Industrial Relations Commission of New South Wales in Court Session CITATION: WorkCover Authority of New South Wales (Inspector Wilson) v Chubb Security Australia Pty Limited (No 2) [2005] NSWIRComm 443 PROSECUTOR: WorkCover Authority of New South Wales (Inspector Wilson) PARTIES: DEFENDANT: Chubb Security Australia Pty Limited FILE NUMBER(S): IRC 4908 of 2003 CORAM: Staunton J CATCHWORDS: Occupational health and safety - this judgment concerned with the determination of penalty - to be read in conjunction with earlier judgment concerning this defendant - also need to refer to concurrent judgment re co-defendants - held defendant a previous offender as provided in s12 together with s4 of 2000 Act - relevant principles on sentencing - foreseeability - objective seriousness of the offence - general and specific deterrence - contractual relationship between the co-defendants - principle of parity considered - held culpability of co-defendants equal - prior conviction - subjective features taken into consideration - penalty imposed - orders as to penalty, moiety and costs. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Cash in Transit (State) Interim Award [2001] NSWIRComm 220 Morrison v Powercoal Pty Limited and anor (No 3) [2005] NSWIRComm 61 South Sydney Junior Rugby Club Limited v Inspector Bestre [2005] NSWIRComm 116 CASES CITED: WorkCover Authority of New South Wales v Chubb Securities Pty Limited [2003] NSWIRComm 467 WorkCover Authority of New South Wales (Inspector Campbell) v Nelmac Pty Limited [2000] NSWIRComm 228 WorkCover Authority of New South Wales (Inspector Wilson) v Chubb Security Australia Pty Limited [2005] NSWIRComm 263 WorkCover Authority of New South Wales (Inspector Wilson) v Safdar Ghafoor and anor [2005] NSWIRComm 430 HEARING DATES: 11/14/2005 DATE OF JUDGMENT: 12/02/2005 PROSECUTOR: Ms P McDonald of counsel SOLICITORS: Criminal Law Practice Legal Group LEGAL REPRESENTATIVES: DEFENDANT: Mr J West QC & Mr S Prince of counsel SOLICITORS: Corrs Chambers Westgarth JUDGMENT: - 22 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Staunton J DATE: 2/12/2005 Matter No IRC 4908 of 2003 WorkCover Authority of New South Wales (Inspector Wilson) v Chubb Security Australia Pty Limited (No 2) Prosecution arising pursuant to s 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2005] NSWIRComm 443 1 This judgment should be read in conjunction with my earlier judgment in relation to this defendant: WorkCover Authority of New South Wales (Inspector Wilson) v Chubb Security Australia Pty Limited [2005] NSWIRComm 263 given on 29 July last. 2 As well, in addition to Chubb, there were co-defendants also charged relating to the incident giving rise to Chubb's offence. They are ATS All Time Security Pty Limited (ATS) and the director of that company, Mr Safdar Ghafoor. Submissions having been heard in relation to those defendants, my decision in those proceedings was held over awaiting my consideration of all co-defendants, including Chubb, specifically on the principle of parity in sentencing co-defendants. 3 My judgment on penalty in relation to ATS and Mr Ghafoor is published concurrently with this judgment in WorkCover Authority of New South Wales (Inspector Wilson) v Safdar Ghafoor and anor [2005] NSWIRComm 430. 4 The background to the offences involving all three defendants has already been extensively canvassed in the judgments referred to above. I do not propose to repeat them here. 5 In my earlier judgment in relation to Chubb, I concluded I was satisfied beyond reasonable doubt that, on 3 September 2001, the Punchbowl RSL and it's attendant car park was a place of work for Chubb pursuant to the provisions of s8(2) of the Occupational Health and Safety Act 2000. 6 The plea of not guilty entered by the defendant at the outset was always confined to that one issue. That is, whether under s8(2) of the Act, the offence alleged occurred at the defendant's place of work. The place of work pleaded by the prosecutor in the summons is the Punchbowl RSL. 7 Having determined as I have in relation to 'place of work', no issue is taken by the defendant as to any other element required to be established for an offence arising under s8(2) of the Act, including the failures particularised. Accordingly, I am satisfied the offence as charged has been proved beyond reasonable doubt. 8 This judgment is concerned with the question of penalty. 9 The offence charged relating to Chubb arises pursuant to s8(2) of the Act in that, it is said, the defendant failed to ensure that people not in it's employment and, in particular, Ahmed Rashid, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking, while they were at the defendant's place of work contrary to s8(2) of the Occupational Health and Safety Act 2000. The particulars of the offence were that the defendant failed: (i) to provide adequate information, instructions to its subcontractors regarding the risks associated with the cash in transit work to be performed at Punchbowl RSL ('cash in transit work'); (ii) to provide to its subcontractors an adequate risk assessment of the cash in transit work; (iii) to inform its subcontractors of a previous incident in which an employee of a subcontractor performing cash in transit work was attacked in a street near Punchbowl RSL after carrying out a cash collection; (iv) to warn its subcontractors about the high risks associated with the performance of cash in transit work; (v) to provide or maintain systems of work for its subcontractors in performing the cash in transit work that was safe and without risk to health; (vi) to ensure that its subcontractors used safe equipment and plant in the performance of cash in transit work; (vii) to ensure that its subcontractors and their employees were adequately trained to perform cash in transit work. 10 Counsel for the prosecutor conceded there was overlapping between a number of the particulars but that was not an issue raised or pressed by the defendant. 11 A statement of facts prepared by the prosecution was ultimately agreed to between the parties subject to amendments and qualifications by the defendant as to certain facts asserted by the prosecution. In relation to the amended agreed facts, the facts in paras [8], [17] and [46] below are pressed by the prosecutor but on the basis that they are facts the defendant does not admit as they are facts not within the knowledge of the defendant. Further, in relation to para [46], the defendant did not know about the vehicle used by Mr Rashid on the day and the vehicle borrowed by Mr Rashid was not done with the knowledge or consent of the defendant. Subject to those qualifications with respect to the paragraphs identified, the amended agreed facts are as follows: [1] At all material times the defendant was an employer. The defendant carried out the business of providing security services to its clients through its employees or through subcontractors, franchisees or licensees. [2] The defendant's business had 4 divisions: (i) Chubb Electronic Security; (ii) Chubb Protective Services (this included Chubb Mobile Services – which is the relevant business unit involved in this offence); (iii) Chubb