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

PROSECUTOR: Mr M Cahill of counsel SOLICITOR: Mr A Eckhold Legal Services Branch, WorkCover Authority of NSW

DEFENDANT: LEGAL REPRESENTATIVES: Mr S J Rushton SC Mr M Henry of counsel SOLICITOR: Ms V Ingram Legal Services Directorate National Parks and Wildlife Services

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Staunton J 29 May 2003

Workover Authority of New South Wales (Inspector Ankucic) v The Crown in the Right of the State of New South Wales (National Parks and Wildlife Service)

Prosecution under s15(1) of the Occupational Health and Safety Act 1983 JUDGMENT NSWIR Comm 170

1 On 8 June 2000, employees of the defendant were engaged in a prescribed burning operation within the Ku-ring-gai Chase National Park near Hornsby in the Sydney Metropolitan area.

2 In undertaking that task, the employees were divided into crews, each headed by a crew leader. One such crew was led by Mr George Fitzsimmons and consisted of Mark Cupit, Claire Deane, Eric Furlan, Luke McSweeney, Natalie Saville and Jamie Shaw.

3 On the afternoon of 8 June 2000, the above crew, as part of the prescribed burn operation, were assigned the task of deepening the burn into the interior of the designated burn area by lighting an informal track that traversed that area.

4 In the course of undertaking that task, the crew led by Mr Fitzsimmons was overrun by the fire. Four members of that crew, Mr Fitzsimmons, Claire Deane, Eric Furlan and Mark Cupit died as a result. The remaining three, Jamie Shaw, Luke McSweeney and Natalie Saville sustained serious and extensive burns.

5 As a result of that incident and after the coronial inquest that followed, the defendant was charged with an offence arising under s15(1) of the Occupational Health and Safety Act 1983 (the Act). The defendant has pleaded guilty to that offence.

6 In relation to that offence, it is alleged that the defendant: DID FAIL To ensure the health, safety and welfare at work of all its employees, whilst conducting a hazard reduction operation or prescribed burn, contrary to Section 15(1) of the Occupational Health and Safety Act 1983. The Particulars of the Charge: (a) The Crown in the Right of the State of New South Wales (National Park and Wildlife Service) ('the defendant') was at all material times an employer. (b) At all material times the defendant was charged with statutory responsibility for the management of national parks and reserves within the State of New South Wales, including the Ku-ring-gai Chase National Park. (c) At all material times the defendant's statutory responsibilities included bushfire management within national parks and reserves within the State of New South Wales, including the Ku-ring-gai Chase National Park. (d) At all material times the defendant had responsibility for and undertook the planning, preparation and conduct of a prescribed burn or hazard reduction operation conducted within the confines of the Ku-ring-gai Chase National Park on 7 June 2000 and 8 June 2000. (e) At all material times the defendant employed the following persons as officers of the National Parks and Wildlife Service: (i) Mr Ray Jasper as Area Manager for the subject area; (ii) Mr Jamie Shaw as Senior Ranger (Fire) for the subject area; (iii) Mr Ken Blade as a Ranger in the subject area; (iv) Mr Peter Milgate; (v) Mr George Fitzsimmons; (vi) Mr Eric Furlan (vii) Mr Mark Cupit; (viii) Mr Luke McSweeney; (ix) Ms Claire Deane; and (x) Ms Natalie Saville (f) The defendant failed to provide a system of work that was safe and without risks to health to employees undertaking prescribed burns or hazard reduction operations in relation to the above mentioned prescribed burn operation. (g) The defendant failed to ensure such personal protective equipment as was necessary to ensure the health and safety at work of its employees undertaking prescribed burns or hazard reduction operations was worn during the above mentioned prescribed burn operation. (h) The defendant failed to provide such training as was necessary to ensure the health and safety at work of its employees undertaking prescribed burns or hazard reduction operations in relation to the above mentioned prescribed burn operation. (i) The defendant failed to provide such instructions as were necessary to ensure the health and safety at work of its employees undertaking prescribed burns or hazard reduction operations in relation to the above mentioned prescribed burn operation. (j) The defendant failed to provide such information as was necessary to ensure the health and safety at work of its employees undertaking prescribed burns or hazard reduction operations in relation to the above mentioned prescribed burn operation. (k) The defendant failed to provide such supervision as was necessary to ensure the health and safety at work of its employees undertaking prescribed burns or hazard reduction operations in relation to the above mentioned prescribed burn operation. (l) The defendant failed to provide such means of access to and egress from the fireground as were necessary to ensure the health and safety at work of its employees undertaking prescribed burns or hazard reduction operations in relation to the above- mentioned prescribed burn operation. (m) As a result of the above-mentioned failures, Mr George Fitzsimmons, Mr Jamie Shaw, Mr Eric Furlan, Mr Mark Cupit, Mr Luke McSweeney, Ms Claire Deane and Ms Natalie Saville were placed at risk of injury.

7 The agreed Statement of facts (formal parts omitted) extensively details the background to, and circumstances of, the incident on 8 June as follows: (3) At all material times the NPWS was charged with the statutory responsibility for the management of national parks, nature reserves, Aboriginal areas and regional parks located in the State of New South Wales, including the Ku-ring-gai Chase National Park.

(4) The statutory responsibility of NPWS includes bushfire management in National Parks, nature reserves, state recreation areas, Aboriginal areas and regional parks under its control. Pursuant to the Rural Fires Act 1997 the NPWS co-operates with other fire authorities and land management agencies in bushfire suppression, mitigation and prevention activities within Local Government Areas. In this regard, the NPWS contributes to the development and implementation of fire operations and fuel management plans pursuant to Section 52 of the Rural Fires Act, 1997 .

(5) At all material times, the defendant employed the following persons as officers of the National Parks & Wildlife Service: (a) Mr Ray Jasper as Area Manager for the subject area; (b) Mr Jamie Shaw as Senior Ranger [Fire] for the subject area; (c) Mr Ken Blade as a Ranger in the subject area; (d) Mr Peter Milgate; (e) Mr George Fitzsimmons; (f) Mr Eric Furlan; (g) Mr Mark Cupit; (h) Mr Luke McSweeney; (i) Ms Claire Deane; and (j) Ms Natalie Saville. (6) One of the bushfire management tools utilised by the NPWS, both pursuant to the National Parks and Wildlife Act 1974 and the Rural Fires Act, 1997 is 'prescribed burning.' Prescribed burning has been described as: …..the skilful application of fire to natural fuels, under conditions of weather, fuel and soil moisture that will allow confinement of the fire to a pre-determined area at rates of spread and intensity appropriate with minimum damage at an acceptable cost.' (McArthur AG 1997. See also Prescribed Burning Course Manual 1997 at page 47; Australasian Fire Authorities Council ("AFAC") Learning Manual - Prescribed Burning No 1 1996). (7) Prescribed burning may be used to achieve a number of management goals, including but not limited to, forest regeneration, environmental control and/or the reduction of fuel ( 'hazard reduction' ).

