Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Covi v The Crown in the Right of the State of New South Wales No 2. [2004] NSWIRComm 400 PROSECUTOR Inspector Paul Covi PARTIES : DEFENDANT The Crown in the Right of the State of New South Wales (NSW Police) FILE NUMBER: IRC 2013 of 2002 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under section 15(1) of the Occupational Health and Safety Act 1983 - Police Officer struck by vehicle whilst performing roadside speed detection and enforcement duties - Offence proven in previous judgment - Penalty imposed 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, 99 IR 29 Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (1999) 90 IR 464 CASES CITED : Leonard Raymond Moon v R [2000] NSWCCA 534 Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (2000) 99 IR 163 HEARING DATES: 11/30/2004 DATE OF JUDGMENT: 12/17/2004 PROSECUTOR Mr M P Cahill of counsel Solicitor: Mr J O'Connell WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr B D Hodgkinson SC with Mr M Shume of counsel Solicitor: Mr E Lynch New South Wales Police JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Friday 17 December 2004 Matter No IRC 2013 of 2002 INSPECTOR COVI v THE CROWN IN THE RIGHT OF THE STATE OF NSW (NSW POLICE) (NO 2) Prosecution under section 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 400 1 In Inspector Covi v The Crown in the Right of the State of NSW (NSW Police) [2004] NSWIRComm 128 the Court found that the defendant (The Crown in the Right of the State of NSW (NSW Police)) was guilty of an offence under s 15(1) of the Occupational Health and Safety Act 1983. The incident that gave rise to the guilty finding was described at [1]-[2] as follows: 1 On 18 May 2000, Mark Wayne Johnson, a sergeant of police at the time and Glenn John Hartley, then a senior constable, were conducting a speed detection and enforcement operation on Budgewoi Road at Noraville, in the State of New South Wales using a laser speed detection unit set up on the side of the road. At about 5.00 pm Mr Johnson detected a vehicle exceeding the speed limit. Mr Johnson stepped onto the roadway and signalled the driver of the vehicle that he wanted the vehicle to stop. The vehicle continued to proceed towards Mr Johnson, increasing its speed as it did so. Mr Johnson tried to avoid the vehicle but it swerved towards him and the front right corner of the vehicle struck Mr Johnson throwing him into the air and causing serious injuries. 2 The vehicle did not stop but police later apprehended the driver, Gregory Paul Dalton. Mr Dalton had an extensive criminal history including numerous serious traffic offences, armed robbery, assault, and drug and alcohol offences. At the time of the incident involving Mr Johnson the vehicle driven by Mr Dalton was unregistered and uninsured. Mr Dalton was a disqualified driver driving under the influence of alcohol. 2 The charge in respect of which the guilty finding was made was that, the defendant, being an employer: On 18 May 2000, in the vicinity of the intersection of Budgewoi Road & Gomul Street at Noraville, in the State of New South Wales, did fail to ensure the health, safety and welfare at work of all its employees, in particular, Mark Wayne Johnson and Glenn John Hartley, whilst undertaking LIDAR Speed Detection Operations, contrary to section 15(1) of the Occupational Health and Safety Act, 1983. The particulars of the charge are: (a) The defendant, at all material times, employed a number of police personnel including Mark Wayne Johnson and Glenn John Hartley. (b) The defendant, at all material times, conducted LIDAR Speed Detection Operations on New South Wales roads. (c) The defendant failed to maintain a system of work for the conduct of the LIDAR Speed Detection Operations that was safe and without risk to the health and safety of its employees. (d) The defendant failed to provide such information as was necessary to ensure the health and safety at work of its employees whilst conducting LIDAR Speed Detection Operations. (e) The defendant failed to provide such adequate instructions and training to its employees as was necessary to ensure their health and safety whilst conducting LIDAR Speed Detection Operations. 3 At [69] the Court stated: 69 I find that the defendant failed in the manner particularised in particulars (c) and (e) of the charge to ensure the health, safety and welfare at work of Mark Wayne Johnson whilst conducting LIDAR speed detection operations on 18 May 2000 contrary to s 15(1) of the Occupational Health and Safety Act 1983. Accordingly, I find the defendant is guilty of an offence under s 15(1) of the Act unless it establishes a defence under s 53 of the Act. 4 In relation to the defence under s 53 the Court stated at [77]: 77 I am not satisfied on the balance of probabilities that it was not reasonably practicable for the defendant to comply with s 15(1) of the Act. I do not consider that the defendant has established a defence under s 53 of the Act. 5 At [78] the Court reached the following conclusion: 78 I am satisfied beyond reasonable doubt that on 18 May 2000 the defendant failed to ensure the health, safety and welfare of Mark Wayne Johnson whilst he was engaged in LIDAR speed detection and enforcement duties in the vicinity of Budgewoi Road and Gomul Street at Noraville in the State contrary to s 15(1) of the Occupational Health and Safety Act 1983 as particularised in particulars (c) and (e) of