Health; (iv) Traffic Management. [3] The business of the division Chubb Protective Services included Chubb Mobile Services which undertook work such as patrols, cash in transit and first line recovery of ATMs. ATS All Time Security Pty Limited [4] ATS All Time Security Pty Ltd (ATS) was a subcontractor to the defendant and carried on the business of providing security services including security patrol work and cash-in-transit work conducted by "soft skin" vehicles that is vehicles not protected by armour against ordinary handheld weapons. [5] At all material times ATS was an employer (within the meaning of that term at 3) and employed Mr Ahmed Rashid (Rashid) and Graham Pickering (Pickering) as security guards. Agreement between the defendant and Punchbowl Ex Services & Community Club [6] On or about 17 April 2001 the defendant entered into a Patrols Agreement No. 27159 with Punchbowl Ex-Services & Community Club Ltd (Punchbowl RSL) whereby the defendant undertook to provide security services to Punchbowl RSL as specified. Tab A of the tender bundle is a copy of the Patrols Agreement No 27159. [7] The scope of the security services covered by the agreement included the defendant providing attendances by its representatives at the premises of Punchbowl RSL at 1 Broadway, Punchbowl. The attendances included three (3) cash pickups on Monday, Wednesday and Friday and delivery of the collected cash to a bank. [8] Prior to this agreement employees of Punchbowl has been responsible for carrying and banking cash receipts. Two employees of Punchbowl RSL would take the cash to the bank. Punchbowl RSL decided to contract the cash in transit work to the defendant because of concerns to the security of their own staff. [9] Following the agreement, details of the security services to be provided to Punchbowl RSL were entered into the defendant's computer system know as the Manpower Management System (MMS). This allowed the defendant to generate information to be provided to subcontractors about the cash pick ups. [10] During the period from about April to September 2001, the cash pick up work for Punchbowl RSL was performed under the agreement by subcontractors on behalf of the defendant. [11] From April 2001 until the end of July 2001 the cash pickup work at Punchbowl RSL was subcontracted by the defendant to another security company, State Security & Crime Prevention Pty Ltd (State Security & Crime Prevention). State Security & Crime Prevention performed the cash pickup work until approximately the end of July 2001. [12] Tab N of the Tender Bundle is a copy of the document Cash Service Licence Agreement dated 7/05/2001 between Chubb Security Australia Pty Limited and State Security and Crime Prevention. May 2001 Incident [13] On 7 May 2001 an employee of State Security & Crime Prevention, Alexander Geoffrey Meier whilst performing the cash pick up work, was attacked and robbed while walking to his car after leaving the premises of Punchbowl RSL. [14] After this incident occurred the defendant did not undertake any risk assessment of the cash in transit work from Punchbowl RSL or a risk assessment of the Punchbowl RSL site. [15] The defendant, after conducting an internal investigation into the incident reimbursed Punchbowl RSL with the amount of $43,912.45 representing the Punchbowl RSL's banking stolen on 7 May 2001. [16] For approximately 2 to 3 weeks after the May robbery, the cash pickup work from Punchbowl RSL was performed by two security guards. The run then reverted to being performed by one security guard. [17] After the May 2001 robbery officers of the Punchbowl RSL advised State Security and Crime Prevention security guards performing the cash pickup work to park their car in the director's car park at the Club. ATS agreement with the defendant [18] On or about 1 May 2001 ATS signed a subcontract agreement no. 1906 with the defendant. Under the subcontract agreement ATS undertook to assist the defendant in the conduct of its business of providing security patrol services, alarm responses and/or casual guarding services for clients of the defendant by undertaking such assignments as are given to ATS by the defendant in respect of its business. [19] Further under the agreement, ATS undertook to carry out all work and services required of it by the defendant in accordance with the directions issued by the defendant and in accordance with the relevant Sub-contractor's quotation and/or specification for such work and services. Tab B of the tender bundle is a copy of the subcontract agreement between the defendant and ATS. [20] Initially ATS assisted the defendant by the provision of night patrol services. At or about the beginning of August 2001, after the defendant had issued ATS with a direction, ATS began assisting the defendant by performing the cash in transit work whilst using soft skin vehicles. This work included the cash pickups at Punchbowl RSL. [21] This was the first time that ATS had performed cash in transit work for the defendant. It was not informed by the defendant about the previous robbery that occurred at the Punchbowl RSL on 7 May 2001 [22] No training for cash in transit work was provided by the defendant to ATS or to its employees. [23] When performing this work, the defendant required that its subcontractors and employees of its subcontractors wear a Chubb uniform and carry Chubb identification. The uniform and identification were provided by Chubb to the subcontractor. Chubb identification consisted of a plastic identification card which was generally clipped onto the security guard's clothing. Tab C of the tender bundle is a copy of the Chubb Identification card issued to Graham Pickering. Graham Pickering was an employee of ATS who performed cash pick up work as a representative of the defendant. Tab D of the tender bundle consists of photographs of Graham Pickering showing the Chubb uniform and Chubb identification card worn by him in carrying out his duties. [24] The defendant required that its subcontractors and employees of its subcontractors seek assistance by radio from the defendant's control room located in Ashfield if required. Information provided to the subcontractor by the defendant [25] The defendant provided to ATS client specification sheets which gave site and client details. These sheets provided instruction on whom to contact at the site, the time the patrol officer should arrive at the site, the service to be performed and the days on which they should occur. Tab E of the tender bundle contains a copy of the client specification sheet for the cash in transit work undertaken for Punchbowl RSL. [26] The defendant's clients, including Punchbowl RSL, were told by the defendant that if a cash pick up service was late or if there was any problem with the cash pickup, they should contact the defendant's control room to inform it of the delay or the problem. Punchbowl RSL did not have any name, telephone number or other means or point of contact for the purpose of communicating with the provider of its cash in transit service other than the name of Chubb Security Australia Pty Limited as given on the Patrols Agreement dated 17 