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

PROSECUTOR: Mr S Crawshaw of senior counsel Ms L McManus of counsel SOLICITOR: Greg McCann Principal Solicitor Legal Services Branch WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANT: Mr R Kenzie QC Mr P Ginters of counsel SOLICITOR: Mr R Redfern Court & Legal Services NSW Police Service

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Walton J, Vice-President 19 December 2002

Inspector Petar Ankucic v The Crown in the Right of the State of New South Wales (Police Service of New South Wales) Prosecution under s15(1) of the Occupational Health and Safety Act 1983

1 This matter concerns a prosecution brought by Inspector Petar Ankucic of the WorkCover Authority of New South Wales ("the prosecutor") pursuant to s15(1) of the Occupational Health and Safety Act 1983 ("the Act") against the Crown in the Right of the State of New South Wales (Police Service of New South Wales) ("the defendant").

2 In broad terms, the prosecution concerns the failure of the defendant to provide information to its employees and, in particular, persons engaged by the defendant as weapons training inspectors as to the risks of lead contamination arising from live firearms training. From May 1998, the defendant commenced courses at various locations to equip police officers to use a Glock self-loading pistol which was being put into service by the defendant to replace the Smith and Wesson .38 revolver hitherto used by the New South Wales Police Service. This training was conducted by weapons training inspectors. On 7 September 1998, two weapons inspectors, Senior Constables Hunter and Cruwys, commenced the instruction of police officers in the 'Glock Transition Course' at the Cecil Park Indoor Pistol Range (a privately owned pistol range). During the course of such instruction students were required to engage in live firing which generated dust and fumes. Some time shortly after 7 September 1998, Senior Constables Hunter and Cruwys underwent blood tests which revealed a blood lead level in excess of 50 ug/dl. The National Standard for Control of Inorganic Lead at Work (1994) provided that male workers confirmed with blood levels in excess of that level should be removed from the process giving exposure to lead until the level falls below 40 ug/dl. The officers variously suffered adverse physical effects whilst conducting training at Cecil Park, including lethargy, tiredness, forgetfulness, headaches and other aches to the body and lack of concentration.

3 Lead exposure represents a significant health risk depending upon the nature and duration of exposure, the form of lead and particle size. It is a toxic substance which, when absorbed, ingested or inhaled, may be retained within the body over the long term. At certain levels of contamination, lead can have adverse effects upon the nervous and reproductive systems, kidneys and can interfere with the ability of the body to make haemoglobin.

4 At the hearing of the matter, leave was granted (by consent) to amend the charge (and to discontinue three other prosecutions which had been brought against the defendant). In its final form, the charge in the summons in this matter was relevantly in the following terms: I, INSPECTOR PETAR ANKUCIC, of the WorkCover Authority of New South Wales ... allege that The Crown in the Right of the State of New South Wales (Police Service of New South Wales), whose head office is situated at College Street, Sydney (the Defendant), being an employer, on 7 September 1998, at Sydney in the State of New South Wales FAILED TO Ensure the health, safety and welfare at work of all its employees in particular weapons training instructors, in failing to provide such information as may be necessary regarding lead contamination arising from live firearms training, so as to ensure the health and safety of employees at work, contrary to section 15(1) of the Occupational Health and Safety Act 1983. The particulars of the charge are: a) The defendant at all material times employed a number of police personnel

b) The defendant at all times, utilized police as weapons training instructors in the Glock Transition Course at indoor ranges in New South Wales.

c) Resulting from undertaking the instructing in Glock Transition Courses at indoor pistol ranges, police weapons training instructors were exposed to lead, a hazardous substance. The weapons training instructors included but were not limited to Adam Kyle Hunter and Geoffrey William Cruwys, and excluded weapons training instructors in the Glock Transition Course at the Tuggerah Lakes Memorial Pistol Club.

d) The Defendant failed to provide such information, as may be necessary, regarding the health risks arising from conducting duties as a weapons training instructor during live fire training in the Glock Transition Course at indoor pistol ranges.

