Industrial Relations Commission of New South Wales CITATION : Inspector Keniry v The Crown in Right of the State of New South Wales (Department of Community Services) [2002] NSWIRComm 349 PROSECUTOR: Inspector Anne Keniry PARTIES : DEFENDANT: The Crown in Right of the State of New South Wales (Department of Community Services) FILE NUMBER: IRC 3863, 4018, 4019, 4020, 4021 and 4022 of 2000 CORAM: Haylen J Occupational Health and Safety Act 1983 - six separate charges under s 15(1) - offences occur in operation of group homes for physically and intellectually disabled - pleas of guilty - substantial dispute as to relevant facts - effect on discount for early plea - essential facts and elements of offences demonstrate seriousness of offences - aggressive and assaultive behaviour leads to injury of employees - employees retired medically unfit following incidents of assault - aggressive and assaultive behaviour not an uncommon feature of the work - need for employers to be pro-active in ensuring safety and welfare of its employees in circumstances where risk is known and unlikely to be able to be controlled - no mitigating tension between statutory responsibility for home clients and obligations to employees under OHS Act - totality principle applied - approach recognises course of conduct over a year and similarity of acts and omissions - separate incidents demonstrated need for action to protect employees - separate fines imposed CATCHWORDS : Occupational Health and Safety Act 1983 s 15(1) Occupational Health and Safety Act 2000 s 121 LEGISLATION CITED : Mental Health Act 1990 Disabilities Services Act 1986 Crimes (Sentencing Procedure) Act 1999 s 10 s 22 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 at 644 [77] Cameron v R (2002) 187 ALR 67 at 68, 69 paras 14-15, 20 -23 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 Crown in Right of the State of New South Wales Department of Education and Training) v Keenan (2001) 105 IR 181 Department of Mineral Resources of New South Wales v Kembla Coal and Coke Pty Ltd at 27.2 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 210.7. Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474 Inspector Barnard v Rail Infrastructure Corporation (No 2) [2002] NSWIRComm 107 at paragraph 33 Inspector William Keenan v Kyogle Council [2002] NSWIRComm 137 at paragraph 81 per Glynn J Inspector Roy Thomas Milligan v Roads and Traffic Authority unreported, Fisher CJ, 29 August 1996 at 14 Pearce v The Queen (1998) 194 CLR 610 CASES CITED : R v Ellis (1986) 6 NSWLR 603 at 604 R v Thomson (2000) NSWLR 383 at 419 Winchester (1992) 53 ACrimR 345 at 350 WorkCover Authority of New South Wales v Atco Controls Pty Ltd. (1998) 82 IR 80 at 85 WorkCover Authority of New South Wales (Inspector Batty) v The Crown in Right of the State of New South Wales (New South Wales Department of Education and Training) [2000] NSWIRComm 181 WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Ltd, unreported, Schmidt J, 25 February 1994, at 12.2 WorkCover Authority of New South Wales (Inspector Keelty) v The Crown in Right of the State of New South Wales (Police Services of New South Wales) (No 2) (2001) 104 IR 268 at [24] WorkCover Authority of New South Wales (Inspector Keelty) v The Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 3) (2002) (2002) 112 IR 141 WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Ltd, unreported, Schmidt J, 25 February 1994, at 12.2 WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service [2002] NSWIRComm 44) WorkCover Authority of New South Wales (Inspector Searle) v Western Sydney Area Health Service (2001) 111 IR 414 at paragraph 29 WorkCover Authority of New South Wales (Inspector Sheppard) v The State Rail authority of NSW [2000] NSWIRComm 179 WorkCover Authority (NSW) (Inspector Stewart) v The Crown in Right of the State of New South Wales (Department of Education and Training, Department of Juvenile Justice and TAFE) [2002] NSWIRComm 259 at 45 HEARING DATES: 11/06/2001; 11/07/2001; 06/03/2002; 06/04/2002; 06/05/2002; 10/18/2002 DATE OF JUDGMENT: 12/12/2002 PROSECUTOR: Mr B Docking of counsel SOLICITOR: Gordon Henderson Phillips Fox LEGAL REPRESENTATIVES: DEFENDANT: Ms A F Backman of counsel SOLICITOR: Mr G Boyd Crown Solicitor's Office JUDGMENT: - 86 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HAYLEN J 12 December 2002 Matter Nos. IRC 3863, 4018, 4019, 4020, 4021 and 4022 of 2000. Inspector Anne Keniry v The Crown in Right of the State of New South Wales (Department of Community Services). Prosecutions under s 15(1) of the Occupational Health and Safety Act 1983. JUDGMENT [2002] NSWIRComm 349 1 In August 2000, Inspector Keniry of the WorkCover Authority made application to commence proceedings involving the Department of Community Services, alleging six separate breaches of s 15(1) of the Occupational Health and Safety Act 1983. The six alleged breaches covered the period from August 1998 to July 1999 and arose out of incidents at premises operated by the Department known as a Group Care Home which housed physically and intellectually disabled clients. The alleged breaches in each case appear as Annexure A at the conclusion of this judgment. 2 Following the issue of the summons in each case, the matters were listed for Directions before the Registrar on five occasions between November 2000 and May 2001. On this last occasion, a plea of guilty was entered in relation to each charge. 3 During the course of the proceedings, the defendant applied for a pseudonym order in relation to the clients who were resident at the Group Home during the period of the incidents which were the subject of the offences. There were five such clients who were resident at the premises and they had been named extensively throughout the material relied upon by the parties. The application was not opposed by the prosecutor. After some consideration, and in view of the fact that the named clients were not defendants in the proceedings, I was content to follow the approach of Schmidt J in not dissimilar circumstances as disclosed in her Honour's judgment in WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service [2002] NSWIRComm 44). I was satisfied in all the circumstances that it was appropriate in this case to make the pseudonym orders sought by the defendant. 4 The second issue of substance which had consequences for the nature and scope of the hearing of the pleas was the fact that the parties were unable to agree totally on a Statement of Facts. After a number of attempts, a substantially agreed document was produced but with certain matters highlighted indicating that they were not agreed. In relation to these matters, the prosecutor accepted that he bore the onus, to a criminal standard, to make out those matters. The result was that the defendant relied on 11 affidavits. A number of witnesses were called and cross-examined. Two of the employees of the Department who were the subject of assaults by the clients were called to give evidence and were extensively cross-examined by counsel for the defendant. 5 The extent of the difficulty confronting the Court is demonstrated by the following: (a) in relation to what the prosecutor stated were the "objective facts" relevant to all cases, there were 18 paragraphs of detailed reference to affidavit evidence and exhibits, and six of those paragraphs were contested by the defendant; (b) the prosecutor's detailed list of facts covered approximately another 130 paragraphs occupying approximately 35 pages of closely written submissions, 48 paragraphs of which were disputed by the defendant. The process was not assisted by any analysis as to which of the matters in contest went to the objective seriousness of the offence: a number of the contested issues went to matters of emphasis only. FACTS AGREED AND DISPUTED 6 The prosecutor tendered an amended Statement of Facts while the defendant tendered a document setting out which of those matters were disputed. The prosecutor's document highlighted the paragraphs which were in dispute. In the following pages, I have adopted the prosecutor's document, and I have ruled on each of the disputed paragraphs in the course of setting out that document. 7 The prosecutor's document (which is reproduced below) took the approach of setting out what was said to be objective facts which were relevant to the six prosecutions. In that document, paragraphs 2, 3 and 4 provided necessary background to those asserted objective facts. AMENDED PROSECUTOR'S STATEMENT OF FACTS 1. This document contains the factual matters that the Prosecutor contends have been proven beyond reasonable doubt on the evidence presented to the Court. The Defendant has indicated that a number of the factual matters contained in this document are disputed. Each paragraph, sentence or phrase disputed by the Defendant has been highlighted. 2. At all material times the Prosecutor was an Inspector appointed pursuant to Division 4 of Part 3 and empowered by Section 48 of the Occupational Health and Safety Act 1983 to institute proceedings in this matter. 3. At all material times the Department of Community Services was an emanation of the Crown in Right of the State of New South Wales with its Inner West Area Office located at 56 Liverpool Road, Summer Hill in the State of New South Wales ("the Defendant"). 4. At all material times the Defendant: (a) Was responsible for the management and conduct of a Group Care Home situated at 132 Burwood Road, Concord, New South Wales ("the Group Care Home"); (b) Employed Sharon Poha ("Poha"), (c) Martina Rarere ("Rarere"), Kerry Flick ("Flick"), Margaret Jenkins ("Jenkins"), Taragh Wilde ("Wilde"), Nina Lever ("Lever"); Francis O'Donovan ("O'Donovan"), Clare Donnelly ("Donnelly") and Mathew Micalef ("Micalef") as residential care workers at the Group Care Home; (d) Employed Christopher Smith ("Smith") as house manager at the Group Care Home; (e) Employed Paul Dellagiacoma ("Dellagiacoma") as house manager at the Group Care Home at the time of the incident on 19 July 1999; (e) Was responsible for physically and intellectually disabled clients residing at the Group Care Home (who are referred to by their initials for the purpose of these proceedings as JJ, GK, PM, HD and SH) who resided at the Group Care Home at that time (collectively referred to as "the clients" or "the residents'). At all material times the objective facts were ("the Objective Facts"): 5. The relevant detriment to safety was a potential risk to the health, safety and welfare of Poha, Rarere, Jenkins, Wilde, Lever, Flack, Donovan, Donnelly and Micalef in that there existed a potential risk that the employees of the Defendant could be subject to an assault perpetrated by one of the clients at the Group Care Home. 6. The Defendant has previously defined "assault" as: 7. "the unlawful physical attack of one person on another; or a threat upon another person, where there appears to be the ability to carry out that threat. The types of 'assault' covered by this document include: (i) all forms of physical assault; (ii) threat of assault, verbal or otherwise; (iii) sexual assault." (see, for example the October 1996 "Policy on the Effective Management of Client Behaviour to Prevent Injury or Illness to Staff") (ex Y p 12.1.3.3) 8. The Defendant allowed the placement of five residents at the Group Care Home, where two of the five residents were autistic and the remaining three residents were intellectually disabled. (a) The Group Care Home required 24 hour supervision of clients by employees. McLeod, the Department's programmer for the Group Care Home during the charge periods, said, "I think there are too many residents in that house. I think GK would be more suited to a house in with fewer residents. In the house prior to Burwood Road there were 3 residents with Autism and that was 2 too many. I also think that the number of staff contribute to the situation as it is so hard for 12 staff and casuals to make the consistent approach GK needs possible …". She also said in cross-examination that, in her view, at Burwood Road there were 2 residents with autism, namely, GK and SH, and that was 1 too many. The number of staff meant that it was very difficult to have all of them reliability trained on GK and there was also a lot of staff to get to the staff meetings. People with autism need a very, very structured routine and those 2 people that need a very structured routine make it quite difficult for the routines to be balanced out (McLeod Q58; XX260, XX271, XX274); (b) A client compatibility assessment undertaken in September 1999 by the Defendant, highlighted considerable interpersonal and environmental compatibility issues at the home (Ferguson para91). These issues included the Group Care Home being too small for the number of clients and staff and the lay out of the staff being two levels instead of one level (Ferguson XX216 L50 – 56). However, during the hearing, the State was not able to produce a copy of the final version of this report (T242 L9), although a draft dated 24 August 199 was produced (ex EE; T287); (c) The State's current plan is that the residents living in the Group Care Home will move to different locations. It was envisaged that GK was the first to be moved out of the Group Care Home within 3 months of 4 June 2002 (Dunworth XX239 L50). GK is to move to a group home facility renovated specifically and designed to support people with complex needs. GK will have more of his own space and own areas in order to reduce the environmental factors that tend to cause him anxiety (RX246 L55 – RX247 L3); (d) In her ROI dated 12 January 2000, Ms Hillman said that in the long term it was identified that we need to dispose of the Burwood Road House as it is 2 storey house and a more suitable single level property needs to be located (Q29 & see also para 19 in ex 10). The current plan is that the Group Care Home will be disposed of (Hillman XX251 L1); 9. The Group Care Home was not spacious enough and was too noisy for the number of, and combination of, clients at that time. It is difficult because the living areas are small, the house is noisy and some of the clients are extremely noisy (Coyne Q46). Things like growling at night, breaking of plates and screaming all contributed to the noise (Dunworth XX241 L28 – 44). GK was quite sensitive to noise and his special chair in the lounge room was close to the kitchen and other residents who may be demanding attention from staff. It did not give GK a lot of space without him having to spend time in his room (McLeod XX260 – XX261). 