(8) In 1995/1996 the Hornsby/Ku-ring-gai District Bush Fire Management Committee ("H/KDBMC") approved a 'prescribed burn', or 'hazard reduction,' for an area covering 171 hectares located within the Ku-ring-gai Chase National Park. The area approved for hazard reduction was located in the vicinity of Mount Ku-ring-gai near Hornsby in the Sydney Metropolitan Area. (9) Subsequently, the 171 hectare area approved for hazard reduction was divided into a number of smaller areas, including an area of approximately 37 hectares located at the 'urban interface' adjacent to Merrilong Avenue, Mount Ku-ring-gai ('the subject burn'). (10) In 1997 Mr Ray Jasper, then Senior Ranger (Fire) for the relevant district, prepared a 'burn prescription' for the Mt Ku-ring-gai burn. The burn prescription identifies the environmental and weather conditions set by management with a view to achieving the relevant management goals. In the present case, the principle management goal was the reduction of fire risk at the urban interface and this goal was to be achieved by reduction of high fuel loads (ie hazard reduction) within the burn area. The burn area was recognised by the NPWS as falling within a region which was: one of the most fire prone environments in Australia with a very high fine fuel potential, very flammable fuel types, steep slopes, regular occurrence of extreme fire danger weather and large areas of urban-bushland interface. (11) The subject burn was not undertaken in 1995/1996 and was "rolled-over", from year to year, awaiting conditions in which the prescription for the burn would be met. Work was carried out on the tracks and hand tool lines proposed as the boundaries of the burn during this period. (12) In early June 2000 Mr Jasper, the then Area Manager, and Ranger Ken Blade discussed scheduling the subject burn in the week commencing 5 June 2000, as the weather forecast appeared to identify weather conditions favourable to the conduct of the burn. The burn had been originally designated as a ' spring' or ' autumn ' burn, but the favourable weather conditions were seen as an opportunity for the safe conduct of the burn.

(13) On Monday, 5 June 2000 Mr Jasper informed Mr Blade that he intended to schedule the subject burn on Tuesday, 6 June 2000 subject to favourable weather conditions. Mr Jasper directed Mr Blade to prepare an operations map for the subject burn. Work crews were deployed to carry out the final preparations on the boundary tracks and hand tool lines proposed to be used as the boundaries of the burn.

(14) Mr Blade had 'on the job-training' with respect to the planning of prescribed burns. Mr Blade was an experienced and trained fire fighter. His experience dates from the early 1970s. He has held sector and divisional commander positions and those of operations officer, planning officer and incident commander. Mr Blade was experienced in the implementation of back burning and wildfire operations more complex than the subject fire. Whilst Mr Blade had formal training in connection with fire fighting and team leadership on a fire ground, he did not have any formal training specific to prescribed burning, such as the Prescribed Burning course a joint State Forests of NSW, Department of Bush Fire Services and NPWS training program, first developed in 1996/97.

(15) Further, Mr Blade was not provided with a copy of the Learning Manual ['the Manual'] used in the Prescribed Burning course. Mr Blade denied that he was provided with any pro forma documents for use in the planning of the prescribed burns.

(16) Following the request from Mr Jasper, Mr Blade commenced work on an operations map (the 'first map'). Mr Blade based his operations map on a freehand standing schematic sketch of the proposed fire ground prepared in 1998 by a consultant as part of a review of the environmental effect of the subject burn. Annexed and marked ' A ' is a true copy of the first map.

(17) The operations map, as drafted by Mr Blade, was inadequate in the following particulars: (a) The map was not drawn to any particular scale;

(d) The map does not bear any contour lines, or markings, that accurately identify the topography;

(e) The map does not mark any locations of any safety refuges with the symbol R , although it does identify areas which are refuge areas e.g. creeks and road ways; and

(f) The map does not accurately locate or depict all 'tracks' said to be located within the bounds of the fire ground, including the track off which the Fitzsimmons' crew was lighting on the afternoon of the subject incident.

(17A) The map was prepared for use in the course of the burn on 8 June 2000. The evidence of Messrs Blade and Milgate was that they believed that the map was accurate and that the track on it provided an exit to the F3 freeway. The map was used in the course of the briefing that took place on the morning of 8 June 2000, prior to the commencement of that day's operation and it was distributed to some of the fire fighters, including Mr Fitzsimmons. Apart from evidence that the map formed part of the briefing, on the morning of 8 June 2000, and was distributed to fire fighters, there is no evidence that any of Mr Fitzsimmons' crew, or any of the survivors, used the map on the fire ground, on 8 June 2000.

(18) Following a review of the weather forecast for Tuesday, 6 June 2000, Mr Jasper postponed the burn on the basis that the wind direction presented a potential smoke hazard to the F3 Freeway. The F3 Freeway travels immediately adjacent to the western boundary of the burn area.

(19) Nonetheless, Mr Jasper and Mr Blade continued to prepare for the subject burn on the basis that the weather forecast indicated the weather conditions later in that week would be favourable to the conduct of the burn.

(20) In due course, Mr Blade showed Mr Jasper, his supervisor, the operations map as described above.

(21) Despite the apparent inadequacies of that operations map, Mr Jasper did not direct Mr Blade to amend the document in any way. Also, Mr Jasper did not direct Mr Blade to prepare, or suggest to him that he should prepare, supplementary maps, briefing documents or operational plans for use in the planning and/or conduct of the subject burn. (22) The original operations map prepared by Mr Blade and approved by Mr Jasper makes no provision for internal lighting of the burn area, or fire ground.

(23) According to Mr Blade, the interior of the burn area was to be ignited with incendiaries dropped from a helicopter.

(24) Mr Jamie Shaw, Senior Ranger Fire, made inquiries on 5 June 2000 and established that the NPWS helicopter was unavailable. (25) The operational map prepared by Ranger Blade proposed only ignition of the fire ground from the boundaries. Given the time of year it was likely that ignition of boundary areas would not result in fire that carried into the interior of the fire ground. The map did not contain any alternative plan for ignition of the centre of the fire ground if it did not burn as a result of the boundary ignition.

