Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 3) [2002] NSWIRComm 1 PROSECUTOR WorkCover Authority of New South Wales (Inspector Ronald James Keelty) PARTIES : DEFENDANT The Crown in Right of the State of New South Wales (Police Service of New South Wales) FILE NUMBER: IRC 5721 of 1997 CORAM: Hungerford J CATCHWORDS : Occupational Health and Safety - Prosecution for failure to ensure health, safety and welfare of employees - Two police officers fatally injured during performance of duty - Plea of guilty made after defendant found to have a case to answer at close of prosecutor's evidence - Failure of defendant to provide training in tactics to be employed in high-risk operational situations - Failure of defendant to ensure mandatory training in the use and reloading of weapons, use of torches, defensive tactics and communications - Assessment of appropriate penalty - The sentencing process - Objective nature and quality of offence - Subjective factors - Inherent risks faced by police officers - Prior convictions of defendant Crown generally - No prior convictions of defendant in respect of the Police Service - Training programmes developed and implemented to address safety risks - Whether case appropriate for making of beneficial order, without proceeding to conviction, that charge be dismissed - Offence found to be extremely serious - Conviction entered - Fine imposed - Moiety to prosecutor - Costs. Crimes Act 1900 s 556A Crimes (Sentencing Procedure) Act 1999 s 10 s 22(1) LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15(1) s 51A Occupational Health and Safety Act 2000 s 4 s 8(1) s 12 s 121 Pt 7 cl 13 of Sch 3 Occupational Health and Safety Amendment (Police Officers) Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Tyler v Sydney Electricity [1993] 47 IR 1 WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in Right of the State of New South Wales (Department of Education and Training) [2001] NSWIRComm 313 CASES CITED : WorkCover Authority of New South Wales (Inspector Egan) v ATCO Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700, (2000) 100 IR 64 WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 1) (2000) 50 NSWLR 333, (2000) 102 IR 252 WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 WorkCover Authority of New South Wales (Inspector Keenan) v Crown in Right of the State of New South Wales (Department of Education and Training) (unreported, Schmidt J, IRC98/598, 6 December 1999) WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Pty Co Ltd (1999) 96 IR 32 WorkCover Authority of New South Wales (Inspector Tuckley) v Crown in Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 WorkCover Authority of New South Wales (Inspector Viesis) v Thiess Contractors Pty Ltd (1996) 85 IR 12 WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 HEARING DATES: 10/06/1999; 10/07/1999; 09/15/2000; 02/05/2001; 02/06/2001; 02/07/2001; 02/09/2001; 02/14/2001; 02/15/2001; 02/16/2001; 02/19/2001; 02/20/2001; 02/22/2001; 10/04/2001; 10/11/2001; 10/22/2001 DATE OF JUDGMENT: 01/07/2002 PROSECUTOR Mr S Crawshaw SC and Ms L McManus of counsel Solicitor: Ms M Lagana WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr P S Hastings QC Solicitor: Ms C Dawes Police Service of New South Wales JUDGMENT: - 28 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HUNGERFORD J Monday, 7 January 2002 Matter No IRC 5721 of 1997 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR RONALD JAMES KEELTY) v THE CROWN IN RIGHT OF THE STATE OF NEW SOUTH WALES (POLICE SERVICE OF NEW SOUTH WALES) Prosecution under section 15(1) of the Occupational Health and Safety Act 1983. JUDGMENT [2002] NSWIRComm 1 1 On 2 May 2001, I found that the defendant, the Crown in right of the State of New South Wales (Police Service of New South Wales), had a case to answer (other than as to one particular thereof) the charge in Matter No IRC 5721 of 1997 brought against it by Ronald James Keelty, the prosecutor as an inspector of the WorkCover Authority of New South Wales, for a breach of s 15(1) of the Occupational Health and Safety Act 1983 in relation to an incident at Walker Street, Crescent Head in the State in the early morning of 9 July 1995 when two police officers were killed in the course of the performance of their duty: see WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268. As to another charge (Matter No IRC 5722 of 1997) under s 15(1) related to the same incident, and which concerned the adequacy of communication equipment issued to the two officers, I found also on 2 May 2001 that the defendant had a case to answer; however, in later proceedings on 4 October 2001, on the application of the prosecutor and with the defendant's concurrence, I granted leave for that charge to be withdrawn and an order was made for it to be dismissed with no order as to costs. 2 The defendant then, on 4 October 2001, entered a plea of guilty to the present charge, which concerned the training of the two police officers in tactics to be used in high risk situations, and the hearing proceeded on the issue of an appropriate penalty. Having heard the prosecutor's evidence in this matter and with the benefit of the debate in the "no-case to answer" proceedings, I am satisfied the plea of guilty was properly made and I will enter a verdict accordingly. It was common ground, correctly in my view, that the maximum penalty for the subject offence, bearing in mind it was committed on 9 July 1995 and proceedings were commenced on 10 October 1997, was $500,000 as in the case of a corporation. In that latter respect, and about which there was some controversy earlier in this case, I held on 16 November 2000 that the defendant Crown was a body corporate as being a corporation sole: see WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 1) (2000) 50 NSWLR 333; (2000) 102 IR 252. 3 At the outset, it is convenient for completeness to mention eight other charges under s 15(1) originally laid by the prosecutor against the defendant arising also out of the same incident at Crescent Head on 9 July 1995 and as affecting the two police officers concerned. Those charges related to separately defined ways in which the prosecutor alleged the defendant had relevantly failed to ensure the health, safety and welfare at work of all its employees and, in particular, Senior Constable Peter Addison and Senior Constable Robert Spears as the two officers directly involved. In my judgment on 2 May 2001, I found the defendant had no-case to answer the four charges in Matters Nos IRC 5288 (the speed loader), 5290 (sufficiency of training in use of the service revolver), 5291 (inadequacy of service revolver compared to the self-loading pistol) and 5724 (systems and training in operational duties) of 1997 and those charges were thereupon dismissed with the prosecutor to pay the defendant's costs; as to the four charges in Matters Nos IRC 5289 (systems to ensure operational police receive annual mandatory training for weapons control), 5723 (training in communication equipment), 5725 (instruction in the use of portable communication equipment) and 5726 (training in the use of portable communication equipment) of 1997 in which the prosecutor led no evidence, I ordered that those charges be dismissed and with no order as to costs. 