10. The Group Care Home was unsuitable in terms of its physical facilities: (a) The Department's November 1992 "Policy On The Effective Management Of Client Behaviour To Prevent Injury Or Illness To Staff", under the heading of "STRATEGIES FOR PREVENTING ASSAULT INCIDENTS TO STAFF" and in relation to roles said, "when purchasing or renovating buildings to consider the physical design, layout and security of buildings and its impact on client behaviour and staff security" (ex X p 7); b) The Group Care Home was poorly designed as a house and this added to the behaviour escalation in the house. This was because of the difficulty that the staff had in moving residents around so that behavioural problems would not escalate. In particular, there was a difficulty in relation to redirecting the residents that occurred around the key times in the morning at 7 am and in the afternoon at 3 pm when there was a volume of staff and residents coming together as they were funnelled into the lounge room (Smith XX36 L40, RX90 L43 – RX91 L23); (c) It is poorly designed for the current client mix (Dunworth XX240 L25; Hillman XX255); (d) Part of the poor design was that the Group Care Home comprised two separate levels or storeys as opposed to being a single level property: (i) The upstairs area did not permit the staff to observe the residents regularly and the staff could only hear what was going on upstairs. Mostly, the staff were downstairs because that was where the heart of the house was due to people ate downstairs, the television was downstairs and the office space for staff was right in the lounge room (see the floor plan in ex E; Smith XX36 L40 – XX37, RX102 L28 - 58); (ii) Another consideration is that it is certainly accepted that there is a risk associated with a staircase and a staff member may be upstairs and unable to progress down the stairs if stopped by a resident (Hillman XX252). (e) The living areas of the Group Care Home were small (Coyne Q46). The lounge room was quite small and that is where the television was located (McLeod XX260 L52 – XX261 L9); (f) It came down to the size of the house, in that there was not enough space to redirect people in a way that was safe when dealing with an escalation of behaviour. There were residents and up to 5 staff in a vicinity no bigger than probably a 12 by 14 room at times, and the residents had to be redirected out into other common areas like a backyard. One of the clients who was very assaultive was upstairs in a room that was probably 8 by 10, with 3 connecting bedrooms and the environment did hinder people's abilities to implement the behaviour plan because the plan was designed for redirection into other environments (Smith XX37). 11. The physical environment of the house did not allow GK enough space to have a rest without being isolated in his bedroom (McLeod Q58; McLeod XX260 L52 – XX261 L9; Dunworth XX240 L29 - 47). 12. The human resources at the Group Care Home were inadequate, especially as GK, at relevant times, needed two employees to work with him to give him the consistent approach his condition required and/or there was a need for one to one supervision at times: (a) The Department's November 1992 "Policy On The Effective Management Of Client Behaviour To Prevent Injury Or Illness To Staff", under the heading of "STRATEGIES FOR PREVENTING ASSAULT INCIDENTS TO STAFF" and in relation to roles said, "providing adequate staff ratios for the nature of the clients (especially those with an identified violence potential) and for the risk level of activities being undertaken" (ex X p 7); (b) The 16 November 1998 InterOffice Memo said, "In order for the clients … come to Burwood Road." (ex M); (c) The 18 November 1998 "RECOMMENDATIONS OF SYSTEMIC ISSUES TO BE ADDRESSED RE: BURWOOD RD" said, "Staffing at Burwood Road has been an issue it appears for some months and has in part lead to the present difficulties in managing GK's challenging behaviour. The slowness in actioning the recruitment of staff has not been adequate" (ex AA). Under the heading, "SUGGESTED ACTION" it was said, "Permanent staffing to be pursued as a matter of urgency"; (d) After Ms Poha was injured on 3/8/98, 18/8/98 and 27/9/98, extra staffing were brought in but they were inexperienced and they needed training (Poha Q75). There was a need for 2 full time staff to work with GK, 2 full time staff to work with SH and 1 for the other 3 residents (Poha Q58; Poha XX150; Flick XX189). As at 11 November 1999, the system was still that 2 employees allocated to GK to deal with his aggression and violence and other challenging behaviour (McLeod XX275 L52 – XX276 L12); (e) After Ms Flick was injured on 16/1/99, in trying to get GK back to his day program it became necessary to have 2 staff members from the house to accompany GK to his day program because of his behaviour (Flick Q 52); (f) Measures taken after the incidents included increasing the staffing ratios of the home in order to have more staff available to the unit generally and in an attempt to work specifically with GK (Meader Q's 30, 37, 57). The number of established staff was increased to three equivalent full-time workers who were specifically employed to work closely with GK (para (8)(i)); (g) Reactively after the incidents between 3/8/98 and 16/1/99, the Department increased staffing (Smith Q113; Beach Q23; Hillman Q29; Hillman XX254 L28). Additional staff were rostered to work at the Group Care Home to assist in dealing with GK. Specifically, two members of staff were rostered at the Group Care Home to work with GK for most of the day until late in the evening (Beach para 5); (h) In July 1999, funding was approved for 26 weeks for additional staff for the home and the involvement of the Autism Support Unit to review GK's management plan, communication systems and routines (McLeod para 9). The defendant asserts that at the Burwood Road Group Home staffing levels were adequate at material times, but it was an agreed fact that there were too many residents with a variety and combination of disabilities which exacerbated the risk. Nor is it disputed that the question of staffing at Burwood had been an issue for some months and, that after Ms Poha was injured, extra staffing was introduced. I accept the prosecutor's submission that Ms Hillman was not in a position to give evidence to the contrary. The prosecution has made out this statement. 13. There was no or no adequate consultation with employees of the Group Care Home who had knowledge and experience with GK regarding his behaviour and any changes to his program (for e.g. Lever Q 38 behavioural management plans were not reviewed with the one who are working with the clients but cf McLeod Q36). The "RECOMMENDATIONS OF SYSTEMIC ISSUES TO BE ADDRESSED RE: BURWOOD RD" said, "Information has not always been appropriately discussed with the programming team involved. In this sense data has not been forthcoming and decision making based on this data has not been able to occur." (ex AA) The defendant states that staff were consulted fortnightly by Nerida McLeod in staff meetings and on an individual basis. However, the prosecutor's statement is specific, being in relation to GK and the prosecution has made out its statement in relation to GK. The defendant states that the quote from Exhibit AA (Recommendations of Systemic Issues to be addressed re: Burwood Road) was not meant to reflect the level of consultation but rather reflects the inconsistencies in staff compliance with the data collection duties making the programming more difficult to fulfil. I accept the defendant's qualification of that part of the prosecutor's Statement of Facts. The defendant's clarification, however, does not absolve the defendant from ensuring the effectiveness of consultation, especially as it affects occupational health and safety. 14. The routines of the other residents were disturbed, as the management of GK was demanding so much attention and time from the employees. The behaviour of the other residents escalated (Poha Q45). At an interagency meeting held between the Department and Rozelle Hospital on 21/12/98, it was recorded that GK's behaviour was negatively impacting on the behaviour of the other residents at the Group Care Home and the other clients' behaviour was then in turn impacting on GK (Ferguson para 78; XX217 L16 - 26). 15. The Group Care Home was physically, environmentally and socially unsuited for a person with GK's behavioural characteristics. 16. SH required additional employees to assist in safely controlling his aggressive or violent behaviour in the Group Care Home. There was an awareness of the risk from SH before he assaulted Poha (Smith Q 20). After the incident on 18/8/98, staff numbers were increased to 1 on 1 for this resident in key times (Q46). According to Meader, JJ did not display physically challenging behaviour until the assault on Poha on 27 September 1998 (Meader Q33; Smith Q 66; Smith XX68 & RX100; Poha XX146 L45). However, JJ had previously lashed out at Poha physically and verbally, although rarely, as the personality of JJ brought him into conflict at times (Smith Q74). A psychological assessment undertaken on 1/4/94 of JJ included a finding that he was less frequently physically aggressive (Ferguson para 50). This record sitting on the State's files contained a warning, since 1994, that he could be physically aggressive (Ferguson XX212 L23) The defendant says there was an awareness of risk to employees and accordingly measures were in place to minimise the risk. However, in relation to the risk posed by SH, these measures were adopted after the event. The defendant points to the fact that the psychological assessment of JJ was dated in April 1994 and noted that he was now less frequently physically aggressive. That information was some four years old at the time of the incident and was said to be the only reference to any history of aggression on the part of JJ. It was said that nothing since that time gave rise to concerns about any aggressive behaviour. This paragraph raises directly whether the 1994 Report referring to JJ being less frequently physically aggressive means that some four years later the only risk that could be foreseen in relation to JJ was challenging rather than physically aggressive behaviour. In my view the state of the evidence leaves it no higher than a possibility that JJ might act aggressively and to that extent it was foreseeable. The 1994 assessment however did not state that JJ was no longer physically aggressive, but stated that he was "now less frequently physically aggressive". 17. The Defendant knew and believed that PM posed a risk to employees and clients at the Group Care Home (see, for e.g., Poha XX148 L52 – XX149 L5) The defendant again asserts that the staffing levels were adequate but I refer to what I have already said in relation to paragraph 12. The defendant makes the further point that, while consistency of staff in terms of implementation of individual programmes was a key factor, not all staff changes could be avoided. I accept that qualification. 18. Staffing levels of 12 at the Group Care Home meant it was nearly impossible to ensure the Defendant was following the program specifically for each resident (McLeod Q's 58, 66). The defendant submits that neither JJ nor HD had "potential aggressive or violent behaviour". I have already accepted that in relation to JJ the history was sufficient to foresee the possibility that challenging behaviour may escalate, although that had to be viewed in the context of a four year period of a declining degree of aggression. It appears to be accepted that HD did not have this potential. 19. The dynamics of the clients at the Group Care Home were very demanding and all had potential aggressive or violent behaviour which triggered off other residents (Martin Review in April 1996 p 29, Coyne Q26). 20. One form of potential challenging behaviour was assaultive behaviour or "aggressive or violent behaviour". As McLeod agreed: (a) It was predictable that the aggression or violence would manifest itself at the Group Care Home. (b) If there is to be a safe system of work, you do not wait for that aggression to have manifested itself in the form of an assault before taking preventative and remedial steps (XX269 L33 – 45). 21. The assaultive behaviour did manifest itself as an actual risk from time to time. The defendant submits that the reference to "time bomb" in Exhibit B is not a reference made in the context of aggressive or violent behaviour. It therefore should not be relied upon as support for a submission that the risk of violence was foreseeable. It was submitted that, if the reference is relied upon in the context of challenging behaviour, then it is noteworthy that the concept of challenging behaviour is much wider than aggressive or violent behaviour. It appears that on a proper reading of Exhibt B the context discloses that the reference to a "time bomb" was not confined to maintaining an active, interesting, busy and communicative environment. I accept the prosecutor's submission that it extended to "critical incidents of some seriousness". 22. The Group Care Home meant according to Dr Martin, "My personal observations of this house on all occasions was that it is a "time bomb" ready to explode if the staff were not vigilant in their efforts to maintain an active, interesting, busy and communicative environment." (Martin Review in April 1996 p 29; Smith RX103 L22 - 38cf Ferguson XX218, RX221 L32 – RX222 L4). According to McLeod, Dr Martin was a recognised external expert in this field who is used from time to time by the State to get expert opinions on challenging behaviours (XX274 L46 – XX275 L12). IRC No 3863 of 2000 Date of Offence: 3 August 1998 Place of Offence: Group Care Home Facts 23. On 3 August 1998, Poha was rostered on the afternoon shift at the Group Care Home. 24. On 3 August 1998, SH was observed by Poha to be displaying severe challenging behaviour. 25. The consumption of coffee by SH or if he was denied coffee after having earlier consumed coffee was known to trigger challenging and assaultive behaviour in him. SH had previously consumed coffee earlier in the day. The house manager did not advise Poha of this. SH was given more coffee at his day program and came back to the Group Care Home expecting more. 26. Poha had carried out a cooking program with SH, and was carrying out a lunch program with a female resident of the Group Care Home. SH had been sitting in the lounge of the Group Care Home in a rocking chair. SH had asked for pizza and hot drink and was advised by Poha that there was no pizza available on that day but that it would be available the next day. SH then became very tense, clapped his hands loudly, and proceeded to attack Poha and the female resident. 27. As Poha was carrying out the lunch program with the female resident, SH displayed assaultive behaviour to Poha and the female resident. SH attempted to hit, head butt and reach for the throats of Poha and the female resident. 28. Poha attempted to fend SH off, but he threw her into the kitchen fridge and she fell and screamed for help. Poha then got up and ran around the kitchen table and SH proceeded to run into his room. The female resident had left via the back door at this stage. 