April 2001, which Punchbowl RSL were able to contact by telephone at its control room at Ashfield. [27] The client specification sheet for Punchbowl RSL which was provided by the defendant to ATS stated that the patrol officer would arrive on site Monday, Wednesday and Friday between the hours of 12.00hrs and 13.30hrs and there take possession of a sealed wallet(s), transport it to the ANZ Bank at Roselands and there, deposit the wallet with a teller. [28] The defendant instructed its subcontractors that the vehicles to be used in the cash pickups must have a drop safe fitted to vehicles and then the defendant made available the drop safe to ATS. [29] At the beginning of each week, the defendant provided to ATS running sheets which contained details of the cash pickups for that week. [30] Prior to commencing work on a particular day, the security guards employed by ATS collected daily running sheets containing details of the jobs to be completed for the day from the ATS office. These daily running sheets were prepared by Chubb. [31] The daily running sheets contained information including the identity of the sites to be visited on the day and the service to be performed. ATS were required by the defendant to enter the times that the pickups were made. At Tab F of the tender bundle is a copy of a printout from the defendant's MMS data base containing details of the information contained in the daily running sheets provided by the defendant to ATS for run 221 for the period 3 to 5 September 2001. [32] The defendant required that the running sheets be completed by its subcontractors and returned to it on a regular basis. [33] The defendant's Compliance Administrator verified the running sheets when they were returned. Any discrepancy or variation was reported to the Compliance Manager and State Manager of the defendant. At Tab G is a copy of the Job Description for the Compliance Administrator. [34] The defendant employed Patrol Inspectors or Mobile Services Inspectors whose duties included the conduct of audits and checks on the cash in transit services performed by sub-contractors. The Patrol Inspector's duties included ensuring that sub-contractors used the relevant forms and log sheets provided by the defendant, that clients specifications and service times prescribed by the defendant were complied with and correctly recorded and that run sheets were up to date. Inspections were conducted at random. At Tab H of the tender bundle is a copy of the Job Description of the Mobile Services Inspector. Procedure for cash pick up at Punchbowl RSL [35] The normal procedure was that the ATS employee parked in the director's car park (see photographs 47, 51 & 53) and proceed to the front entrance of the club. [36] When the security guards attended Punchbowl RSL they were required by the Club staff to show their Chubb identification at the reception desk (see photograph 44). [37] The security guard would then be accompanied to the office and would enter the strong room to receive the sealed satchels containing the cash to be delivered to the bank (see photographs 39, 40, 41, 42 and 43). [38] Upon each pickup taking place, clients of the defendant (including Punchbowl RSL) were supplied with Chubb Protective Services document entitled Certificate of Banking/Escort Service. This document was a receipt issued by the security guard to the client. ATS was directed by the defendant that the Certificate of Banking/Escort Service was to be completed at each cash pick up recording the site, name of the person from whom the cash was collected, the number of wallets and amount in each wallet. Tab I of the tender bundle are some examples of the Certificates completed for the cash pick ups at Punchbowl RSL. Rashid [39] Mr Rashid commenced employment with ATS as a licensed security guard approximately 3 weeks prior to 3 September 2001.During the 3 weeks of his employment with ATS, Mr Rashid completed the same run each week, namely run 221. The run included the cash pick up at Punchbowl RSL. [40] In the three weeks during which Mr Rashid collected cash from Punchbowl RSL the amount of cash he collected was as follows: Date Notes Coins Cheques Total 8 August 2001 7,700.00 7,410 276.70 32,840.60 10 Aug 2001 30,115 4,470 591.05 30,750.75 13 Aug 2001 43,490 300 2,107.25 45,600.25 15 Aug 2001 17, 030 4765 2,080.27 19,157.92 17 Aug 2001 28,760 4880 1,976.10 30,784.90 20 Aug 2001 43,685 210 2,393.55 46,080.65 22 Aug 2001 18,610 1,049.50 1,936.05 21,595.55 24 Aug 2001 29, 395 2505 1,684.40 31,104.45 27 Aug 2001 43,345 430 674.40 44,023.70 29 Aug 2001 12,450 716 1,425.25 14,592.10 31 Aug 2001 22,175 82.60 2,389.55 24,647.15 3 Sept 2001 50,951.25 4,340.35 55,291.60 [41] In providing the cash pick up services to Punchbowl RSL Rashid was required by ATS to work by himself as the work was designated by Chubb as a one man operation; see the client specification issued by Chubb (Tab E) which refers to "The Patrol Officer". Where the run was a two man operation the defendant would include that instruction in the client specification provided to the sub contractor. Tab J is a copy of a client specification for McGrath Motor Group issued by the defendant to ATS. [42] The fee charged by Chubb to Punchbowl RSL was $456.22 per month, (exclusive of GST). Under the subcontract agreement between the ATS and the defendant, ATS was paid 60% of this amount. [43] The first time Rashid attended at Punchbowl RSL to perform cash pick up services he did not carry any form of Chubb identification. Ms Anne Marie Bell an office assistant/clerical officer employed by Punchbowl RSL therefore contacted the defendant by telephone to verify that Rashid was the correct person to conduct the cash pick up. The defendant confirmed that Rashid was the correct person. 3 September 2001 [44] On 3 September 2001 Mr Rashid performed security duties including cash-in-transit work at Punchbowl RSL. He carried a handgun issued by ATS and was wearing a Chubb shirt under a black nylon jacket (see photographs 55 and 56). [45] On that day, (3 September 2001), Rashid was wearing a Chubb shirt, a jacket and trousers as depicted in photographs 55, 56, 58, 59, 60, 62 and 63. These photographs are at Tab K of the tender bundle. [46] To perform the cash in transit work, Rashid borrowed a motor vehicle from a friend Moeen Arshad. The motor vehicle was a Ford Meteor Sedan Registration No. PCL 538. [47] The motor vehicle lent to Mr Rashid was a soft skin vehicle and was not modified to include any security devices such as remote central locking, two way radio or a drop safe. Mr Rashid was not provided with a panic alarm. [48] With the exception of making available a drop safe, the defendant did not provide vehicles with safety modifications or appropriate safety equipment to its subcontractors. The defendant did not ensure that ATS utilised the drop safes. [49] At approximately 12:30pm on 3 September 2001 Mr Rashid arrived at Punchbowl RSL Club to carry out a cash pick up. He parked the motor vehicle in the director's car park adjacent to the Club building. [50] After picking up the cash Mr Rashid completed and signed a Certificate of Banking/Escort Service