the charge. Consideration 6 It remains to determine what sentence should be imposed on the defendant. In this respect the primary factor for determining sentence in this jurisdiction has been held to be the objective seriousness of the offence. In Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 475 the Full Bench stated: As we have observed, the primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH&S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in the determination of penalty to the gravity of the offence itself. While the Court must keep in mind not only facts which establish the seriousness of the offence, but also those which tend to mitigate that seriousness or exculpate the offender (see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at p 698 per Kirby P), the presence of the subjective factors referred to should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence. 7 The objective features of an offence relate to the facts concerning that offence whereas the subjective features relate to facts concerning the offender. In holding that the primary factor to be considered is the objective seriousness of the offence the authorities have determined that what the offender did in breaching the terms of s 15(1) of the Act and the seriousness of the risk to health and safety thereby created, is of primary significance in evaluating the seriousness of the offence. Nevertheless, subjective features, if they exist, are an intrinsic part of any assessment of penalty and must be given appropriate weight in the sentencing process where they tend to mitigate the seriousness of the offence, unless subjective considerations became redundant because the objective features of the case warrant the imposition of the maximum penalty. Also to be taken into account, where relevant, are ss 3A and 21A of the Crimes (Sentencing Procedure) Act 1999. 8 There are a number of relevant considerations in determining the objective seriousness of the offence that is the subject of these proceedings. The first of these is the maximum penalty for the offence, which in this case is $825,000. As Wright J, President explained in WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (2000) 99 IR 163 at [23]: [T]he task of the Court is … to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the penalty scale of penalty set by the legislature from zero to the maximum: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699; Nesmat Pty Limited v WorkCover Authority (NSW) (1998) 87 IR 312 at 321; and Albury City Council at 407 - 408. Although some cases have referred to the consideration that a penalty should not be "oppressively high", such dicta should not be considered as qualifying the approach to balancing subjective and objective factors expressed in Waugh : see Albury City Council at 411; Lawrenson Diecasting Pty Limited at 474 - 475; Dowling v Overtop Pty Limited at 333; Ferguson v Nelmac Pty Limited at 208 - 209; Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 78 – 79. 9 I also note the observations of Howie J in Leonard Raymond Moon v R [2000] NSWCCA 534 at [70]: [70] The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: Dodd (1991) 57 A Crim R 549, and be proportional to the criminality involved in the offence committed: Veen v The Queen (1979) 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence. 10 In considering the nature of the defendant's conduct in this case it is convenient to start with the fact that Mr Johnson was an experienced Highway Patrol officer with the rank of sergeant at the time of the subject incident (the failures alleged in the charge were not made out in respect of Mr Hartley). The Court considered, nonetheless, that the task Mr Johnson was undertaking at the time he was struck by the vehicle being driven by Mr Dalton was hazardous notwithstanding Mr Johnson's level of skill and experience. At [50]-[51] the Court stated: 50 It was submitted that confronted with the situation in which Mr Johnson found himself, there were only two ways of avoiding the risk of being hit - either move to the left or the right. Either way, given Mr Dalton's apparent intent, Mr Johnson remained at risk in the face of a person seemingly intent on running him down. Given the apparent intent of Mr Dalton it was submitted to the effect that if there was any link in a chain of causation between the defendant's alleged failures and the risk to Mr Johnson's safety, the link was demonstrably broken by the conduct of Mr Dalton. 51 This submission begs the question of whether Mr Johnson should have been on the carriageway in the first place given the obligations on the defendant to ensure the safety of its employees. It is accepted that policing is a dangerous occupation, highway patrol duties no less so. Standing on a roadway signalling drivers to pull over is patently a hazardous operation. Putting aside the obvious risk of the miscreant who may have a grudge against police and who might take the opportunity to exact retribution for some perceived past wrong by running a police officer down, even the normally responsible driver may present a risk to police involved in roadside detection duties. This could occur either through inattention or carelessness or because the vehicle being driven was mechanically defective. The defendant may not be able to control the miscreant or even the responsible driver who may have lapsed momentarily. But as Hungerford J observed in WorkCover v Police Service (No 2) at [24]: [T]he 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. 