29. Smith then came down the stairs of the Group Care Home and asked whether Poha was all right. He then advised her to fill out an incident form. 30. As a result of the incident with SH, on 3 August 1998, Poha sustained bruising to her back, buttock and left arm. Poha sought medical treatment the following day and was prescribed painkillers. After this incident, Poha did not require time off work (Q23). Particulars 31 As to particular (a): "The Defendant failed to provide adequate emergency procedures and equipment to ensure the safety of its employees when the employees were confronted by clients who demonstrated aggressive or violent behaviour." (a) See "Objective Facts" above; (b) SH, GK, JJ and PM had previously demonstrated aggressive or violent behaviour, which was admitted by employees of the Defendant and was contained within the Defendant's records; (c) The Defendant had knowledge of the aggressive or violent behaviour from the knowledge of its employees and/or agents, verbal and written communication from employees, incident reports, behavioural data and consequential behavioural management plans, staff meetings and communications with the house manager; (d) The specifics of particular (a) are as follows: (i) The Defendant did not provide a 'safe room' at the Group Care Home in which staff and residents could retreat and lock themselves in case of assault (see for e.g., the floor plan and para 12 in ex E, Poha Q74, Flick Q50, Smith Q's 117-118, Lever Q43, but cf Meader Q 43); (ii) The Defendant did not provide a duress alarm system with back-up; (iii) The on call system did not provide a timely reply, and police assistance was required due to its ineffectiveness (Smith Q's 121 – 124; Rarere Q16; Poha XX139, XX154, RX171). The on-call system failed in the Department. Assistant Managers were not going to be on call and the community service centre manager was on call. When Smith tried to call others it was very, very hard to get on to others, so he took the brunt of calls from the home, although he did not arm the phone 24 hours a day (RX99 L38 – RX100 L15. On one occasion when Flick called, she had to wait 3 hours for an answer (XX186); (iv) The Defendant did not provide a detailed evacuation plan; 32. As to particular (b): 33. There was no assessment by the defendant of the risk of aggressive or assaultive behaviour by SH prior to 3 August 1998. The Risk Assessment Policy & Guidelines were just dumped into the home and the staff were not trained to have an understanding of the guidelines. In particular there was no risk assessment undertaken in relation to the risk of aggressive or assaultive behaviour that complied with what was set out in the departmental policy, guidelines and procedures. This assessment was not carried out for each of the 5 residents at the Home (Smith Q's 132 – 133; McLeod Q23; ex V esp p 5; ex W; McLeod XX259, RX288). As a result of an improvement notice served on the Department by Inspector Keniry, the Department consulted with all staff and relevant stakeholders to conduct a risk analysis in order to assess the assault risks to staff exhibited by clients at the home. This risk analysis was completed on 9/3/99 (Dobosz para 8 – 10). (a) See "Objective Facts" above; The defendant admits that its records indicated, from the time SH first took up residence at the Burwood Road Group Home in July 1993, there was a detailed assessment of the risk of aggressive behaviour by SH. The documents included "Hand-over notes, psychological assessments, staff training records, specific to SH and McLeod's progress notes re SH and other progress notes and letters". These confirm the foreseeability of the behaviour of SH. The prosecutor, in addition, points out that while there may have been this material there was no risk assessment undertaken by the defendant, even while there were a number of existing policy guidelines. There was quite specific cross-examination on this subject and I accept that the defendant's employees admitted that there was no risk assessment conducted in terms of the defendant's own policy documents in this regard. 34. As to particular (c): "The Defendant failed to ensure that employees were adequately supervised in managing the behaviour of clients." (a) See "Objective Facts" above; (b) The specifics of particular (c) are as follows: (i) Smith was required to perform too much operational work and did not have adequate time to supervise employees at the Group Care Home (Smith Q 127). Smith was going with GK into the workplace and at the same time was attempting to maintain his job as house manager with all the attendant responsibilities (XX78 L55 – XX79 L8); (ii) Smith was not adequately supervised (Ex D pp 5 & 7 Report of Coyne; Meader Q53). The "RECOMMENDATIONS OF SYSTEMIC ISSUES TO BE ADDRESSED RE: BURWOOD RD" said, "Supervision of house staff has not always been implemented" (ex AA). Under the heading "SUGGESTED ACTION" it was said, "A clear timetable of supervision to be contracted between the house manager, assistant manager and group home staff" (ex AA). There was supposed to be supervision for every staff member in the house with the House Manager. The House Manager is also supposed to have monthly supervision with the Assistant Manager. Coyne found that supervision wasn't happening, induction was ad hoc and team meetings weren't happening (Q38); (iii) There was no or no adequate programming assistance: (A) The 18/8/98 meeting at the home was the first debriefing that staff had in 5 years in the house. The staff actually said we need some programming assistance and assessments but the staff never met with the programmers until WorkCover became involved (Lever Q 16). When the Group Care Home was first set up, the staff developed the behaviour management plans in conjunction with the Training Resource Unit (TRU), but only in relation to GK and SH. In 1995, the TRU withdrew because GK and SH were stable and at that time Smith became the House Manager. From then on there was only minimal to no programming (Q30 & see also ex D pp 11, 28 - 29). (B) The accepted or typical position was that if 2 clients of the type of GK and SH are stable for a period of time that the State then provides minimal to no programming. For those resources to again be made available there in effect has to be either a manifestation of the challenging behaviour, for example, an assault on a staff member or another resident or some indication that the strategies that they left behind were not being effective. In other words, the resources are only made available in a reactive way once those sorts of risks have become obvious again (Ferguson XX210 L46 – XX211 L7). (C) Smith agreed that there was a lack of adequate support from the Inner West Programming Staff (Q110). The plan in relation to GK needed to be updated and reviewed on a regular basis at these times more closely than they were able to do with the resources they had on the ground. At the time these incidents were escalating, they had a very overworked programmer and a team that was basically losing its support because they were actually getting injured and therefore the programmed reliability training system that was set up by the TRU was actually becoming unable to be responsive and it became inefficient (XX52 L25). The programmer, McLeod, was basically out of her depth (XX61 L55) and she commented, "Well, I really don't know what to do here" (XX65 L15 – 33). See also McLeod XX276 – 280. In relation to sub-paragraphs (A) and (C), the defendant submits that the meeting on 18 September 1998 was not the first de-briefing staff had had in five years in the house: staff were consistently provided with programming assistance. Ms McLeod was responsive to the issues of Burwood Road, as evidenced by the level of activity including regular attendance at the Home. The senior practitioner, David Coyne, also provided clinical support to Ms McLeod. I have already dealt with the limited consultations of Ms McLeod in relation to paragraph 13. In addition, the prosecution says that Ms McLeod did not provide reliability training to people like Mr Wilde, Mr Micalef and Mr Rarere and otherwise was put in the untenable position of providing such training when she was really not capable of doing so. The involvement of Mr Coyne seems to have been after this particular incident. It was put that, in her evidence Ms McLeod, conceded that she was not in a position to deal with somebody with GK's problems. The evidence also suggests that Mr Coyne's involvement post-dated the incident. These matters, I am satisfied, are made out by the prosecutor. 35. As to Particular (d): "The Defendant failed to ensure that employees were provided with adequate information to be able to properly and safety manage the behaviour of clients". (a) See "Objective Facts" above; (b) The specifics of particular (d) are as follows: (i) Poha was not given adequate information as to the problem SH had with coffee on that day. "Yes, SH got into coffee. The house manager, he does the morning part of didn't clean up the mess of SH obtaining the coffee in the morning. Because one it was all over the bench and in through the knife and fork draw all over the floor when I came in at two o'clock. And the house manager didn't advise, or write it down in his report. So that starts SH's day off his fixation gets worse for coffee and then he managed to get coffee through the day at his day program therefore he came home expecting to get more coffee and that just set him off until the incident. And basically if I recall he just went to bed and slept." (Poha Q26) ; The defendant submits, however, that Ms Poha knew that SH had an obsession with coffee. That does not seem to be an issue, rather the prosecutor has highlighted that Ms Poha was not given adequate information as to the problem that SH had with coffee on that day. (ii) There was no assessment of the risk of aggressive or assaultive behaviour by SH prior to 3 August 1998. See para 31 above. In addition, the defendant points out that it was the practice of the staff to lock the coffee in a kitchen cupboard so that SH could not get access to it and Ms Poha was aware of this. I accept this modification of the Statement of Facts. 36. As to particular (e): "The Defendant failed to ensure that employees were provided with adequate training to be able to properly and safely manage the behaviour of clients." (a) See "Objective Facts" above; (b) The specifics of particular (e) are as follows: (i) There was no or no adequate training in relation to de-escalation of challenging behaviours, self defence and/or assault prevention and management strategies (Poha Q's 89, 91 & Lever Q's 57, 58); (ii) There was no or no adequate PART training (Poha Q60) and/or SDI training. The Department's November 1992 "Policy On The Effective Management Of Client Behaviour To Prevent Injury Or Illness To Staff" said, "The specific triggers for violent behaviour of clients to which staff need to be alert are described in the procedures for each service sector and are also covered in the Department's training programs for staff – "Professional response to Assault" and "Management of Seriously Disruptive Incidents"" (ex X p 6). The same document under the heading of "STRATEGIES FOR PREVENTING ASSAULT INCIDENTS TO STAFF" and in relation to roles said, "training staff in effective communication skills and how to prevent and manage assault incidents" (p 7). In 1993, Poha and other staff asked for the PART training course and that was only offered to staff in December of 1998, when she was off on injuries (XX151, RX169, RX172); (iii) The "RECOMMENDATIONS OF SYSTEMIC ISSUES TO BE ADDRESSED RE: BURWOOD RD" said, "Regular training and procedural reliability checks have not been followed" (ex AA). Under the heading, "SUGGESTED ACTION" it was said, "Managing Seriously Disruptive incidents training to be offered to all staff (Presently this has been organised for Dec 3 & 4, 1998" and "A training schedule is to be developed for staff with regular procedural reliability checks"; The defendant submits Ms Poha was, at the time of the incident, fully trained in the management of SH's intervention plan: she was in fact one of the trainers who trained staff. Further, staff at the Burwood Road Group Home had, prior to the incident, undergone procedural reliability training. According to Mr Smith, Ms Poha had professional assault response training (PART) at the time of the incident, although Ms Poha's evidence was that PART was offered to her and other staff in December 1998. The defendant also submits that staff were provided serious disruptive incidents (SDI) training four times in 1998/1999 to assist in managing GK's disruptive behaviour. SDI training was an alternative to PART. PART had been introduced to assist district officers in child and family services. It was not considered appropriate for staff working in disability services as the course content included physical restraint. The defendant accepted that people like Mr Wilde did not have procedural reliability training because he was not involved in any way in the offence. I have already accepted that a number of people did not receive this training. The focus of the defendant on this incident ignores the general nature of the charge as exemplified by the evidence. I accept Ms Poha's evidence that she and others had been asking for PART training for some three or so years prior to the assaults that took place in the middle of 1998 and onwards. I accept the remaining clarification given by the defendant. 37. As to particular (f): "The Defendant failed to ensure that clients who had a predisposition to aggressive or violent behaviour were properly and safely managed." (a) Not pressed. 38. As to particular (g): "The Defendant failed to ensure that employees received adequate counselling following incidents with clients involving aggressive or violent behaviour." (a) See "Objective Facts" above; (b) Poha was not offered any trauma counselling and/or critical incident debriefing concerning the incident on 3 August 1998; (i) Smith was not aware of the process at the time and had not seen ex C before being shown the document in Court. He only became aware of the process of critical incident debriefing as a result of WorkCover's investigation (Poha Q53; Smith Q25; Smith XX48 L45, XX87 L40 – 53, XX94 L30 - 45). The State should have educated Smith as the House Manager in order that he knew the steps he should have taken (Dunworth XX245 L45). (ii) The Department's document (ex C p 4) states: " Critical Incident Defusing Critical Incident defusing which is a shorter less formal and less structured version of a critical incident stress debriefing should e conducted within 1-4 hours of the critical incident occurring by a health professional or Area/Unit Manager trained in defusing. The defusing lasts 30-45 minutes and allows staff to be provided with information about critical incident stress which will help them to cope with their reactions and reduce their stress. Defusing may be given to all staff in the workplace, who may be affected by the incident. Critical Incident Stress Debriefing (CISD) CISD and trauma counselling is designed to: lessen the impact of distressing critical incidents on the staff exposed to them, and accelerate recovery from these events before harmful stress reactions have a chance to damage the work performance or health and family life of staff. Only those persons present at the time of a critical incident should attend a critical incident stress debriefing (CISD)." As at least 4 June 2002, the above policy was still current (Ferguson XX203 L30; Dunworth XX244; Coyne XX300). Defusing is a local response that could be delivered as quickly as possible (XX203 L55). See also ex Y p 12.1.4-2. (c) Smith was not trained as a counsellor and was not a health professional trained in defusing (RX95 L22 – RX96 L53). Only a qualified psychologist or somebody should undertake critical incident stress defusing with up-to-date training in defusing (Ferguson XX200, XX204 L1 –7; Coyne XX301). (d) This defusing should involve, for example, teaching somebody how to react to the stress – pointing out how they may react in the following days or weeks because of being subject to the trauma. This should involve relaxation and coping