no 081350. At Tab L of the tender bundle is a copy of the Certificate. [51] Mr Rashid left the club building to return to the motor vehicle but as he approached the motor vehicle he was attacked by an armed man who struggled with him and took the cash from him. During the struggle, Mr Rashid was shot and fatally wounded by the armed man. [52] Julius Adnan (Adnan), a banking clerk employed by Punchbowl RSL Club observed Mr Rashid and another man struggling beside Mr Rashid's car in the car park. The armed man was holding a gun and Mr Adnan heard the words "Give me the bag". [53] The man shot Rashid, took the money and the motor vehicle and drove away very quickly. Rashid died as a result of the gun shot wound. [54] The defendant was informed by staff of the Punchbowl RSL Club of the incident. A representative of the defendant then contacted Safdar Ghafoor, the director of ATS and informed him of the robbery. Staff employed by the defendant attended at Punchbowl RSL Club shortly thereafter. [55] On 4 September 2001 Mr Paul Price, the State Manager of the defendant informed Punchbowl RSL Club in writing that the defendant was terminating the agreement effective immediately. At Tab M of the tender bundle is a copy of the letter written by Paul Price to Punchbowl RSL. [56] After the robbery on 3 September 2001, Punchbowl RSL entered into an agreement with Armaguard whereby the services of the collection of cash were performed by guards in an armoured car. [57] No adequate assessment of the risks associated with the cash in transit work at Punchbowl RSL was undertaken by the defendant and provided to its subcontractors. 12 What is also relevant for the purposes of the offences concerning all the defendants is that the cash in transit work being done by Mr Rashid was what was known as 'soft skin' cash in transit work. In general terms, what that expression refers to is cash in transit work being undertaken using standard type motor vehicles as opposed to armoured cars or trucks specifically designed and built for security of cash transports. On the day Mr Rashid was attacked, robbed and fatally wounded, he was driving a Ford Meteor Sedan he had borrowed from a friend. 13 In addition to the agreed facts and as referred to in the agreed facts, the prosecution tendered a bundle of documents without objection indexed A to N. I will refer to them as appropriate. 14 On behalf of the defendants, two affidavits of Mr Scott Yarrow were read without objection as follows: (i) Sworn 14 October 2005 with annexures; (ii) Sworn 14 November 2005 with annexures. 15 Mr Yarrow is currently the General Manager Environment, Health and Safety (EH&S) for Chubb Australasia. He has been employed in that position since 8 September 2003 and has worked in corporate management positions in relation to occupational health and safety since 1991. 16 Mr Yarrow's affidavits details the relevant corporate history and structure of the defendant as well as detailing the defendant's policies and procedures in relation to occupational health and safety both before and relevant to the accident involving Mr Rashid as well as initiatives undertaken after that event. In particular, Mr Yarrow deposed to the steps that have been taken in relation to workplace safety since the defendant was acquired by United Technologies Corporation (UTC) in August 2003. UTC is a multinational corporation headquartered in the United States, employing some 260,000 worldwide. 17 Mr Yarrow was not required for cross-examination. I will refer to his affidavit material as appropriate. Relevant principles on sentencing 18 I have detailed the relevant principles in sentencing to be applied in my concurrent judgment relating to the co-defendants, ATS and Mr Ghafoor in WorkCover Authority of New South Wales (Inspector Wilson) v Safdar Ghafoor and anor [2005] NSWIRComm 430. Where relevant, those principles apply equally to the defendant the subject of this judgment, noting that ATS and Mr Ghafoor entered pleas of guilty to their respective offences whereas Chubb pleaded not guilty, confining it's defence to the 'place of work' issue, as earlier referred to. Maximum penalty to apply 19 Counsel for the prosecutor submitted that as the defendant had a prior conviction, the maximum penalty for this offence was $825,000. That was not a proposition agreed to by the defendant. 20 It is relevant to note that the prior conviction record of the defendant as recorded by WorkCover disclosed a prior conviction recorded on 15 December 2003 in Matter No IRC 1402 of 2003: WorkCover Authority of New South Wales v Chubb Securities Pty Limited [2003] NSWIRComm 467. That matter was in relation to an offence arising under s16(1) of the Occupational Health and Safety Act 1983 to which the defendant pleaded guilty. 21 Briefly, the above matter concerned an incident involving cash in transit operations at Macquarie University. There were three co-defendants - Chubb, JAF Management Services Pty Limited and Macquarie University. Each were charged with offences arising under either s15 (Macquarie) or s16 (JAF and Chubb) of the Occupational Health and Safety Act 1983. 22 The incident giving rise to the offences occurred on 15 March 2001. They were each dealt with before Curtis AJ on 15 December 2003 in extempore judgments. In relation to Chubb, his Honour imposed a penalty, after provision for relevant discounts, of $100,000. 23 As I understand the submission put on behalf of the defendant, it is that the commission of the offence in these proceedings occurred on 3 September 2001 - some six months after the offences occurring at Macquarie University involving the defendant but some three months before the defendant was convicted for that offence. That is, it is contended, at the time Chubb committed it's offence in September 2001, the subject of these sentencing proceedings, it had not been convicted of any offence. Hence, it was submitted, for the offence now before me, Chubb had no prior convictions at the time of the commission of the offence in September 2001 and, accordingly, the maximum penalty for the offence now before me is $550,000. 24 That Chubb may have already had the benefit of the first offence provisions of the Occupational Health and Safety Act 1983 in the 2003 proceedings before Curtis AJ was, it was contended, simply a 'quirk of the statute'. 25 Reliance for the above proposition was said to be the decision of the Full Bench in Morrison v Powercoal Pty Limited and anor (No 3) [2005] NSWIRComm 61. In that decision, the Full Bench was required to consider the proper construction of s51A of the Occupational Health and Safety Act 1983 and, in particular, the proper approach as between s51A(1) and s51A(3) of the Act having regard to perceived ambiguity between reference to a previous conviction in s51A(1) and 'previous offence' in s51A(3). 26 Having considered the differing approaches to construction taken in first instance decisions of the Court on that issue, the Full Bench concluded with respect to s51A as well as the particular factual background of the matter then before them as follows: [60] We, therefore, find that in circumstances such as these, the defendant, who has committed a first offence, the hearing of which before the Court is delayed until after a later offence is dealt with to the point of conviction, on the proper construction of s 51A, would not attract the section's operation in relation to that offence. 