11 The two failures in respect of which the defendant was found guilty were: (i) a failure to maintain a system of work for the conduct of the LIDAR Speed Detection Operations that was safe and without risk to the health and safety of its employees; and, (ii) a failure to provide such adequate instructions and training to its employees as was necessary to ensure their health and safety whilst conducting LIDAR Speed Detection Operations. 12 In relation to the first failure, the Court found as follows at [53]-[56]: 53 A system that relies almost exclusively on an employee's skills and experience to ensure safety is no system at all especially given that in this case, although the defendant had identified the risk to safety involved in the stopping procedure, it took no steps to manage the risk in an effective manner. The defendant failed to maintain a system of work that was safe and without risk to health and safety of its employees, in particular Mr Johnson. 54 There is no reason that I can discern that would make it imperative for a police officer involved in speed detection and enforcement duties using a Pro Laser II unit to step onto the carriageway to signal a driver to stop. If one accepts the evidence of Ms Styan, and I do, Mr Hartley did not step onto the carriageway when he signalled her to stop and she had no difficulty at all in obeying the officer's directions. But putting that aside, I agree with the prosecutor that: [T]here appears to be no reason why the marked police car could not have been used at the subject site as a barrier to northbound traffic. Nor does there appear to be any operational or physical reason why Mr Hartley and Mr Johnson could not have signalled to the drivers of targeted vehicles from behind the relative safety of the marked police car – activating the lights of the vehicle in the manner described by Sergeant Gardiner …There is no evidence that operating in this fashion would reduce the effectiveness of the stopping activity and to the contrary, the evidence (as well as common sense) suggests that the presence of the marked police car with activated lights would increase "the visibility" of the officers. 55 The defendant submitted that a marked police car on the side of the road did not necessarily constitute a barrier against the prospect of police officers being injured by a moving vehicle. In this respect, Mr Hodgkinson referred to evidence of an incident whereby a vehicle slammed into a police car on the roadside pinning an officer against another vehicle. The Court is not advocating what the safe system of work should be; that is not its task. But is seems to me that if it is necessary for police officers to engage in stationary roadside speed detection and enforcement and there is no reasonably practicable alternative, a system that provided for a barrier or buffer zone between police and oncoming vehicles, whether that is a police car or some other physical barrier, together with appropriate signs indicating a police presence, this is a significantly safer arrangement than a police officer standing on the roadway without a shred of protection other than the officer's wits and quick physical reactions. 56 The defendant referred to the statistic that between July 1999 and June 2000 the Police Service conducted some 77,000 LIDAR operations where drivers were pulled over safely. I understand the point of this to have been to support the proposition that the "system" used in LIDAR operations was, therefore, demonstrably safe and that what happened to Mr Johnson was an aberration. 57 I do not accept the defendant's submission in this regard. It is like saying that because an employer operated a dangerous machine for twenty years without incident and in the twenty-first year an employee was exposed to risk using the machine that the risk was an aberration. What has to be considered is whether, on the facts, that employer failed in the twenty-first year to ensure the health and safety of the employee concerned. 58 By failing to maintain a system of work on 18 May 2000 for the conduct of the LIDAR speed detection operation that was safe, in that Mr Johnson was permitted to step onto the carriageway for the purpose of signalling drivers to bring their motor vehicles to a stop at the side of the carriageway, there arose the necessary causal connection with the risk experienced by Mr Johnson, namely, being struck by a motor vehicle. 13 In relation to the second failure the Court stated in the earlier judgment: 62 The evidence was that the defendant was aware of the practice of stepping onto the carriageway and, indeed, permitted that practice. Mr Johnson learned the stopping procedure to be adopted by way of demonstration from senior constables and this involved walking "out to the centre of the road, point out the vehicle and tell it to stop." Mr Johnson said in his evidence "that was all I was ever told." … 65 The failure to instruct Mr Johnson as to any or any adequate safety measures to reduce or eliminate the risk of the officers being struck by a moving vehicle was causally connected to the risk experienced by Mr Johnson. The measures that might have been available have already been canvassed and need not be repeated. It is clear that if Mr Johnson had been instructed by his employer not to step on to the carriageway and to place himself behind a barrier when