WorkCover Authority (NSW) (Inspector Stewart) v The Crown in Right of the State of NSW

PROSECUTOR: Ms. F. Backman of Counsel Legal Services Branch LEGAL REPRESENTATIVES: DEFENDANT: Mr B. D. Hodgkinson SC Crown Solicitors Office

JUDGMENT: - 37 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Staunton J Thursday, 10 October 2002 Matter No. IRC 3466 of 2001 WORKCOVER (INSPECTOR STEWART) v THE CROWN IN RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING, DEPARTMENT OF JUVENILE JUSTICE, AND THE NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATION COMMISSION) Prosecution under s 15 (1) of the Occupational Health and Safety Act 1983 JUDGMENT [2002] NSWIRComm 259

1 On 23 July 1999 a hospitality cooking course was being conducted in a classroom of the Sunning Hill School within the Yasmar Detention Centre at Haberfield in New South Wales. One of the members undertaking that course was a student detainee known for the purposes of these proceedings as DA. In addition to DA and other student detainees there was also present in the classroom on that day Mr Scott Bremner a Food School assistant, Ms Mandy Holmes the teacher of the course, and Miss Karen Horsley a teacher's aide.

2 As part of the course on 23 July, the students were being instructed about techniques in knife cutting and sharpening as well as food preparation and cutting.

3 At approximately 11 am on that day, while Mr Bremner was assisting in the cooking course, he was stabbed in the back by student detainee DA with a cooking knife and subsequently died.

4 As a result of the above incident, the defendant was prosecuted in respect of five summonses issued against the Crown in Right of the State of New South Wales, specifically the Department of Education and Training, Department of Juvenile Justice, and the New South Wales Technical and Further Education Commission. Following a number of appearances before this Commission, the current proceedings became the subject of an amended prosecution filed in this Court on 13 December 2001.

5 The order summonsing the defendant to appear identifies an offence in the following terms: On or about 23 July 1999 at the Sunning Hill School for specific purposes, located within the grounds of the Yasmar Juvenile Detention Centre, Parramatta Road, Haberfield, and elsewhere, in the state of New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all its employees, and in particular Scott Bremner, Mandy Holmes and Karen Horsley, contrary to s 15(1) of the Occupational Health and Safety Act 1983.

6 The particulars of the charge were expressed in the following terms: (a) At all material times the defendant (Department of Juvenile Justice) operated the Yasmar Juvenile Justice Detention Centre, Parramatta Road, Haberfield in the State of New South Wales ("Yasmar"). (b) At all material times Yasmar provided custodial services, including educational services, to female detainees aged between 10 and 18 years who were in custody charged with or convicted of criminal offences. (c) At all material times detainees including DA were in the custody of the Superintendent of Yasmar. (d) At all material times the defendant (Department of Education and Training) operated the Sunning Hill School for Specific purposes located within the confines of Yasmar Juvenile Justice Detention Centre and which provided education services to student-detainees in the custody of the Superintendent of Yasmar. (e) At all material times, pursuant to a joint scheme between the Department of Education and Training and the New South Wales Technical and Further Education Commission, the New South Wales Technical and Further Education Commission delivered vocational courses, and in particular a cooking or hospitality course, to student-detainees including detainee DA in a classroom at the Sunning Hill School and provided teaching staff and course equipment for this purpose. (f) At all material times the defendant employed Karen Horsley as a Teachers Aide who, in the exercise of her duties as a staff member of the Department of Education and Training, was present in a classroom of the Sunning Hill School whilst the cooking or hospitality course was delivered to student-detainees including DA. (g) At all material times the defendant employed Scott Bremner as a Food School Assistant and Mandy Holmes as a Teacher who, in the exercise of their duties as staff members of the New South Wales Technical and Further Education Commission, were delivering the said cooking or hospitality course to student-detainees including DA in a classroom of the Sunning Hill School. (h) At approximately 11:00am on 23 July 1999 Schott Bremner was assisting in the delivery of the cooking or hospitality course in a classroom of the Sunning Hill School, when he was stabbed in the back by student-detainee DA with a cooking knife used by students participating in the said course, occasioning his death. (i) At all material times there was a potential risk to the health, safety and welfare of the employees in that there was a risk of the employees being assaulted by student-detainee DA who had demonstrated aggressive and/or violent behaviour and had access to dangerous implements such as knives and thereby suffering physical and mental harm. (j) The defendant's failures and/or omissions were the following: (i) Failing to assess or adequately assess the selection and suitability of student-detainee DA to participate in a course involving access to and the use of cooking knives. (ii) Failing to prevent student-detainee DA from participating in a course that involved her having access to and the use of knives. (iii) Failing to adequately inform employees of matters relating to the behavioural problems of student-detainee DA participating in a course involving access to and the use of cooking knives. (iv) Failing to access or adequately assess the suitability of delivering a course to student-detainee DA that involved access to and use of cooking knives. (k) As a result of the said failures and/or omissions there was a risk to the health, safety and welfare of the said employees.

7 At the hearing of this matter before me, counsel on behalf of the prosecution sought leave to withdraw summonses in Matter Nos 2001/3464, 2001/3465, 2001/3968, 2001/3969. Leave was granted and those matters were dismissed. At the same time counsel on behalf of the defendant formally entered a plea of guilty to the amended summons in the terms as filed and identified above.

8 It was not in dispute at the commencement of the matter before me that, as a previous offender, the defendant faced a maximum penalty of $825,000: s51A of the Occupational Health and Safety Act 1983; Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at paras [44]-[52].

9 The prosecution tendered an agreed statement of facts in the following terms:

1. At all material times the Prosecutor was an Inspector appointed pursuant to the provisions of the Occupational Health and Safety Act 1983 and empowered by section 48 of the Act to institute proceedings in this matter. 2. At all material times the defendant was the Crown in right of the State of New South Wales. 3. At all material times the defendant organised the performance of its functions by dividing different areas of responsibilities between departments including the Department of Education and Training and the Department of Juvenile Justice. 4. At all material times, pursuant to provisions of the Technical and Further Education Commission Act 1990, the Technical and Further Education Commission was a statutory body representing the defendant and members of staff of the Technical and Further Education Commission were employees of the defendant. 5. At all material times the Department of Juvenile Justice operated the Yasmar Juvenile Justice Detention Centre, Parramatta Road, Haberfield in the State of New South Wales ("Yasmar"). Yasmar is a female detention centre operated by the Department of Juvenile Justice. It is the only juvenile detention centre in New South Wales catering specifically for female detainees. Yasmar provided custodial services, including educational services, to female detainees aged between 10 and 18 years who were in custody charged with or convicted of criminal offences.

6. As of 23 July 1999 it held approximately 28 residents and there were about 60 full and part time staff employed within the Centre. The Centre Manager or Superintendent at the time was Bernadette O'Connor. Next in the chain of command was Gerard Hughes, the Co-ordinator Operations. The Department of Juvenile Justice also had control and responsibility for the buildings, grounds and premises as well as the detainees. The detainees including one DA were in the custody of the Manager of the Centre.