e) The Defendant failed to undertake a health surveillance for each employee, in particular, weapons training instructors undertaking instructing in live fire in Glock Transition Courses in indoor pistol ranges, who could be exposed to a hazardous substance, to wit, lead, pursuant to clause 25 of the Occupational Health and Safety (Hazardous Substances) Regulations of 1996.

f) As a result of the said failures, the health of the weapons training instructors was placed at risk.

g) The risk included any or all of the following: i. Elevated blood lead levels; ii. continued lead exposure in circumstances where the weapons training instructor has elevated lead levels thereby increasing or maintaining elevated blood lead levels; iii. lead poisoning; iv. the risks involved in working with lead poisoning including conducting duties with symptoms of elevated blood pressure, dizziness and nausea; v. the risks arising from failure to arrange treatment, preventative measures or rehabilitation; vi. stress.

h) Adam Hunter and Geoffrey Cruwys experienced elevated blood levels at the relevant time.

5 The defendant entered a plea of guilty with respect to the amended charge in this matter.

Evidence of the Prosecutor 6 The prosecutor tendered a statement of agreed facts and an extract from the WorkCover Authority Prior Convictions database which indicated that the defendant had a single conviction under s15 of the Act entered on 7 January 2002 for which a penalty of $220,000 was imposed.

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

2. At all material times, the defendant, The Crown in the Right of the State of New South Wales (Police Service of New South Wales), undertook policing duties within the State of New South Wales, with its head office located at College Street, Sydney.

3. At all material times the defendant, conducted live firearms training at various pistol ranges within New South Wales including Cecil Park Indoor Pistol Range (Cecil Park).

At all material times the defendant employed a number of weapons training instructors including Senior Constables Jeffrey William Cruwys and Adam Kyle Hunter who were part-time weapons training instructors.

Up until the early 1980's trainers working regularly on indoor ranges had an annual blood lead level test. Tests were then discontinued.

Around February 1998 the Police Service commenced the process of replacing the Smith and Wesson .38, Model 10 revolver with a Glock self loading pistol as the standard service revolver for police officers in New South Wales.

Commencing around February 1998 Weapons Instructors attended a 5 day conversion course to qualify them to instruct other Police on the Glock pistol.

In February 1998 the Daily Telegraph published an article referring to the possibility of weapons training instructors being exposed to high lead levels. The article stated amongst other things "Concern was particularly raised for instructors at indoor weapons training centres in Sydney, Penrith, Newcastle and Goulburn".

WorkCover Authority of NSW has adopted in principle the guidelines contained in the National Standard for the Control of Inorganic Lead at Work (1994) with respect to occupational levels: · The employer shall provide for biological monitoring of an employee who commences work in a lead-risk job within the first month of being engaged, again two months later and once more six months from commencement of work in a lead-risk job. · The frequency of further biological monitoring shall be determined by the latest results and shall be at least once every three months if the most recent blood lead level is 30 - 39 ug/dL (1.45 - 1.88umol/L) for males of reproductive capacity and less than 10ug/dl (0.48) for females of reproductive capacity. Further biological monitoring shall be once every six weeks if the most recent blood lead level is at or above 40ug/dl (1.93umol/L) for males of reproductive capacity and 10ug/dl (0.48umol/L) for females of reproductive capacity. · Male workers confirmed with blood levels in excess of 50ug/dl or (2.41umol/L) should be removed from the process until the level falls below 40ug/dl (or 1.93 umol/L). Female workers of reproductive age should be removed from the lead process when their blood levels are 20ug/dl (or 0.97 umol/L) and pregnant and breast feeding females should be removed when their blood levels are 15 ug/dl (or 0.72 umol/L). · An employer should ensure that the employee does not return to a lead-risk job until the confirmed blood level is less than 40 ug/dL (1.93 umol/L) for females not of reproductive capacity or for all males or 10ug/dL (0.48umol/L) for females of reproductive capacity and the employee is certified as fit to return to a lead-risk job by the authorised medical practitioner.

From about May 1998 three day Glock Conversion Courses (also referred to as the Glock Transition Course) were taught to NSW Police by Police Weapons Instructors.