4 The present charge against the defendant was in the following terms : On 9 July 1995, at Walker Street, Crescent Head, in the State of New South Wales, the defendant, being an employer, did fail to ensure the health, safety and welfare, at work, of all its employees in particular, Senior Constables, Peter Addison and Robert Spears, in failing to provide a safe working environment for its employees that is safe and without risk to health, contrary to section 15(1) of the Occupational Health and Safety Act, in such case made and provided and pursuant to section 49(4) of the Occupational Health and Safety Act, proceedings are now instituted. The particulars of the charge are: a) at all material times the defendant employed Senior Constables, Peter Addison and Robert Spears; b) failing to provide training, to wit, the content of which addressed in a practical way the tactics to be employed in high risk situations; c) (disallowed and deleted) d) failing to ensure that mandatory training in the use and reloading of weapons, use of torches, defensive tactics and communication was undertaken; e) as a result of the said failure, Senior Constables Addison and Spears were both placed at risk of injury; f) Senior Constable Addison and Spears suffered fatal injuries. 5 The charge arose following the fatal shooting of the two police officers at the Crescent Head address by the occupant of a house attended by the officers in their investigation of a complaint by a woman who had received that night a telephone call from the occupant saying he would kill her. The officers arrived at the house and were confronted by the occupant, a John McGowan. The circumstances surrounding the incident in their essential details were not in dispute and were set out in the earlier judgment (104 IR at pp 268-270 in par [2]) and I do not repeat them. For present purposes, however, it is helpful to restate relevant extracts from the summary of events contained in the earlier judgment (104 IR at pp 297-298 in par [36]) relating to the radio communications equipment charge, as follows : · The four-wheel drive police vehicle was reverse parked in the driveway of Mr McGowan's house rather than on the street, presumably some indication that the officers intended arresting Mr McGowan and placing him in the rear of the vehicle through the back door. · The vehicle was fitted with a radio; the officers had a portable radio, but it is not known whether one of them took it on first leaving the vehicle. · Senior Constables Addison and Spears went to Mr McGowan's front door and were confronted by him holding a Ruger self-loading rifle and wearing a hessian smock. · The two officers retreated to the front of the police vehicle nearest the street and shielded on each side of and behind it in crouched down positions. · They called on Mr McGowan to drop the rifle. Mr McGowan fired a number of shots at the officers and they returned the fire. · Senior Constable Addison used the vehicle radio to contact Kempsey Police Station to report in words to the effect of "Kempsey 2. Urgent assistance. Person with rifle". This message was heard by the officer on duty at Kempsey Police Station but the transmission was unclear and affected by static. Thereupon, officers were despatched to proceed to Crescent Head to assist at the scene. · Kempsey Police Station attempted several times to contact Kempsey 2 on the radio but there was no reply. · Senior Constable Spears was fatally shot in the head by Mr McGowan and fell onto his back on the roadway. · Senior Constable Addison used the vehicle radio to advise Kempsey Police Station in words to the effect of "Kempsey 2. Urgent. Shots fired. Officer down." This message was not clear and was not heard by the officer in the radio room at Kempsey Police Station but by another officer as he was preparing to leave for Crescent Head. Kempsey Police Station was then advised by Port Macquarie Police Station of this message from Kempsey 2. · Kempsey Police Station asked Port Macquarie Police Station to assist by calling Kempsey 2 as it had difficulty itself in contacting and hearing Kempsey 2. Port Macquarie Police Station made a number of calls to Kempsey 2 but without success. · In the meantime, Senior Constable Addison left the police vehicle and ran across the road; the events which then occurred concerning him are as set out earlier in relation to Matter No IRC 5288 of 1997 (the speed loader charge), including that Senior Constable Addison unsuccessfully sought at one of the houses to use a telephone. · Senior Constable Addison did not take the portable radio but left it on the dashboard of the vehicle. 6 The events as to what occurred when Senior Constable Addison left the police vehicle and ran across the road were, as mentioned above, stated earlier in the judgment (104 IR at pp 294-295 in par [29]) in relation to the speed loader charge, thus : · Senior Constable Addison's revolver contained six live rounds on attending the scene. · There was an exchange of fire between Mr McGowan and the two officers when they were located near the police vehicle in the driveway of Mr McGowan's house. · After Senior Constable Spears was shot, Senior Constable Addison crossed the road and ran between two houses. · He then entered the back door of one house and asked to use a telephone but none was available. · He went outside and moved between the two houses to the front corner of one of them. · He exchanged more shots (at least two) with Mr McGowan. · He then retired to the rear of the house he had previously entered. · He then moved away from that house towards the house next door and to the front of the two houses but away from the side of the house. · He was holding a lighted torch in one hand and the revolver in the other hand. · Mr McGowan had moved to a position on the driver's side of the police vehicle towards the kerb and adopted a crouched position taking deliberate aim in the direction of Senior Constable Addison. · Mr McGowan then fired several more shots hitting Senior Constable Addison who fell to the ground fatally injured. · Shortly thereafter, Mr McGowan took his own life by shooting himself in the head with the rifle. · Senior Constable Addison's revolver, which was recovered from beside his body, contained six discharged cartridges; the "dump" pouch on his belt housing the speed strip was open but empty. · His speed strip containing six live rounds was found approximately six metres away from him near the rear corner of the house he had earlier entered. 