engaged in roadside speed detection and enforcement operations using the Pro Laser II unit, it is beyond reasonable doubt that Mr Johnson would have followed those instructions and, therefore, would not have been exposed to the degree of risk that he experienced on 18 May 2000. … 67 In the present case I accept the prosecutor's submissions regarding the nature of the defendant's failures. The training Mr Johnson received in relation to safety in connection with speed detection and enforcement operations using Pro Laser II was negligible. Indeed, what little on the job training he did receive regarding stopping procedure actually placed him in a situation of risk. 68 If Mr Johnson had been trained by the defendant with respect to the use of early warning signs for the purpose of alerting drivers to the possible presence of police officers on the carriageway, if he had been trained not to step on to the carriageway and trained to place himself behind a barrier when engaged in roadside speed detection and enforcement operations using the Pro Laser II unit, it is beyond reasonable doubt that Mr Johnson would have complied with that training and, therefore, would not have been exposed to the degree of risk that he experienced on 18 May 2000. The failure to adequately train Mr Johnson was causally connected to the risk experienced by him on 18 May 2000. 14 The practice of police officers standing on roadways in order to carry out traffic duties, whether it be directing traffic, detecting speedsters or undertaking roadside breath testing is longstanding; it has been, and apparently still is, regarded as an essential and integral part of a police officer's daily routine. Whether it can continue to be is, of course, a matter for the NSW Police and it is not this Court's function to determine operational procedures or interfere with the necessary and effective work the NSW Police undertake in relation to road safety. 15 What I am concerned with here is the penalty to be imposed in respect of the offence found to have been committed on 18 May 2000 involving Mr Johnson in the conduct of LIDAR speed detection operations at Noraville in the State. 16 In considering the nature and quality of the offence, as I have stated, I have had regard to the fact that the officer assigned to carry out the work on 18 May 2000, Mr Johnson, was an experienced officer who was "very accomplished in being able to judge speed, distance and driver reaction in order that he might allow a reasonable margin to escape if the driver of a vehicle did not react appropriately to his signals to stop and pull over". I have also had regard to the longstanding practice of police officers moving onto the road to signal drivers to stop and that the incidence of injury arising from this practice is negligible. 17 In the proceedings, the affidavit of Chief Superintendent John Hartley was read. Mr Hartley is the Commander of the NSW Police Traffic Services Branch. His evidence was that since 1970 when radar was first introduced 29,945,650 breaches have been issued for radar offences. Since 1997 when LIDAR was introduced 569,600 breaches have been issued. Mr Hodgkinson SC for the defendant submitted that in assessing the nature and quality of the offence I should have regard to the extensive nature of police activity in relation to the use of radar and to the fact that in this case Mr Johnson was deliberately run down. 18 Police Highway Patrol operations are inherently risky and one or two injuries in circumstances where millions of breaches have been issued for radar offences suggests an otherwise good safety record either because of the training police receive (and that the absence of training in Mr Johnson's case was an aberration) or simply that police officers become very adept at avoiding injury. 19 Although I consider that until recently there was no structured system for training police in the safety aspects of roadside speed detection duties, I will give the defendant the benefit of the doubt and take into account that the negligible incidence of injury may have obscured the defendant's capacity to be aware of the likelihood of risk. But that does not mean given the failures found to have been proven in this case I cannot find it was a serious offence. Despite the negligible incidence of injury there remains on the defendant, whilst it is bound by the Occupational Health and Safety Act, an obligation to ensure the safety of all of its officers. 20 The Act imposes an obligation on employers to be pro-active with a view to preventing risks of injury, not merely reacting to them when they became manifest in a incident. As it was observed in WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely reactive. 21 That Mr Johnson was deliberately run down is a matter I have also had regard to as a mitigating factor but it is not as though the risk of a police officer being deliberately run down was not foreseeable. An adequate system of work and a proper training regime would undoubtedly take this possibility into account. 