The Glock Conversion Course consisted of three 8 hour days involving a lecture on dry fire, and then live fire where live rounds of ammunition are fired at targets placed from three to 25 metres away. On the first day there was more time spent on theory and less time spent firing. The second day was approximately 50/50 and the third day was spent on the firing range, which in the case of the indoor ranges meant inside the firing range.

Usually five to six students were required to fire approximately five hundred rounds each over the three day Course, that is approximately 2500 to 3000 rounds.

A minimum of two instructors would stand behind the students.

On 25 May 1998 the first Glock Conversion Course for Police at the Central Coast was commenced at the Tuggerah Lakes Memorial Pistol Club (Tuggerah Lakes). Tuggerah Lakes was an indoor firing range.

Each subsequent course was then started bi weekly.

Senior Constables Kristy Walters, David Tester, Colin Trigg and Bruce Martin taught the Glock Conversion Courses at Tuggerah Lakes.

Around 14 August 1998 Senior Constable Walters underwent a blood test to check her blood lead levels. On 24 August 1998 she was advised by the Police Medical Officer that she had elevated blood lead levels and that she cease live fire training. Her blood lead level was 16 micrograms/declitre (16 ug/dl) or 0.77 micromols/litre (0.77 umol/L).

Following a discussion with Senior Constable Walters, Senior Constables Tester and Trigg, underwent blood tests on 25 August 1998 and 28 August 1998 to check their blood lead levels. On 3 September 1998 Senior Constable Tester was advised that he had an elevated blood lead level of 47 ug/dl (or 2.26 umol/L). Senior Constable Trigg was advised that he had an elevated blood lead level of 48 ug/dl (or 2.31 umol/L).

On 3 September 1998 Senior Constables Tester and Trigg advised Sergeant Conway, School of Operational Safety and Tactics at the Sydney Police Centre, of their elevated blood lead levels. Sergeant Conway suspended Senior Constable Tester from all training and condemned Tuggerah Lakes Memorial Pistol Club for Police use.

On 4 September 1998 Senior Constables Trigg and Tester suspended all live fire training on the Central Coast.

Senior Constable Cruwys attended the five day conversion course for Weapons Instructors from 16 March 1998 until 20 March 1998.

On 7 September 1998 Senior Constable Hunter and Senior Constable Cruwys commenced weapons instructor duties at Cecil Park.

Dust and fumes were generated during the live firing at Cecil Park. Senior Constable Hunter stated that it was common for the live fire to cease for a number of minutes and the students and instructors to leave the range and go outside to let the fan eliminate the fumes and that black soot would appear around the instructors eyes, mouth and nose.

Senior Constable Hunter stated that whilst conducting training at Cecil Park he became lethargic, and very tired. On occasions he would lay down to recuperate. He had an aching feeling through his body.

Senior Constable Cruwys stated that whilst conducting training at Cecil Park he was getting very tired, forgetful, quick tempered, had headaches and had difficulty in concentrating. He found that he could not complete the same amount of physical training that he was able to undertake prior to the training period at Cecil Park.

Neither Senior Constables Cruwys or Hunter were provided with information as may be necessary regarding lead contamination arising from live firearms training prior to commencing their duties on 7 September 1998.

On or about 8 September 1998 Senior Constable Cruwys read in a newspaper about high lead levels of Weapons Instructors in the North region of Sydney.

About 9 September 1998 Senior Constable Cruwys was informed that Superintendent Peter Horton had directed blood tests be taken to ascertain lead levels.

On 24 September 1998 Senior Constable Cruwys underwent a blood test for lead levels. On 2 October 1998 he was advised that his blood lead level was 47.5 ug/dl (or 2.29 umol/L).

On 3 October 1998 Senior Constable Cruwys again underwent a blood test. On 8 October 1998 he was advised his blood lead level was 51.2 ug/dl (or 2.47 umol/L).

Senior Constable Hunter continued to perform weapons training instruction at Cecil Park from 7 September 1998 to 9 October 1998.

Senior Constable Hunter first became aware of the health hazards associated with lead exposure in early October 1998 through media reports and in conversation with other Weapons Instructors.