7 Specifically in finding a case to answer the subject charge, I concluded in the earlier judgment (104 IR at p 301 in pars [46]-[47]) as follows : [46] As to Matter No IRC 5721 of 1997, it was alleged the defendant failed to provide a safe working environment for Senior Constables Addison and Spears in a number of respects, namely - · training which addressed in a practical way the tactics to be employed in high-risk situations; · systems to monitor and enforce the training available to police officers (this related to particular (c) which was disallowed and deleted); and · mandatory training in the use and reloading of weapons, use of torches, defensive tactics and communications. Those elements as particularised in terms of the evidence and the submissions of the parties were set out in some detail earlier where I considered the charge in Matter No IRC 5724 of 1997. Without repeating what was there said, I affirm it but do repeat the conclusion reached, that is, there was evidence which could support the proposition that the officers concerned had not in fact received up-to-date training in the various subject matters relevant to operational situations. Those subject matters, specifically, were weapons handling, tactics in high-risk situations, method of approach to buildings, concealment and the use of lights and torches. [47] The very nature of the circumstances as they existed at Crescent Head during the subject incident made relevant the type of training the two officers had not recently received. By failing to provide that training there arose, in my view, the necessary causal connection with the risk so experienced by the officers during the operation concerned. I exclude from this finding, however, particular (c) of the charge alleging a failure "to implement systems of monitoring and of enforcement to ensure that Police undertook the training that was available" - this particular effectively formed the substance of the charge in Matter No IRC 5724 of 1997 which is to be dismissed. The defendant has a case to answer on this charge as so amended by excluding the particular identified. 8 It will be seen that in so concluding I accepted the findings made by me concerning the two relevant particulars of this charge as detailed earlier in the judgment (104 IR at pp 299-300 in par [41]) for the systems and training in operational duties charge, namely : [41] It is true from the evidence that the two officers had for some years been engaged in operational duties and, to that extent, had received appropriate training and experience in various postings. Nevertheless, the evidence disclosed that training in its various facets was a developing feature of the requirements for police officers and mandatory training at various points in an officer's career occurred to refresh and acquaint them in new techniques, such as in high-risk situations, defensive tactics, approach to buildings and concealment - those latter aspects, on the evidence, were of particular significance in the circumstances of the present incident. Whilst both officers had some years earlier received training in those areas they had not received up-to-date training. For instance, Senior Constable Spears did not undertake defensive tactics training in 1994 due to injury and being engaged on restricted duties; although he was scheduled to undertake survival training in February 1995 he did not do so as he was transferred to Kempsey in the meantime. As to Senior Constable Addison, he had not received recent dry fire training (nor any training in the use of the six-shot Smith and Wesson revolver having until some few weeks previously used a five-shot Smith and Wesson revolver during his service) and training in defensive tactics as he had not worked in general policing duties since 1983 when he received criminal investigation training. There was, therefore, evidence which could be found to support the proposition that neither officer had in fact received up-to-date training in subject matters relevant to high-risk operational situations. 9 The major basis for the defendant's initial resistance to the charge was, as the earlier judgment noted (104 IR at p 274 in par [7]), "that the defendant had not committed any offence under the Occupational Health and Safety Act because any risk to the safety of the two officers was 'created externally from a source over which the employer has no control and no ability to predict' ... the 'situation of risk was created by the unlawful and criminal acts of somebody totally unrelated to the Police Service, namely, McGowan'". That submission, after an extensive review of the nature of the liability created under s 15(1) of the Occupational Health and Safety Act by reference to the authoritative decisions, was rejected by me with the following observations (104 IR at p 293 in par [26]) : [26] It follows, I would conclude, that Mr Hastings' general submission in avoidance of all of the charges, namely, that the relevant risk here was created externally from the defendant by the unpredictable and criminal conduct of Mr McGowan over which the defendant had no control, must fail. I accept as the correct approach that as stated by Mr Crawshaw, to the effect that any failure by the defendant here was its acts or omissions as alleged in each charge in circumstances where the relevant risks to the two officers' safety were not created by Mr McGowan but by the officers being required by the defendant to work in an environment where they were at risk of being shot or otherwise suffering physical harm. In other words, the risks faced by officers engaged on operational type duties were well known to the defendant, even though the specific risk of Mr McGowan may not have been known, and who was therefore responsible under s 15 for its failures in ensuring against those risks. I accept too the submission of Mr Crawshaw that there was no basis for Mr Hastings' submission that the Occupational Health and Safety Act was not directed to risks created by the unlawful actions of a third party. After all, and as Mr Crawshaw said, that was especially the case with police officers whose main role was to deal with unlawful activity: see mission and functions of the Police Service of New South Wales in s 6 of the Police Service Act 1990. 10 Mr S Crawshaw SC, who appeared with Ms L McManus of counsel for the prosecutor, provided a most comprehensive written submission on sentence in this matter and supplemented it orally at the hearing. Senior counsel emphasised that the offence here was seen as "most serious" in that, as the charge stated, in failing to provide a safe working environment two elements were involved: first, the defendant did not ensure the two officers received the mandatory annual training which was programmed and available, including defensive tactics (or officer survival training) and dry-fire training; and, second, the defendant did not make available training which addressed in a practical way the tactics to be employed in high-risk situations, including training in simulated hire-risk environments known as "simmunition training". In the result, so senior counsel submitted, the two officers "were not fully informed about the options available, the methods and tactics to be employed or considered in high risk situations and the use and handling of weapons and torches in an environment where they were at risk of physical harm. ... there was a greater risk of physical harm". Mr Crawshaw then detailed the evidence which supported those submissions by reference to the individual circumstances of each of the officers as to the mandatory training, defensive tactics (officer survival training) and simmunition training. 