22 Mr Johnson was, as I explained in the earlier judgment, placed at considerable risk in having to rely solely on his wits and physical reactions to avoid injury in circumstances where it is not evident to me that it was essential as part of any operational requirement for Mr Johnson to step into the middle of the carriageway to signal the driver to pull over and that the only apparent reason Mr Johnson did so was because that was what the defendant expected of him, as that was the way it had always been done. 23 Additionally, there was a singular absence of appropriate training provided to Mr Johnson in what was a hazardous operation. The failure to provide adequate training and instruction was a significant omission on the defendant's part and considered with the failure to maintain a safe system of work, represents a serious offence as manifested by the injuries to Mr Johnson: Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 at [32] and the cases referred to therein. In this case Mr Johnson sustained severe injuries and continues to suffer disabilities that have resulted in his retirement on medical grounds as a consequence of the incident that occurred on 18 May 2000. 24 The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence: Lawrenson Diecasting at 476; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 at [81]; Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 at 27.There is no doubt the defendant knew of the dangers for police in stepping onto a roadway in the face of oncoming traffic, as I explained in my earlier judgment at [46] and, therefore, the risk of injury was not only reasonably foreseeable but was known to the defendant. 25 Furthermore, measures to avoid or minimise the risk were available and could reasonably have been implemented, as pointed out at [54]-[55] of the earlier judgment. For example, specifying the use of a marked vehicle with lights and message bar at the stopping site for the purpose of providing early warning to drivers; specifying the use of a marked police car at the stopping site as a barrier or refuge for officers undertaking LIDAR Speed Detection and roadside enforcement duties. The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the accident is relevant to assessing the seriousness of the offence in this case: Kembla Coal & Coke at 36. 26 Mr Hodgkinson submitted that general and specific deterrence should not play a significant role in the determination of penalty. In relation to general deterrence, I disagree. In Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. Whilst there is only one NSW Police, that body is not alone in employing personnel to undertake hazardous operations as part of their employment. A significant rationale underpinning criminal penalties is to deter others from committing the same or similar offences. Any penalty imposed in this case will be in respect of an offence involving the defendant's failure to ensure the safety of an employee when he was undertaking a hazardous task. It is appropriate to include in the penalty an element for the purpose of deterring others, particularly those employers who are engaged in providing emergency services, from committing a similar offence. 27 As to specific deterrence, it is open to the Court to include an element in any penalty to deter the defendant from re-offending. That involves a consideration of the defendant's propensity to re-offend. The Crown in the Right of New South Wales has 47 prior convictions spread across a number of its Departments. The Police Service has four prior convictions, none of which involved risks to safety arising from roadside speed detection operations. 28 The fact that the defendant has prior convictions automatically increases the maximum penalty from $550,000 to $825,000: s 51A of the Act. But the existence of prior convictions in this jurisdiction does not necessarily indicate, automatically, a propensity to re-offend. The Court has to take into account such matters as the nature of the prior offences, the steps taken by the defendant to avoid a re-occurrence of the risk and, in cases such as this, what is the relevant emanation of the Crown. That is what I have done in this case. 29 In relation to the steps taken by the defendant to avoid a re-occurrence of the risk the defendant instigated a review of standard operating procedures relevant to roadside speed detection and addressed its training requirements. The defendant sought information and advice from a number of sources, including the WorkCover Authority. The steps taken by the defendant were detailed in the affidavit of Chief Superintendent Hartley as follows: 10 I am aware of the following history of events following this incident: On 3 July 2000 the TSB requested information from the NSW Police Academy regarding instruction/ training provided to police in traffic enforcement. 11 On 7 July 2000 the TSB requested operational practices from all Australian Police jurisdictions. 12 On 18 July 2000 a meeting was held at the TSB with Commander Traffic Policy Inspector Evans, Senior Sergeant J.O'Donnell, Commander Traffic Support Group with Wayne Dawes, Occupational and Health Manager Tony Spargic, a NSW Police Solicitor to discuss and implement an action plan to review issues identified by WorkCover and advise WorkCover of outcomes. A decision was also made to meet as a steering committee and include the Police Association. 13 On 20 July 2000 advice was sought by Inspector Evans from Traffic Technology Section regarding new technology and the Steering Committee met to discuss issues arising out of information and incidents involving Sergeant Johnson. 14 In August 2000 Inspector Evans addressed the Region Traffic Co-ordinators and Traffic Management Centre advising them of their responsibilities regarding OH&S issues. 