On 6 October 1998 Senior Constable Hunter attended for his first blood test. Owing to an error in this test, the test was repeated on 9 October 1998. On 20 October 1998 he was advised that his blood lead level was 59 ug/dl (or 2.84 umol/L).

Senior Constable Tester, weapons trainer from Tuggerah Lakes, stated that on 29 September 1998 he placed a memorandum on the police memorandum system to all Weapons Instructors in New South Wales informing them of the risks of lead contamination on pistol ranges.

Chief Inspector Thomas Lupton, Head of School, Operational Safety and Tactics, who was responsible for mandatory firearms training, stated that by late August 1998 he was aware that there was an issue relevant to the blood lead levels of some of his trainers after being contacted by Superintendent Thompson, of the Brisbane Waters Command.

On 2 October 1998 Chief Inspector Lupton issued a memorandum on the police memorandum system to every weapons instructor in NSW in relation to issues associated with lead contamination arising from the use of firearms on pistol ranges.

This was the first memorandum sent out by the defendant to all police indicating that there were problems with lead contamination arising from the use of firearms within pistol ranges.

On 28 April 2000 Acting Executive M B Tiltman advised Inspector Ankucic by letter that, amongst other things, police training at Cecil Park had been discontinued and that no training will be undertaken unless the owners upgrade the ventilation controls.

Lead is a toxic substance which is retained within the body long-term. Lead can affect the nervous and reproductive systems, kidneys and interfere with the ability of the body to make haemoglobin. The unborn child and infants are particularly susceptible to the effects of lead and, on this basis, employees who are pregnant or breastfeeding are excluded from working in lead-risk jobs.

Evidence of the Defendant 8 The defendant tendered an affidavit of Ian Stewart Donaldson sworn on 14 February 2002 in mitigation of sentence. Chief Inspector Donaldson was required for cross-examination.

9 The Chief Inspector was the Manager, Operational Safety and Traffic Training of New South Wales Police College. He had 13 years experience as an operational safety trainer and held the service accreditation of Level 4, chief instructor in the fields of firearms, defence tactics and tactical teams training.

10 He gave evidence that all instructors accredited prior to 1998 undertook a five day Glock self-loading pistol instructor course prior to the introduction of that pistol into the Police Service. Upon the completion of that course, instructors conducted a three-day Glock Transition Course for operational police at local training venues within various regions. The local trainers selected the venues which were the most appropriate to meet their needs.

11 The Chief Inspector deposed that, on 14 September 1998, he was advised by Acting Chief Inspector Tom Lupton (former head of School, Operational Safety and Tactics) about concerns that had been expressed by weapons training instructors working in the Central Coast, regarding exposure to lead. Between 17 September and 26 October 1998, the Chief Inspector acted in the position of Head of School. On about 17 September he wrote to the WorkCover Authority of New South Wales requesting their assistance in providing a professional opinion "as to the hazards experienced by some police weapons trainers". At the same time the Inspector sent a State-wide message requesting training on "unauthorised" ranges to cease immediately (during cross-examination, the Chief Inspector identified that his affidavit evidence which referred to authorised ranges was intended to refer to "unauthorised" ranges). Upon becoming aware of the fact that the service was using the Cecil Park range, the Chief Inspector caused that particular facility to be closed for police training. This occurred on 8 October 1998.

12 Evidence was given by Chief Inspector Donaldson as to steps taken by the defendant from 30 September 1998, in relation to potential lead exposure by instructors and police officers. These steps included: 1. Informing and liaising with the WorkCover Authority of New South Wales as to the defendant's proposals to review lead handling procedures. 2. Taking blood tests from all weapons training instructors and where elevated levels were demonstrated, then making arrangements to test the family members, dwellings and motor vehicles of the affected officers. 3. Having a lead information workforce workshop conducted by the Lead Reference Centre, Environmental Protection Authority of New South Wales and the WorkCover Authority of New South Wales. 4. Preparing a comprehensive lead information package and putting in place interim measures and protocols designed to reduce the exposure of weapons training inspectors and students to lead. 5. Arranging for tests of various indoor ranges with a view to considering what alterations and repairs might be required to be made to the ranges and ammunition. 6. Releasing a 'lead information package', including information on the hazards of leads, policy issues relative to the conduct of live fire weapons training, material safety data sheets and risk management processes to be adopted on all firing ranges. The defendant thereafter informed and consulted with weapons trainers and commanders of regions as to the hazards of lead and any means to reduce the risk. It established as a prerequisite that all participants in operational safety training courses be informed of the potential hazard of lead upon application for such courses. The defendant also required those persons to undergo blood lead testing prior to acceptance. 7. Replacing the previous Teflon coated lead projectile with a Copperwash projectile, that is, a fully encapsulated copper plated projectile. This projectile virtually eliminated lead output during firing.