11 Mr Crawshaw drew together the effects of the defendant's failure to provide the relevant training to Senior Constables Addison and Spears by reliance on the evidence of Thomas William John Lupton who was a retired senior sergeant of police and at the time of the subject incident was the Commander of the Firearms Operation Response Training Unit. Mr Lupton had had nine years' service in the Australian Regular Army on active service in South Vietnam and at the School of Infantry, including as an instructor in small arms, infantry minor tactics, fieldcraft and operational command. He joined the Police Service in April 1969 and retired in August 1999, during which period he performed a wide range of duties covering instructing at the Police Academy (in drill, revolver and shotgun theory and practice, batons and weaponless control, officer survival techniques and crowd and riot control), formulating and implementing training for the Tactical Response Group, operational team leader with the Tactical Response Group, lecturing senior police in operational command procedures and staff officer to the controller and operations officer for large and complex group operations. Senior counsel summarised the main points made by Mr Lupton in this way : (i) Training does not totally negate risk but it is designed to give the officers a number of options to meet a variety of situations to minimise the risk to themselves and others. There is no definitive answer to situations. Therefore the tactics in general terms are somewhat generic designed to give the officer some response for most situations. (ii) The purpose of on-going training was designed to bring the operational officer in, impart new options, new training, new concepts and review what their current skill levels were. (iii) Simmunition training is important especially for decision making under stress. (iv) In Lupton's opinion there has been observable improvement in officers since simmunition training. The judgmental skills have been improved and the feed back has been that it has been a benefit in operational duties in that it has given them an increased number of options and how to control their environment. (v) Simmunition training would have assisted Spears and Addison. It improves the ability to communicate with each other and subjects. It allows an officer to practice weapons skills, observation and perception, searching techniques, fire and movement, use and control of light and a range of judgmental aspects. 12 I found Mr Lupton's evidence to be compelling and I accept it as identifying the training available to police officers and the benefits therefrom by minimising risks to the physical safety of officers in performing duties in an inherently high-risk environment. The fact that Senior Constables Addison and Spears did not, on the defendant's admission, receive such training provides a real measure of the defendant's culpability in committing the present offence. 13 Reference was made by Mr Crawshaw to the evidence given by various witnesses specifying the details of the relevant training available, but which was not undertaken by the two officers concerned, by relating them to the events which occurred at Crescent Head on 9 July 1995; that was done in terms of how the officers should have approached the house occupied by Mr McGowan, what they should have done when the situation became hostile leading to the shooting of Senior Constable Spears and how the torch should have been used by Senior Constable Addison before he too was shot. I do not intend here to detail that evidence, except to say I have reviewed it generally and am satisfied it supports the following submissions made by Mr Crawshaw : 35. If Senior Constables Addison and Spears had undergone the mandatory training in defensive tactics and/or the simmunition training this would have ensured that they knew, and had recently been made familiar with, the full range of options available, the methods and tactics to be employed or considered in high risk situations and the use and handling of weapons and torches in an environment where they were at risk of physical harm. Such training would have maximised their decision making under stress and their skill level in high risk situations. 36. Senior Constables Addison and Spears were required to exercise judgment and skills to which this training was directed at a number of stages including when: a They approached Mr McGowan's house; b They first confronted Mr McGowan; c They were confronted with Mr McGowan being armed; d They verbally challenged Mr McGowan at the early stage and Senior Constable [Addison] continued to do so later; e They took cover; f They communicated with each other; g They exchanged fire with Mr McGowan; h Senior Constable Spears raised his head from cover; i Senior Constable Addison used the police radio; j Senior Constable Addison retreated for cover; k Senior Constable Addison attempted to find a telephone; l Senior Constable Addison returned to confront McGowan; m Senior Constable Addison attempted to reload; n Senior Constable Addison used a torch. 37. The fact Senior Constables Spears and Addison had not undergone the mandatory training in defensive tactics and/or the simmunition training exposed them to a greater risk of physical harm at each of these stages. 14 Adopting the approach in terms of principle that the primary factor to consider in relation to penalty was the objective seriousness of the offence (see Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at p 475 and Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at p 77), Mr Crawshaw specified the relevant objective features here as being the maximum penalty of $500,000, the need for general deterrence, the nature of the offence as involving obvious and readily foreseeable risks, the availability of simple steps to remedy the failures and the degree of seriousness as manifested by the death of the two officers. Senior counsel accepted that features subjective to the defendant, such as the plea of guilty and the lack of prior convictions of the Police Service for breaches of occupational health and safety legislation, albeit the defendant Crown had a number of earlier convictions, were relevant to take into account in the sentencing process in mitigation of penalty: see R v Winchester (1992) 58 A Crim R 345 at p 350. 15 I interpose at this point the important issue of prior convictions. The defendant in respect of the Police Service has no prior convictions whereas in respect of certain of its other operations prior convictions exist, namely, Department of Education and Training, Department of Corrective Services, Department of Agriculture, Department of Public Works, Department of Community Services and Department of Conservation and Land Management. Mr Crawshaw's submission, which Mr P S Hastings QC for the defendant accepted, was to the effect that prior convictions of the Crown as such were relevant even though the most relevant consideration would concern the record of the department concerned. Senior counsel said that the terms of s 121 of the Occupational Health and Safety Act 2000 in dealing with penalties in respect of proceedings against the Crown did not appear to limit in the sentencing process consideration of prior convictions of the Crown generally but was only concerned with determining the maximum penalty against the Crown available to the Court. Therefore, submitted senior counsel, the approach to prior convictions of the Crown adopted by me in WorkCover Authority