15 On 10 August 2000 the Commander TSB corresponded with Work Cover requesting extension of time to fully explore all issues regarding improvement notices. 16 I am aware that on 10 October 2000 Work Cover issued Improvements Notices on the NSW Police Service (now NSW Police). 17 On 15 November 2000 the TSB operational police visited Victoria regarding RBT operations in that jurisdiction. 18 From January 2001 further meetings were held with the NSW Police Manager OH&S Section concerning Standard Operating Procedures (SOP's) and associated documents including continued discussions and meetings arranged for the steering committee. Documents were drawn up and discussed with outlines for responses explaining risk analysis and evaluation. Following from this I am aware further meetings were held concerning OH&S issues specific to WorkCover identified issues and proposals for review. The Work Cover material was also referred to the NSW Police Association for their information and comment. 19 On 23 January 2001 discussions were held regarding progress of the revised SOP's for RBT/LIDAR with Sergeants Thompson and Gardiner (STAMP) Police Academy, now Police Driver Training (PDT). The following day further discussions with Sgt. Thompson (PDT) were held concerning changes to Highway Patrol training program to include OH&S issues. As a result Chief Inspector Bult, Commander STAMP (PDT) authorised HWP Courses to include a lesson plan on OH&S issues. 20 On 25 January 2001 personnel discussions were undertaken at the School of Operational Safety and Tactics (SOST) concerning OH&S issues and impact on officer survival issues and training. 21 On 29 January 2001 Sgt.'s Thompson STAMP (PDT), Dorrough TSB, O'Donnell and Llewellyn Traffic Support Group reviewed proposed SOP's for operational issues. 22 On 2 February 2001 the then Commander of TSB forwarded correspondence to WorkCover regarding results and assessments and on 6 February 2001 the initial draft of SOP's were referred to the Commander of TSB. 23 On 23 February 2001 further meetings with held with Wayne Dawes, Inspector Evans, Sgt. Dorrough and O'Donnell concerning SOP's and development of a Risk Assessment matrix. 24 On 27 February 2001 at the Region Traffic Co-ordinators meeting held at TSB all persons attending were issued copies of an OH&S matrix. Inspector Evans informed personnel of their responsibilities regarding on road activities by staff including a requirement to assess any activity and discuss any issues that may reduce risk with traffic personnel. 25 On 21 March 2001 discussion was undertaken with WorkCover Inspector Paul Covi concerning the SOP's. 26 On 10 April 2001 a meeting was held of the Region Traffic Co-ordinators/Policy and Procedural Review Committee to examine and review draft of RBT/LIDAR SOP's. 27 On 9 May 2001 the Region Traffic Co-ordinators/Policy and Procedural Review Committee met to discuss changes after police from each region had addressed draft SOP's concerning the training package and explanation of the Risk Analysis. 28 On 10 May 2001 the final SOP's for RBT/LIDAR were distributed to Westmead (STAMP) for education and training. The following day TSB electronically forwarded SOP's to all Regions for distribution to police. 29 On 30 May 2001 a meeting was held with Inspector Paul Covi of Work Cover. Discussions included the final drafts of SOP's to Work Cover. Inspector Covi requested a risk analysis showing a copy of how the risk was assessed. 30 On 14 August 2001 additional information regarding the preparation of SOP's was forwarded to WorkCover Inspector Paul Covi. 31 On 13 February 2002 a report was sent from TSB to the Deputy Commissioner Operations to obtain formal endorsement of the SOP's. 32 I was involved in and was aware that immediately following the handing down, perusal and distribution of the decision of Boland J of the Commission on 28 May 2004 an urgent memo authorised by the Deputy Commissioner - Operations, was issued. The memo [annexed] referred to the decision of the Commission and instructed police not to step onto the carriageway and to use barriers and have an escape route available to ensure their safety. 33 I am aware following the decision of the Commission that on 21 June 2004 with reference to the RBT/LIDAR project Work Cover were contacted regarding their outstanding review of the RBT SOP's that were currently in existence. Advice was later received that Work Cover would not commit to written comment on the SOP's, but were prepared to provide verbal advice. 34 On 22 June 2004 a report on the Work Cover review was submitted through the Chain of Command to the Deputy Commissioner Operations and enquiries were made internally within the NSW Police to establish a working party. 35 On 1 July 2004 the working party met to discuss the current RBT SOP's. Changes were made to existing SOP's and a draft was formed and disseminated to the working party for review. 36 On 2 July 2004 the hand signal training package working group formed and further consultation occurred with NSW Police concerning OH&S and a training package. 37 On 5 July 2004 NSW Police Legal Services & the NSW Police OH&S section were contacted regarding a review of RBT SOP's and Draft SOP's disseminated on this date to both sections. 38 On 12 July 2004 a meeting was undertaken with NSW Police OH&S concerning a Safe Work Methods Statement ("SWMS") Model & Risk Assessment models including available training methods. 