7. At all material times the Department of Education and Training operated the Sunning Hill School for Specific Purposes located within the confines of Yasmar Juvenile Justice Detention Centre and which provided education services to student-detainees at Yasmar. There were at the relevant time, ten such schools operated by the Department of Education and Training within the Department of Juvenile Justice detention centres and they are referred to as "Schools for Specific Purposes" given the nature of the student population and custodial environment in which they operate. The operation and activities of these schools is pursuant to arrangements made in 1980 when the then Department of School Education took over this responsibility from the Department of Youth and Community Services ("YACS"), the predecessor of the Department of Juvenile Justice. A document referred to as the "Assumption of Responsibilities" 1980 indicated that the responsibility for the operation of the school as regards courses funding and teaching staff lay with the then Department of School Education (now the Department of Education and Training). 8. As of 23 July 1999 there were about twelve staff employed as staff members of the Department of Education and Training at the school. The principal was Marcia Vallance with Adam Hughes as the Acting Assistant Principal. Also employed at the school was Karen Horsley a Teachers Aid Special. She had finished her BA degree and was completing her Diploma of Education. 9. Pursuant to a joint scheme between the Department of Education and Training and the New South Wales Technical and Further Education Commission, the New South Wales Technical and Further Education Commission delivered vocational courses, and in particular a cooking or hospitality course, to student-detainees including detainee DA in a classroom at the Sunning Hill School and provided teaching staff and course equipment for this purpose. 10. At all material times the defendant employed Scott Bremner as a Food School Assistant and Mandy Holmes as a Teacher who, in exercise of their duties as staff members of the New South Wales Technical and Further Education Commission, were delivering the said cooking or hospitality course to student-detainees including DA in a classroom of the Sunning Hill School. 11. Bremner commenced employment with the Technical and Further Education Commission on 20 April 1998. The course is part of the vocational education curriculum developed and administered by the Technical and Further Education Commission. Bremner had assisted in the teaching of the course in 1998 but Holmes was not the teacher. On these occasions the teacher was Ellen Argyriou. The Hospitality Certificate was a vocational Technical and Further Education Commission course. The delivery of such courses was pursuant to a joint arrangement between the Department of Education and Training and the Technical and Further Education Commission that provided for the teaching of the Technical and Further Education Commission vocational courses to year 11 and 12 students within secondary schools. These courses were referred to as Joint Secondary School TAFE courses ("JSST"). The Department of Education and Training and the Technical and Further Education Commission had developed a set of guidelines for the delivery of these courses. These courses are of particular benefit to non academically able students. The guidelines provided that "the Program offers secondary school students the opportunity to undertake mainstream TAFE subjects and major award courses as part of their regular school study program." 12. The Department of Education and Training and the Technical and Further Education Commission district liaison officers were responsible for co-ordinating and arranging the delivery of Technical and Further Education Commission vocational courses within secondary schools. The Sydney Institute of the Technical and Further Education Commission had delivered JSST courses to the Sunning Hill School since June 1997 usually involving one course per term. The Sunning Hill School comes within the district covered by the Sydney Institute located at Ultimo. In the delivery of such courses at the school the Technical and Further Education Commission relied upon the Department of Education and Training to ensure that systems were adequate and there were no risks to staff from the students or the custodial environment. 13. At approximately 11.00am on 23 July 1999 Scott Bremner was assisting in the teaching of the cooking or hospitality course in a classroom of the Sunning Hill School, when he was stabbed in the back by student-detainee DA with a cooking knife used by students participating in the said course occasioning his death. Prior to the commencement of the cooking class on 23 July 1999 DA and Bremner had not met or had any other form of contact. 14. At the time of the stabbing the students participating in the course were being instructed by Holmes on techniques in knife cutting and sharpening as well as food preparation and cutting. 15. On the morning of the fatal stabbing Bremner was performing duties in assisting in the teaching of what is varyingly described as a hospitality or cooking course to student-detainees resident at the Yasmar Juvenile Justice Centre ("Yasmar"). The teacher of the course was Holmes. It was the first day of the course for this group of students but the course had been taught to detainees in 1997 and 1998 though the content of the course had undergone some modifications over that time. While it was the first occasion Holmes had taught the course at Yasmar, Bremner had previously assisted with the teaching of the course in 1998. 16. In addition to Holmes and Bremner there were six detainee/students in the class including DA. A teacher's aide Special, Karen Horsley ("Horsley"), was also present in the classroom. Horsley would not normally be present in the classroom but had been assigned to that class to assist with any behavioural issues arising with respect to DA. She knew DA. It was not intended that she provide a physical response to violent acts such as that carried out by DA. She had a two way radio in the classroom and it was part of her role to call a DJJ staff member to attend and remove a student if necessary. She was also there to keep DA on task and assist in the implementation of DA's Individual Education Plan. She had been employed at Sunning Hill since October 1997, had a Bachelor of Arts and was completing a Diploma of Education at the time. She had adequate qualifications and experience to carry out a monitoring role. Any need for a physical response was to be provided by DJJ staff who were in close proximity outside the class room and contactable by two way radio. 17. The "classroom" was the home economics room located on that part of the Yasmar centre known as "Ramsay" which was one of the residential units for detainees at Yasmar. At Yasmar there are two distinct residential locations referred to as the Dobroyde and Ramsay sites. Each area is fenced and is referred to as a key control area. Detainees however are required to move between each of these units for various operational reasons. Sunning Hill is similarly split having one unit located on each of the Ramsay and Dobroyde sites. The Ramsay site is physically connected to the residential detention centre complex whereas the unit on the Dobroyde site is a stand-alone structure separated from its like named main residential unit.

18. Holmes and Bremner arrived at Sunning Hill about 8.30 am on 23 July 1999. They had been to Yasmar the previous Monday, 19 July, when they checked out the facilities and talked to some of the teachers to see what was required for the start of the course. Holmes was informed of the procedure for counting knives in and out. The knives were brought in in locked boxes

19. At about 9.20 am Holmes and Bremner finished their preparation for the course. They were introduced to Horsley. At about 9.30 am the students were brought into the classroom. The students then filled out their enrolment forms. DA appeared to be having some difficulties in completing the enrolment form and Horsley inquired of her whether she required any assistance. Holmes then helped DA fill out the form by reading out to her the questions.