(26) In the early evening of Tuesday, 6 June 2000 Mr Jasper reviewed the forecast for the following day, Wednesday 7 June 2000, and decided that the subject burn should proceed on that day. As a result of that decision, steps were taken to organise crews for the following day from the local and neighbouring NPWS areas (i.e. Lower Hawkesbury Area, Northern Beaches Area and Lane Cove River Area).

(27) On 7 June 2000 a total of 23 NPWS staff were deployed to undertake the subject burn at Mount Ku-ring-gai. 21 of the 23 staff comprised the crews involved in the conduct of the subject burn. The remaining staff members, Mr Blade and Peter Milgate supervised the burn.

(28) In this regard, there was some disagreement in the evidence as to the exact roles being performed by Mr Jasper and Mr Blade (as between those officers) in the management of the burn. This remains unresolved. All staff was aware who their crew leader was and that crew leaders on the fire ground reported directly to Peter Milgate and conversely that Peter Milgate was the immediate supervisor of the crew leaders.

(29) Of the 23 staff involved directly in the subject burn, 7 staff had not previously attended a fire of any kind (i.e. either a 'prescribed burn' or a 'wildfire'). These crewmembers had completed their basic fire-training module. Two of the 'inexperienced' crewmembers were Natalie Saville and Claire Deane.

(29A) The crews also contained very experienced officers, for example Mr George Fitzsimmons had over 30 years experience as a fire fighter with both the (then) bush fire brigade and the NPWS. In all, 10 of the 23 staff were trained as crew leaders. The novice fire fighters were spread across the three crews on the first day and across two crews the second day as were the more experienced fire fighters. It was the practice within the National Parks and Wildlife Service to give newly trained staff practical fireground experience under the supervision of experienced fire fighters.

(30) The 23 staff deployed on the subject burn assembled at the Mount Colah Depot on the morning of Wednesday, 7 June 2000. A briefing was held at the Mount Colah Depot before the staff was ferried to the fire ground. (31) The briefing provided at Mount Colah on the morning of 7 June 2000 was inadequate, although the accounts of the content of the briefing varied. A detailed briefing should have been undertaken but a number of witnesses said that they were not provided with a detailed briefing. (32) Further, a number of staff members were permitted to enter the fire ground at Mount Ku-ring-gai on 7 June 2000 without wearing the Personal Protective Equipment ('PPE') required in the defendant's own safety procedures. Some crewmembers, in particular Claire Deane and Natalie Saville, had not been supplied with their own fire fighting Personal Protective Equipment ('PPE') but were provided with used equipment.

(33) During the course of prescribed burning on 7 June 2000, the fire crews encountered variable conditions in and about the fire ground. The variable conditions included areas where 'spot overs', or break outs of fire, occurred and other areas where high moisture content in the vegetation ('Fuel Moisture Content') and other factors made it difficult for the crews to obtain and/or maintain ignition.

(34) The subject burn was originally planned to take place within one day. But, due to the variable conditions, in particular areas of high moisture content, the subject burn was not completed on 7 June 2000.

(35) The areas where the fire was most intense on 7 June 2000 were located on slopes with a north westerly orientation and a high fuel load. The areas where the crews encountered difficulties in igniting and maintaining the burn had easterly, south easterly and southerly orientations. (36) Variables that affected the intensity of the fire across the fire ground on 7 June 2000, such as slope, orientation, fuel load, fuel distribution and fuel moisture content, were all well recognised factors used in predicting fire behaviour prior to and as at the time of the subject burn.

(37) The subject burn was carried over to 8 June 2000.

(38) No formal debriefing took place after the burn operations ceased on 7 June 2000.

(39) After the completion of fire ground duties on 7 June 2000, consideration was given, for the first time, to the use of informal 'tracks' located within the confines of the fire ground for the purpose of 'deepening' the burn on Thursday, 8 June 2000. The difficulties encountered in obtaining the ignition on parts of the fire ground on Wednesday, 7 June 2000 meant that alternative steps had to be taken to obtain substantial ignition of the centre of the burn area. To this end, consideration was given to lighting off the abovementioned informal tracks.

(40) No consideration had been given to lighting off the informal 'tracks' located within the fire ground that was ultimately used by the Fitzsimmons crew on the afternoon of 8 June 2000 prior to the evening of 7 June 2000 by any of the defendant's staff, including Mr Jasper and Mr Blade. As a consequence, the tracks had been neither inspected, nor assessed, for use in "deepening the burn" prior to, or on, 7 June 2000.

(41) Mr Blade prepared an update of the operations map for use on 8 June 2000 (the 'second map'). In updating the operations map, Mr Blade excluded some of the information contained in the original operations map. The information excluded from the update was a threatened species area and a track leading to that area. Annexed and marked ' B ' is a copy of the second map.

(42) A total of 21 staff were assigned to continue the subject burn on Thursday 8 June 2000. Ron Barnett, who had been a crew leader on 7 June 2000, was unavailable on 8 June 2000. As a consequence, Ron Barnett's crew was rolled into one of the two remaining crews, the crew lead by Richard Oswald. As on 7 June 2000, George Fitzsimmons was assigned to lead a crew of six staff consisting of Mark Cupit, Claire Deane, Eric Furlan, Luke McSweeney, Natalie Saville and Jamie Shaw.

(43) Once again the crewmembers assembled at Mt Colah depot and a briefing, similar to the one conducted on 7 June 2000, was provided. This briefing also suffered from similar deficiencies involved in the briefing that occurred on 7 June 2000.

(44) The crew lead by George Fitzsimmons was given the task of 'mopping up' the area burnt on 7 June 2000. This crew was also assigned the task of deepening the burn into the interior of the burn area by lighting off an informal track depicted on the updated operations map as exiting to the F3 Freeway.

(45) The crew members were transported to the fire-ground following the briefing at the Mt Colah depot.

(46) On 7 June 2000, the clothing worn by persons on the fire ground varied. Some crew members were not prevented from entering the fire ground whilst not wearing the PPE required in the defendant's own safety procedures. For example Mr Luke McSweeney attended and carried out duties wearing a King Gee work shirt, rural fire service PPE trousers and boots that were not fitted with rated fireproof soles. Rather than fire fighting PPE with which he had been issued. Mr Jamie Shaw was wearing work pants and a Proban treated shirt.