techniques so that when the person has thoughts of the trauma the person knows how to deal with those thoughts (Ferguson XX202). There should be an avoidance of going over the detail of the trauma, that is the assault, unless and until the person giving the session forms a view that the person (assaulted) has been educated and understands how he or she is going to react. Putting it anther way, the psychological well-being of the person assaulted should be stabilised before going into any details about how they got assaulted and why (Ferguson XX204 L28 – 37; Coyne XX298 - 300); (e) After a trauma in the form of an assault, acute stress disorder is the first stage of any psychological injury and it then has a risk of developing, unless it is addressed, to post traumatic stress disorder (XX299 L50); (f) "RECOMMENDATIONS OF SYSTEMIC ISSUES TO BE ADDRESSED RE: BURWOOD RD" said, "Regular debriefing sessions with staff following serious incidents have been occurring on an adhoc basis despite recommendations made by the Senior Practitioner on August 18, 1998 as a result of a serious incident at Burwood Rd" (ex AA). The defendant submitted that Mr Smith conducted a de-briefing with Ms Poha following the incident of 3 August 1998. Ms Poha at the time of the incident knew that there was a counselling agency available to all DOC'S employees, that it was a free service and one which she could avail herself of at any time. Further, the defendant submits that the failure to provide trauma counselling to Ms Poha concerning the August 1998 incident was "not causative of the offence". The risk was set out in paragraph 5 of the prosecutor's Statement of Facts: the potential for assault on staff on 3 August 1998 did not result from an ex post facto failure to offer trauma counselling. This Particular therefore could not be made out. The prosector makes the point that Mr Smith was not qualified to handle this situation: the so-called de-briefing carried out by Mr Smith was entirely contrary to the psychological and mental well being of the person who had been assaulted. The evidence was that there should be an avoidance of going over the detail of the trauma until the person giving the session formed the view referred to in sub-paragraph (d). I accept the prosecutor's analysis of this evidence. In relation to the failure to offer trauma counselling as not being "causative of the offence", the charge alleges a failure to ensure the health, safety and welfare at work of the defendant's employees and particularised a failure to ensure adequate counselling following incidents with clients involving violent or aggressive behaviour. The evidence relied on by the prosecutor relates to that allegation. 39. As to particular (h): "The Defendant failed to ensure that clients who had a predisposition to aggressive or violent behaviour did not have access to substances which increased the potential for aggressive or violent behaviour." (a) See "Objective Facts" above; (b) Coffee was not kept in a safe location, in that there was not a change to a sachet system rather than bottle containers for dispensing coffee to enable the employees to safely control SH's coffee consumption (Smith Q's 31, 32; Smith XX43 – XX44, RX92 L30 – RX94 L28; Poha XX132 – XX133). The defendant submits that the coffee was kept in a safe location prior to and at the time of the incident. It was locked in a kitchen cupboard above the stove so that SH could not get access to it. Further, changing from "bottle containers" to a sachet system would not assist employees to safely control SH's coffee consumption. It would not, as a matter of commonsense, make any appreciable change. The prosecutor points to the fact that there was a conflict in the evidence such that, at the time of this incident, it was not known whether the coffee was kept in the cupboard in the kitchen or in the garage. In any event, the prosecutor points out that particular (h) has been pleaded to by the defendant and further, the evidence showed that SH was able to physically pull off the cupboard doors and get access to the coffee. In light of the evidence, I am unable to accept the defendant's contention that the coffee was kept in a safe location. I accept the defendant's contention that the sachet type of container for dispensing the coffee appears to be of limited relevance, although this system was later introduced. 40. As to particular (i): "The Defendant failed to ensure that adequate communication facilities were made available to employees at the premises." (a) See the above response to particular (a); (b) The specifics of particular (i) are as follows: (i) No communication system was upstairs where the house manager, Smith, was located (see the floor plan); (ii) No mobile telephone was issued to Poha; 41. There was a causal connection between any or all of the "Objective Facts", the specifics of the above particulars and the actual assault of Poha by SH. 42. Since this incident, the following measures have been introduced by the Defendant: (a) A sachet system for dispensing coffee was implemented (Smith Q's 31, 32). IRC NO. 4022 of 2000 Date of Offence: 18 August 1998 Place of Offence: Group Care Home Facts 43. On 18 August 1998, a house staff meeting was taking place at the Group Care Home, at which all permanent employees present attended. 44. Approximately some time after 9.00 a.m. Smith brought GK downstairs. 45. GK had a propensity for self-injurious behaviour, particularly if his normal routine was disturbed. According to Poha, prior to 18 August 1998, there were indications that GK was deteriorating. There were incidents on a daily basis at the Group Care Home such as blood on the walls, holes in the walls and a pooling of urination everywhere (RX164 L39 – 58). 46. When Smith assisted GK to go through his breakfast routine, GK refused to co-operate and began yelling and screaming. GK picked up and threw a toaster and threw knives, a vase, bottles and other implements present in the kitchen. 47. Wilde and Smith attempted to restrain GK by pinning him against the kitchen bench. GK struggled violently and sank his teeth into Wilde's left shoulder for approximately 45 seconds. When GK released his bite on Wilde, Smith and Wilde made attempts to move GK away from the kitchen benches. GK then sank his teeth into the same area of Wilde's shoulder for approximately 30 seconds. While Wilde was attempting to restrain GK, GK was attempting to put his head through a kitchen window that had already been shattered by an implement he had thrown. GK threw any objects at the employees present in the kitchen. 48. GK then moved to the dining area at which time Poha attempted to apply the Defendant's Intervention Plan. At this stage, Wilde had been taken, by another employee for medical treatment. GK lunged across a bench in the laundry area, grabbed Poha by the breasts, and would not let go. Other employees attempted to pull GK away from Poha while she attempted to push him away. GK's grasp on Poha's breasts was eventually broken and he then started smashing objects and tearing Poha's clothing from her. The employees, except for Smith, then left this area of the Group Care Home and locked both doors. 49. Smith then left this area of the Group Care Home, in which GK was contained and called for intervention by the police and a mental health crisis team. 50. GK was removed from the Group Care Home by the Defendant's assistant manager in an ambulance and transported to Concord Hospital for treatment. 51. As a result of the incident with GK, on 18 August 1998, Poha suffered badly swollen and bruised breasts, a bruised neck, strained wrists, hand injuries and psychological trauma. Wilde sustained an open wound to the left shoulder as a result of GK's bites and received medical treatment for this. 52. Poha had been caring for GK for approximately five years while Wilde had been working with GK for approximately one month on 18 August 1998. Particulars 53. As to particular (a): "The Defendant to provide adequate emergency procedures to ensure the safety of its employees when the employees were confronted by clients who had demonstrated aggressive or violent behaviour." (a) See "Objective Facts" above; (b) SH, GK, JJ and PM had previously demonstrated aggressive or violent behaviour, which was admitted by employees of the Defendant and is contained within the Defendant's own records; (c) The Defendant had knowledge of the aggressive or violent behaviour from the knowledge of its employees and/or agents, verbal and written communication from employees, incident books, behavioural data and consequential behavioural management plans, employees meetings and communications with the house manager; (d) The specifics of particular (a) are as follows: (i) The Defendant did not provide a safe room at the Group Care Home. See para 30 (d)(i) above; (ii) The Defendant did not provide a duress alarm with back up system. The defendant submits that, at the time of the incident, staff at the Burwood Road Group Home were able to evacuate quickly through the front door. Mr Smith was authorised to use PRN ("pro re nata") if he was "on call". At the time of the incident, Mr Smith was able to contact the assistant manager who authorised Mr Smith to use PRN. All these duties were conducted quickly. The defendant raises the same matter addressed in paragraph 16 regarding JJ, and I adopt what have said in relation to that paragraph. The prosecutor submits that the steps of contacting the police or a mental health crisis team was introduced a number of months after this incident. The evidence in relation to the provision of PRN was that on many occasions (submitted to be 9 out of 10 times) the caller could not get an answer. The telephone call would have to be made off site to get permission. The measures of contacting the police or the mental health crisis team emerged after the intervention of the Public Service Association following this incident. I accept what is said by both the defendant and the prosecutor as providing the proper context for this Particular. 54. As to particular (b): "The Defendant failed to ensure that incidents resulting from client behaviour that represented a risk of injury to employees were adequately investigated, reported and monitored." No risk assessments were performed. See para 31 above. (a) See "Objective Facts" above. The defendant raises the matters raised in paragraph 33 regarding SH and I adopt what I have said in relation to that paragraph. The defendant adds that the risk of aggression by GK towards staff was assessed prior to 18 August 1998. Further, immediately prior to the incident, GK's medication had been reduced. This was outside the defendant's control. Following the reduction of medication, GK's behaviour improved, such that prior to 18 August 1998 incident, there had been no indication of any escalation in aggressive behaviour. I accept the defendant's addition to the Statement of Facts. 55. As to particular (c): "The Defendant failed to ensure that employees were adequately supervised in managing the behaviour of clients." (a) See "Objective Facts" above; (b) The specifics of particular (c) are as follows: (i) Smith was required to perform excessive operational work and did not have adequate time to supervise employees engaged at the Group Care Home. See para 32 above; (ii) Smith was not adequately supervised. See para 32 above; (iii) There was no or no adequate programming assistance. See para 32 above. The defendant again asserts the presence of adequate programming assistance and relies on what it had already submitted in relation to paragraph 34(A) and (C). I repeat what I said in relation to that paragraph. 56. As to particular (d): "The Defendant failed to ensure that employees were provided with adequate information to be able to properly and safely manage the behaviour of clients." (a) See "Objective Facts" above; (b) The specifics of particular (d) are as follows: (i) " … Also they never put into place a "what if' into his program they didn't do it properly …" (Poha Q33); (ii) Employees were not provided with contingency plans to take if GK failed to respond to his behavioural management plan and/or exhibited aggressive or violent behaviour. . In other words, breathing exercises or counting to ten (Wilde Q 16) as used previously used were not going to be sufficient. The defendant submitted that GK's intervention plan allowed for the contingency that GK could become violent. Level 5 of the Incident Response Plan (a component of the Intervention Plan) contained procedures and a strategy for dealing with GK's challenging behaviour at the stage of a critical incident (ie when GK was exhibiting violent behaviour). The procedures included "on call" assistance, provision of PRN, contacting police and the mental health crisis team. The gist of this additional commentary by the defendant has already been dealt with in relation to paragraph 53. I accept the defendant's submission referred to in relation to the provision of PRN, contacting police and the mental health crisis team. 57. As to particular (e): "The Defendant failed to ensure that employees were provided with adequate training to be able to properly and safely manage the behaviour of clients." (a) See "Objective Facts" above; (b) The specifics of particular (e) are as follows: (i) There was no or no adequate training in relation to de-escalation of challenging behaviours, self-defence and/or assault prevention and management strategies (Poha Q's 89, 91, Wilde Q's 63 – 64, Lever Q's 57, 58); (ii) (ii) There was no or inadequate PART training and/or SDI training. In 1993, the TRU was asked to provide PART training and it was only offered in December 1998 (Poha Q60, Wilde Q36); (iii) Martin Review in April 1996 said, "Develop a formal induction procedure, including data base training on implementation procedures …" (ex B p 11). Wilde was given no induction or training apart from being given GK's file to look at (Q's 36, 60, 61). The Coyne report in January 1999 said, "Staff induction has been adhoc and not provided staff with the information that they require, especially around the implementation of client programmes. Staff further suggest that the house manager has not followed the induction protocols" (Ex D p 5 Report of Coyne); (iv) "What is even a greater concern in this particular house is the level of training and monitoring of procedural reliability on the procedures in place to address the challenging behaviour of the residents" (Martin Review in April 1996 p 29). Wilde had not been reliability trained in relation to GK (Smith Q51). McLeod never checked by being in situ to look at whether Wilde was properly trained (McLeod XX271). There was a lot of staff who did not receive the reliability training because the staffing was not at its full complement, trained staff were experiencing burn-out and the Group Care Home was staffed by a lot of casuals who were not reliability trained (RX192). The defendant repeats its submission in relation to paragraph 36. In addition, it is submitted for the defendant that, at the time of this incident, Mr Wilde had been a staff member at the Burwood Road Group Home for about one month only. Although Mr Smith had not, at the time of the incident, the opportunity to conduct reliability training with Mr Wilde, Ms Poha and Mr Lever had both "imparted their knowledge" to Mr Wilde. In addition, the Martin Review (Exhibit "B"), dated April 1996, could not be relied upon as evidence of a failure to provide procedural reliability training by 18 August 1998 (about two and a half years after the date of the Review). In any event, procedural reliability training was implemented. The prosecutor points out that it was Mr Smith's evidence that he believed that Ms Poha and Mr Lever had imparted their knowledge to Mr Wilde, but Mr Wilde's evidence confirmed a lack of appropriate training to perform the duties safely. In relation to the Martin Review, the prosecutor relied upon it on the issue of foreseeability because the warnings were made by way of the Martin Review in April 1996 about the need to take certain steps or measures. Further, the Martin Review was relied upon to show that many of the failings were not uncharacteristic aberrations and so aggravated the relevant offences. While I accept that Mr Wilde had only recently been employed at the Burwood Road Group Home, I reject the remainder of the defendant's submission in relation to this paragraph. 