20. At approximately 10.30 am Holmes asked the students whether they wished to have a break. At this point Adam Hughes, Assistant Principal of Sunning Hill, entered the classroom. On their return DA approached Adam Hughes. She said to him "stab you" and she pushed her hand into his stomach. The gesture was not seen to be aggressive by Hughes and his response was to engage in a polite conversation regarding how she was progressing in the course. The earlier statement was isolated and was not the subject of further discussion between them. 21. During the recess break Holmes and Bremner proceeded to set up the cutting boards and steel knives on the students' workbenches in preparation for the next part of the course. There was a procedure in place regarding the use of implements such as knives. They were counted out and counted back in. This was carried out for the course. If there was a missing item Juvenile Justice Staff would be radioed and they would attend and conduct a search including a pat down search. 22. At approximately 11.00 am the students returned to the classroom and were positioned around the centre workbenches. Holmes began to instruct the students on the techniques in knife handling and sharpening as well as food preparation and cutting. Whilst the students were engaged in this practical exercise DA moved from the bench at which she was working beside Horsley, walked past and behind Holmes, behind Bremner and plunged a large chef's knife into the right side of his back. Holmes recognised the knife as one of the TAFE cooks knives out of the toolbox provided to students for the course. 23. Bremner stumbled towards Holmes and she assisted him to a chair. Horsley used her "Motorola" two-way radio to call for assistance. A senior youth worker arrived followed almost immediately thereafter by a nurse who administered first aid until an ambulance arrived. Bremner was taken by ambulance to Royal Prince Alfred Hospital but died at approximately 5.05 pm of blood loss due to extensive internal injuries resulting from the stabbing. 24. Pursuant to Sections 4 and 14 of the Children's (Detention Centres) Act 1987 the Director General of the Department of Juvenile Justice must ensure that programs are delivered which focus on student success within the Centre and school and lead to community based options that facilitate each student's successful re-integration into society. In particular Section 14 provides inter alia that:- The Director-General shall ensure that adequate arrangements exist: (a) to maintain the physical, psychological and emotional well-being of detainees (b) to promote the social, cultural and educational development of detainees 25. Part of the consultative machinery involved in the running of Yasmar was what is referred to as the Local Education and Training Co-Ordination Committee ("the LEATC"). The LEATC was established to facilitate the delivery of student programs at Yasmar. This committee had representatives from the Department of Juvenile Justice ("Yasmar"), the Department of Education and Training ("Sunning Hill"), and the Technical and Further Education Commission via the Sydney Institute. Its chairperson as of 23 July 1999 was Marcia Vallance, the principal of Sunning Hill. 26. The terms of reference for the Yasmar LEATC as of 23 July 1999 confirmed the joint nature of the membership of the committee. The terms, in part, provide as follows: · To provide overall direction and management of education and training for young people in custody; · To increase access to TAFE and other accredited Vocational Education and Training (VET ) positions; · To ensure operational and security considerations are identified and addressed in the provision of education and training programs; · To ensure that each young person in custody has an Individual Education and Training Program (IETP) that meets their identified needs and that is part of their overall case management plan; · To develop an education and training component to each young person's release/exit plan in consultation with relevant Juvenile Justice Officers. 27. The terms of reference provided one of the forums by which the various agencies had input into the running of the Sunning Hill School and were made aware of matters directly impacting upon their operational and administrative obligations. In particular was the joint responsibility between the agencies with regard to the assessment of "security considerations" for the "provision of education and training programs".

28. The LEATC played a central role in organising vocational courses and generally attending to the educational needs for student detainees at Sunning Hill. The JSST guidelines also provided for a similar input as regards vocational courses in secondary schools generally.

29. Another limb of the consultative machinery involved in the running of Yasmar generally was the Centre Support Team or the "CST" that included a representative from the Department of Juvenile Justice and the Department of Education and Training. It met on a weekly basis on every Monday and was another forum whereby information was exchanged amongst those agencies involved in the day to day activities of Yasmar.

30. The Department of Juvenile Justice had responsibility for the security arrangements at the DJJ Centres, including Yasmar, at all times. In fulfilling that role it consulted with staff of DET in relation to security issues affecting the operation of the school. In the DJJ Operations Procedure Manual ("the Manual") at paragraph 6.3 three elements which required constant monitoring were emphasised, namely:- 1. physical surroundings 2. detainees 3. self and other staff (including school staff) 31. Paragraph 6.2 of the Manual provided: "Security in juvenile justice centres does not relate only to physical security (ie locked doors, no escapes etc). Security also relates to the physical and emotional well being of all individuals within the juvenile justice centre. To effectively establish and maintain security, staff must monitor both:

a. The physical surroundings and environment b. The emotional and physical well being of individual detainees and other staff"

32. On 27 May 1999 Michelle Tremain, psychologist, wrote a behaviour management plan for DA that identified DA's anxiety before her attendance at Court. DA acknowledged that she may become violent as a result of this anxiety. The plan alerted staff that DA may become increasingly agitated as the Court date was approached. It advised strategies to deal with her agitation or anticipated violence. The behaviour management plan was given to Horsley and other staff. At 23 July 1999 DA was not anticipating a Court date until 3 September 1999.

33. Paragraph 6.1 of the Manual charged the Co-Coordinator Operations (Gerard Hughes) with the responsibility for the security of detainees. Where relevant procedures did not exist, the Co-Coordinator was responsible for the security of detainees by ensuring that guidelines provided were applied to the development of local procedures for the centre in question.

34. There was a failure to properly assess the selection and suitability of DA for participation in the cooking course and having access at that time to dangerous implements such as knives. 35. In relation to student-detainee DA, the Department of Juvenile Justice had in its possession, prior to 23 July 1999, material which indicated that DA had a pre-occupation with sharp objects and was alleged to have committed serious acts of violence including acts of violence involving the use of dangerous implements such as knives. The material was collected in files including the "D File".

Information in the possession of the Department of Juvenile Justice recorded that DA was aged 17 at the time of the stabbing, she had in fact been a ward of the state since 17 June 1988 following an order made in the Wollongong Children's Court which was due to expire on 11 August 2000, the anniversary of her 18th birthday.

On 27 September 1998 DA appeared in Port Kembla Children's Court on a charge of having custody of a knife in a public place. She was first admitted to a Juvenile Justice Centre on 11 November 1998 when she was admitted to the Keelong Juvenile Justice Centre in Wollongong. She had been charged with common assault of a youth worker at Barnardo's Youth Centre where she was residing. She was granted conditional bail on 12 November 1998.

On 26 January 1999 DA was charged with having custody of a knife in a public place, wounding with intent to murder, and attempted murder in relation to an attack upon her natural mother (towards whom her hostility was well documented) with a kitchen knife.

Following these charges she was remanded into the custody of the Department of Juvenile Justice and on 27 January 1999 was transferred from the Keelong Juvenile Justice Detention Centre to Yasmar.

