appropriate programmes for these students and particularly for the student "F". No doubt DOCS personnel and personnel from the Autistic Association of New South Wales believed equally sincerely in the merit of their own positions. The tragedy is that there was no protocol in place to deal with this conflict situation. 29 It is obvious that one needs to take a holistic approach to the assessment and development of appropriate programmes for intellectually disabled persons. Such a holistic approach must draw on the expertise of such persons as can make a valuable contribution to the process. No such holistic approach ultimately became possible in the context of the circumstances of "F" because of the intractable differences of opinion which evolved over a period of time. No doubt the passage of time hardened attitudes and those hardened attitudes themselves impeded the development of any collaborative and cooperative approach. 30 In terms of these proceedings I do not sheet home any particular blame to any particular person in the support unit. There is evidence of a willingness to cooperate and participate at an early stage The "blame" should, in my opinion, rest in a corporate sense with the defendant at a higher executive level. 31 Part of this blame is manifested by the lack of any structure to eliminate or at least substantially reduce tensions of the kind which arose in these proceedings. This has, from the evidence, created an environment which has pushed DOCS personnel against Department of Education personnel and which has created an industrial relations environment not conducive to the sympathetic and constructive approach to the implementation of educational programmes for students with disabilities and with associated behavioural problems. 32 Whilst considerations of occupational health and safety must over-arch all of the processes of the defendant, there still needs to be taken into account the desirable outcome of pursuing worthwhile programmes for students with disabilities. 33 The fact remains, however, that there is no evidence that had a structured case management process been in operation and even had all of the suggestions made by DOCS and the Autistic Association personnel been implemented there was no guarantee that "F"'s behavioural problems and his propensity for violence would have been eradicated. 34 In all these circumstances I regard the failure by the defendant to ensure the safety of its employees over several months as a serious one.

Maximum penalty. 35 The maximum penalty imposed by the Act for a breach of s 15 is $500,000. However by s 51A the maximum penalty becomes $750,000, assuming that the defendant has had a prior conviction. Ms Backman of counsel who appeared for the prosecutor relied on a judgment of Hungerford J in Tuckley v The Crown in the Right of the State of New South Wales (Department of Community Services) (unreported 7 September 1999 IRC 7324 of 1997) and the judgment of Schmidt J in WorkCover Authority of New South Wales v The Crown in the Right of the State of New South Wales (unreported 6 December 1999 IRC 598 and 601 of 1998) for the proposition that s 51A applies to the Crown in all its manifestations and the exercise of all of its functions. In any event, the New South Wales Department of Education and Training has been the subject of a prior conviction. Accordingly, the maximum penalty of $750,000 applies. Mr Menzies did not make any submissions as to whether there was a discretion inherent in whether s 51A would be applied. I approach the matter on the basis that this is the maximum penalty.

Contrition 36 Mr Menzies submitted that the defendant had expressed contrition by its plea of guilty. He said that the defendant regretted the fact that the assaults had taken place and their impact on teaching staff. The defendant acknowledged that the unfortunate incidents which occurred had affected not only the teachers in the support unit but also their supervisors in the administration of the school.

Discount for plea of guilty. 37 Mr Menzies submitted that the penalty which might otherwise be imposed should be discounted because the defendant had entered a plea of guilty in a timely fashion, namely immediately upon withdrawal of the 28 summonses and the amendment of the existing summons. However he said that the withdrawal of the 28 summonses and the amendment of the existing summons had been accomplished following a proposal put by the defendant to the prosecutor some little time ago to have the matter dealt with by one summons. I observe that the application for the issue of the original summons was filed in this Court on 4 May 1999 and that all of the matters were set down for hearing in Port Macquarie commencing 28 August 2000 pursuant to a pre-hearing directions held on 28 February 2000. On that occasion the Court had been informed that the defendant would enter a plea of not guilty and that the trial would last some two to three weeks. The Court was not informed that a plea of guilty would be entered until late on Friday 25 August 2000. 38 To the extent that the entry of a plea of guilty has saved some Court resources (although its late notification has wasted my availability to deal with anything other than urgent matters during the week commencing 4 September) I intend to allow some discount, but not to the extent that a discount would be allowed if a more timely indication had been given, presumably resulting from an earlier approach by the defendant to the prosecutor.

The quantum of penalty. 39 The defendant's principal submission was that there should be no penalty imposed and that the defendant should be given the benefit of s 10 of the Crimes (Sentencing Procedure) Act . I decline to apply this legislative provision because of the serious nature of the offence and because there was a consistent pattern of assaults over several months in circumstances where the defendant took no action to avoid any further assaults. In these circumstances it is not appropriate that any discretion of this kind be exercised in favour of the defendant. 40 I refer also to the recent decision of the Full Bench of this Court (Wright J, President, Walton J, Vice President and Hungerford J) in WorkCover Authority of New South Wales v Profab Industries Pty Ltd (unreported 8 August 2000 IRC 3741 of 1999) which indicates that the provisions of the predecessor of s 10, namely s 556A of the Crimes Act would rarely apply to prosecutions for a breach of the Act. 41 Mr Menzies also submitted that any penalty imposed should be a modest one because moneys expended in meeting it would be paid out of moneys which the defendant would otherwise make available for the education of children throughout New South Wales. In the year 2000 the defendant's total budget for students with disabilities was $448.8 million. This compared with its overall expenditure for the year ended 30 June 1997 of $3,940 million. In the year 2000 a total of 33,550 students with disabilities attended schools operated by the defendant throughout New South Wales. There were 99 schools specifically dedicated to students with disabilities with 3,950 students. In addition 13,700 students attended 1,337 support classes in mainstream schools and 245 support units consisting of three or more support classes. The total number of students in New South Wales with disabilities attending schools operated by the defendant is almost 5% of the total school population. Of these 13,700 were classified as having moderate to severe disabilities. 42 There can be no doubt that the Department of Education provides a valuable support for students with a whole range of disabilities, and no doubt its resources are scarce, and would be better expended on the provision of direct educational services rather than in the payment of a fine to be shared by the WorkCover authority of New South Wales and Consolidated Revenue. Nevertheless, whilst the submission holds attraction on a humane level, to adopt it would be to fly in the face of clear government intention as reflected by the provisions of the Act that the Crown and all of its manifestations are bound by the Act. It is therefore the intention of the legislature that each of the manifestations of the Crown is susceptible to the imposition of a monetary penalty if it breaches the provisions of the Act. 43 It is a trite observation that the penalty to be imposed should reflect and be proportionate to the objective seriousness of the offence as well as providing a general deterrent against further breaches of the Act both by this defendant and by those generally within the community who are bound by the Act. 44 A record of prior convictions was tendered by the prosecutor which are surprisingly small in number given the extensive nature of the activities undertaken by the Crown in all of its manifestations. 45 In all the circumstances having regard to the matters to which I have referred I fix a monetary penalty in the sum of $80,000.

46 ORDERS

I find the defendant guilty of the offence charged in the summons and the defendant is convicted accordingly.
The defendant is to pay a monetary penalty of $80,000 with a moiety to the WorkCover Authority of New South Wales.
The defendant is to pay the costs of the prosecutor.
I grant liberty to apply in the event that the parties are unable to reach agreement as to costs.

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At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (22 paragraphs)

Parties

Cited By (3)