58. As to particular (f): "The Defendant failed to ensure that clients who had a predisposition to aggressive or violent behaviour were properly and safely managed." (a) Not pressed. 59. As to particular (g): "The Defendant failed to ensure that employees received adequate counselling following incidents with clients involving aggressive or violent behaviour." (a) See "Objective Facts" above; (b) Poha was not offered any trauma counselling (Poha Q53). See para 36 above. The defendant submits that on the day of the incident Mr Coyne attended the Burwood Road Group Home and de-briefed the staff: this was organised by Mr Smith. I accept this addition as part of the context for the purposes of this Particular. The defendant also relied upon its submissions concerning paragraph 38 and I adopt my conclusions in relation to that paragraph. 60. As to particular (h): "The Defendant failed to ensure that clients who had a predisposition to aggressive or violent behaviour did not have access to dangerous implements." (a) See "Objective Facts" above; (b) GK had access to dangerous implements which included knives, a toaster, a vase, bottles, kitchen utensils, fax machines and glasses. No items in the kitchen or lounge room were secured and these could be used as projectiles (ex E para 5). 61. As to particular (i); "The Defendant failed to ensure that adequate communication facilities were made available to employees at the premises." (a) Not pressed. 62. As to particular (j): "The Defendant failed to institute adequate procedures to determine the suitability of client placements at the premises." (a) See "Objective Facts" above. The defendant submits that, to ensure the success of the house, TRU and the Autistic Association were engaged to provide programming and staff training. Group homes were set up in the 1980s and 1990s as an alternative to institutionalised living. Properties chosen were required to be structurally sound. Clients were not permitted to share a bedroom. The client group chosen to reside in a group home was identified in advance of the purchase of the home to enable the consideration of individual needs, for example, proximity to family members, transport, shops etc., suitability for clients' recreational needs and many other considerations. The nature of properties available were influenced by the area and large single-storey properties were harder to find in some areas than others. In providing accommodation services for people with disabilities, a range of competing demands had to be managed and considered. I accept the additional matters raised by the defendant as being relevant to the particular and giving context to it. 63. As to particular (k): "The Defendant failed to institute adequate procedures for reviewing client behaviour and treatment programs." (a) See "Objective Facts" above; (b) See the above response to particular (a); (c) The specifics of particular (k) are as follows: (i) The routines of the residents were out the window for reasons including that so much attention was being demanded by GK (Poha Q's 33, 40, 45). " … What is evident that these systems have broken down resulting in staff often not knowing what is happening around client programmes or house issues generally. Staff have suggested that the situation began to become 'out of control' around July last year when a particular client began to have difficulties around medication reduction. Staff feel they were not adequately consulted around this process and would have predicted that any reduction in medication around this time would have caused difficulties as July/August are typically a difficult time for this client …" (Ex D p 5 Report of Coyne). Beach said GK had autism and for any client with a dual diagnosis there is always the potential for unpredictable behaviour if not managed in a consistent and appropriate manner (Q 33); (ii) GK had not attended his normal work program for five weeks; (iii) GK went off his program and/or routine for too many weeks; (iv) The behavioural management programs were not really reviewed. It was meant to be up to the case manager to review them at staff meetings but this never seemed to happen. The plans were not reviewed by programmers in conjunction with staff that worked with the clients (Lever Q's 37, 38). See also para 32 (b)(iii). Furthermore, McLeod's diary shows that, between August 1998 to the end of 1998, she attended staff meetings at the Home on 4 August 1998, 1 September 1998, 15 September 1998, 13 October 1998, 17 November 1998 and 15 December 1998. McLeod's diary contains no record of the substance and specifics of what was discussed at any such meeting (XX287). Moreover, Ferguson was unable to refer to any record of what was discussed in the staff meetings in this period. The defendant relies upon GK's reduction in medication as referred to in paragraph 54. The defendant submits that GK's medication was reduced at the request of his mother with the co-operation of GK's psychiatrist, Dr Jenny Berg. Ms Poha incorrectly asserted that GK's medication was reduced without seeking direct medical advice. GK had a comprehensive behaviour intervention plan developed by Inner West Programme Services. The plan was also continually up-dated. The 1997 version of the plan included a management plan for aggression in the community and instructed staff to keep a safe distance from GK. Staff were trained to use the plan and it was continually reviewed at fortnightly staff meetings. I accept the additions referred to by the defendant, except as to the asserted continual review of the plan at fortnightly staff meetings. 64. There was a causal connection between any or all of the above "Objective Facts", the specifics of the above particulars and the actual assault of Poha and Wilde by GK. 65. Since this incident, the following measures have been introduced by the Defendant: (a) Locks were placed upon the residents' doors for the residents' safety; (b) Smith arranged a critical incident debriefing, by David Coyne and Daryl Neale from the Grosvenor Centre, through the Defendant's human resources section; (c) The Defendant increased employee numbers at the Group Care Home to provide one on one supervision for GK and to constantly review his medication. IRC NO. 4018 of 2000 Date of Offence: 27 September 1998 Place of Offence: Clovelly Beach Facts 66. On 27 September 1998, Poha had taken some intellectually disabled clients with other employees from the Group Care Home to Clovelly Beach. 67. The clients included SH, GK and JJ. 68. The clients were taken swimming by the employees and SH swam out too far and had to be brought back. 69. Both GK and JJ became upset because of the attention paid to SH. 70. A decision was made to return the clients to the van in which they were driven from the Group Care Home to the beach. JJ dropped a magazine he was carrying and was having difficulty bending to retrieve it. Poha bent down to pick up the magazine, JJ kicked it and it slid along a rock at the beach. An elderly man came out of the water at the beach and went to pick up the magazine for JJ. JJ knocked the man with his arm and the man fell backwards. The man was taken for first aid treatment. JJ remained upset about his magazine because waves were coming over the rocks. He was swearing and spitting and he fell on the rocks. Poha attempted to give JJ assistance - "As I went to pick him up he swung a hit at me and I fell. I got up nobody came to my rescue" (Poha Q41; XX143; RX167; ex P; ex Z) - causing her to fall on the rocks. Poha had no other assistance in the immediate vicinity at this time. The defendant challenges the evidence of Ms Poha that JJ "swung a hit" at her by pointing to the GIO Register of Injuries Report, a handwritten note and the Injury Report form. Those reports speak of her slipping while JJ was having a tantrum, slipping and falling while JJ was swearing and spitting at a man and preventing JJ from slipping while he was having a tantrum and slipping and falling herself. It was submitted that those reports should be preferred over the later version given by Ms Poha in a record of interview and also in her oral evidence. It was pointed out that in her oral evidence she said JJ "whacked" an old man and "swung at her". The prosecutor also referred to other documents which supported the fact that JJ swung at Ms Poha. The versions relied on by the defendant were all put to Ms Poha but she persisted with her evidence that in fact JJ took a swing at her. There was no suggestion in the cross-examination that the swing was a necessary issue to be recorded in those reports. Having observed the witness give the evidence and her response to the cross-examination, I accept her evidence on this fact. 71. As a result of the incident on 27 September 1998, Poha sustained lacerations to her big toe and right knee and re-aggravated her wrist and neck injuries sustained on 18 August 1998. Her right leg, wrists and hands were swollen the next day. She required medical treatment including intensive physiotherapy. Particulars 72. As to particular (a): "The Defendant failed to provide adequate emergency procedures to ensure the safety of its employees when the employees were confronted by clients who demonstrated aggressive or violent behaviour." (a) See "Objective Facts" above; (b) SH, GK, JJ and PM have previously demonstrated aggressive or violent behaviour; (c) The Defendant had knowledge of the aggressive or violent behaviour from the knowledge of its employees and/or agents, verbal and written communication from employees, incident reports, behavioural data and consequential behavioural management plans, staff meetings and communications with the house manager; (d) The employees were not given access to a mobile phone. The defendant relies upon what was submitted in relation to paragraph 16 and I adopt what I have already said in relation to that paragraph. Further, the defendant submits that, at its highest, the incident shows that JJ was spitting and swearing, that is, "having a tantrum". This behaviour would not necessarily require the implementation of emergency procedures. However, I have already accepted Ms Poha's evidence in relation to JJ swinging at her. The defendant then challenges the relevance of not having a mobile telephone in the context of this incident. As a means of being able to report and seek assistance as quickly as possible, I accept the relevance of the reference to the mobile telephone. 73. As to particular (b): "The Defendant failed to ensure that incidents resulting from client behaviour that represented a risk of injury to employees were adequately investigated, reported and monitored." (a) See "Objective Facts" above; The specifics of particular (b) are as follows: (i) There was no behavioural management plan for JJ (Smith Q69); (ii) An induction pamphlet outlining JJ' depression and behaviours was only introduced after Christmas 1998 (Q75); The defendant relies on the evidence of Mr Smith and Mr Ferguson for the proposition that JJ did not have a behavioural management plan at the time of the incident because he did not require one. While JJ appears to have shown aggressive behaviour and had thrown things around but in the privacy of his own room, it appears on the evidence that the defendant's submission is correct. 74. As to particular (c): "The Defendant failed to ensure that employees were adequately supervised in managing the behaviour of clients". (a) Not pressed. 75. As to particular (d): "The Defendant failed to ensure that employees were provided with adequate resources to be able to properly manage the behaviour of clients." (a) See "Objective Facts" above; b) The employees were not given access to a mobile phone (Poha Q101). The defendant submits that, in the context of the incident occurring at the beach, it is questionable whether the provision of a mobile telephone would have provided Ms Poha with "adequate resources to be able to properly manage the behaviour of clients". I have earlier accepted the relevance of a mobile telephone but there is substance in the defendant's submission in relation to this Particular. The defendant also submits the incident at Clovelly Beach did not relate to a pattern of assaultive behaviour. It had occurred during a favoured planned outing, identified as part of a priority annual goal as agreed to by staff and family, without cause for concern for staff or client safety. That statement for the defendant is accepted as part of the relevant context: it does not diminish the risk. 76. As to particular (e): "The Defendant failed to ensure that employees were provided with adequate training to be able to properly manage the behaviour of clients." (a) See "Objective Facts" above; (b) The specifics of particular (e) are as follows: (i) There was no or no adequate PART training and/or SDI training; (ii) There was no or no adequate training in relation to de-escalation of challenging behaviours, self-defence and/or assault prevention and management strategies. See para 34 (b) above; The defendant submits that adequate training in relation to de-escalation of challenging behaviour, self-defence or assault prevention and management strategies were not necessary in relation to JJ. Again, this is a complaint which focuses upon the particular incident or accident rather than upon the risk which is demonstrated to exist. 77. As to particular (f): "The Defendant failed to ensure that employees received adequate counselling following incidents with clients involving aggressive or violent behaviour." (a) See "Objective Facts" above; (b) Poha was not offered any trauma counselling or any critical incident debriefing by the Defendant concerning the incident on 27 September 1998 - see para 36(d) above. The defendant says that Mr Smith discussed the incident at Clovelly Beach with Mr Poha but he did not arrange a critical incident de-briefing or trauma counselling. Given the substance of the reports of the incident on the day, it was probable that de-briefing and/or trauma counselling were not necessary: there was no report of verbal or physical assault or threat of such assault. The prosecutor points out that discussion occurred the day after the incident and, in any event, the prosecutor had limited its case to the absence of counselling on the day of the offence. I am not convinced that this adds substantially one way or the other to the objective seriousness of the alleged offence but, given the prosecution's case as being limited to the day of the incident and the fact that the defendant's proposition is no more than conjecture, I am prepared to allow the prosecution facts to stand. 