The Department of Juvenile Justice's case management requirements for individual detainees (in a document titled " Case Management Policy - Case Management in the Department of Juvenile Justice") provided that, amongst other things, the principles in relation to assessment for the purposes of case management included: 8.1.3 The assessment process should maintain a focus on the offending behaviour of the young person

8.1.4 The assessment process should ensure that all of the systems within which a young person operates (social, cultural, educational, familial, psychological etc.) are taken into account. This implies a co-ordinated and integrated approach to assessment ... Where more than one person is involved in the assessment process (eg assessment for specialist programs), each person must have a clear understanding of their area of responsibility in the assessment process. 41. As well the Policy provided that: 5.3.1.1 that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption. 5.3.1.2 That the best interests, safety and well being of the young person shall be paramount in all casework decisions and practices. 5.3.1.3 That we engage in the least intrusive intervention appropriate to the court mandated requirements of young people. 6.1.2 The provision of services that address the young persons offending behaviour and maximize the capacity and opportunity of the young person to chose positive alternatives to offending behaviour. 42. There is a restriction as to the offending behaviour that can be taken into account in relation to detainees on remand. DA was on remand and had not entered a plea in relation to the charges resulting in her incarceration at the facility. This meant that case management could only have regard to presenting behaviour since incarceration and not to the offences with which she was charged.

Incident reports of the Department of Juvenile Justice document instances of violent behaviour on the part of DA following her transfer to Yasmar. Those incidents of violence were allegedly perpetrated against other detainees, Youth Workers employed by the defendant and an Adolescent Psychiatrist, Dr Jean Starling. On 21 July 1999 DA is alleged to have attacked Gary Dillon, a Vocational Instructor employed by the defendant as a staff member of the Department of Juvenile Justice, in the leg with a leather making tool while in the Dobroyde unit. The tool did not pierce his skin.

The reports documenting these incidents were signed off by the Team Leader, Co-Coordinator Operations and the Centre Manager of the Yasmar Juvenile Justice Detention Centre. These officers were members of the CST where the issue of student behaviour in the context of their participation in classes at the Sunning Hill School for Specific Purposes should have been discussed.

Some Department of Education and Training incident reports detailed abusive and aggressive behaviour by DA during her attendance in Sunning Hill classes. On the other hand a number of CST review reports related positive behaviour in class by her, for example, on 8 March 1999: "Doing well in school - responds well to the structured setting and relating well to other residents", and on 3 May 1999:"making good progress in literacy and social interactions at school". Her academic progress reports were very positive. Her Individualized Education Program stated : "DA responds particularly well to positive reinforcement and one to one assistance". It was not unusual to have a student at Sunning Hill who was a low achiever and displayed difficult behaviour.

A CST meeting on 8 February 1999 recorded that at Parameadows School prior to DA's detention she was suspended for bringing a knife to school and putting a substance in another girl's drink.

Minutes of staff meetings attended by the defendants Sunning Hill staff, prior to 23 July 1999, document various matters concerning DA. The minutes of such a meeting on 27 April 1999 refer to a prior meeting of the Yasmar CST and contains the notation: "DA - Also looking at Anti-violence monies (sic) - very irrational behaviour".

The minutes of such a meeting on 11 May 1999 contain the notations: "DA - misbehaving on unit - assaulted team leader and 2 staff -debriefing return from Court before attending school". "DA - Interviewed today regarding incident on Friday re - locked door - warned that her conduct continues she will be out again……." 48. On 7 June 1999 DA was reviewed by Adolescent Psychiatrist, Dr Jean Starling. The review was as a result of a request by the CST who expressed concern about DA's 'increasing level of violence' and her reportedly being "found with a home made spear on the weekend made from a sharpened tree branch and she had managed to take a knife from an office and hid it the week before". It was after this review that DA assaulted Dr Starling. Dr Starling caused DA to be scheduled the same evening to Rozelle Hospital for the purpose of a psychiatric assessment. DA was released from Rozelle Hospital the following evening. According to O'Connor the hospital did not diagnose a psychiatric condition.

Following the assault upon Dr Starling, DA was suspended from school for a period of time before a decision was reached between Vallance and O'Connor that DA be allowed to return to school. DA's return to school was considered desirable as it was the view of both Vallance and O'Connor that DA responded positively to a structured environment such as the school environment.

On 15 June 1999, prior to the commencement of the cooking course on 23 July 1999, Vallance made a written application for funding known as "flexible funding" (previously known as "anti-violence funding") for the specific purpose of assigning a staff member to deal on a one-to-one basis with DA as part of DA's re-entry or behaviour management plan. The application was made through the Department of Education and Training. The application was made to the District Superintendent.

The application for funding cited the "Target Behaviours" as "Anger management/prevent violent physical or verbal abuse". The "Brief Outline or Project/Intervention" recorded that "(DA) has been suspended/part of her re-entry plan is to have an extra person in the room to allow a quick response if (DA) displays inappropriate violent behaviour and assist staff to prevent such outbursts by keeping her engaged in meaningful activities".

The application for funding was subsequently approved and funding allocated. DA returned to school on 21 June 1999. Horsley was assigned the role of dealing on a one-to-one basis with DA. She was familiar with DA and DA got along with her.

This was an adequate response by the defendant to the risks posed by DA to the defendants employees in allowing her to return to school. It was however an inadequate response to DA'S participation in a course involving the handling and use of knives at that time.

Gerard Hughes was not aware that DA was in the class nor that the cooking class was being conducted. Bernadette O'Connor, Yasmar's manager, could not say what the processes were which facilitated DA's enrolment in the cooking class but she could say what she "understood might take place". She conceded that the Department of Juvenile Justice might not have even known that DA was in the cooking class. O'Connor relied on the CST to ensure that the special needs of detainees were communicated to Department of Education and Training staff. CST meeting notes do not indicate that there was any discussion about the suitability of DA participating in the course.

The Department of Juvenile Justice's Operations Procedure Manual at section 6.11 specifically provides that for "dangerous items" such as, cutting implements defined as "including scissors, knives etc" there must be "specific procedures to restrict their use in the centres". In relation to cutlery and other cutting implements the Manual provides: "Co-ordinators Operations are responsible for ensuring that procedures are developed and implemented to ensure maximum security of dangerous items". 56. According to O'Connor the Department of Juvenile Justice had no involvement at all as regards the equipment to be used in courses conducted at Sunning Hill. She interpreted the Operations Procedure Manual as applying only to her Department's programmes, and not to programmes offered by the Department of Education and Training and NSW Technical and Further Education Commission.

57. Some school staff were unaware of the reasons why DA was in custody (for example, Adam Hughes). Hughes commenced work at the school on 19 July 1999. Horsley was aware of the reasons why DA was in custody. Marcia Vallance stated that she believed that it was prejudicial to remand students for staff to know why they were in custody and for that information to be used as a basis for removing the student from courses.

58. The only information that had been given to Mandy Holmes and Scott Bremner concerning DA's violent disposition and previous incidents was given to them by Karen Horsley at recess on the morning of 23 July 1999. Horsley told them that DA was in Yasmar for attempting to kill her mother with a kitchen knife. 10 Counsel for the defendant tendered two statements, both accompanied by a large amount of annexure material. One statement was from Mr Peter James Muir, the Director of Operations for the New South Wales Department of Juvenile Justice. Mr Muir has held that position since June 1999 and has been employed with the Department of Juvenile Justice or its predecessors since 1987.