13 During cross-examination, the Chief Inspector indicated that he was not aware that the Cecil Park range was being used but that there was no direction given by the defendant (prior to 17 September 1998) that particular indoor ranges were not to be utilised.

14 Mr S Crawshaw of senior counsel, with whom Ms L McManus of counsel appeared for the prosecutor, submitted that the primary factor to consider in relation to penalty is the objective seriousness of the offence. The subjective matters rank in importance, it was contended, well behind the nature and quality of the offence and "the policy of the act in relation to the establishment of safe standards and the protection of the workforce": WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (2000) 99 IR 163 at 185.

15 The prosecutor submitted that the objective features of the matter which called for the imposition of a substantial penalty were as follows: a The maximum penalty for a corporation prescribed by Parliament for the offence at the time it was committed was $825,000;

c The nature of the offence in that it involved obvious risks and was readily foreseeable;

d The nature of the offence in that there were simple steps to remedy the failures;

e The nature of the offence in that the injuries manifested the degree of seriousness of the relevant detriment to health and safety.

16 It was also submitted that, having regard to the charges, the defendant had failed to provide such information as may be necessary regarding lead contamination arising from live firearms training. It was submitted the defendant had failed to: i) provide such information as may be necessary regarding the health risks arising from conducting duties as a weapons training instructor during live fire training in the Glock Transition Course at indoor pistol ranges; ii) undertake a health surveillance for each employee, in particular weapons training instructors undertaking instructing in live fire in Glock Transition Courses in indoor pistol ranges, who could be exposed to a hazardous substance, to wit, lead, pursuant to clause 25 of the Occupational Health and Safety (Hazardous Substances) Regulation of 1996 .

17 Prior to 7 September 1998, it was submitted, the defendant was aware of the risk of elevated blood lead levels arising from live fire training on indoor fire ranges. By that same date, when Senior Constables Hunter and Cruwyz commenced weapons training instruction at Cecil Park, the defendant was aware of the risk of elevated lead levels arising from live fire training on indoor ranges because some instructors at Tuggerah Lakes had been tested and showed elevated lead levels. Further, Acting Chief Inspector Lupton, who was responsible for mandatory firearms training, stated he was aware by late August 1998 that there was an issue relating to the blood lead levels of the trainers after being contacted by Superintendent Thompson of Brisbane Waters. Neither Senior Constable Cruwys or Hunter, it was submitted, were provided with information regarding lead contamination arising from live firearms training prior to commencing duty as weapons inspectors on 7 September 1998.

18 It was submitted by Mr Crawshaw that whilst the charge concerned the events of 7 September 1998, the Court should consider, for the purposes of sentencing, the events preceding that day and measures taken by the defendant since the offence to remedy any failures. As to the preceding events, the Court should have regard to the failure of the defendant to act over a period of time, until at least 17 September 1998, as to the provision of relevant information.

19 These matters were also relevant, it was contended, to the question of reasonable foreseeability. There was an obvious risk or reasonably foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible. This, it was submitted, went to the object seriousness of the offence. Three factors were pointed to in support of this submission: (i) The defendant was aware of the possible risk of exposure to high lead levels for weapons instructors as, until the early 1980's, trainers working on indoor ranges had an annual blood lead level test. (ii) In February 1998 a newspaper article raised concerns about the possibility of weapons training instructors being exposed to high lead levels. (iii) The defendant was aware of the actual risk of exposure to high lead levels for weapons trainers working at indoor pistol ranges from about the end of August 1999 when it became aware that the officers at Tuggerah Lakes had elevated blood lead levels. This submission was available, it was submitted, even though the particulars to the charge expressly excluded weapons training at the Tuggerah Lakes Memorial Pistol Club because the Tuggerah Lakes situation demonstrated what the defendant should have reasonably foreseen.