(46A) By way of comparison, Mr Fitzsimmons and Mr Furlan were wearing the then new issue NPWS three-piece fire fighting uniform on both days. Despite the fact that some crewmembers were not wearing the required PPE, there is no evidence this would have made any difference to the number of fatalities or the nature and extent of injuries to those members of Mr Fitzsimmons crew who survived. It is common ground that the area in which the Fitzsimmons crew became trapped was one which was subject to extreme heat.

(47) Whilst the balance of the Fitzsimmons' Crew had lunch, Jamie Shaw went looking for and identified the end of the informal track adjacent to the 'Merrilong Avenue Fire Break.' But, no steps were taken to inspect the whole of the track or to assess its suitability for use in deepening the burn at that time. Mr Shaw was trained in the prescribed burning course but he was just present on the day as a crew member.

(48) After the Fitzsimmons Crew finished their lunch break, George Fitzsimmons instructed them to light up off the track identified by Jamie Shaw.

(49) George Fitzsimmons told Jamie Shaw to move ahead of the crew to light 20 to 30 metre sections of the 'up-hill ' side of the track and to ' scout ahead .' The rest of the crew followed up behind lighting up both above and below the track as they moved along the track.

(50) George Fitzsimmons also directed Eric Furlan and Mark Cupit to deepen the burn on both sides of the track as the crew progressed. Mark Cupit deepened the burn on the uphill side of the track, whilst Eric Furlan deepened the burn on the downhill side.

(51) Consistent with the aspect of the slope at the commencement of the track, some experiences on the previous day and the crew's experience that morning, the crew had some difficulty getting and maintaining ignition, due to a high fuel moisture content (FMC) even though there was thick scrub and a significant underlayer of fuel. The crew adopted an aggressive lighting pattern that involved lighting both sides of the track in almost continuous strips, with Mark Cupit and Eric Furlan also lighting above and below the track. Some areas along this section of the track burnt more than others.

(52) The lighting pattern was maintained where the track began to take the crew on to a more northerly oriented slope where there was a significant under layer of fuel, thick scrub and lower fuel moisture content. The combination of these factors meant that the rate of spread [ROS] and the intensity of the fire would reach their maximum levels, for the prevailing conditions, more quickly.

(53) Jamie Shaw followed the track to a bifurcation marked by a cairn of stones. One arm of the track appeared to travel northwest of the cairn of stones towards the freeway. The other arm of the track appeared to travel in a southerly direction. Mr Shaw followed the southerly arm of the trail to a point where it appeared to swing back above the area that was being lit by his crew.

(54) Mr Shaw then deviated off the track to the northwest where he located a point from which he could see the freeway. From that point, Mr Shaw made contact with Peter Milgate who had taken up a position on the side of the F3 Freeway from which he was directing the burn along the Freeway. Mr Shaw and Mr Milgate then discussed the direction Mr Fitzsimmons' crew should take. In particular, there were discussions about the crew exiting from the fire ground to the Freeway in a north westerly direction.

(55) Following his conversation with Mr Milgate, Mr Shaw made his way back to the track and started walking down the hill towards the cairn of stones.

(56) In the interim, the crew was working its way along the informal track towards the cairn of stones. However, it remains unclear as to exact nature of the activities of the crewmembers at this time.

(57) An examination of the track and its surrounds performed after the subject incident revealed evidence of spot burning along the track in the vicinity of the cairn of stones and along the bifurcation of the track that heads toward the freeway. The spot burning in these areas was consistent with the use of a drip torch (ie a canister fitted with a wick that is used to distribute fuel) of the type being used by the crew on that day. These findings were consistent with a member or members of the crew lighting up along those portions of the track. (58) The examination of that portion of the track, which took place after the subject incident, also established that the track to the freeway was overgrown, there was no obvious route to the freeway and it was difficult to reach the freeway along the route marked on the operations map. (59) At or about the cairn of stones, the crew met Jamie Shaw as he descended the up-hill track.

(60) Jamie Shaw suggested to George Fitzsimmons that the crew 'should keep going down ' rather than following the up-hill track as the up-hill track appeared to 'kink back around' above the area the crew had been lighting up. George Fitzsimmons directed the crew to take the up-hill track .

(61) The exact sequence of events that followed from the decision to take the up-hill track is unknown. The accounts of the survivors and those of observers on the F3 Freeway are unclear and often appear inconsistent.

(62) Nonetheless, it is apparent that after the crew had travelled a short distance on the up-hill track from the cairn of stones something happened and George Fitzsimmons then told the crew to run. George Fitzsimmons and Jamie Shaw then told the crew to lie on the ground in an area where there was less vegetation.

(64) At least one officer (unidentified) moved away from the group. Luke McSweeney got up from the ground, commenced to move down the hill and somersaulted through the fire into burnt ground below. His work shirt caught fire in the process and adhered to his skin; particularly on his right arm, his right armpit and on the right side of his body. Natalie Saville got up to go downhill in accordance with her training. Jamie Shaw called for the officers to move to a previously burnt area. Jamie Shaw, Natalie Saville and Mark Cupit gathered together. Jamie Shaw instructed Natalie Saville and Mark Cupit to roll on the ground to extinguish their burning clothing. Jamie Shaw then pulled Natalie Saville's burning overalls from her body. Each of the officers sustained extensive full thickness burns.

(65) After extinguishing his burning clothing, Mr McSweeney walked back up the hill to look for his workmates. Mr McSweeney met up with Natalie Saville, Jamie Shaw and Mark Cupit. The balance of the crew: George Fitzsimmons, Eric Furlan and Claire Deane died at the scene from their injuries.

(66) The four survivors moved back along the track to the fire break at the back of Merrilong Avenue, where a NPWS vehicles was located and from where the crew had commenced the burn that afternoon. This area was marked on the map as a 'control centre' and 'assembly area.'

(67) After a short distance Mr McSweeney left the other three survivors and ran ahead to organise assistance.

(68) When Mr McSweeney arrived at the firebreak, he located a NPWS vehicle, which was unmanned. Mr McSweeney was unable to open the vehicle or operate the radio due to the burns he had suffered to both hands. (69) Mr McSweeney then made contact with local residents by calling out across the rear fences of houses backing onto the Merrilong Ave firebreak. Mr McSweeney instructed the local residents how to operate the radio in the NPWS vehicle and the emergency message to be transmitted.

(70) Mr Jamie Shaw assisted Natalie Saville and Mark Cupit and as a group they walked out of the Merrilong Ave firebreak. Subsequently, Luke McSweeney, Natalie Saville, Jamie Shaw and Mark Cupit were transported to hospital.