27 In my view, the conclusion of the Full Bench in Powercoal is distinguishable on its facts and on the basis of the legislative provisions now applying. In Powercoal, the offences the subject of the Full Bench proceedings had been committed before a later offence was committed. The later offence in time was the subject of a conviction which was imposed before sentencing in the Full Bench proceedings had been concluded. That is not the case here. 28 Further, the Occupational Health and Safety Act 1983 has now been repealed and replaced by the Occupational Health and Safety Act 2000. The counterpart provision to s51A in the Occupational Health and Safety Act 1983 is s12 of the Occupational Health and Safety Act 2000 which provides: 12 Penalty for offence against this Division A person who contravenes, whether by act or omission, a provision of this Division is guilty of an offence against that provision and is liable to the following maximum penalty: (a) in the case of a corporation (being a previous offender)- 7,500 penalty units, or (b) in the case of a corporation (not being a previous offender) - 5,000 penalty units, or (c) in the case of an individual (being a previous offender) - 750 penalty units or imprisonment for 2 years, or both, or (d) in the case of an individual (not being a previous offender) - 500 penalty units. Note. Section 17 of the Crimes (Sentencing Procedure) Act 1999 provides, at the enactment of this Act, that the value of a penalty unit is $110. Accordingly, the above maximum penalties are as follows: (a) in the case of a corporation (being a previous offender) - $825,000, or (b) in the case of a corporation (not being a previous offender) - $550,000, or (c) in the case of an individual (being a previous offender) - $82,500 or imprisonment for 2 years, or both, or (d) in the case of an individual (not being a previous offender) - $55,000. 29 Section 4, Dictionary of the Occupational Health and Safety Act 2000 defines 'previous offender' as: previous offender, in relation to the maximum penalty for an offence, means a person who has, at any time before being sentenced for that offence, been convicted of any other offence of any kind against this Act or the Occupational Health and Safety Act 1983. 30 In my view, the provisions of s12, when read with the definition of 'previous offender' removes the ambiguity that s51A(1) and s51A(3) of the Occupational Health and Safety Act 1983 created as referred to by Marks J in WorkCover Authority of New South Wales (Inspector Campbell) v Nelmac Pty Limited [2000] NSWIRComm 228 in which he adopted the approach he did to s51A overall - an approach favoured by the Full Bench in Powercoal (at [48]). 31 In relation to the offence before me, Chubb is a previous offender. That is, it is a person who, before being sentenced for the offence now before me, has been convicted of an offence against the Occupational Health and Safety Act 1983. Further, that previous offence for which Chubb has been convicted occurred in time before the offence now before me. 32 As a previous offender, the maximum penalty for the offence now being considered is $825,000. Considerations 33 As an issue in assessing the culpability of the defendant, it is a relevant consideration that the work being undertaken by Mr Rashid resulting in his death involved a procedure that was fraught with risks to safety. As was said by the Full Bench in Capral (at 650) 'a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences'. In isolation, the potential for 'serious consequences' is not conclusive of the nature and quality of the offence, but it is clear such a factor is a relevant consideration when assessing the ultimate culpability of a defendant. 34 There is little doubt that the work being undertaken by Mr Rashid on 3 September 2001 posed real and foreseeable risks to safety. By its very nature, the transfer of large amounts of cash in the way that it was being undertaken rendered Mr Rashid extremely vulnerable to attack. Those real and foreseeable risks to safety were compounded, in my view, by the system of work in place. That system of work was at the direction of Chubb, particularly, inter alia, with respect to it being designated a one person operation and that the cash pick up was to be performed between the same time window each Monday, Wednesday and Friday. The amount of cash being collected was significant. Additionally, those matters pointing to the defendant's overall involvement and control in the way the cash pick up at the Punchbowl RSL was performed are identified in my earlier judgment referred to concerning the defendant: see WorkCover Authority of New South Wales (Inspector Wilson) v Chubb Security Australia Pty Limited [2005] NSWIRComm 263. 35 Chubb was very aware of the risks involved in soft skin cash in transit work, particularly when such operations were being undertaken by only one security guard. That fact had been starkly reinforced only some few months before Mr Rashid's fatal accident when a security guard performing cash pick up work from the Punchbowl RSL was attacked and robbed. On that occasion, the security guard was employed by State Security and Crime Prevention Pty Limited - the company that had been sub-contracted by Chubb to provide the cash pick up services for the Punchbowl RSL prior to ATS taking over the work in August 2001. 36 After the incident in May 2001, two security guards were assigned to do the cash pick up work at the Punchbowl RSL. That change only lasted some two to three weeks when it reverted to a one man operation. 37 It is difficult to conceive why that robbery did not galvanize Chubb into action as far as undertaking a proper risk assessment of the cash in transit operations at the Punchbowl RSL site. It was, after all, an operation that Chubb had control over and to which it had clear contractual responsibilities. 38 Further, it seems patently a matter of common sense that, when ATS took over the cash pick up work at the Punchbowl RSL for Chubb in July 2001, Chubb would warn Mr Ghafoor, on behalf of ATS, as to what had happened only in May of that year. After all, even if Mr Ghafoor was new to cash in transit work and the clear and foreseeable risks to safety that it represented, Chubb certainly was not. The robbery was clearly a relevant factor to be aware of in reinforcing the obligation of ATS, in particular, to ensure a safe system of work in it's cash pick up work for Chubb. 