of New South Wales (Inspector Tuckley) v Crown in Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1 at p 22, as follows, still applied : Having in mind the role played by prior convictions for the purposes of determining an appropriate penalty, I think it may be accepted that a most relevant consideration would be if no prior convictions existed in relation to the department concerned; but, in my view, that is not to say that prior convictions of the Crown generally are not relevant as well. I think they are. After all, the Crown is the employer and the fact it may organise the performance of its functions in a particular way, but still to retain responsibility as the employer rather than to establish a separate statutory corporation as the employer, cannot remove the Crown's overall responsibility and liability as such for the acts or omissions of those through whom it performs its functions. That approach was followed by Schmidt J in WorkCover Authority of New South Wales (Inspector Keenan) v Crown in Right of the State of New South Wales (Department of Education and Training) (unreported, IRC98/598 and 601, 6 December 1999). 16 The 2000 Act commenced on 1 September 2001 and, by cl 13 of Sch 3 - Savings, transitional and other provisions thereof, Pt 7 - Criminal and other proceedings (which includes s 121) extends to proceedings, such as the present, under the 1983 Act. In relevant respects, s 121 provides : 121 Penalties in respect of proceedings against the Crown (1) In this section, penalty means: (a) the monetary penalty for an offence against this Act or the regulations, or (b) the amount payable under a penalty notice served in connection with such an offence, or (c) the amount payable under an order made under Division 2. (2) … (3) If that penalty differs for previous offenders, the Crown is a previous offender in relation to particular proceedings against the Crown only if the Crown is a previous offender in respect of the acts or omissions of the same responsible agency of the Crown (or any predecessor of that agency). (4) … It seems plain to me that sub-s (3) is concerned only with fixing the maximum penalty, defined in sub-s (1)(a) as the monetary penalty for an offence against the statute, by reference to whether the Crown is a "previous offender". That exercise arises in activating s 51A of the 1983 Act to increase the maximum penalty provided by s 15 if there is a previous conviction, in the case of a corporation such as the Crown, from 5,000 penalty units to 7,500 penalty units; where the offence be committed after 1 September 2001 and proceedings are instituted under s 8(1) of the 2000 Act then, in a corresponding manner, s 121(3) would operate to fix the maximum penalty provided by s 12(a) of that Act for, as it says, a "previous offender" as 7,500 penalty units instead of 5,000 penalty units under s 12(b) in the case of a corporation not being a previous offender. Section 121, in terms, does not otherwise address the determination of a penalty for a particular offence within the permissible range from zero to the relevant maximum amount. Therefore, my view is that Mr Crawshaw's submission as to the purpose of s 121 of the 2000 Act and the consequent continuation of the approach as stated in Tuckley v Department of Community Services was correct. 17 Indeed, this very question arose recently in WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in Right of the State of New South Wales (Department of Education and Training) [2001] NSWIRComm 313 in which Walton J, Vice-President considered it in depth (in pars [57]-[70]) and expressed the view (in par [61]) "that the Court is required to consider prior convictions of the Crown generally when assessing the appropriate penalty to be imposed for an offence under the Act". His Honour added (in par [66]): [66] The provisions of s 121(3) of the 2000 OH&S Act are not applicable, in my view, to the Court's consideration of prior convictions of the Crown for the purpose of determining the appropriate sentence in relation to a charge as distinct from the determination of the maximum penalty for that offence. His Honour tested the conclusion otherwise reached by looking at the statutory context in which the expression "previous offender" appears in s 121(3) in light of the definition of that term in s 4 of the 2000 Act as meaning a person who has previously been convicted of an offence against that Act or the 1983 Act but "in relation to the maximum penalty for an offence". And so it was that his Honour then commented (in par [70]) : [70] … In this light, the use of the expression "previous offender" in the opening words of s 121(3) reinforces the conclusion that the legislature intended to restrict the operation of that sub-section relevantly to the determination of the maximum penalty for an offence. His Honour then proceeded to consider the prior record of the defendant Crown in a manner consistent with the decision in Tuckley v Department of Community Services . Having reviewed his Honour's reasoning, I respectfully agree with it and will follow it in the present case. 18 In mitigation of penalty, Mr Hastings emphasised at the outset of his submissions that this case "is a most unusual case of a breach of the Occupational Health and Safety Act … because policing is a unique activity and peculiar in the context of this legislation. It is a job necessarily … carrying with it a high risk of injury which the employer cannot eliminate". Senior counsel went so far as to add : There are situations of risk in which an officer is exposed in which all the equipment and training in the world will not guarantee the safety of the officer. For example arresting a violent offender and one cannot in any way, by equipment or training, protect that officer from the consequences of being exposed to someone disposed to violence. It is an intrinsic part of a job which the employer ( sic - employee) accepts when we seek that form of employment. There are probably other forms of employment in which there is intrinsic risk, probably firemen, but there would be very few and it is unique where the employee takes on a job that has a very high risk of injury. Nevertheless, Mr Hastings then said : I accept the point made by my learned friend on behalf of the prosecution it may have reduced the risk and that, is quite a valid point and something which is accepted in the plea of guilty, but it could never be said the training would have always eliminated the risk, and Mr Lupton makes that very clear in his evidence on page 119 and also makes the other point that whilst there was a lack of ongoing training here, that does not mean the training which had previously been given was forgotten. So it is not as if these two officers were sent into the field with no training; they were experienced and had previously been trained and, as Mr Lupton says, a very important part of the training is peer training, which he describes at page 118, because the benefit of working with experienced buddies, as he describes them, can often be more informative than going through a training programme. It was not as if all the previous training was wasted and they had no skills to do their usual job. That, I submit, is an important factor. It is not like Bitupave even going back as far as the linesmen who had no training on particular issues. These officers were experienced trained officers. It was just they did not have the benefit of recent training. They were not sent out with no training and it is not as if they had not been trained in a way that could have prevented their death. As Mr Lupton says, when one is in the real world one cannot expect the training will be strictly adhered to because people behave differently under stress and may not use their training when a case of high stress presents itself. 