(71) Mark Cupit died of complications associated with his injuries on 4 August 2000 at the Royal North Hospital. (72) Jamie Shaw suffered extensive burns and has not returned to employment to date.

(73) Luke McSweeney and Natalie Saville both received extensive burns to their bodies. Mr McSweeney has not returned to employment to date.

(74) Natalie Saville has returned to work on limited suitable duties and on reduced work hours.

(75) The factors that caused the intensity of and rate of spread of the subject fire in which the crew became entrapped at about 2pm on 8 June 2000 were: (a) The nature and load of the fuel on the fire slope; (b) The arrangement of the fuel, including the presence of a substantial quantity of fuel in the understorey ( 'ladder fuels '); (c) The orientation of the slope leading to drier, more readily combustible fuel (i.e. a northerly aspect); (d) The nature of the slope itself (i.e. for each 10 degrees of slope the rate of spread is doubled and the subject slope was, on average, about 20 degrees giving an increase by a factor of four); (e) The wind direction (i.e. the wind was blowing from a predominantly northerly direction or up the slope.);

(f) The aggressive lighting pattern adopted by the crew as they lit off the track; and (g) Variations in wind speed. (76) Each of the factors referred to above were well known and recognised prior to the subject incident as factors that should have been taken into account in the preparation and the conduct of the burn. The combination of these factors and their inter-play were capable of being estimated and factored into the burn plan before any steps were taken to light off the track on the afternoon of 8 June 2000. It is also recognised that plans have to be adjusted in accordance with temporal and spatial variations in these factors.

(77) A site inspection and a risk assessment conducted prior to the commencement of burning, on 8 June 2000, would have disclosed the true path of the informal track, the fact the up hill track kinked back above the main section of the track, the thickness of the vegetation from the vicinity of the cairn of stones to the freeway and the physical factors that are referred to above (ie fuel load, fuel arrangement, orientation and slope).

(78) Further, a simple site inspection on 8 June 2000 would have revealed that the operations maps provided for use on both that days of the burn was inaccurate and unreliable in material respects.

8 In addition to the above, the prosecution tendered three volumes of documentary material including maps, reports with appendices, photos, witness statements and transcript extracts from the coronial inquiry into the fire. While it was a considerable amount of material, it did not constitute all of the material before the Coroner nor all of the transcript arising therefrom.

9 All of the documentary material placed before me by the prosecution was indexed and I will refer to it as required for the purposes of this judgment.

10 Two specific documents included with the prosecution material do warrant identification at this point. They are:

· Expert report with map annexures and transcript evidence of Dr Noel Cheney, a Research Scientist with the CSIRO. Dr Cheney's report was prepared for the Coroner in relation to the inquest that followed the fire on 8 June 2000.

· Report with maps and photos, statement and transcript evidence of Mr Phil Robeson. At the relevant time Mr Robeson was seconded as the Project Co-ordinator, Serious Accident Reduction with the New South Wales Rural Fire Service.

11 On behalf of the defendant, a significant volume of material was tendered, primarily identifying the steps taken by the defendant in response to the incident giving rise to the offence before me.

12 As well, on the day of the hearing, a letter from the Director of the National Parks and Wildlife Service, Mr Brian Gilligan, was placed before me in Court. In that letter Mr Gilligan expressed his: …deep concern and regret in regard to the Ku-ring-gai fire incident on 8 June 2000 in which seven National Parks and Wildlife Service (NPWS) officers were entrapped by fire in the course of a prescribed burn conducted in the Ku-ring-gai Chase National Park.

13 As well, Mr Gilligan went on to say: Since 8 June 2000 the Service's priorities have been to support the people affected by the tragedy and to take every action possible to ensure that such an incident does not occur again. The NPWS's fire management policies and procedures were reviewed, not just in relation to prescribed burning but also in relation to wildfires. Procedures were formalised. Additional checks were introduced into the various fire management plans. Issues identified during investigations into the incident and during the coronial proceedings have been addressed. The NPWS has also worked closely with other key firefighting agencies in New South Wales to improve safety for all bushfire fighters across the State. I understand that nothing that has happened since 8 June 2000 can diminish the loss and pain felt by the victims and their families. However, I again extend my sympathy and that of the NPWS to all of those affected by the fire. The National Parks and Wildlife Service has a very strong commitment to and a proud history of achievement in fire management. This has been the only incident where an NPWS officer lost their life in fire operations during the NPWS's 32-year history, despite its significant involvement in fire operations, often in remote and rugged terrain. I wish to assure you that the National Parks and Wildlife Service is taking all available action to ensure, as far as possible, that such an incident does not occur again.

14 At my request, the defendant also produced the Fire Management Manual that was in place prior to the incident on 8 June 2000 as well as a small booklet titled National Parks and Wildlife Service, Incident Field Note Book (1996 edition). Those later documents are relevant to the issue of pre-fire briefing that I will further refer to in my judgment.

15 At the outset, counsel for the prosecution submitted that there were some issues of fact to be determined concerning, he submitted: (a) The nature and extent of the deficiencies involved in 'the briefings' supplied to the defendant's employees on each of 7 June 2000 and 8 June 2000: (Agreed Statement of facts at paras [31] and [43]). (b) The use of prescribed burns as training exercises for inexperienced staff: (Agreed Statement of facts at paras [29] and [29A]). (c) The role of Operations Plans/Maps provided by the defendant to Crew Leaders, including Mr Fitzsimmons, and other employees in the course of 'the briefings' conducted on 7 June 2000 and 8 June 2000: (para [17A]). (d) Whether the available evidence discloses the existence of a casual relationship between the defendant's admitted breaches of section 15(1) and the entrapment by fire of Mr Fitzsimmons' crew on the afternoon of 8 June 2000.

16 The latter issue was canvassed at some length by both the prosecution and the defence counsel before me. That is, whether I could be satisfied beyond reasonable doubt that there was a causal nexus between the defendant's breach of s15(1) as evidenced by the risks to safety particularised and the entrapment by fire of the defendant's employees. On that point, counsel for the defendant submitted that, while the defendant was in breach of its obligations under the Act, the Court could not be satisfied beyond reasonable doubt there was a causal nexus between the risks to safety as particularised and the entrapment that occurred resulting in the deaths and injuries to the defendant's employees.

17 In my view, it is not necessary for me to determine beyond reasonable doubt a causal relationship between the risks to safety to which the defendant has pleaded and any specific death or injury that arises. They are matters which arise to be considered as part of the objective seriousness of the offence.