11 The second statement was from Mr George Richard Green. Mr Green is the Assistant Director General, Student Services and Equity Programs, of the New South Wales Department of Education and Training. He has held that position since 1998, having been an Assistant Director General with the Department of Education and Training for some twelve years and he has been employed with the Department since 1964.

12 The statements of Mr Muir and Mr Green flesh out with some degree of particularity the information contained in the detailed statement of facts that is encompassed in full within this judgment. Mr Muir's statement in particular was detailed and admirably candid in the information it contained. In part, his statement reaffirmed that, in relation to the administration of its custodial responsibilities under section 4(2)(a) of the Children's (Detention Centres) Act, 1987, the Department of Juvenile Justice must ensure that "the welfare and interests of persons on remand or subject to control shall be given paramount consideration". This responsibility stands alongside, as it were, the provisions of s 14 of that statute which is detailed in paragraph 24 of the statement of agreed facts.

13 Hand in hand with the overriding legislative responsibilities of the Department of Juvenile Justice is the accompanying Children (Detention Centres) Regulation 2000 which provides in s 16 that: "The Director General may provide the following programs in detention centres: (a) vocational and educational programs, (b) psychological and social programs, (c) recreational programs, (d) alcohol and other drug rehabilitation programs, (e) cultural specific programs."

14 Mr Muir's statement commented on a range of significant reports that have impacted on the development of juvenile justice services since the early 1990's. For example, the first was the New South Wales Legislative Council Standing Committee on Social Issues Report titled, "Juvenile Justice in New South Wales" (May 1992). The second report referred to by Mr Muir is the Juvenile Justice Advisory Council of New South Wales Green Paper titled "Future Directions for Juvenile Justice in New South Wales" (February 1993).

15 According to Mr Muir, one of the pivotal points in the Department's evolution was the inquiry into Juvenile Detention Centres undertaken by the New South Wales Ombudsman in 1996. This inquiry thoroughly investigated all operational aspects of juvenile detention centres, and its findings were set out in a Special Report to Parliament under s 31 of the NSW Ombudsman Act published in December 1996.

16 All of the reports consistently emphasised the need to provide, within the juvenile detention services, suitable and appropriate educational programs designed to prepare the young person for his or her return to the community and ensure that as best as possible, such education programs be part of the integrated overall education system of the community, so that after release those young persons may continue their education without difficulty. The reports also emphasised the problems that emerged if educational programs were not provided, not only in the sense of addressing some of the learning difficulties of some of the juveniles in detention but also because the provision of education was necessary to bolster the individual's self esteem and to enable them to succeed, both in school and in the workforce. Ultimately it is intended that such programmes will facilitate a turn-around in the anti-social and offending behaviour of the young person.

17 The contractual arrangements in place as between the Department of Juvenile Justice and the Department of Education and Training, together with the Technical and Further Education Commission (TAFE), required a number of systems to be in place to co-ordinate a co-operative working arrangement between them in the delivery of the necessary educational programs.

18 Prior to the incident which led to Mr Bremner's death in 1999, the systems in place were governed by two structures. These were known as the Centre Support Teams (CST) and the Local Education And Training Co-ordination Committees (LEATCC).

19 The CSTs, otherwise known as multi-disciplinary teams, were set up at the direction of the then Director General of the Department of Juvenile Justice in 1993 under the auspices of what was referred to in Mr Muir's statement as Director General's Instruction 2/93. As that Instruction envisaged, the purpose of these teams was to "meet weekly to discuss new committals, review existing cases, and cases due for discharge as well as provide a forum for discussion for difficult to manage cases". As well, it was intended that these team meetings would "allow for maximum input of professional knowledge from a variety of sources, for example, psychiatry, nursing, psychology, drug and alcohol and other relevant specialist staff and that other relevant professionals such as school staff, CYC counsellors and chaplains may also be invited to attend these meetings where considered relevant."

20 One of the issues relevant to the events that occurred at Sunning Hill School in July 1999 was the role of the then Centre Support Team at Yasmar in their discussions concerning the detainee DA, her behaviour, their views of her behaviour and risk assessment, and the absence of any communication from that process to the relevant staff within the Sunning Hill School about DA from a risk management perspective.

21 The second structure I have referred to was known as the LEATCCs. These Committees were set up in 1997 and operated in each Juvenile Justice Centre. These Committees were intended as the basis for participation within a formal arrangement between the Department of Juvenile Justice and the Department of Education and TAFE in the overall planning and coordination of education and training for young people in custody. The terms of reference of these Committees, which were to be in place at each of the establishments where special schools existed were, relevantly, as follows: · to provide overall direction and management of education and training of young people in custody · to ensure operational and security considerations are identified and addressed in the provision of education and training programs.

22 The above Committee systems had been operating for some time when the detainee DA first entered the Yasmar Juvenile Justice Detention Centre in January 1999. She had already had some involvement with the Department of Community Services as well as the juvenile justice system. DA was made a ward of the state in June 1988. In September 1998, she appeared in the Port Kembla Children's Court on a charge of having custody of a knife in a public place. Her first admission to a Juvenile Justice Centre was in November 1998 when she was charged with common assault of a youth worker at Barnardo's Youth Centre where she was residing. Following that appearance she was granted conditional bail in November 1998. In January 1999, DA was charged with a number of personal violence offences, they being custody of a knife in a public place, wounding with intent to murder, and attempted murder, in relation to an attack upon her natural mother with a kitchen knife.

23 Following her admission to Yasmar in January 1999, DA was discussed on regular occasions at Centre Support Team meetings. Her risk factors were considered and were such as to require documentation on several occasions. It was on her admission to Yasmar in January 1999 that, as part of a nursing interview, it was noted in passing that DA had previously participated in and enjoyed a TAFE hospitality course.

24 As early as February 1999, at a Centre Support Team meeting, case notes from the psychiatrist advised that DA was "potentially violent and dangerous". Subsequent assessments were considered necessary.

25 From that period onwards until the incident in July 1999, DA was never "off the radar screen" as far as considerations as to how to best deal with her aggressive behaviour and her propensity to violence. This volatile and aggressive behaviour, which is significantly reported upon during the period of her admission to Yasmar in January 1999 up until July 1999, was interspersed with occasional reports as to her temperate behaviour within the school program conducted at Sunning Hill. Even so, her behaviour record at the school was not unblemished, in that following an incident in May 1999 DA was excluded from the school until a review as to her behaviour and intervention by the principal of the school with DA. That occurred in June of 1999. It was at that time that her entry to the school was renegotiated following her agreement to comply with reasonable standards of behaviour.

26 DA's sporadic but ongoing outbursts of violent behaviour continued such that in June she was suspended again following an assault on the psychiatrist, Dr Jean Starling. It was considered that there was a need to agree to a revised management plan for her. As part of that approach, it was determined at that time that it would be a good idea to have an additional person on a one-to-one basis to accompany DA when she was at school - not as any form of physical restraint but more as a moderating influence on her propensity for aggressive behaviour, and the need for intervention and time out where that was seen to be necessary.