78. As to particular (g): "The Defendant failed to ensure the employees received adequate assistance in managing clients while on day trips away from the Group Care Home." (a) Not pressed. 79. There was a causal connection between any or all of the above "Objective Facts", the specifics of the above particulars and the potential risk of an assault of Poha by JJ. IRC NO. 4021 of 2000 Date of Offence: 7 December 1998 Place of Offence: Group Care Home Facts 80. On 7 December 1998, Poha was informing Smith of an incident earlier in the day, involving PM, in which he was reported to have attacked another person at his workplace with a piece of wood. 81 While Poha was informing Smith about the incident, PM jumped on Poha and hit her in the back of the head and neck with his hands and a book. Poha had her hand in a brace at the time and was not able to properly defend herself. Flick was also injured by PM on this day when she went to Poha's assistance when PM was attacking Poha from behind (XX178). 82. Other employees removed PM from Poha. 83. Poha then contacted the police and he was arrested and taken away from the Group Care Home. 84. As a result of the incidents on 3 August, 18 August, 27 September and 7 December 1998, Poha suffered swelling of her wrists, upper arms and hands, neck pains and severe headaches and pain and weakness of the right knee. As at 13 April 1999, Poha was limited in carrying out normal household activities and relied on medication to reduce her pain. In March 2000, Poha was medically retired. She suffered post-traumatic stress disorder as a result of the assaults at the Group Care Home. An important part of why she was medically retired was these assaults at the Group Care Home (X123 L48 – X124 L49). Particulars 85. As to particular (a): "The Defendant failed to provide adequate emergency procedures to ensure the safety of its employees when the employees were confronted by clients who demonstrated aggressive or violent behaviour." (a) See "Objective Facts" above; (b) SH, GK, JJ and PM had previously demonstrated aggressive or violent behaviour, which was admitted by employees of the Defendant and was contained within the Defendant's own records; (c) The Defendant had knowledge of the aggressive or violent behaviour from the knowledge of its employees and/or agents, verbal and written communication from employees, incident reports, behavioural data and consequential behavioural management plans, staff meetings and communications with the house manager; (d) The specifics of particular (a) are as follows: (i) The Defendant did not provide a safe room at the Group Care Home. See para 30 (d)(i); (ii) The Defendant did not provide a duress alarm with back up system. The defendant repeats what it said in relation to paragraph 16. 86. As to particular (b): "The Defendant failed to ensure that incidents resulting from client behaviour that represented a risk of injury to employees were adequately investigated, reported and monitored." (a) Not pressed. 87. As to particular (c): "The Defendant failed to ensure that employees were adequately supervised in managing the behaviour of clients." (a) Not pressed. 88. As to particular (d): "The Defendant failed to ensure that employees were provided with adequate information to be able to properly and safely manage the behaviour of clients." (a) See "Objective Facts" above; (b) The Martin Review in April 1996 said: (i) "That as a matter of urgency the monitoring of all staff on routines, skill development programmes and the management procedures be reinstituted and all staff must participate in this, including non permanent staff." (p 5) (ii) "Recommendation 3: Develop a formal induction procedure, including data base training on implementation procedures …" (ex B p 11). (c) A new employee (Mathew Micalef) did not attempt to assist as he did not know what to do and had not been given induction training. In the defendant's "Accident and Incident report" completed by Kerry Flick and dated 7/12/98 it was said, " … he flew at Sharon Poha & attacked her from behind attacking her around head & neck. I was in the kitchen at time and went to Ms Poha's assistance and pulled [PM] off Sharon. Spun him around and away from her & restrained him against a cupboard. A new staff member who was in the immediate vicinity did not attempt to assist Ms Poha & stood by. This staff member later reported that he did not know what to do & had not been inducted. Can new staff please be inducted prior to their first shift? …". (d) Letting somebody start working in GK's presence when there had been no induction would never equate to verbal and procedural reliability training (Dunworth XX243 L46 – 52). (e) "Staff induction has been adhoc and not provided staff with the information that they require, especially around the implementation of client programmes. Staff further suggest that the house manager has not followed the induction protocols" (Ex D pp 5 & 7 Report of Coyne). The defendant addressed no submission to this matter. 89. As to particular (e): "The Defendant failed to ensure that employees were provided with adequate training to be able to properly and safely manage the behaviour of clients." (a) See "Objective Facts" above; (b) The specifics of particular (e) are as follows: (i) There was no or no adequate training in relation to de-escalation of challenging behaviours, self defence and/or assault prevention and management strategies; (ii) There was no or no adequate PART training and/or SDI training. See paragraph 34(b) above ; In relation to sub-paragraph (b)(i), the defendant relies on what it has already submitted in paragraph 36. I adhere to what I have already said in relation to that matter. 90. As to particular (f): "The Defendant failed to ensure that clients who had a predisposition to aggressive or violent behaviour were properly and safely managed." (a) Not pressed. 91. As to particular (g): "The Defendant failed to ensure that employees received adequate counselling following incidents with clients involving aggressive or violent behaviour." (a) See "Objective Facts" above; (b) The specifics of particular (g) are as follows: (i) See paragraph 36(b) above as to critical incident defusing should be conducted within 1-4 hours of the critical incident; (ii) Poha was not offered any trauma counselling by the Defendant concerning the incident on 7 December 1998 and arranged this herself. (iii) The first counselling Poha received was when a counsellor attended the Group Care Home in January 1999. (iv) At the counselling session in January 1999, the counsellor had been briefed concerning the incident on 27 September 1998 but not the incident on 18 August 1998, which was intended to be the subject of the counselling. (v) Poha was not offered any rehabilitation until February 1999. At this time, Poha was provided with rehabilitation by IPS. The defendant repeats what it has submitted in relation to paragraph 38. Further, the defendant says that Ms Poha was in fact on rehabilitation for a period prior to 7 January 1999. I accept the defendant's submission in that regard. 92. As to particular (h): "The Defendant failed to ensure that clients who had a predisposition to aggressive or violent behaviour did not have access to dangerous implements. (a) Not pressed. 93. As to particular (i): "The Defendant failed to institute adequate procedures to determine the suitability of client placements at the premises." (a) See "Objective Facts" above; (b) The Defendant believed that PM posed a risk to the Group Care Home. PM's files indicate that between entering the Home in late 1993 until September 1997, he exhibited disruptive behaviour resulting in property damage, aggression towards other clients and verbal abuse of staff. This was certainly an indication that PM could assault other staff or residents at the Home (Ferguson para 45; XX211 L52 – 57). The defendant relies on its submissions in relation to paragraph 62, and I adhere to what I have said in relation to that matter. 94. As to particular (j): "The Defendant failed to institute adequate procedures for reviewing client behaviour and treatment programs." (a) Not pressed. 95. There was a causal connection between any or all of the above "Objective Facts", the specifics of the above particulars and the actual assault of Poha by PM. 96. Since this incident, the following measures have been introduced by the Defendant: (a) An escape route, via the front and back doors was established; (b) A mobile phone was introduced in December 1998, just before Christmas (Poha XX160); (c) After the significant events of the PSA and WorkCover becoming involved at the Home (McLeod XX283), training in protective behaviours was introduced including: (i) Lever 4/2/99. (ii) Rarere 16/6/99. (iii) Flick 29/5/00 (Dobosz para 22) IRC NO. 4020 of 2000 Date of Offence 16 January 1999 Place of Offence: Group Care Home Facts 97. On 15 January 1999, Rarere and Flick were rostered on a night shift at the Group Care Home. 98. On 15 January 1999, GK was in the downstairs area of the Group Care Home when Rarere and Flick commenced their shift. 99. GK had been exhibiting withdrawn and challenging behaviour and had refused to go to bed. Smith advised Rarere and Flick not to enforce GK's behaviour management program. 100. Rarere and Flick allowed GK to remain downstairs for the major part of their shift and maintained interaction within to minimise his challenging behaviour. 101. On the morning of 16 January 1999 Flick asked GK if he wanted to go to bed because he looked like he was ready for sleep. GK agreed and went upstairs and put himself to bed. Flick checked on GK shortly afterwards and observed he was in bed and asked if he was okay. GK responded that he was okay and said goodnight to Flick. 102. At around 2.00am or 3.00am on 16 January 1999, Rarere and Flick heard growling from GK's bedroom upstairs and went to investigate. GK could not tell them what was wrong and he was provided with a drink of water. While they were in GK's room, he proceeded to grab them and verbally abuse them. GK was asked if he wanted to be alone in his bedroom and replied "Yes". Rarere and Flick left GK's bedroom and went downstairs to carry on with their night duties. 103. At approximately 5.00am Flick checked on GK in his bedroom and he was sound asleep. 104. Shortly before 6.00am Rarere and Flick heard loud banging and yelling from GK's room. They went upstairs to his room to investigate and observed GK was banging his head against the wall and there was blood on the wall. GK was in a state of extreme agitation. When Rarere and Flick entered GK's bedroom he yelled at them that he was going to hurt them. GK headbutted Rarere in the left shoulder and grabbed Rarere by his clothing around the neck. Rarere and Flick attempted to fend GK off by holding his arms. GK pulled both Rarere and Flick onto him and was lying down on his bed. Rarere attempted to remove GK's hands from his clothing while Flick held GK's legs. For approximately 30-45 minutes Rarere and Flick attempted to calm GK down by taking him through his intervention plan which consisted of GK counting to ten and breathing five times over five cycles. This did not prove effective and GK continued to be extremely agitated. Rarere and Flick eventually managed to break GK's grip on Rarere's clothing and left his room. 105. Rarere and Flick then telephoned their supervisors to get permission to administer GK PRN medication. They were advised to contact the defendant's Crisis Centre. They contacted the Crisis Centre at approximately 6.30am but did not get any reply. While Flick and Rarere were downstairs making telephone calls they heard loud noises coming from GK's room of banging, furniture being thrown, glass windows being smashed and GK screaming and headbanging. Rarere and Flick decided to ring the Police for assistance. 106. Rarere and Flick then heard another client who was in residence upstairs, PM, screaming from his bedroom. Rarere and Flick entered PM's bedroom to find GK attacking PM. GK had grasped PM's stomach. Rarere managed to free GK's hands from PM so that Flick was able to remove PM from the room to a safer area downstairs. While Rarere was holding GK's wrist, GK was headbutting him. Rarere pushed GK onto the bed, closed the door and rushed out of the room to join Flick downstairs. While going downstairs Rarere called out to another client who was a resident upstairs to keep his door locked and not to come out until GK was calm. GK continued his rampage by breaking windows in PM's room and throwing the television and video on the floor. 107. Rarere and Flick proceeded to escort the other client downstairs to a safe area until the Police arrived. Rarere and Flick then went to check on GK and as they prepared to go up the stairs GK rushed down the stairs at them. Rarere and Flick removed themselves and the other two clients to the backyard of the house until the Police arrived. 108. Another of the Defendant's employees, Woytek Druc ("Druc") arrived for the morning shift at the Group Care Home. An ambulance had also arrived and the ambulance personnel were attempting to clean the injuries on GK's head. 109. Druc attempted to calm GK down by using the intervention plan but to no avail. 110 The Police then intervened and took GK with them to Rozelle Psychiatric Hospital because of GK's danger to others and himself (Flick Q16). 