39 On 16 July 2004 a meeting was undertaken with Assistant Commissioner Mark Goodwin regarding the current situation with RBT SOP's. 40 On 19 July 2004 a concept of Site Assessment Model was established, based on the SWMS. During July 2004 further meetings were undertaken between NSW Police OH&S section regarding RBT SOP's and Risk Assessment and the TSB and Legal Services regarding the current situation regarding the RBT SOP's. 41 I am also aware that during late July 2004 further meetings were held with the hand signal working party and there was a review of NSWP Handbook regarding RBT procedures. 42 Further meetings and reviews were undertaken regarding the review of RBT SOP's and a second draft of RBT SOP's was created and disseminated to the NSW Police Association for further review and comment. 43 On 23 July 2004 the final draft of SOP's were completed and submitted for review. 44 On 27 July 2004 RBT SOP's, Annual Site Assessment Instructions and Forms were placed on the Police Intranet. An all State Memo was sent to NSW Police with attachments of the new RBT SOP's and instructions on RBT Operations. Each NSW Police officer was forwarded a copy of the RBT SOP's. 45 On 28 July 2004 the Hand Signal Training package was completed and submitted for review as well as the Hand Signal Guide and the Power Point training package. The RADAR/LIDAR SOP's were reviewed and created. [reference given]. 46 On 3 August 2004 the concept for 'Site Management guide for RBT operations' was established pending further review and RBT 'System of work' model created pending further review. 47 On 11 August the Hand Signal Guide was placed on Police Intranet. [reference given]. 30 Immediately following my judgment on liability I note that the defendant instructed police not to step onto the carriageway and to use barriers and to have an escape route available to ensure their safety. The Chief Superintendent went on in his affidavit, however, to comment that: It appears from the graphs [annexed to the affidavit] that there was a subsequent increase in fatal accidents in the same months compared to 2003. The increase was approximately 25% in fatal collisions and a 90,000 reduction in testing for the two months following the decision of the Commission. This was during the period of the restrictive practices following the decision. 31 I do not accept the obvious inference that is sought to be made in the affidavit. An instruction not to step on to the carriageway, to use barriers and to have an escape route did not necessitate a reduction in roadside testing operations. 32 Nevertheless, it is apparent that the defendant took seriously the need to review the relevant standard operating procedures and training arrangements and has taken steps to avoid a re-occurrence of the risk that was the subject of the charge in these proceedings. However, I do note that following the consultation between the defendant and WorkCover, that Authority had a number of residual concerns with the defendant's updated procedures and they included: (a) Risk assessments. There was no mention in the SOPs of the training levels or skills necessary to carry out risk assessments. (b) Supervision. The SOPs should be more specific about the precise role of front line supervisors. (c) Walking onto Roadway. This should not be presented in the SOPs as the only option when attempting to stop a vehicle travelling on a multi lane road and that the SOPs created the impression that it was still established practice for officers to walk onto the road in front of oncoming traffic when conducting LIDAR and RBT operations. (d) Escape routes. The SOPs required escape routes to be established but only where practicable. Escape routes should be mandatory. (e) Exclusion zones. There was a need to clarify the exclusion zone. (f) Subjective terms. Subjective terms such as "care is to be taken" was used throughout the SOPs. These should be eliminated and replaced with terms of greater specificity. 33 As I understood the defendant's position regarding these issues they were under consideration. I would offer the opinion they should be taken seriously by the defendant. 34 In relation to specific deterrence, having regard to the foregoing considerations I intend to include in the penalty an element for specific deterrence because whilst I accept that the defendant has taken seriously the need to avoid another incident such as that which occurred on 18 May 2000 and has taken steps in that respect, it is appropriate that I emphasise the need to ensure the risk does not arise again. 35 Apart from the issues I have addressed under the heading of specific deterrence there is a separate and subjective consideration that mitigates the objective seriousness of the offence and that is that the defendant actively sought out the assistance of the WorkCover Authority in reviewing its standard operating procedures and to a significant degree accepted the Authority's advice. 36 There are no other subjective considerations and I note, in particular, there was no expression of contrition or remorse for the plight of Mr Johnson after the guilty finding. 37 I consider that an appropriate penalty in this case, having regard to the objective seriousness of the offence and the relevant subjective consideration, is $150,000. Orders 38 The Court makes the following orders: 1) A verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $150,000 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. _____________________ 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.