20 Further, it was submitted that it was a simple matter to provide the weapon training inspectors with information regarding the health risks arising from conducting duties as weapons training inspectors during live fire training in the Glock Transition Course at indoor pistol ranges and to ensure that health surveillance was undertaken so that the officers' lead levels could be identified, monitored and managed.

21 As to the subjective features of the matter, the prosecutor submitted: 1. As to the plea of guilty, the Court should have regard to the time at which the plea was entered. It was submitted that the plea of guilty was entered prior to the matter being set down for hearing and after discussions had taken place between the parties. The utilitarian value of the plea would be at the higher end of the scale of discount. 2. The Crown in the Right of the State of New South Wales was a previous offender. The terms of s121 of the Occupational Health and Safety Act 2000 are not applicable to the Court's consideration of prior convictions of the Crown in determining an appropriate penalty within the permissible range as distinct from the determination of the maximum penalty available to the Court. However, in this case, it was submitted that it is a highly relevant circumstance that the Crown in the Right of the State of New South Wales (Police Service of New South Wales) has one prior conviction.

22 The prosecutor sought a moity of any fine imposed but no order as to costs.

23 Mr R Kenzie QC, with whom Mr P Ginters of counsel appeared for the defendant, submitted that the true measure of penalty lies in the nature and quality of the offence, but that in assessing the objective considerations, particular attention must be given to the precise terms of the charge. In this respect, the defendant submitted that the following matters were of significance: a. The gravamen of Matter No. 4497 is a failure to provide information.

b. This failure was for a specified and limited period of time, namely 7 September 1998.

c. The Defendant was not charged with and has not pleaded guilty to a period offence or a continuing offence.

d. In the period subsequent to 7 September 1998 the Defendant took active and wide ranging steps to remedy the contravention of the Act.

24 It was submitted that the Court should be concerned with the training which commenced at Cecil Park on 7 September 1998 and should specifically have regard to the exclusion contained in the amended charge in relation to the training which occurred at Tuggerah Lakes Memorial Pistol Club. It was submitted, in this respect, that the failure of the defendant to provide information on 7 September 1998 in relation to the danger of lead exposure had a different 'quality' than a failure to warn of exposure to lead over a protracted period of time. This was particularly so, it was contended, as lead accumulates in the body over a period of time.

25 The defendant contended, however, that: The Court has held that an assessment of the nature and gravity of an offence may be evidenced by the measures introduced by a defendant to safeguard employees from risks after the material event has occurred.

26 The defendant conceded that, if the matter was viewed "in this manner", there was "an element of gravity". Mr Kenzie submitted that the failure to provide information "in circumstances where one is dealing with the potential for exposure to lead [is] something which has an element of gravity in it itself".

27 The defendant also accepted that it is appropriate to look at earlier events than 7 September 1998 in order to assess foreseeability. As to the question of foreseeability, the defendant distinguished between "longer term aspects" and "shorter term ones".

28 As to the long term issues, it was submitted the Court should not have regard to the practice adopted by the defendant in the "1980's" of testing blood lead levels or to the newspaper publicity as to the exposure of police officers to lead in February 1998. This was so because there was an inadequacy of explanation in the evidence as to what notice came to the attention of the defendant and what circumstances specifically gave rise to the discontinuance of the earlier tests.

29 As to shorter term considerations and, in particular, the communication received by Chief Inspector Lupton by late August 1998 and the exposure of employees to lead in Tuggerah Lakes (and the discontinuance of live fire training at that place on 4 September 1998), it was accepted by Mr Kenzie that those events rendered "it impossible to contend otherwise than there was foreseeability of serious risks ...". However, the significance of this fact was reduced, it was contended, because those matters only came to the attention of the defendant in the period of time immediately, or almost immediately, prior to 7 September 1998.