39 In addition, Chubb had been aware prior to 3 September 2001 of the risks to safety that cash in transit work using soft skin vehicles represented. That much is evident from the arbitrated proceedings, to which Chubb was a party, leading to the judgment of Marks J in Cash in Transit (State) Interim Award [2001] NSWIRComm 220 where his Honour said in relation to the industry generally and cash in transit work using soft skin vehicles in particular: This industry is notoriously potentially dangerous. Some of the difficulties have recently attracted widespread media attention. Soft skin operations were considered by the Honourable Justice Peterson in his report to the Minister handed down on 28 February 1997 in Matter No IRC 1880 of 1995. His Honour said in part: ".... The evidence which has been led in relation to the nature of soft skin operations appears to me to be a ready reckoner of potential robberies. .... This evidence establishes that soft skin operations are very often conducted without adequate or proper care for the safety of persons carrying out the work. This is particularly so with respect to subcontractors or licensed type operations where an individual subcontracting through the family company will perform the work alone and yet often spend the whole of the shift or longer in a continuous collection run by way of radio contact, SOPs, and any other form of support. 40 Knowing all of that, it was incumbent on Chubb to ensure that, in sub-contracting such work to ATS and Mr Ghafoor, it took proactive steps to ensure the system of work they insisted upon had been properly assessed in relation to workplace safety. As was said by the Full Bench in South Sydney Junior Rugby Club Limited v Inspector Bestre [2005] NSWIRComm 116 at [45] and [46] as follows: The principles in this area of occupational health and safety law are well established. The legislation is directed at obviating, not eliminating risks, and, sections 8(1) and 8(2) of the 2000 Act (as well as ss15 and 16 of the 1983 Act) compel attention to the failures of the employer to ensure, by its acts or omissions, against the risks to safety of persons either at work or at the workplace of the employer. An employer has responsibilities under the occupational health and safety legislation to ensure against risks to safety in circumstances where extraneous factors (that is, extraneous to the elements of the offence) may be outside the employers immediate control and may present a specific manifestation of the relevant risk to safety. 41 At the very least, Chubb owed it to Mr Ghafoor to warn him of the need to ensure a close attention to workplace safety, including the risks that cash in transit work represented, evidenced by the hold up that had earlier occurred at the Club only months before. In short, a knowledge of that incident would undoubtedly have heightened Mr Ghafoor's awareness, on behalf of ATS, of his fundamental responsibility to carefully risk assess the work to be performed and aware of the need to insist upon a system of work that ensured Mr Rashid was not exposed to risks to his safety. 42 The failure of Chubb to advise Mr Ghafoor of the May robbery at the Punchbowl RSL was, it seems to me, a significant one. If Mr Ghafoor had been aware of the earlier robbery in May and the circumstances of it, it would undoubtedly have acted as a powerful motivator to direct his attention squarely to the issue of workplace safety. As it was, Mr Ghafoor agreed to undertake the cash pick up work at the Punchbowl RSL with only one security guard and at regular set times and days as part of a system of work that rendered Mr Rashid critically vulnerable to risks to his safety. 43 In my judgment as to penalty concerning ATS and Mr Ghafoor, reference is made by me at paras [38] and [39] to those matters that Mr Ghafoor understood would be provided by Chubb. In many respects, those matters reflect the failures particularised with respect to Chubb, duplication notwithstanding. 44 In my view, beyond insisting on the system of work to be followed by ATS, Chubb took few, if any, steps to ensure that the cash in transit work it contracted to provide to the Punchbowl RSL and which it sub-contracted to ATS, would be done in a way consistent with a workplace environment free of risks to safety. Chubb certainly had an obligation to do so. For example, in the Sub-Contract Agreement between Chubb and ATS, the following appears in Clause 12.01 Safety: The Sub-contractor shall comply with all relevant legislative requirements relating to work place health and safety and shall if required by the Company, provide the Company with written evidence of compliance by the Sub-contractor with its obligations under such legislation. 45 While such a provision clearly puts an onus squarely on ATS, it does not excuse Chubb from ensuring compliance by ATS, particularly when the same Agreement provides, as part of the scope of work to be undertaken, that the sub-contractor shall assist Chubb in the conduct of it's business and in relation to assignments given to it by Chubb, it 'shall carry out all work and services required of it by Chubb' in accordance with directions issued by Chubb. 46 Further, the same Sub-Contract Agreement also provided relevantly as follows: 5.01 The Sub-contractor will carry out the work required of it under this agreement in a proper and professional manner and in conformity with the applicable standards and any other requirements of the Company made known to the Sub-contractor from time to time ("the Standards"). ... 18.01 The Sub-contractor undertakes to work in accordance with the applicable provisions contained in the applicable Company Policy and Procedures Manual as it relates to the works undertaken by the Sub-contractor. 47 When taken together with the requirements as to safety, the above-mentioned contractual conditions between Chubb and ATS places significant obligations on Chubb, let alone ATS. That is, Chubb had an obligation to make ATS fully aware of all 'applicable standards' requiring conformity by ATS and Chubb had to provide ATS with it's 'company policy and procedure manual' in order to ensure ATS undertook it's work in accordance with those provisions, as the agreement required. 48 Mr Yarrow deposed that companies engaged to provide security services are provided with copies of Chubb's Security Officer Standing Instructions and that in 1997, Chubb had in place a policy relating to Cash Escort/Banking Procedure. There is no evidence to confirm that Mr Ghafoor, on behalf of ATS, received any such documentation from Chubb. Nor is it evident he was provided with Chubb's Procedures in Case of Robbery during Cash Handling, apparently developed following the Macquarie University hold-up in March 2001. 49 Chubb did have a system in place, apparently intended to ensure that the services agreed to be provided by Chubb, or any sub-contractor on its behalf, were provided in accordance with their directions and policies. There was a management hierarchy designed to ensure that was done. On the ground, the defendant employed Patrol Inspectors or Mobile Service Inspectors, as they became known. The duties of those employees included conducting audits and checks of the cash in transit services provided by it's sub-contractors. The Patrol Inspectors duties also included ensuring the compliance by sub-contractors with Chubb's operational requirements relating to such matters as forms and log sheets to be completed as well as client specifications and service times as directed by Chubb. 