111. As a result of the incidents with GK, Rarere suffered a torn muscle ligament in his left arm and a torn shoulder muscle in his right arm, while Flick suffered a strain to her right groin area. Both Rarere and Flick suffered sleep disturbances following the incident on 16 January 1999. Rarere had 3 weeks off work (Q21). After 18/4/99, Flick had 12 months off to try to get her health back on track (Q26). In May or June 1999, she started to experience nightmares as Flick would wake up hearing GK in the room growling like an animal, like he used to (XX179, XX190). She made several attempts to get back to work (RX180). Flick was medically retired around the end of 2000, suffering from posttraumatic stress disorder with a major depression, as a result of the incidents at the Group Care Home (X174, XX179). As at 3 June 2002 (when giving evidence before the Court), she was still seeing a psychiatrist from time to time (X175). Particulars 112. As to particular (a): "The Defendant failed to provide adequate emergency procedures to ensure the safety of its employees when the employees were confronted by clients who demonstrated aggressive or violent behaviour." (a) See "Objective Facts" above; (b) SH, GK, JJ and PM have previously demonstrated aggressive or violent behaviour, which was admitted by employees of the Defendant and is contained within the Defendant's own records; (c) The Defendant had knowledge of the aggressive or violent behaviour from the knowledge of its employees and/or agents, verbal and written communication from employees, incident reports, behavioural data and consequential behavioural management plans, staff meetings and communications with the house manager; (d) The specifics of particular (a) are as follows: (i) The Defendant did not provide a safe room at the Group Care Home. See para 30 (d)(i) above; (ii) The Defendant did not provide a duress alarm system with back up. See para 30 (d)(ii) above. A duress alarm system was a recognised step or measure available to the State to attempt to manage the risk associated with a staircase as a staff member may be upstairs and unable to progress down the stairs if stopped by a resident (Hillman XX252 – XX254); (iii) The on call system and/or Crisis Centre did not provide a timely reply and police assistance was required due to its ineffectiveness. See para 30 (d)(iii) above; (iv) (Flick (Q's 47 – 49) had not seen or had reinforced an emergency procedure to follow when placed at risk due to violence in the workplace. In relation to (b), the defendant relies upon its submissions in relation to paragraph 16 regarding JJ, which I have already dealt with. In relation to paragraph (d)(i), the defendant states that, given the circumstances of the incident, a safe room would not have avoided the risk of attack. GK entered PM's bedroom at about 6.30 am and assaulted him. Ms Flick and Mr Rarere were assaulted by GK when they attempted to come to PM's aid. Later, Ms Flick, Mr Rarere and clients waited in the backyard without further incident until the police arrived. The prosecutor states that there was a known risk and that was the purpose of having a safe room available. In my view, again, the defendant focuses upon the incident rather than the risk which the incident exposes. I accept the relevance of the lack of provision of a safe room. 113. As to particular (b): "The Defendant failed to ensure that incidents resulting from client behaviour that represented a risk of injury to employees were adequately investigated, reported and monitored." (a) See "Objective Facts" above; (b) The specifics of particular (b) are as follows: (i) No monthly reports were submitted by the Group Care Home from August – December 1998; (ii) No quarterly report for the Home was submitted in October 1998. "RECOMMENDATIONS OF SYSTEMIC ISSUES TO BE ADDRESSED RE: BURWOOD RD" said, "Quarterly reports for the last period have not been received which may have flagged the issues around: staffing and supervision." (ex AA)". Meader, an Assistant Manager, never disputed this or any of the other recommendations (XX294 – 297); (iii) No or no adequate investigation was undertaken even though there had been previous actual manifestations of aggressive or violent behaviour; (iv) There was no mechanism in place to ensure that the previous incident reports had their details fully and accurately recorded and, furthermore, that they were reviewed, investigated and assessed. McLeod said incident reports were sent to the Assistant Manager and when she was off for weeks they would sit in her tray and McLeod wasn't aware of them (Q60; McLeod XX261, 285). It was pointed out by the defendant that the incident/accident reports detailing incidents of assaultive behaviour by clients at the Group Home prior to this incident were made. Mr Smith always informed Ms McLeod in detail about such incidents. Ms McLeod "graphed" the incident report forms upon receipt from the assistant manager between the period 3 August 1998 to 16 January 1999. During this period, for about two weeks only, the assistant manager was away. When the assistant manager returned, the forms were signed off, notations were made, Ms McLeod received them and copied them. The monthly and quarterly reports dealt with client intervention plans (for those clients who had them), medication regimes, staff records and specific individual plans for clients. The reports did not purport to investigate or monitor risks of assault etc to staff. The prosecutor submits that this is a classic example of a paper system which did not meet the obligations of the defendant under the Act. The documents kept by the defendant contemplated some action by a staff member, then action by the case manager and action by assistant case manager, the senior programmer and senior practitioner. That confirmed a paper system which was in place until the PSA became involved in late 1998 - there was no action being taken on the incident reports that were being provided previously dealing with assaults by residents of employees. Having regard to the prosecutor's submissions and the evidence relied upon, I accept the facts as stated by the prosecutor. 114. As to particular (c): "The Defendant failed to ensure that employees were adequately supervised in managing the behaviour of clients." (a) See "Objective Facts" above; (b) The specifics of particular (c) are as follows: (i) Smith was required to perform too much operational work and did not have adequate time to supervise employees at the Group Care Home; (ii) "What is even a greater concern in this particular house is the level of training and monitoring of procedural reliability on the procedures in place to address the challenging behaviour of the residents" (Martin Review in April 1996 p 29) - The Defendant failed to ensure planned 3 monthly reviews were carried out in order to maintain a consistent and reliable program for the management of GK's behaviour by the employees. This was unable to be facilitated due to insufficient resources in programming support as well as GK's communication being different (Smith Q's 92, 103); (iii) There was no supervision by a house he or she was rostered on a shift. See para 34(d) above; (iv) Smith was not adequately supervised. See para 34(d) above. 115. As to particular (d): "The Defendant failed to ensure that employees were provided with adequate information to be able to properly and safely manage the behaviour of clients." (a) Not pressed. 116. As to particular (e): "The Defendant failed to ensure that employees were provided with adequate training to be able to properly and safely manage the behaviour of clients." (a) See "Objective Facts" above; (b) The specifics of particular (e) are as follows: (i) There was no or no adequate training in assault prevention and minimisation strategies (Flick Q's 65, 68, Rarere Q68 and the other received 2 days training in high challenging behaviour including self defence in June 1999); (ii) Rarere did not have any experience and/or qualifications in dealing with individuals with disability (Q's 12 – 14). Rarere had just his cultural background and common sense and got the job from a recommendation from his cousin who worked in the house. This did not comprise verbal and procedural reliability training (Dunworth XX243 L22) (iii) The evidence of the lack of induction relating to GK includes : (A) Martin Review in April 1996 said, "Develop a formal induction procedure, including data base training on implementation procedures …" (ex B p 11). (B) The 28 April 1999 case review of GK said under the heading, "Action 3 Induction", represented induction/ information packages being developed specifically for the Home, this includes a pamphlet about consumers and all the necessary information required to work in a Homes, areas included emergency procedures, specific consumer profiles and behaviour management plan (ex BB, Ferguson XX206). In other words, that sort of induction information package was still being developed as at 28 April 1999. (C) Rarere did not receive any induction training when he commenced employment with the defendant in October 1997. "Staff induction has been adhoc and not provided staff with the information that they require, especially around the implementation of client programmes. Staff further suggest that the house manager has not followed the induction protocols" (Ex D p 5 January 1999 Report of Coyne). (D) Rarere was not trained in the implementation of behavioural management plans or intervention plans (XX110 L42). Training was provided after the incident (XX112). (iv) Rarere had not received any training in critical incident response. (v) Rarere was not given any SDI training (Smith Q 103); (vi) Rarere was only given very brief verbal training and was directed to read the personal files (Rarere Q's 12 – 14, 38, 48, 66, 67). In 1999, 2000 and 2001, it was being recommended that there should be in situ reliability checks and monitors. The typical way of giving reliability training is to have someone suitably qualified watching and monitoring the residential care worker to see if he or she can go through the behaviour management plan or intervention plan for a particular client (Ferguson XX207 – 208; ex UU) ; (vii) There was no or no adequate PART training (Flick Q65 and we were too injured to attend when it did eventuate); 117. As to particular (f): "The Defendant failed to ensure that clients who had a predisposition to aggressive or violent behaviour properly and safely managed". (a) See "Objective Facts" above; (b) At the relevant time, two employees should have been allocated to GK to get him to his day program. The Autistic Association felt that it could not deal with his present behaviour (Flick Q52). The defendant states that, following 18 August 1998, two full time employees on 24 hour support were allocated to GK. While I accept the defendant's submission as to the date of allocation, it appears to me that the thrust of the prosecution case is the need for this allocation at some earlier time. 118. As to particular (g): "The Defendant failed to ensure that employees received adequate counselling following incidents with clients involving aggressive or violent behaviour." (a) See "Objective Facts" above; (b) The specifics of particular (g) are as follows: (i) Rarere and Flick went into a state of shock and started trembling after the assault. They left the house at 8.30am and the Crisis Centre had still not arrived (Rarere Q16). The incident took a toll on Rarere's mental stability (RX114 L1 – 7); (ii) Rarere and Flick had not received any critical incident debriefing by the time they finished their shift at work. See para 36 above including critical incident defusing should be conducted within 1-4 hours of the critical incident; (iii) None of the managers arranged counselling for Flick on the day of the offence by a trained counsellor (Flick Q27; RX192). At that time, she was not aware of the Employee Assistance Programme or of a service such as Davidson Trahaire. The house manager wanted to offer counselling following the incident but he was not trained to give the counselling (XX181 L46 – XX182 L1, RX191); (iv) Flick had not received any trauma counselling incident on 18 August 1998 but received counselling from Davidson Trahaire following the incident on 16 January 1999 (Flick Q28); (v) Rarere received one session of trauma counselling with IPS and Davidson Trahaire but never received any further follow up concerning the incident on 16 January 1999. Rarere suffered flashbacks, insomnia and mood changes after the incident on 16 January 1999 (Rarere Q28). At the time of the incident, Rarere did not have any counselling whatsoever (XX109 L53). The defendant submits that Mr Smith de-briefed Ms Flick following the incident. While this may be accepted, the prosecutor's case is broader than Ms Flick and there was also the situation as to the adequacy of Mr Smith's capacity in these matters. The defendant continues that Mr Smith also contacted Human Resources on behalf of both Ms Flick and Mr Rarere and requested a critical incident de-briefing for both of them. Both Ms Flick and Mr Rarere received trauma counselling following the incident on 16 January 1999. They were also referred after that incident by the defendant to the rehabilitation providers. On 22 March 1999, Ms Flick informed the defendant that he had returned to work without experiencing any difficulties. Mr Rarere advised the rehabilitation provider that she found the debriefing beneficial and did not require further counselling. On 15 February 1999, Mr Rarere provided the defendant with a medical certificate stating that he was fit for pre-injury duties at that date. Both Ms Flick and Mr Rarere also received critical incident de-briefing on 20 January 1999 in regard to the incident on 16 January 1999 and it was noted that the briefing can take place within 72 hours of an incident and was different from defusing. I note these matters raised by the defendant. 119. As to particular (h): "The Defendant failed to provide established safe areas or escape routes at the premises for employees and clients in the event of violent behaviour by a client." (a) See "Objective Facts" above; (b) The specifics of particular (h) are as follows: (i) The only escape route from upstairs was via the stairs; (ii) Certain employees had not seen or had reinforced an emergency procedure to follow when placed at risk due to violence at the Group Care Home. The defendant made no submissions in relation to this matter. 120. As to particular (i); "The Defendant failed to ensure that adequate communication facilities were made available to employees at the premises." (a) The specifics of particular (i) are as follows: (i) The Defendant did not provide a duress alarm system with back-up; (ii) No mobile telephones were issued to each employee. 121. As to particular (j): "The Defendant failed to institute adequate procedures to determine the suitability of client placements at the premises." (a) See "Objective Facts" above especially a client compatibility assessment undertaken in September 1999, highlighted considerable interpersonal and environmental compatibility issues at the home (Ferguson para91) (b) The 16 November 1998 InterOffice Memo (ex M) said, "The movement of GK back to Burwood Road with out proper assessments having been carried out as well as proper assessments of GK's current communication patterns, would be seen by the Burwood road team as neglect on two fronts: 1. Neglect of its duty of care to the clients of Burwood Road in the provision of safe home environment. 2. Neglect of its obligatory duty of care to its staff in the provision of a safe working environment." The defendant relies upon its submissions in relation to paragraph 62, which I have already dealt with. 122. As to particular (k): "The Defendant failed to institute adequate procedures for reviewing client behaviour and treatment programs. (a) See "Objective Facts" above; (b) The specifics of particular (k) are as follows: (i) GK was not sticking to his routine and his medication was quite severely decreased, which brought about all his behaviours. GK was kept home for 5 weeks (Poha Q33). GK's medication decreased and then he became unpredictable when he was in the house all day. This was done without any or any adequate program attention. There should have only been one change to his routine not both a decrease in medication and being kept home for weeks (Flick Q's 23, 38).; (ii) A faster acting PRN should have been sought and implemented for GK (Flick Q16, Smith Q94); (iii) It was the Defendant's policy to review the behaviour management programs for clients on a six monthly basis. However, the behaviour management plans were not really reviewed (Lever Q's 37, 38). The defendant relies upon its submissions in relation to paragraph 54, which I have already dealt with. The defendant also says that the decision to reduce GK's medication was made by GK's mother in consultation with GK's psychiatrist, Dr Jenny Berg. That decision was made some two weeks prior to 18 August 1998. Following the incident on 18 August 1998 involving GK, his medication was increased. This action (ie reduction of medication) occurred six months before the incident of 16 January 1999 and can have no direct bearing on the incident of 16 January 1999. During the period from 18 August 1998 up until 16 January 1999, the defendant was making consistent efforts to improve GK's behaviour. His medication was consistently monitored and a complex case review was established on 11 November 1998. The review was aimed at the more effective management of challenging behaviour at Burwood Group Home. The house manager attended the review and GK's family were also involved. Client behaviour managment programmes (Intervention programmes) were being continually reviewed. I accept the defendant's submission as placing this Particular in context. 