30 Finally, the defendant submitted as to the objective features of this matter: Whilst it can be accepted that from the point of view of the objective considerations it is not possible to divorce an "information" charge from any other head of liability pursuant to s 15(2) of the Act it is submitted that in its assessment of the objective considerations the Court would comfortably come to the view that whilst Matter No. 4497 of 2000 is a serious one it falls at the lower end of the scale of culpability.

31 The defendant acknowledged that the maximum penalty was $825,000 having regard to the one prior conviction of the defendant.

32 As to the subjective considerations, the defendant submitted that the Court should take into account the following factors: 1. Having regard to the affidavit of Chief Inspector Donaldson, the defendant had taken significant steps to remove the risk after 7 September. Those steps were not restricted to the provision of information, but constituted a series of substantive changes designed to remove the risk per se . Any analysis of the steps taken by the defendant showed that those measures were not simple available steps as described by the prosecutor. 2. The defendant had entered a plea of guilty from the earliest reasonable opportunity. 3. The defendant had co-operated with and had actively sought to assist the WorkCover Authority of New South Wales.

33 As a result of these subjective considerations, it was submitted by Mr Kenzie that the defendant ought receive a substantial discount on sentence.

34 The defendant agreed with the submission of the prosecutor that s121 of the Occupational Health and Safety Act 2000 did not "limit in the sentencing process consideration of prior convictions of the Crown generally" but was "concerned with determining the maximum penalty against the Crown that is available to the Court". However, having regard to the fact that the industry in which the defendant operates is "clearly dangerous in nature", it was submitted that regard should be had to the defendant's limited record of occupational health and safety convictions when the Court considers an appropriate penalty in this matter.

35 The defendant submitted that there should be no order as to costs.

36 As to the relevant general principles in this matter, I adopt what was stated in the recent decision of the Court in WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd t/as Stylewise Interiors (2002) 113 IR 78 (at [61] - [63]). 37 As was observed in Newstart 150, it is well settled that the objective assessment of the nature and seriousness of an offence is the primary determinant of penalty and in that respect, as was observed by Hungerford J in WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 at [43], the penalty imposed must be determined by reference to the offence. Thus, it is important to have regard to, as Mr Kenzie correctly submitted, the scope of the offence charged which concerned a failure to provide "information" in a particular context.

38 Nonetheless, I consider that there are aspects of this matter which warrant the conclusion that the offence is reasonably serious as follows: 1. I agree with Mr Crawshaw that the risk was reasonably foreseeable. As was properly conceded by Mr Kenzie, the risks associated with lead contamination must have been reasonably foreseeable by 4 September 1998 when all live fire training on the Central Coast was suspended. Indeed, at this point, the risk was both known and obvious as the suspension of training occurred after the instructors working at the Tuggerah Lakes Memorial Pistol Club registered relatively high levels of lead contamination. It does not really assist the defendant that it did not know specifically of training at the Cecil Park indoor pistol range, as by 4 September 1998 it must have been aware that there was a prospect that training was being carried out at indoor training ranges and that any such training represented the requisite risk. It should be noted in this respect that the defendant had not itself comprehensively prescribed the centres under which the training was to occur. It is further relevant, in this respect, that Chief Inspector Lupton (the Head of School Operation and Safety Tactics at the time) had received advice at to the issue of blood lead levels in August 1998. 2. I do not agree with the submission put by the defendant that the newspaper advertisement in February 1998 or the fact of annual blood lead level testing of trainers in the 1980's is irrelevant to the question of foreseeability, as both of those matters go to the question of whether the defendant could have reasonably foreseen the risks of lead exposure associated with the introduction of Glock Transition Courses. 3. These considerations demonstrate that it was reasonably foreseeable that a risk of lead contamination might arise if the requisite information was not provided to the instructors prior to the commencement of the Glock Transition Courses. Further, it was incumbent on the defendant, once the risk had manifested itself, to promptly take steps to avoid any potential lead exposure by the provision of (having regard to the charges in this matter) appropriate information. 4. The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [82]. 5. As was properly conceded by Mr Kenzie , "an element of gravity" is illustrated by the measures introduced by the defendant to safeguard the employees from risk "after the material event" had occurred. Whilst the steps taken by the defendant up to 7 September 1998 were laudable, those very steps (which were decisive in nature) demonstrate the failures in the defendant's prior approach: Department of Mineral Resources (NSW) (Chief Inspector McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27 and WorkCover Authority of NSW (Inspector Barnard) v Rail Infrastructure Corporation (2001) 109 IR 209 at [93]. 6. Further, the availability of simple and obvious remedial measures to avoid the risk of lead contamination (as were taken by the defendant in relation to the provision of information after the accident) are matters which demonstrate the seriousness of the offence: Lawrence Diecasting Pty Limited v WorkCover Authority (Inspector Ch'ng) (1999) 90 IR 464 at [476] and Kembla Coal and Coke at 27. 7. Whilst the gravity of the consequences of an incident do not, of themselves, dictate the seriousness of the offence, the consequences of the incident that flows from a breach may be relevant as a manifestation of the gravity of the potential risk to safety flowing from the breach and the culpability of the defendant: Newstart at [95]. Here, the physical manifestations of exposure to lead by the instructors is such as to point to the risks to safety associated with lead contamination. Lead is, as was correctly pointed out by the prosecutor, a highly toxic substance having potential long term consequences.