19 I have to say that Mr Hastings' submission in mitigation of penalty was based very much, as was his earlier submission in the no-case to answer proceedings, on the premise that the real risk here to the officers' safety was Mr McGowan, a risk against which the defendant could not make provision. That submission was rejected by me in the earlier judgment on liability: see 104 IR at pp 290-293 in pars [22]-[26] and the cases cited therein in support, namely, Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at p 157; Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at pp 49-50; WorkCover Authority of New South Wales (Inspector Egan) v ATCO Controls Pty Ltd (1998) 82 IR 80 at p 85; WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at p 257; and WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Pty Co Ltd (1999) 96 IR 32 at pp 43-44. I reject it again in the assessment of penalty. One may readily concede, as Mr Hastings urged, that policing is inherently dangerous, but, in my view, that condition is not unique to policing as I observed in the earlier judgment by reference to the building industry and certain other occupations (see 104 IR at pp 291-292 in pars [23]-[24]). In light of Mr Hastings continued reliance on this aspect of the nature of policing, initially in the no-case to answer proceedings and now in mitigation of penalty after a plea of guilty, it is necessary to repeat what I said in the earlier judgment in that respect as being relevant also for present purposes, that is (104 IR at p 292 in par [24]) : [24] Although the defendant may not be able to "control", or otherwise affect, the conduct of persons such as Mr McGowan who confront police officers from time-to-time in the performance of their duties, the defendant is able to directly control and dictate the measures which should properly be made in preparing and equipping police officers to perform operational duties which are of such a nature as will ensure the health, safety and welfare of those officers. ... 20 However, it is necessary to precisely identify the nature of the admitted risks to safety, as referred to in the earlier judgment (104 IR at p 293 in par [26]), as being : [26] … that any failure by the defendant here was its acts or omissions as alleged in each charge in circumstances where the relevant risks to the two officers' safety were not created by Mr McGowan but by the officers being required by the defendant to work in an environment where they were at risk of being shot or otherwise suffering physical harm. In other words, the risks faced by officers engaged on operational type duties were well known to the defendant, even though the specific risk of Mr McGowan may not have been known, and who was therefore responsible under s 15 for its failures in ensuring against those risks. ... Put another way, the failure by the defendant was its omission to provide a safe working environment in respect of training which addressed in a practical way the tactics to be employed in high-risk situations and mandatory training in the use and reloading of weapons, use of torches, defensive tactics and communications. Those elements were admitted by the defendant by its plea of guilty. It is no answer, in my view, to plead in mitigation of penalty the inability to control the risk of violent behaviour by Mr McGowan; the admitted failure here was the defendant's failure to provide appropriate training to enable the two officers to properly deal with Mr McGowan in a manner to preserve their safety: see by analogy the reasoning of the Full Court in WorkCover Authority of New South Wales (Inspector Viesis) v Thiess Contractors Pty Ltd (1996) 85 IR 12 at p 32 as to the relevance of extraneous factors in the sentencing process on a plea of guilty where, of course, all of the essential elements of the charge are admitted. 21 After tracing the development of training programmes in the Police Service, particularly as to simmunition training, Mr Hastings emphasised the relevance for present purposes of the fact that "it was not a situation in which the Police Service was doing nothing; it was actively pursuing a system which later became active in 1996, so at this time in 1995 steps were also being taken to remedy the defect described as part of the breach of the Act". Therefore, as senior counsel submitted, the defendant had in place at the relevant time of the incident improvements to the training available so that this was not a case where an accident was needed to make the defendant aware of its responsibilities concerning safety - as senior counsel said, "it was already receptive and had already embarked upon a process by the time the accident occurred". Consequently, Mr Hastings put that this matter was suitable for the application of s 10 of the Crimes (Sentencing Procedure) Act 1999 by finding the defendant guilty but without proceeding to conviction and directing the dismissal of the charge. Whilst acknowledging that it has been said (see, for example, WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 at p 101) it would seldom be appropriate in serious cases for a breach of occupational health and safety legislation to receive the benefit of s 556A of the Crimes Act 1900 (the statutory predecessor to s 10 of the Crimes (Sentencing Procedure) Act), Mr Hastings accepted "this is a very serious offence" but added in exculpation of the defendant in committing the offence : It was totally unpredictable circumstances which confronted these officers. There was no warning that there was a human element of risk-taking of the officers on the occasion. Certainly it is an inherent part of the job. As I have said right from the beginning, officers confront a risk, but on the occasion here on some peaceful beach town there was no specific indication that it was an accident waiting to happen because there was no warning to the officers they were going to deal with someone who was prepared to shoot. ... ... The breach of the Act was the failure to provide the training which had been identified for the reasons I have laboriously already put. I submit that the breach was not a major breach because of all the reasons I have advanced, the most substantial one being it was a major exercise to ensure all these officers received their training. They made it mandatory, they had reports already in progress so that in those cases I have referred to earlier there were inefficiencies. ... Again it is very hard to say it was a preventable risk because short of turning up in an armed car even if they had parked their car correctly at the front door they had no knowledge this man was going to turn up with a high-powered weapon until they got to the street, during which time they were exposed to fire from McGowan, and so even if the textbook had been followed it doesn't flow from that that the injury would have been prevented. Indeed, for reasons I have just given, it may not at all, it may have increased the risk, because they were required for longer, the length of time it took them from the door to the street to a few metres down the driveway. So this is not a Waugh case. It simply doesn't follow if they had been trained to do what they were required to do there would have been no injury, it doesn't follow at all. ... ... ... For the reasons advanced there was already under way the recognition of the problem and for a solution to it, so those extenuating circumstances reduce it to the extent that s 10 would be a just result. 