27 In late June 1999 it was noted at a further CST meeting that DA had assaulted a senior youth worker and that, as a result of certain difficulties she was having in relation to school, an extra teacher had been allocated. Some improvement by way of her attendance and participation was noted at a CST meeting in early July 1999.

28 Overall, what is clear from the material placed before me, is that DA was a consistent and persistent offender in relation to her violent behaviour in interacting with staff and other detainees during her time at Yasmar. It was also clear on the evidence that DA was intellectually handicapped. How much she was able to comprehend and apply much of what was said and explained to her about her behaviour is questionable. But what is clear is that, despite occasional periods when DA's behaviour in terms of her propensity to aggression and violence seemed to modify to one of reasonable agreeability, there was at all times a component of serious violence within her make-up that was characterised particularly by her propensity for sharp objects and knives. That this was known to the Department of Juvenile Justice in the period leading up to July 1999 is inescapable and was not disputed by counsel the defendant. For example in April 1999, it was considered necessary to send DA to the Royal Prince Alfred Hospital at Camperdown for a medical assessment. In completing an order to permit her absence from Yasmar, the Department of Juvenile Justice not only approved the use of handcuffs for DA during the period of her travelling to the hospital, but also noted that the reason for the use of handcuffs was that she was a "serious offender" and was to be "closely supervised at all times and cuffed at all times unless in a secured area".

29 In short, the Department of Juvenile Justice had no doubt as to the propensity of DA to acts of aggression and violence as paragraphs 43 to 50 of the agreed statement of facts only too graphically illustrate.

30 What is equally clear on the evidence before me and not seriously disputed by the defendant, is that, although there were systems in place via the Local Centre Support Team and the Local Education and Training Coordination Committee as between the relevant agencies concerning the conduct of educational programs at the Yasmar Detention Centre there was little, if any, communication between the Department of Juvenile Justice and the relevant staff of the Department of Education and Training and the Technical and Further Education Commission that would have alerted the staff at the school and particularly Ms Horsley and Mr Bremner as to DA's propensity to violence and a predilection to sharp objects and knives.

31 The breakdown in communication as to the risk that DA posed was acknowledged by Mr Muir in his statement in the following words: "Although there were a number of systems in place pertaining to risk management and communication of risk in relation to DA, the Department now acknowledges the inadequacy of the systems. It is particularly clear the systems failed to bring all information on detainee DA together, which would have resulted in a coherent and consistent decision making process. Such a process should have resulted in DA being excluded from the hospitality course that had access to kitchen implements on the basis of the information that the Department held."

32 The statement of Mr Green on behalf of the Department of Education and Training and the Technical And Further Education Commission concentrates predominantly in detailing those steps that were taken by the defendant and its relevant agencies following the incident in July 1999 which resulted in the death of Mr Bremner.

33 In the first instance the Minister for Juvenile Justice authorised the setting up of a review of safety and security related to education and training in Juvenile Justice Centres. This was a review to be undertaken by the Department of Education and Training and the Department of Juvenile Justice. This review process known as the 'Inter-Departmental Review' produced an interim report in December 1999 and a final report in August of 2000. Both of those reports were part of the material placed before me in this matter.

34 The terms of reference of the Inter-Departmental Review, as expressed by Mr Green, were, in summary terms as follows: (i) selection of educational and training practical and vocational courses for inclusion in juvenile justice programs (ii) selection of detainees for inclusion in education and training practical and vocational courses in juvenile justice centres (iii) maintenance of safety in education and training practical and vocational courses in juvenile justice centres (iv) identification of linkages between centre behaviour management systems and detainee participation in programs

35 Counsel on behalf of the defendant noted before me that the steps taken by the defendant and its relevant agencies following this incident were "profound and extensive". As Mr Green himself encapsulates: "Since 23 July 1999, DET, DJJ and where appropriate TAFE have developed and implemented formal policies and procedures regarding risk management of educational programs and detainee placement in programs, have formalised and added to procedures for the exchange and updating of information relevant to risks from detainees, have created more formal and rigorous processes for induction of staff prior to their involvement in education programs, have promulgated a memorandum of understanding stating each department's responsibilities for security and safety in juvenile justice centres, and generally moved to a work system based on clearly articulated and well developed agreed processes and procedures so that staff from each organisation have clear guidance on their occupational health and safety responsibilities and how to fulfil their responsibilities. All of these measures have been directed to doing everything practicable to reduce the likelihood of the tragic events of the 23rd of July 1999 reoccurring."

36 Without elaborating in detail as to those specific measures incorporated in the above summary as related by Mr Green, some of the steps taken by the three agencies as part of the review process were as follows: (i) working parties comprised of the Department of Education and Training, Department of Juvenile Justice and, where appropriate, Technical And Further Education Commission personnel were established to examine the four areas of the terms of reference and develop key recommendations. (ii) a Juvenile Justice Reference Group was established as part of the consultative process. That reference group included representatives from the Technical And Further Education Commission, the NSW Teachers Federation, the Public Service Association, the Department of Education and Training Occupational Health and Safety Unit, Community Care School Principals and the Department of Juvenile Justice. (iii) recommendations in relation to the development of a profile for practical and vocational courses were implemented. All such programs are now approved by the Local Education and Training Co-ordination Committee (LEATCC) prior to any such courses being conducted. The LEATCC now also makes recommendations on the level of risk of education and training programs. Programs are grouped according to risk in general (low risk), extended (medium), and specific (high risk) categories. Students must progress through each category to demonstrate their behaviour is appropriate for entry into the higher risk categories. (iv) individual detainee risk assessments have been developed for use by the Centre Support Team (CST) to consider the level of risk of the detainee. Prior to the commencement of courses, all detainees undergo an induction and assessment. Information from the induction and assessment helps in the development of individual detainee risk assessment. (v) the development of a program participation risk assessment to assist in the selection of detainees for placement in school and TAFE programs. A behaviour management plan for that student forms part of the attachment and that assessment is updated each week. (vi) the development of "Sunning Hill School's Detainee Program Participation System Overview" sets out how the decision to place a detainee in a program is arrived at. (vii) details of program placements and any conditions of approval for each program are now recorded in the CST minutes. Those minutes are now distributed to the school, the centre manager, and team leader at the accommodation units of the centre. Those minutes together with the school CST representative's notes of the CST meeting and the program participation risk assessment are used to compile a daily roll identifying program placement for each detainee. The daily roll is distributed to the teachers. (viii) steps were taken to support principal's of all community care schools in their implementation of recommendations arising from the Inter-Departmental Review, specifically regarding risk management processes. In addition, relief days have been provided to each school to facilitate release of staff to participate in development and implementation of improved risk assessment strategies and processes. (ix) handover procedures are now in place at Sunning Hill school that are particularly relevant to assist employees regarding potential behaviour problems of detainees. A handover of information takes place at the commencement and completion of each school day. A briefing takes place for school staff each morning before the classes. Staff are kept informed of relevant information regarding detainee behaviour in the accommodation unit since the previous school day. That information is then conveyed to staff at the briefing. A handover to Department of Juvenile Justice staff also occurs at the end of the school day. (x) information from the Allied Health file of a detainee is provided verbally at the CST meeting and relevant information is recorded on the program participation risk assessment. Changes have been made in the development of a staff induction program by the Department of Juvenile Justice and the Department of Education and Training. This is done through a jointly developed policy titled "Induction Framework for Juvenile Justice Centres and Education and Training units". The induction includes a section on security delivered by a Department of Juvenile Justice staff member. (xi) a Memorandum of Understanding has been signed between the Department of Juvenile Justice and the Department of Education and Training which clearly articulates each Departments responsibilities for security and safety of staff and young people in juvenile justice centres. That Memorandum of Understanding is a key document that provides the basis for cooperation between the two Departments in the delivery of educational programs for young people in detention. It includes a statement on the responsibilities of the Department of Juvenile Justice for security strategies, and a statement that education and training units (schools) are responsible for supervising and managing detainee behaviour during the delivery of Department of Education and Training programs and for communicating security and safety concerns to Juvenile Justice staff. That MOU also identifies: * the joint responsibility of the departments for the implementation of behaviour management practices * the responsibility for the provision of communication equipment and systems including handover procedures * procedures for the resolution of disputes between the two departments * the joint development of a behaviour management protocol across each juvenile justice centre and the attached schools * the formation of a joint occupational health and safety committee for each site including employee and employer representatives from the Department of Juvenile Justice and the Department of Education and Training. Joint occupational health and safety committees have been established in all centres and schools. The Department of Education and Training has trained staff to be workplace committee representatives in accordance with its legislative responsibilities * procedures have been developed as part of the program risk assessment to place a Department of Juvenile Justice staff member in a classroom where that is deemed an appropriate measure in the program risk assessment. All staff in a classroom have a radio and personal alarm and steps have been taken to strengthen security procedures in place at Sunning Hill school.