18 Decisions of this Court have made it abundantly clear that the mere occurrence of an accident causing injury to an employee is not in itself sufficient to establish the commission of an offence. This well established proposition was expressed by the Industrial Relations Commission in Court Session in State Rail Authority (New South Wales) v Dawson (1990) 37 IR 110 and particularly as follows at pp120-121: Although s15(1) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard of beyond reasonable doubt, that the employer failed to meet the obligation cast on him by the section. In other words, the mere fact that an accident occurs involving an employee, but without more, does not establish any liability in the employer; and that is so unless some casual nexus be established between the breach of statutory duty and the detriment occasioned to the employee. We agree in that respect with the observations by Grove J in McMartin v The Broken Hill Proprietary Company Limited ((1998) unreported) to the effect that 'it is necessary that a casual nexus be shown between such a breach and the fact of detriment to safety.'

19 The above approach was further considered and affirmed in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng)(1999) 90 1R 432 at 449-450 as follows: However, a number of decisions of the Court have demonstrated, appropriately in our view, that the mere occurrence of an accident causing injuries to employees of the defendant is not sufficient in itself to prove the commission of an offence under s15(1). It is necessary to establish both a relevant 'failure' on the part of the employer and a causal relationship between the conduct of the defendant and the consequent risk to the health, safety or welfare of its employees . (my emphasis)

20 What is important to remember about the above authorities referred to is that they are all decisions where, at first instance, the defendant had entered a plea of not guilty, arguing the absence of a causal nexus between the defendant's failures as particularised and the consequent risks to safety arising. That is not the case here. In this matter the defendant has entered a plea of guilty to the offence as particularised and, in doing so, concedes that those particulars, at the relevant time, constituted risks to the safety of its employees.

21 It is apparent from the approach taken by reference to the above authorities that, for the purposes of the offence before me, there needs to be established a causal relationship linking the defendant to the safety detriments identified and the consequent risk to health and safety arising to its employees. By entering a plea of guilty, the defendant has done that. The issue of causation goes directly to the guilt of the defendant to the offence to which it has entered its plea of guilty. By entering its plea, the defendant has embraced without demur its failures as pleaded and, in doing so, has accepted the causal link between them and risks to the health and safety of its employees that arise as a result of the failures particularised. As was stated by Walton J V-P in WorkCover Authority (Inspector Farrell) v Ross Collin Morrison [2001] NSWIR Comm 325 at para [43]: It is not necessary to arrive at a precise conclusion as to how the accident occurred. It is now axiomatic that the general duties created by the Act are directed at obviating risks to the health and safety of persons in the workplace rather than to the circumstances or causes of a particular accident.

22 The tragic outcome of the accident that occurred on 8 June 2000 clearly threw up in sharp relief the risks to safety that existed as part of the defendant's system of work in relation to a prescribed burn operation. To the extent that the outcome was what it was is, as I have earlier stated, a matter that goes directly to the objective seriousness of the offence before me.

23 It should be said at this point that, if I was required to be satisfied beyond reasonable doubt that the risks to safety identified by the defendant's breach of s15(1) of the Act directly caused the entrapment that occurred to the defendant's employees on 8 June 2000, it would not be possible for me to be so satisfied.

24 The reason why it would not be possible to come to a concluded view beyond reasonable doubt on that issue is:

· I have not, on any view, had all of the material placed before me that was before the Coroner in those proceedings.

· No direct oral evidence was called to allow any additional evidence to be given and tested under cross examination.

· The expert report of Dr Cheney prepared for the Coroner, when taken together with his evidence before the Coroner, leads one to the inescapable conclusion that, in his expert opinion, there was always a safe egress from the fire if the crew leader had adopted the long standing, well established and recognised rule of thumb of going downhill from the fire and, in this instance, downhill in a north westerly direction. The large post-burn aerial map of the burnt area (exhibit 5) with the relevant informal tracks superimposed on it, best illustrates that proposition. True it is that Dr Cheney also cites overall poor planning and, as part of that, a poor lighting plan, as a significant factor in the events of 8 June 2000. But he consistently returns, in the transcript extracts before me, to his expert opinion that if Mr Fitzsimmons had done what he would, and should have, been expected to do with his years of knowledge and experience in fighting fires, then an avenue of escape from the fire was possible and entrapment need not have occurred.

· The crew leader on the day, Mr Fitzsimmons, tragically died in the fire. He is not hear to tell the Court, or the Coroner, the reasons behind his decision to inexplicably run up the hill from the fire and take his crew with him. All of the evidence given before the Coroner would suggest that there is a genuine perplexity by all concerned to explain Mr Fitzsimmons' actions on that day. There was evidence before me, albeit of an indirect nature, that just before the entrapment occurred, Mr Fitzsimmons was advised by Mr Jamie Shaw to head down the hill from the fire. He did not and he is not here to tell us why. Those members of his crew who survived and whose statements are before me, would suggest a sudden and unexpected decision on Mr Fitzsimmons' part to run uphill and they, in turn, simply followed him. Of two of those crew members who survived, both reveal, in their statements and transcript material before me, of their decision to jump and/or stumble downhill once the flames had reached them - which may help explain why they managed to survive.

25 The particulars as pleaded by the prosecution and accepted by the defendant are set out earlier in this judgment. As well, the agreed facts sets out with considerable detail and candour the events leading up to the incident of 8 June 2000, highlighting the inadequacies of the defendant in undertaking this prescribed burn operation.

26 In the first instance, the operations map prepared in preparation for the prescribed burn was inadequate in significant respects (see para [17] of agreed facts).