22 Mr Crawshaw opposed the application of s 10 in this case. I think he was correct in so doing and I am well satisfied that the circumstances here do not in any way justify the beneficial approach urged by Mr Hastings. Again, I have to say, Mr Hastings made his submission by reference to the situation created by Mr McGowan and the difficulties in controlling his conduct, rather than, as I have said, by reference to what the defendant was charged with, namely, its failure to provide the relevant training. Given the inherent risks to safety involved in policing, as accepted by the defendant, I consider that fact in itself provides a strong reason for the defendant to ensure officers engaged in operational duties receive the mandatory training in order to enable them to appropriately perform their duties. That that did not occur in this case does not, in my view, provide a basis for mitigating the seriousness of the offence by relying on the inherent nature of the risks involved - to the contrary, in my view, the known nature of such risks made the failure to provide the necessary training all the more serious. The two officers concerned suffered the ultimate injury of death. As Hill J observed in Tyler v Sydney Electricity [1993] 47 IR 1 at p 5 as to the gravity of the damage or injury actually resulting from a breach in dictating the amount of penalty, "the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of culpability". The importance of that dichotomy concerning, on the one hand, the actual death or serious injury and, on the other hand, the relevant failure giving rise to such outcome, was cogently stated by Bauer J in Twynam-Perkins v Maine Lighting (100 IR at p 257) in this way : Whilst in the tragic circumstances where a person was killed in an accident it was natural to concentrate on the events giving rise to the actual cause of the death, such a concentration exhibits an error in law as was pointed out by the Full Court in the passage from C I & D Engineering previously quoted. The actual event of the accident and injury is relevant; but it goes to satisfy the evidentiary burden that failure gave rise to a risk to health, safety or welfare. Much of what was urged by [senior counsel for the defendant] was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. 23 Section 10 of the Crimes (Sentencing Procedure) Act in sub-s (3) sets out the factors to take into account in deciding to make an order under the section, as follows : (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. Most recently, a Full Bench of the Court in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; (2000) 100 IR 64 in pars [15]-[25] comprehensively considered the application of s 556A of the Crimes Act , as I have said the statutory predecessor of s 10, and concluded (in par [26]) that the exercise of the discretion under the section in occupational health and safety offences "must be considered as extraordinary and highly exceptional". In the circumstances of this case, I am far from satisfied that the failures of the defendant could be so categorised. I therefore decline to apply the provisions of s 10. 24 In essence, the objective seriousness of the offence here is to be measured by the plain fact that although the relevant mandatory training was available the defendant failed to ensure the two officers concerned received it before they were involved in a high-risk operational situation. It is not to the point to plead that the officers had received basic training and were experienced police officers - all of that is true - they were subject at the relevant time to a situation with the very real potential to compromise their safety without the appropriate training and, importantly, where they were responding in the early hours of the morning to a threat from Mr McGowan that he would kill the woman who had complained; to meet such a contingency, I do not doubt the officers should have been given the required training. It was not that the defendant considered such training was not necessary, indeed it was regarded as mandatory, simply that the defendant did not ensure it was provided in a timely way. The offence so described and the commensurate culpability of the defendant may properly be regarded as of an extraordinarily serious nature. I have in mind in this respect that there was no evidence from the defendant in explanation of the omission to provide the training or as to steps put in place to remedy the deficiency for the future. At most, the emphasis was on the development and availability of the relevant training but without any details of how steps were to be taken to ensure it was given. In that situation, it is apt, I think, to repeat the observations made in Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at pp 388-389, as follows: ... Consistently, it has been held by the Court that in determining penalty attention should focus on the nature and degree of seriousness of the relevant detriment to safety, together with the applicable mitigating factors: WorkCover Authority of New South Wales (Inspector Gordon) v Walco Elevators Pty Ltd (unreported, NSW Industrial Court, Cullen J, 13 March 1996) and cases cited therein. In Walco , Cullen J concluded at p 16: "It should be apparent from the authorities cited that breaches of safety, such as occurred in this case, should be penalised significantly. A feature of this case is the need to have particular regard in imposing penalty to the deterrent aspect against any future breaches by the Defendant should it embark upon similar operations in the future. The Court has a duty to ensure that breaches of occupational health and safety legislation are punished with penalties of such magnitude that companies will address occupational health and safety issues before such accidents occur. It is in the public interest that exposure of workers to danger of injury during the installation, operation and maintenance of hoists should be subject to close scrutiny. It is also in the public interest that serious breaches of safety are met with fines that discourage the re-occurrence of such incidents which are clearly avoidable. This is especially so in a situation where companies conduct their activities with haste in order to complete buildings promptly as was the case in the present matter." I respectfully agree with his Honour's remarks and would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Ltd [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: "The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrence of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive." And, in R v Rushby [1977] 1 NSWLR 594 at 598, Street CJ put the balance in sentencing, by quoting from the Court of Appeal in New Zealand in R v Radich [1954] NZLR 86 at 87, in this way: "On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment." 25 A Full Bench of the Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 at p 60 approved the above comments. I propose to follow them in the present case and would only add, as I remarked in Tuckley v Department of Community Services (96 IR at pp 21-22) : I agree with the proposition that the liability of the Crown to fines for breaches of statutory obligations, such as the Occupational Health and Safety Act , represents the means to ensure a standard of public conduct at least equal to that which the Crown demands of its subjects and of society at large. 