50 It would appear that one of the additional matters Patrol Inspector/Mobile Service Inspectors were required to have regard to was safety. The 1997 Job Description for Patrol Inspectors simply identifies one of the duties and responsibilities of the position as being: Oversee all aspects of shifts regarding safety and image. 51 Exactly what was the extent of that work responsibility was never elaborated upon. However, it cannot be suggested, in my view, given all of the policies, procedures, directions and control as well as the contractual obligations insisted upon by Chubb, that Chubb's responsibilities did not extend to ensuring, at the very least, compliance by ATS as a sub-contractor, to provide a system of work free of risks to safety. Given Chubb's critical role in designating the fundamentals of that system of work, Chubb had a clear obligation to undertake it's own risk assessment of a job that it well knew was inherently dangerous. 52 In 2001, Chubb was well aware of the inherent risks to safety in cash in transit work, particularly using soft skin vehicles. In sub-contracting that work to companies such as ATS, Chubb had an obligation to ensure such a sub-contractor performed that work, as the sub-contract agreement insisted, in compliance 'with all relevant legislative requirements relating to workplace health and safety'. 53 Given all of the above, Chubb clearly had an obligation to do more than accept at face value that ATS and Mr Ghafoor were, in July 2001, holding themselves out as able to do cash in transit work. Chubb had an obligation, evidenced by it's Sub-Contract Agreement with ATS together with its own operational systems in place at the time to ensure all sub-contractors performed their work in a safe manner. Clearly, in 2001, Chubb failed to do that with respect to ATS and Mr Ghafoor. The robbery of the security guard at the Punchbowl RSL that had occurred in May 2001 should have ensured Chubb did it's own risk assessment of the task, told ATS of that when ATS agreed to take over the work in August 2001 and insisted ATS do it's own risk assessment prior to commencing the work. In failing to do those things, Chubb heightened the risks to safety for Mr Rashid and rendered the events that transpired on 3 September 2001 as clearly foreseeable. 54 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable. 55 The most obvious remedial step available to the defendant that was capable of being implemented before the accident was for the defendant to cease cash in transit work using soft skin vehicles. The defendant did cease such work immediately following Mr Rashid's death and now does such work using armoured vehicles. 56 Even if the defendant had not decided to cease cash in transit services using soft skin vehicles, there were other remedial steps under their control that would have significantly obviated risks to safety in such work. For example: (a) the use of a second guard when performing the cash in transit work; (b) variation in the times and procedures adopted in the picking up of the cash; (c) the undertaking of a risk assessment; and (d) the introduction of proper training of contractors and their employees. 57 On behalf of the defendant, Mr Yarrow deposed that on 28 July 2001, some five weeks prior to the incident involving Mr Rashid, Chubb conducted a training programme for contractors in relation to cash in transit work. This was just before ATS took over the cash in transit work at the Punchbowl RSL from State Security and Crime Prevention Pty Limited. Mr Ghafoor stated that he had been told by Chubb that training would be provided. Given the programme conducted by Chubb in July 2001, if the incident involving Mr Rashid on 3 September 2001 had not occurred, a further programme may have been undertaken by Chubb at some future time. I simply cannot be sure. What I can be sure about is that despite assurances given by Chubb as to training to be provided to his employees, Mr Ghafoor did not pursue the issue with Chubb prior to commencing the cash pick up services in August 2001. While Mr Ghafoor may have inherited some employees from State Security and Crime Prevention Pty Limited who had some prior experience and training in relation to cash in transit work, Mr Rashid was not one of them. 58 Other matters that the defendant has done since the incident involving Mr Rashid, specifically in relation to the use of contractors, including cash in transit matters, was identified by Mr Yarrow as follows: (i) the requirement for a risk assessment to be conducted for all cash in transit customer sites; (ii) in 2002, the defendant developed an Induction Handbook for Contractors. 59 As well, since 2002, as evidenced by the material produced by Mr Yarrow, Chubb has taken a much more assertive role in developing handbooks and policies specifically directed at sub-contractors which, amongst other things, reinforces the importance of workplace safety, including matters such as risk assessments. As Mr Yarrow deposed, that has been done by: Chubb Australasia placing tighter controls on the engagement and management of contract labour within the organisation, which includes the requirement for a risk assessment to be conducted for all cash in transit customer sites. Further, there has been the development of a Contractor Management Program budgeted to cost $30,000. 60 There is no doubt that much of what has been done by the defendant in the period following Mr Rashid's fatal shooting up to the present are matters that could have been done prior to that incident. Nevertheless, the steps that have been taken are to be commended. 61 Having regard to all of the above considerations, I consider the offence a very serious one and I propose to determine sentence on that basis. 62 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process. 63 In respect of specific deterrence, the Full Bench held in Capral at 644-645: 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, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. 64 The defendant did not demur that general deterrence is relevant in my sentencing considerations. Specific deterrence however, it was submitted, should be accorded less weight for a number of reasons, they being: (i) there is evidence of rehabilitation of the defendant of a far reaching nature; (ii) there are new safety programmes and the commitment of the defendant to following them through; (iii) the defendant no longer undertakes soft skin cash in transit work so the possibility of an incident, as that which occurred in relation to Mr Rashid, was unlikely. 65 I accept that the defendant has done much to address what, by it's own admission, was a generally 'unsatisfactory' position in relation to occupational health and safety existing at the time of the incident involving Mr Rashid. Some explanation is required. 