27 There were a number of inexperienced staff involved in the prescribed burn operation. They were dispersed within the three crews operating that day. There were also very experienced officers including Mr Fitzsimmons, the crew leader, who had over 30 years of bushfire fighting background with the Rural Fire Service and the defendant. As emphasised in para [29A] of the agreed facts: It was the practice within the National Parks and Wildlife Service to give newly trained staff practical fireground experience under the supervision of experienced fire fighters. 28 All of the defendant's employees who participated in the prescribed burn operation on 8 June 2000 had undertaken the relevant preparatory fire fighting course. It was certainly an agreed practice on the part of the defendant to utilise activities such as prescribed burn operations for the purposes of on the job training for such employees. Nevertheless, before the Coroner, the transcript evidence of Mr Robeson from the Serious Accident Reduction Unit with the NSW Rural Fire Service about this issue, reveals the following expert opinion: CAHILL: Q. Mr Robeson, you're aware of the fact that there's been evidence in the course of the Coronial (inquiry) so far which suggests that this particular prescribed burn and other prescribed burns were seen as providing an opportunity for training? A. Yes. Q. In so far as that's concerned, as an expert involved in questions of training and planning and so forth, how does the motion of using a prescribed burn as a training tool affect the planning process. Is it relevant? A. Yes, it would need to be taken into account in the planning process in that in determining the number of people that you'd need to conduct the burn if you have trainees involved, you would not be able to count them fully as being able to do all the duties you'd expect of trained people and that you would need to have some sort of supervision and mentoring for them. Q. It would increase the need for a focus on safety as well wouldn't it because of the fact that you have less experience - more, a greater number of less experienced people and indeed in this case, totally inexperienced people on the fire ground. A. Yes. Anything which has been done as a training exercise will normally have a high level of safety consideration. Q. And you need to take into account in making your assessments about how you're going to go about things, the fact that you're utilising the burn as a training process? A. Yes. Q. So for that to occur, to make it a worthwhile training experience, you need to identify in advance and set proper training goals don't you? A. Yes. Q. Is there any evidence that you've heard in these proceedings that suggest to you that there was an appropriate focus on the safety of the inexperienced officers who have been given the training in this particular program? A. I haven't heard or seen anything to that effect, no. Q. Have you heard any evidence that would suggest to you that anybody identified training goals? A. Not in the evidence I've heard, no.

29 The defendant has acknowledged that the pre-burn briefing for the prescribed burn was inadequate. It is difficult to state with precision the extent of that inadequacy. Again, reference must be made to the statements that are before me of some of those employees of the defendant who did participate in the prescribed burn operation on 8 June 2000. Overall, what is clear from a reading of those statements is that, with the exception of the crew leaders, any briefing that did occur was of a cursory and very general nature. There is certainly material before me that suggests that the crew leaders, which would have included Mr Fitzsimmons, did, between themselves, participate in a more extensive briefing, utilising the inadequate maps that were prepared for the burn. But there is no precise evidence before me as to exactly what was discussed and what was dealt with as part of that briefing.

30 There is evidence to show that there was available before June 2000 a learning manual on prescribed burning that was published under the auspices of the Australian Fire Authorities Council (AFAC). This document was clearly one to which the defendant had access to and would have been a participating body in putting it together. By all accounts, as the agreed facts discloses, the relevant employees of the defendant charged with the responsibility for planning this prescribed burn did not have access to this manual nor to any formal training as to how to properly conduct a prescribed burn.

31 Also, prior to the incident, the defendant had in place a document called a Fire Management Manual. The defendant concedes that that manual did not specify matters to be addressed at a pre-burn briefing for a prescribed burn. Any reference to the issue of briefing as a general proposition was contained in a small, red Incident Field Note Book issued by the defendant to staff. On page 2 of that Note Book, under the heading Briefing Fire Crew, the following matters are listed in point form only:

32 Since the accident, the defendant has put in place extensive standard operating procedures on the whole issue of prescribed burns. It has included in those standard operational procedures a detailed outline of all of those matters that should be dealt with by way of prescribed burn operations. That standard operating procedures now states: Briefings will include information on:

· Fuel conditions, including fuel type, fuel moisture, fuel load

· Access, control lines, escape routes and safety refuges

· Fire behaviour and weather monitoring equipment available and

· Maps of operational areas provided for all personnel

33 The defendant admits that the overall planning for the prescribed burn operation was inadequate as part of the system of work in place for that task at that time. On that point, Dr Cheney's evidence most accurately encapsulates that issue: Q. And in so far as subject to the question of just exactly how long it took the fire to race up the hill you did not observe anything from the scientific testing that you did and the observations that you made that caused you to form the view that there were any unexpected or unidentifiable changes in the underlying structure of things that resulted in an unpredictable outburst of fire activity? A. No, not within the normal range of variation that one would expect in those fuels and that topography. Q. And in that sense proper planning was capable of taking into account the variations that did occur and providing a safe work system to conduct this burn. A. Yes.

34 It is now well settled that a 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 where at 476 the Court stated: In the case of an offence under s15(1) of the OH&S Act, there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: see Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9. The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant: see Tyler v Sydney Electricity (1993) 47 IR 1 at 5. In Inspector Hannah v Wonar Pty Ltd , the Full Bench indicated (at 9), properly in our view, that 'a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences.'

35 Further, 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, CT92/1041, 10 March 1994) at 4.

36 The offence before me is, on any objective consideration, serious both as to its nature and quality. In the circumstances before me there was an obvious and foreseeable risk to safety. Indeed, the defendant does not seek to resile from that proposition. As counsel for the defendant stated: The risks identified in the charges were serious risks which created a situation of potential danger.

37 Those risks to safety have already been referred to - poor planning, inadequate briefing, inadequate training and supervision particularly of inexperienced staff and an overall unsafe system of work in undertaking the task of dealing with a prescribed burn. As well, there is an acknowledgement by the defendant that the clothing worn by some of the defendant's employees on 8 June was not in accord with the defendant's personal protective safety requirements. The agreed facts also discloses that, because of the intensity of the fire, that failure would have made little difference to the nature and extent of the injuries sustained by those who survived.

38 Given the defendant's statutory responsibility in relation to bushfire management in national parks, it is clear that a failure to address the risks to safety as identified created an unsafe system of work leading to clear and obvious risks to safety for its employees that were both serious and life threatening.

39 In other words, the gravity of the potential risks to safety arising from the particulars of the breach before me is relevant, in my consideration, as a measure of the gravity of the breach and the culpability of the defendant.

40 There was a clear foreseeability of risk of injury inherent in the nature of the work being undertaken by the defendant's employees on 8 June 2000. That much is self evident. In entering its plea of guilty to the offence as particularised the defendant concedes this and acknowledges the inadequacies of its system of work on that day.

41 Paramount in the failure on that day to have a safe system of work in place was the overall failure of proper planning in all aspects of the prescribed burn operation. On that issue, one would have expected that the defendant would have had due regard to the extract that appears in the Australian Fire Authority Council Prescribed Burning Course Manual where it says that prescribed burning is: '…The skilful application of fire to natural fuels, under conditions of weather, fuel and soil moisture that will allow confinement of the fire to a pre-determined area, at rates of spread and intensity appropriate with minimum damage at an acceptable cost (McArthur AG 1997). Prescribed burning is therefore fire management in practice . It is not applied haphazardly, but rather requires a sound knowledge of fire and the environment in which the fire is applied. Successful prescribed burning needs careful planning." (my emphasis)

42 It is also relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent the risks to injury occurring as they did. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident as an indication of the extent to which foreseeability of injury was readily identifiable.