39 There are other factors going to the question of the seriousness of the offence. I consider that both general and specific deterrence should feature in the assessment of penalty in this matter. The defendant put no contrary submission, although it must be said that the issue of specific deterrence was raised only faintly in the written submissions of the prosecutor. In coming to that conclusion I have applied the principles as to the question of deterrence set out in Capral Aluminium at [71] - [80].

40 In my view, the question of general deterrence is of particular significance as it is necessary to compel attention to the potential risks associated with the exposure of employees to lead and encourage employers to properly inform employees of the dangers associated with working in an environment where there is a risk of lead contamination.

41 I shall now turn to the subjective features. I note, at the outset, I consider the defendant should receive a substantial discount because of the considerable steps taken by it after 7 September to remove the risks to the health and safety of its employees engaged in firearms training. Those measures included not merely the provision of the requisite information but also the taking of steps which actually removed, so far as possible, any risks of lead contamination arising from firearms training conducted in an indoor environment (for example, by the use of different ammunition in training sessions).

42 More generally, I have taken into account the following subjective features as warranting a discount to the sentence imposed on the defendant: 1. The plea of guilty was entered, in my view, at the earliest reasonable opportunity after the charges which the defendant was required to face were resolved;

2. The defendant fully co-operated with the prosecutor in its investigations;

3. The defendant introduced significant changes in its operations to prevent an incident of this nature reoccurring. 43 As to the question of the prior record of the defendant, I accept the joint submission of the prosecutor and defendant that s121 of the Occupational Health and Safety Act 2000 does not limit the sentencing process in this matter in relation to the assessment of the prior record of the defendant. I adopt, in this respect, the judgment of the Court in WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of the State of NSW (Department of Education and Training) (2002) 112 IR 1 at [57] - [72]. I further note that I agree with the submission of Mr Kenzie that the defendant clearly operates in a dangerous industry and, viewed in that light, and having regard to the size and nature of the defendant's operations, the record of the defendant is reasonably good.

44 Having regard to the totality of the subjective features and applying the principles in R v Thomson; R v Houlton (2000) 49 NSWLR 383, I consider a discount of 30 per cent is appropriate.

45 The defendant has pleaded guilty. I consider that the plea was properly made and a verdict is entered accordingly. For the foregoing reasons, I consider, after a discount for the subjective features earlier identified and having regard to the mitigating features going to the objective seriousness of the offence, an appropriate penalty for the offence, as charged, to be a fine of $70,000. The prosecutor and defendant agreed that there should be no order as to costs. The prosecutor should have a moiety of the fine.

46 I make the following orders: 1. The defendant is fined the amount of $70,000 with a moiety thereof to the prosecutor.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.