66 The defendant has undergone a change of ownership since 2001. In August 2003, Chubb Limited was acquired by United Technologies Corporation (UTC). Mr Yarrow deposed to the current corporate structure, relevantly as follows: [6] At the material time, Chubb Limited was a global provider of security services and was the parent company of the defendant entity, Chubb Security Australia Pty Ltd (Chubb). Chubb currently employs approximately 3600 permanent staff throughout Australia. [7] In Chubb Australasia there are currently 27 Australian companies and three New Zealand companies. Chubb Australasia is operated through six business units which provide a range of security services in every capital city and throughout regional and country Australia and New Zealand. It employs in excess of 10,600 permanent and casual employees and its business activities include security patrolling and response, cash logistics, fire protection and suppression, security personnel, electronic security and monitoring, installation and monitoring of home alarms. The five current Chubb Australasia business units are: · Chubb Protective Services; · Chubb Cash in Transit (CCT); · Chubb Electronic Services (CES); · Chubb Fire and Safety (CFS); and · Chubb New Zealand (CNZ). [8] At the time of the incident the business units under the control of Chubb were: · Chubb Electronic Security; · Chubb Protective Services; · Chubb Health; and · Chubb Traffic Management. Chubb no longer conducts the business relating to Chubb Health or Chubb Traffic Management. [9] Chubb Mobile Services (CMS) forms part of Chubb Protective Services. At the time of the incident CMS conducted the following services: · Mobile security patrol services · First Line Response for Automatic Teller Machine (ATM) services, and · Cash pick up services Cash pick up services included the collection of funds from client's premises and depositing these funds at the Client's direction usually at a nominated financial institution. 67 Included with the material filed by the defendant was a video presentation made, as best as I can determine, in or about 2003, by Mr Tony Chamberlain, the President of Chubb Australasia. 68 In that video, Mr Chamberlain candidly acknowledged that the defendant's safety performance at that time was generally 'unsatisfactory'. At the same time, Mr Chamberlain, on behalf of the new ownership, made it clear that increased and considerable emphasis was to be placed on workplace safety, encompassing all matters including education and training as well as an auditing and a fundamental review of workplace safety procedures and policies. The evidence provided in support of that assertion is considerable and commendable. Overall, as was contended on behalf of the defendant: ... that the UTC takeover of Chubb and the injection into Chubb of a culture of safety conscious performance, safety awareness, and a sophisticated yet workable OH & S system which had been adapted from many years ... is a significant and relevant step in the assessment which the Court must make of what is an appropriate fine to apply in this case ... 69 I accept that submission. Nevertheless, I consider specific deterrence is relevant in my sentencing considerations but that such consideration should be properly tempered by those factors I have identified. 70 In my concurrent judgment relating to the co-defendants in these proceedings, I considered the question of parity: see WorkCover Authority of New South Wales (Inspector Wilson) v Safdar Ghafoor and anor [2005] NSWIRComm 430 paras [60] to [63]. 71 As reference to those paragraphs will confirm, I have assessed the relative culpability of the co-defendants in the overall factual matrix of their respective offences as being equal. Having said that, Chubb's culpability has to be considered in a somewhat different context to that of ATS and Mr Ghafoor. Ultimately, as I said in relation to ATS and Mr Ghafoor, their non-delegable responsibility to ensure a workplace free of risks to safety could not be laid at the feet of Chubb. Chubb's culpability, however, is just as significant. While ATS (and Mr Ghafoor) held itself out as able to do cash in transit work, Chubb had significant first hand knowledge of the dangers that such work represented. They had known that for some time prior to September 2001 and had specifically evidenced it in May 2001, at the Punchbowl RSL Club - the very place ATS took over on behalf of Chubb in August 2001. Knowing all of that, Chubb put in place a system of work for ATS to follow that included criteria that only heightened the risks to safety for Mr Rashid and of which Chubb was only too well aware. That is, the cash pick up at Punchbowl was directed to be a one person operation and the soft skin cash pick up was to be done between the same time window every Monday, Wednesday and Friday. Chubb knew factors such as that, inter alia, enhanced Mr Rashid's vulnerability and increased the risks to safety. For example, in the Security Officer Standing Instructions issued by Chubb in 2000 it states, inter alia, that one of the procedures to be observed when undertaking Banking and Escort duties was to 'avoid set routines, vary activities, times routes, parking spots etc as much as possible'. (at 49) 72 Further, Chubb conducted no risk assessment of its own and took no steps to ensure such a risk assessment was undertaken by ATS or undertook any compliance checks generally in relation to workplace safety. In all the circumstances, I consider the culpability of Chubb to be equal to that of ATS and Mr Ghafoor. 73 There are factors that should properly be taken into account as mitigating factors in favour of the defendant. While there is no discount available to the defendant in relation to the entry of an early plea, the prosecution conceded that 'there was some considerable saving in court time by the defendant confining it's plea of not guilty to one issue - that being the place of work'. 74 The offences involving all three co-defendants were initially listed for ten days as fully defended matters. By narrowing it's defence to the one issue, there has been a utilitarian benefit in the saving of court time as far as Chubb is concerned. That is a factor to be taken into account in my ultimate considerations on penalty. 75 The prosecutor did not concede that the defendant fully cooperated with WorkCover in the investigative stage of the proceedings. However, in relation to the hearing time and agreement as to a statement of facts, it was accepted by the prosecutor the defendant did cooperate. 76 The defendant has expressed sincere regret for the events that occurred at the Punchbowl RSL on 3 August 2001. As Mr Yarrow stated: [30] Chubb operates in a high risk industry and is acutely aware of the OHS risks to its employees and contractors. Chubb takes its OHS responsibility very seriously. What occurred at the Punchbowl RSL was, and remains a matter of profound regret to Chubb. On behalf of Chubb, I would like to express Chubb's sincere regret to the family of Ahmed Rashid for their loss. 77 Taking into account my considerations on all matters identified, I determine the penalty in this matter to be $246,000. 78 Accordingly, I make the following orders: (1) The defendant is guilty of the offence as charged. (2) I impose a penalty in this matter of $246,000. (3) I allocate a moiety to the prosecutor on the usual terms. (4) I order the defendant to pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment. 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.