43 On that issue, the defendant has undertaken a most exhaustive review and appraisal of all its procedures that were placed before me in some detail. The defendant provided a summary of activities undertaken in response to the incident of 8 June 2000. This summary made particular reference to the following:

· In relation to future planning and preparations for prescribed burns the defendant has adopted a new Prescribed Burning Operational Plan. It has finalised the NPWS fire management manual and been involved in the development and implementation of the Prescribed Burning Joint Guiding Principles and has upgraded prescribed burning maps to included standard mapping features.

· The defendant has agreed, along with all other fire authorities in Australia, to align its competency standards to the Public Sector Training Package and continues to ensure employees obtain training in the form of basic bush fire certificates, Incident Control Systems (ICS) awareness courses, Prescribed Burning courses and Bureau of Meteorology Fire Weather courses.

· The defendant has undertaken considerable revision of the Prescribed Burning Operational Plan, NPWS fire management manual and the NPWS Incident Notebook. The defendant has also introduced monitoring of fire weather conditions in the operational planning process for prescribed burns and Safety First messages to be given in crew briefings. Further the defendant has issued circulars addressing issues such as the over-estimation of distances to fires by fire-fighters, management of the amount of light up on a prescribed burn and the under prediction of fire behaviour. Prescribed burns and wildfire debriefing sessions are now also conducted by the defendant with the recording of such sessions and other relevant matters in personal Incident Log Books distributed to crew leaders and divisional commanders.

· As far as personal protective equipment is concerned, 9 circulars were issued by the defendant between September 2000 and December 2002 addressing various issues pertaining to the wearing, checking and maintenance of personal fire fighting equipment. The defendant has also addressed issues of personal protective equipment in the revised NPWS fire management manual and inclusion of fire fighting uniforms on prescribed burn operational plans safety checklists.

· Finally, the defendant provided payments in the order of $470,000 for matters such as travel accommodation and associated expenses to family members visiting the injured officers. Funeral expenses were paid by the Service. Ex-gratia payments were made to the injured officers to maintain their wages to award level from the time at which statutory workers compensation rates decrease. Ex-gratia payments were also made to the dependent widow of one officer.

44 On any view, the steps undertaken by the defendant have been extensive and wide-ranging. Many of them, as are apparent, are steps that should have, and could have, been in place prior to 8 June 2000. To the extent that some of them were in place, albeit in a less detailed way, it is clear that the risks to safety identified in this matter have to a large extent come about because of the defendant's failure to be consistently vigilant in maintaining the safety and operational procedures that it did have in place at the time of the accident. Safety procedures in an operational manual are of no effect in addressing potential risks to safety in the workplace unless they are communicated to all employees, and, as necessary, underpinned by relevant and timely instruction and training, rigorously and consistently applied in the workplace on a daily basis.

45 In all the circumstances, I consider the offence before me to be a very serious one and I propose to approach the question of penalty on that basis.

46 In imposing a penalty in this matter regard must be had to general and specific deterrence. That much is evident from the decision of the Full Bench of this Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 particularly at para[s] [74] and [77]. In para[74] the Full Bench stated: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Ltd accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. If follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, WorkCover Authority (NSW) (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIR Comm 39 at 40-43) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

47 On the aspect of specific deterrence para [77] of Capral states: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The Court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, CCA, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, CCA, 8 December 1995). 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. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely reactive: WorkCover Authority (NSW) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, 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: see WorkCover Authority (NSW) (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIR Comm 53 at 46.

48 The defendant acknowledges the need for general deterrence to be a factor in the sentence that I impose. In relation to specific deterrence, counsel for the defendant submitted that this is a first offence, that the defendant has been vigilant in identifying and removing risks to the safety of its employees involved in fire fighting activities and that the circumstances of the offence may be properly described as an uncharacteristic aberration. On that basis, it was submitted, the need for specific deterrence to be reflected in any penalty imposed by the Court should be slight given that the likelihood of the defendant committing an offence of like kind was remote.

49 I accept, given the actions taken by the defendant following the accident in June 2000, and to the extent that they are rigidly observed and reinforced, that the review and remedial steps undertaken by the defendant should significantly reduce the risk of re-offending. Nevertheless, given the nature of the defendant's enterprise, involving as it does an on-going statutory responsibility in the fighting of fires that clearly involves inherent risks to safety, specific deterrence cannot be dismissed in the imposition of a penalty in this matter.

50 The prosecution acknowledges that the defendant has entered a plea at the earliest opportunity. In doing so, the defendant has undoubtedly saved considerable Court time. Further, and more importantly, the entry of the plea of guilty by the defendant has meant that those persons and their families affected so terribly by the events of 8 June 2000 were not further traumatised by having to be taken over events that would only open emotional and psychological wounds that need time to heal - let alone the physical pain and suffering that some have endured. I accept the clear utilitarian value by the entry of that early plea and I assess the discount on penalty at 25%.

51 The defendant as the Crown has prior convictions before this Court. Those convictions arise from a diverse range of agencies under the Crown and those agencies are diverse in their employment related responsibilities. Because of those prior convictions emanating from other agencies of the Crown, the maximum penalty in this matter is $825,000. When considering the National Parks and Wildlife Service as an agency of the Crown standing alone as it were, it has no prior convictions covering the period of its statutory existence since 1967. It is my view that the proper approach I should take in weighing that fact is that I will weigh the prior record of the Crown in balance and note that the National Parks and Wildlife Service has no prior convictions. To that extent, I would be more influenced by those matters directly associated with the National Parks and Wildlife Service rather than those matters not so associated but not in anyway saying that the Crown should not be treated as the Crown.

52 There is no doubt in my mind that the defendant has expressed remorse and contrition. What happened on 8 June 2000 was a great tragedy for all concerned. There are people and their families in the community today who would still be suffering the consequences of that day and, for those families who lost loved ones, the grief undoubtedly has been immense. For those left badly injured and scarred by the events of 8 June 2000, life will never be the same. I believe the defendant has properly understood and acknowledged that.

53 Taking into account those subjective features that I have identified, I assess a further discount on penalty of 10%.

54 In considering all of the issues I have referred to, I determine a notional penalty in this matter of $450,000. In applying the discounts assessed, I determine a final penalty of $292,500.

· The defendant is convicted of the offence as charged.

· I allocate a moiety to the prosecution on the usual terms.

· Costs to the prosecution as agreed or, failing agreement, that matter may be referred to me for further determination.

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