37 In addition to all of those matters identified in detail by Mr Green, the Department of Education and Training undertook, at the request of the Ombudsman's office, to provide assistance to Mr Bremner's family to help them come to terms with their son's death. Through the Ombudsman's office, the Department of Education and Training offered assistance and the provision of independent legal advice to help Mr Bremner's family to better understand the progress and meaning of the proceedings being undertaken before this Court. Overall the defendant professed profound regret at this entire incident, acknowledging quite properly, that it has been a matter of great grief to all concerned.

38 It is now well settled that the penalty for a breach of the Act must reflect the objective seriousness of the offence: Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. Consideration as to what is meant by the objective seriousness of an offence has been expressed as the necessity to have regard to "the nature and quality of the offence": Independent Cargo and Wool Services Pty Ltd v Mingare (Unreported Full Bench 10 March 1994 at 4). On any view this offence was serious both as to its nature and quality.

39 The actions of the defendant through its relevant agencies, particularly the Department of Juvenile Justice and the Department of Education and Training exposed its employees to great and foreseeable risk of harm. Counsel on behalf of the prosecution submitted that the risk of harm was known, foreseeable and the relevant risk to safety foreseen. I agree. On the evidence before me, DA's impulsive, violent and aggressive behaviour characterised by a propensity to use knives and sharp objects during such outbursts lead inescapably to such a conclusion. In such circumstances as determined in Capral Aluminium Limited v WorkCover Authority of New South Wales and particularly at para [82]: "The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature."

40 Walton J, Vice-President extended this approach, quite properly in my view, in his decision in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (2000) 95 IR 383 at 452 when he stated: "…the risk to safety was not only foreseeable but was, in fact, foreseen: thereby adding to the overall seriousness of the offence."

41 In adopting his Honour's approach I do so because I find on the facts of the matter before me, a high risk situation, that, on any reasonable view, was known and foreseeable as to the tragic consequences that would flow if proper steps were not taken to risk assess and manage DA - and above all to keep her from undertaking the hospitality course with its easy access to knives.

42 Much was made before me, and, on one view, properly so, as to the tensions prevailing within the defendant's agencies balancing as it were their competing legislative obligations to the detainees to provide them with a custodial environment oriented towards rehabilitation underpinned by vocational employment and educational programs and the defendant's obligations to provide a safe place and system of work for its employees under the Occupational Health and Safety Act.

43 On that issue, counsel on behalf of the prosecution referred to the decision of Schmidt J in WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service [2002] NSWIRComm 44.

44 The background to the prosecution giving rise to that matter concerned the situation where a particular patient in Rozelle Hospital, in the midst of a psychotic episode, broke an amount of glass within the defendant's premises and in the circumstances of doing so exposed a number of nursing staff to the risk as well as to actual injury in the care of psychiatric patients in the hospital.

45 In the course of considering submissions in this matter her Honour considered the particular submission, placed on behalf of the defendant, that the defendant had to meet its competing obligations in relation to the potential for patients to be involved in violent assaults upon staff and its obligations under the Occupational Health and Safety Act against those that the defendant owed to patients under the Mental Health Act. Her Honour noted the difficulty that posed for the defendant in balancing those competing obligations (para [84]). Nevertheless, her Honour was quite clear as to where the ultimate determination of that balance quite properly lay in the following comments that appear in paragraphs [89] and [90] of her Honour's judgment: " Empathy, care and even pity for such patients are, however, not a proper basis upon which employees may be permitted to place themselves into danger. There can be no doubt that in a situation where the choices facing the defendant are physical intervention in order to ensure that a patient is restrained from hurting others and a risk to the health, welfare or safety of employees, if such steps are not taken, the absolute obligations imposed upon the defendant by s15 of the Act, require that safety of employees be preferred. No matter how dedicated to patient welfare a nurse or other employee might be, it is inconsistent with the requirements of the Act, that the defendant permit them to be the subject of physical assault, or indeed repeated physical assault, by patients who are not restrained from harming others. Employment on such a basis is not permitted by the Act."

46 The factual circumstances in the matter before me are not on all fours with the situation confronting her Honour. Nevertheless, the underlying competing obligations remain. The views expressed by her Honour on where an employer's primary obligations lie when that balance demands competing considerations are, I believe, correct. They must come down on the side of the best interests of the employees in providing them with a safe place of work.

47 The end result in the situation before me in balancing those competing legislative considerations is not that DA or any other detainee be deprived of vocational educational opportunities. The issue is that a person such as DA should be properly risk assessed, and, with that knowledge and relevant input from the school staff, she be placed within a learning environment which both diverts and educates her, while at the same time does not expose school staff to unnecessary and foreseen risk of harm. On all of the information known to the relevant agencies in July 1999, DA should never have been placed in that hospitality class on 23 July 1999.