26 In the circumstances as outlined above, I would assess the nature and quality of the subject offence as being extremely serious. The real vice is to be seen in the context where the two officers concerned were engaged in a high-risk occupation with the potential for readily foreseeable detriments to their safety; having identified the risks, the defendant had in place mandatory training to equip the officers to meet those risks but failed to ensure such training was undertaken by them. The consequences here of the fatal shooting of both officers manifests the degree of seriousness in circumstances, I have to say, where an effective procedure should have been in place to monitor the training requirements for individual officers and to make certain such training was undertaken. That any procedure which did exist, on the evidence before me, was either inadequate or not strictly complied with in the rostering of the two officers concerned for operational duties. In that situation, I would place the essential culpability of the defendant for its present breach of the statute towards the top of the middle range of seriousness, relative to a worst case for which the maximum penalty of $500,000 is provided, at the amount of $275,000. 27 In reduction of that penalty, the defendant is entitled to consideration of factors subjective to its position. Significant in that respect was its plea of guilty, albeit made quite late in the proceedings. Section 22(1) of the Crimes (Sentencing Procedure) Act provides that in the sentencing process a court may impose a lesser penalty than otherwise would have been the case if a defendant pleads guilty but a relevant consideration is when such plea or intention to so plead was made. Here, the proceedings had a long history during which the defendant steadfastly resisted the charge until after the Court ruled on 2 May 2001 that there was a case to answer; those proceedings occupied two days of hearing on 20 and 22 February 2001 following eight days earlier that month in the hearing of the prosecutor's evidence. It should also be noted that a number of interlocutory decisions by the Court were necessary on unsuccessful attempts by the defendant on matters such as further and better particulars and resistance to summonses for the production of documents. Nevertheless, those interlocutory steps are to be seen in light of the way in which the proceedings developed from initially ten charges against each of three separate defendants concerning the subject incident on 9 July 1995 at Crescent Head but which eventually reduced to a single charge against the present defendant when some charges were withdrawn and others were dismissed. I think it fair to say in assessing the relative lateness of the defendant's guilty plea that the course of these proceedings has had its own difficulties, including the early question concerning the status of police officers as to whether they were employees of the Crown as an employer so as to make the defendant amenable to a charge for a breach of s 15(1) of the Occupational Health and Safety Act - that latter aspect was subject to a hearing on 6 and 7 October 1999 but before judgment thereon the legislature passed the Occupational Health and Safety Amendment (Police Officers) Act 2000 to remove any previous doubts that a police officer was an employee of the Crown for the purposes of the Occupational Health and Safety Act: see Keelty v Police Service (No 2) (104 IR at p 274 in par [6]). Mr Crawshaw submitted, with some force, that "the utilitarian value of the plea would be at the lower end of the scale of discount". On balance, and notwithstanding the apparent lateness of the plea of guilty, I think the circumstances as they have developed justify a lesser penalty being imposed than otherwise would have been the case. I will allow a discount for this of 10 per cent. 28 A further subjective factor for consideration in mitigation of penalty is the record of the defendant's prior convictions. Earlier in these reasons (at pars [15]-[17]) the way in which this aspect should be approached was reviewed and, shortly stated, the conclusion reached that prior convictions of the Crown generally were relevant although a most relevant consideration would be if no prior convictions existed in relation to the department concerned: see Tuckley v Department of Community Services, Ankucic v Department of Education and Training and s 121 of the Occupational Health and Safety Act 2000. The record admitted into evidence disclosed that the Crown had 11 prior convictions for breaches of the Occupational Health and Safety Act in respect of six departments; the Police Service, as such, had no prior convictions. It is not unreasonable to conclude, in light of the clearly dangerous nature of the industry in which the Police Service operates, that the fact it has a clear occupational health and safety record is a weighty factor in its favour in mitigation of penalty. I will so regard it. Another relevant subjective consideration is the action taken by the defendant in respect of the Police Service in developing training programmes for police officers, including the important programme of simmunition training, and its leading role in that respect compared with police forces in other States. I propose to allow for these further subjective factors an additional discount of 10 per cent. 29 Thus, my assessment of an appropriate discount for the subjective considerations as including all relevant matters is a total of 20 per cent. Applying that discount to the objective assessment already made of $275,000, I would fix an appropriate fine against the defendant in the amount of $220,000. The prosecutor is to have a moiety of the fine and the defendant is to pay the prosecutor's costs. 30 I make orders as follows - 1. The defendant is found guilty of the subject offence and a conviction against it is entered accordingly. 2. The defendant is fined an amount of $220,000, with a moiety to the prosecutor. 3. The defendant is to pay the prosecutor's costs of and incidental to the proceedings concerning the subject charge; leave is granted to the parties to apply to the Court to fix the quantum of costs if agreement cannot be reached. ____________________ 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.