48 There seems little doubt that, if the school staff had known of the background of DA, her propensity to violent and unpredictable behaviour and her attraction to sharp objects particularly knives, they would have been able to make a proper and informed decision that would have seen DA excluded from that particular class.

49 School staff should not be excluded from information relevant to risk on safety considerations on the basis that it might prejudice their attitude to a detainee. If any independent reinforcement of that view is required one need look no further than the report of the New South Wales Ombudsman in the special report to Parliament in relation to circumstances prevailing at the Kariong Juvenile Justice Centre in March 2000. In that report, stressing the importance of an educational component within the custodial environment of the detention centres, the following statement appears by way of a footnote: "School staff clearly need to be informed of any particular behaviour, difficulties and other considerations which may relate to the safe management of detainees during school and at the same time it is appropriate for school staff to inform centre management of any particular incidence which may suggest the detainees requires follow up or closer supervision."

50 In all of the circumstances I consider that the nature and quality of this offence before me to be extremely serious.

51 The decision of the Full Bench of this Commission in Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) considered, amongst other issues, matters to be considered in determining the appropriate penalty. In doing so the Full Bench considered the question of general and specific deterrence as part of the sentencing process (paras [71]-[80]).

52 As part of those considerations the Court cited with approval the view expressed by Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388: "The fundamental of the Court in this important area of public concern …(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."

53 In asserting the correctness of that statement, the Court in Capral stated at para [74] that: "It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process."

54 I consider that in the matter before me I should, in determining penalty, take into account both general and specific deterrence.

55 On the question of general deterrence, counsel on behalf of the defendant did not demur in general terms on the need for such a consideration. In relation to specific deterrence however, he submitted that there was no need for such a consideration and he couched his submission on that matter in the following terms: "Specific deterrence would be a significant factor if a defendant had taken had little or no steps post an incident, from which they could otherwise have learnt significant lessons. In such a case there would be a need to deter that person/department from future ignoring of those lessons. This case is the opposite. It is hard to say, and indeed it is not suggested, what more could have been done in response. That element of specific deterrence is a multiplying factor of the primary penalty …there is no need for that penalty to be larger by any significant amount on the basis of specific deterrence, given what happened and the response initiated and carried out by the defendant and its relevant departments."

56 The decision in Capral is instructive on the issue of specific deterrence, when one has regard to the terms of para [77] of that decision - "In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent … or because the offender will not have the opportunity to commit a similar offence in the future. … However we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible … Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace … in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety."

57 In considering all of those propositions, which I must, I cannot agree with the primary submission of defence counsel that I should pay no heed to the element of specific deterrence in the matter before me. Given the nature of the defendant's business, particularly in the delivery of correctional services, there is a potential risk of re-offending of the type that occurred in the matter before me, should standards and policies put in place not be followed through. It will be necessary to maintain a constant vigilance particularly given the high risk nature of the defendant's business in this area and the risks to the safety of its employees within the context of that business. On that point I accept the relevance of paragraph 89 of Mr Muir's statement in the following terms: "The complexity of this task (that is risk management) in a custodial environment where young people are mandated to be held cannot be underestimated. To provide no programs to violent and dangerous detainees is simply not an object, as this increases the risk of violence towards staff and other detainees."

58 To the extent that I do take note of the significant steps taken by the defendant's agencies post this incident to address the necessary safety issues identified, I do so within the context of mitigation - not as a reason for ignoring specific deterrence in the overall sentencing process.

59 In the determination of penalty the defendant is entitled in the first instance to be given the benefit of the entry of a plea of guilty at the first reasonable opportunity. That much was conceded by the prosecution and I assess the value of that early plea at 20 percent.

60 Counsel on behalf of the defendant and its agencies spent a considerable period of time in detailing the immense and wide ranging steps that the defendant's agencies have undertaken and put in place in order to ensure that, as best as possible, a situation such as that which occurred on the 23 July 1999 resulting of the death of Mr Bremner would not arise again. In counsel's own words the steps taken, policies and procedures implemented and monies expended have been "profound and extensive". I have spent a considerable period of time detailing those and the documentary evidence of Mr Green and Mr Muir have been instructive on that issue. Those factors in themselves call for a further consideration of an additional discount in addition to that already denoted for the entry of an early plea and it is a factor that I will take into account amongst others in the final determination of this issue.

61 In addition, there is little doubt, on the material before me, and on any proper and fair consideration that this is a matter that has left a profound legacy for the defendant and its respective agencies. There would be no person or persons left unmoved by what occurred to Mr Bremner on 23 July 1999 and the tragedy that befell him and with which his family now have to live. The defendant and its agencies have not resiled from that and, quite properly, in the matter before me, opened their submissions with an expression of regret and remorse for what had occurred. Mr Green's statement identified the assistance that the legal services division of the Department of Education and Training had given to Mr Bremner's family. Admittedly that assistance was given at the behest of the office of the Ombudsman but I accept that there may well have been some reluctance on the part of the defendant's agencies to deal directly with Mr Bremner's family because of both legal and personal sensitivities. In any event I do consider in the final determination that I make on the question of penalty that it is proper and reasonable to allow a component for remorse and contrition on behalf of the defendant as one of those subjective factors relevant to mitigation of penalty. 62 The defendant as the Crown has prior convictions before this Commission. Those convictions arise from a diverse range of agencies under the Crown and those agencies are diverse in their employment related responsibilities.

63 In treating the Crown as the Crown for the purposes of penalty I agree with the submission expressed by counsel for the defendant in the following terms: "Your Honour will weigh the prior record in balance and note that the Department of Juvenile Justice has no prior convictions …your Honour would be more influenced by those matters more directly associated with the Departments before your Honour and those matters not so associated - not to say the Crown should not be treated as the Crown."

64 Of the three agencies of the Crown before me, the Department of Education and Training has nine prior convictions, the Technical and Further Education Commission has three prior convictions and the Department of Juvenile Justice has none. I do not know the background or details of those prior convictions except in relation to the last recorded conviction of the Department of Education and Training which is a matter I dealt with in June of this year. It was an offence grounded in the failure to properly guard an electric saw in a woodworking class conducted by the Department of Education and Training. In that matter a penalty of $35,000 was imposed. Apart from that matter, there was no evidence before me that would suggest that those prior convictions are of the nature and quality of the matter such as is before me here.

65 Taking into account all of those factors I have commented upon, I determine the appropriate penalty in this matter to be $420,000. I discount that amount by an initial 20 percent for the entry of the early plea of guilty and a further 10 percent for those mitigating factors I have identified. The net result in making those discounts is a final penalty of $294,000. Orders 66 In the final determination of this matter I make the following orders: 1. The defendant is convicted of the offence charged.

2. The defendant is fined an amount of $294,000, with a moiety to the prosecutor.

3. The defendant shall pay the prosecutor's costs as agreed or as assessed. ------------------------

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