123. There was a causal connection between any or all of the above "Objective Facts", the specifics of the above particulars and the actual assault of Rarere and Flick by GK. 124. Since this incident, the following measures have been introduced by the Defendant: (a) A review of the Group Care Home, dated January 1999, was prepared by David Coyne (Ex D); (b) An incident analysis of the Group Care Home, dated 12 March 1999, was prepared by Barbara Dobosz at the request of the Informant; (c) Rarere received two days training in high challenging behaviour, including self defence in June 1999. IRC NO. 4019 of 2000 Date of Offence: 19 July 1999 Place of Offence: The Defendant's Van & Lyons Road Drummoyne Facts 125. From April 1999, the Defendant determined that GK should be transported by vehicle separately from other clients at its Group Care Home at Burwood following complaints from the parents of other clients concerning GK's aggressive and violent behaviour. 126. On 19 July 1999, despite the decision to transport GK separately from other clients of the Group Care Home, GK was transported in the Defendant's van driven by the Defendant's employee Jenkins. 127. Another client, who was a resident of the Group Care Home, was also present in the van. In addition, Rarere was also present in the van. As the van was proceeding along Lyons Road in Drummoyne, New South Wales, GK attempted to jump out of the moving van. Jenkins stopped the van. Rarere said he would walk GK back to the Group Care Home to avoid further incident. Jenkins resumed her journey in the van with the other client in order to do his shopping. 128. While walking back along Lyons Road, Drummoyne, GK attacked Rarere. GK grabbed Rarere's shirt and scratched the left hand side of his face and neck. GK also bit Rarere on the right hand shoulder. 129. Rarere requested assistance at a local hotel. A barman at the hotel called the Group Care Home and requested Dellagiacoma to assist Rarere in handling GK. While waiting for Dellagiacoma to arrive, GK attempted to enter shops on Lyons Road. It was necessary for Rarere and the barman to hold GK down to protect him from hurting himself against the windows of the shops and to stop him from banging his head against power poles. 130. Dellagiacoma arrived from the Group Care Home and transported Rarere and GK back to the Group Care Home. 131. As a result of the incident on 19 July 1999, Rarere suffered bites and scratches. Rarere received a tetanus injection due to the bites inflicted by GK and was given the rest of the week off work. Particulars 132. As to particular (a): "The Defendant failed to provide adequate emergency procedures to ensure the safety of its employees when the employees were confronted by clients who demonstrated aggressive or violent behaviour." (a) See "Objective Facts" above; (b) The Defendant had knowledge of the aggressive or violent behaviour from the knowledge of its employees and/or agents, verbal and written communication from employees, incident reports, behavioural data and consequential behavioural management plans, staff meetings and communications with the house manager; (c) SH, GK, JJ and PM have previously demonstrated aggressive or violent behaviour; which was admitted by employees of the Defendant and is contained within the Defendant's own records; (d) The Defendant did not provide one mobile telephone for each employee. The defendant relies upon its submissions in relation to paragraph 16. 133. As to particular (b): "The Defendant failed to ensure that incidents resulting from client behaviour that represented a risk of injury to employees were adequately investigated, reported and monitored." (a) See "Objective Facts" above; (b) The specifics of particular (b) are as follows: (i) No monthly reports were submitted by the Group Care Home from August - December 1998; (ii) No or no adequate investigation and risk assessment even though there had been previous manifestations of assaultive behaviour; (iii) There was no mechanism in place to ensure that the previous incident reports had their details fully and accurately recorded and, furthermore, that they were reviewed, investigated and assessed ; (iv) No quarterly report was submitted in October 1998. 134. As to particular (c): "The Defendant failed to ensure that employees were provided with adequate training to be able to properly and safely manage the behaviour of clients." (a) Not pressed. 135. As to particular (d): "The Defendant failed to ensure the employees were provided with adequate resources to be able to safely and properly manage clients while being transported in a motor vehicle." (a) Not pressed. 136. As to particular (e): "The Defendant failed to ensure that clients being transported in a motor vehicle did not represent a risk to the health and safety of employees." (a) See "Objective Facts" above; (b) There was no perspex-dividing screen in the van of the type subsequently introduced by the Defendant in place. A safety device in the form of a van shield, between the driver's seat and the back where residents like GK would sit, was introduced by the department (Ferguson p 41; XX219 L38 - 54) It was submitted by the defendant that the risk to staff did not, on the evidence ,arise in the motor vehicle (being the van): the risk arose once GK was out of the van and walking along the street with Mr Rarere. Further, lack of a perspex dividing screen in the van did not, on the evidence, result in the risk to staff of assault by GK. Again, here the defendant focuses upon the incident rather than the risk that was exposed. A client who attempted to leave a vehicle would oblige the staff to take action to ensure that did not occur and the risks associated with that type of activity are obvious. The same comment applies to the perspex dividing screen: the capacity for a client to behave in an unacceptable way within the van makes the later provision of the dividing screen relevant. 137. There was a causal connection between any or all of the above "Objective Facts", the specifics of the above particulars and the potential for assault of Rarere and the other employee in the van by GK. The defendant says that the reference "the other employee in the van" must be a reference to the driver. If so, there was no risk of injury to the driver at any time on the evidence. Again, the defendant focuses upon the incident rather than the risk. I reject the submission. 138. Since this incident, the following measures have been introduced by the Defendant: (a) An "Interim Protocol for Managing GK's Challenging Behaviour in the House Van", dated 16 June 1999, was created; (b) A perspex dividing screen was subsequently placed in the van; (c) The vehicle's window was repaired on 14 September 1999. The defendant submits that the protocol was developed on 16 June 1999, that is, at least one month before the incident which occurred on 19 July 1999. I accept this submission. Statement of Leanne Hillman 139. Annexed and marked "A" is a statement made by Leanne Hillman, Area Manager (Department Representative) ("Hillman") to the Informant dated 12 January 2000. 140. Annexed and marked "B" is an oral statement made by Hillman dated 19 January 2000. Overall Measures Contemplated or Implemented by the Defendant 141. A duress alarm was installed within the Group Care Home during 2000. 142 A draft "Critical Event and Incident Management", dated July 1999, was created in order to put in place a system of mandatory reporting of all critical events and incidents. The purpose of this operational system and procedure was to ensure all critical events and incidents were centrally recorded, to provide training, support and debriefing to employees. 143. A process for data collection relating to "Supported Accommodation Risk Factors (SARA)" was implemented in 1998. In February 1999 "SARA (v2)" was created to identify potential risks in Area/Large Residential Centre services providing accommodation support for people with intellectual disabilities. The purpose of this data collection process is to act as an alert to potential risks and to prompt management to take appropriate action to improve services. 144. A "Risk Management in Group Homes" team consisting of WorkCover Inspectors, the Human Resources Managers, House Managers, and OHS Managers and Committee Members representing the Defendant was created. Four workshops were conducted between the period March 2000 and May 2000 to: (a) Assist the Defendant in developing, reviewing, evaluating and improving the management of risks in group homes; (b) To develop an audit checklist for group homes and units; (c) To program future training sessions; (d) To determine how systems are to be used and maintained; (e) To review systems; (f) To develop an OHS "Managing Risk in the Workplace" package, to be developed by the house managers during their training program on 17 and 18 May 2000, consisting of: (i) A hazard identification reporting system (form) to be used by all employees; (ii) A risk assessment flow chart and tool (adapted from the Defendant's Policy and Procedures) (iii) A risk analysis and control strategies tool; (iv) A risk audit checklist. 145. A "Managing Violence Policy" draft dated 7 May 2001, was created. 146. A "OHS Risk Management Policy" draft dated 8 May 2001, was created. 147. A "Guidelines for Managing OHS Risk in the Workplace" draft dated 8 May 2001, was created. 148. A "Managing Violence Guidelines" draft dated 8 May 2001 was created. 149. As a result of the work done by Michael Costello of WorkCover, in conjunction with the "Risk Management Group Homes" team, a "Workplace Safety Kit Guide 2001" was created to provide a step-by-step guide to safety for business. This booklet included the following : (a) Assist the Defendant in developing, reviewing, evaluating and improving the management of risk in group homes; (b) To develop an audit checklist for group homes and units; (c) To program future training sessions; (d) To determine how systems are to be used and maintained; (e) To review systems; (f) To develop and OHS "Managing Risk in the Workplace" package, to be developed by the house managers during their training programme on 17 and 18 May 2000, consisting of: (i) A hazard identification reporting system (form) to be used by all employees; (ii) A risk assessment flow chart and tool (adapted from the Defendant's Policy and Procedures); (iii) A risk analysis and control strategies tool; (iv) A risk audit checklist. 150. During 2001, the "Risk Management Group Homes" team continued to develop a communication strategy for WorkCover and the Defendant and to ensure a risk management system would be maintained. To date, this team has continued with the risk management system with a view to implementation at a statewide level. Prosecutor's Submissions on Sentencing Principles The prosecutor made the following submissions: 8 The prosecutor accepts that any disputed facts relied upon by the prosecution need to be proved beyond reasonable doubt. On the other hand, any matter relied upon by the defendant in mitigation must be proved on the balance of probabilities. Primary Factor - Nature and Quality of the Offence 9 The primary factor to be considered when determining the appropriate sentence to impose is the objective seriousness of the offence charged. In the case of prosecutions under the Occupational Health and Safety Act, this proposition has been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence". (Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474.4 and 745.7). 10 Particularly in cases involving a serious breach of the Occupational Health and Safety 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. Lawrenson Diecasting Pty Ltd at 475.6. Objective Circumstances 11 Turning to the objective circumstances relied upon by the prosecutor: First, the maximum penalty prescribed by parliament for the offence as it reflects the public expression by parliament of the seriousness of the offence. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698, Kirby P (as he then was) (with whom Campbell and James JJ agreed), speaking for the New South Wales Court of Criminal Appeal, referred to a number of relevant general principles of sentencing including: 1. While it is the function of the Court itself to assess the seriousness of the offence in question, the maximum penalty available for an offence reflects the 'public expression' by parliament about the seriousness of the offence: R v H (1983) 3 A Crim R 53 at 65. Here, the maximum penalty is $125,000. Such a large penalty indicates the gravity of the offence as perceived by the community: see also the comments of the Hon T J Moore in New South Wales Parliamentary Debates (Legislative Assembly), 20 November 1990, 10037 and 10038. The 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 scale of penalty set by the legislature from zero to the maximum. 2. A maximum penalty is to be imposed where the case falls within the worst category of cases for which the penalty is prescribed. This is to be determined on the facts of the case: Ibbs v The Queen (1987) 163 CLR 447 at 452. However, 'that does not mean that a lesser penalty must be imposed if it is possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposed the maximum penalty offends this principle only if the case is recognisably outside the worst category': Veen v The Queen (No 2) (1988) 164 CLR 465 at 478. 12 The neglect of well known precautions in circumstances where there was every indication of a major risk of injury takes the matter towards a 'worst case' category: Inspector Roy Thomas Milligan v Roads and Traffic Authority unreported, Fisher CJ, 29 August 1996 at 14. 13 Secondly, there looms large the need for the imposition of a significant penalty due to: (a) General deterrence - see WorkCover Authority of New South Wales (Inspector Tuckley) v The Crown in Right of the State of New South Wales (Department of Community Services) (1999) 96 IR at 21.5 - 22.1 as to the liability of the Crown to fine for breaches of statutory obligations (b) Specific deterrence - this is not a rare case where appropriate weight does not have to be given to specific deterrence: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 particularly in paragraphs 71-79. In particular: (i) the defendant continues to be an employer and indeed is the largest employer in the State; (ii) there needs to be a salutary reminder to the defendant of its on going responsibilities in this respect: see, by analogy , Inspector William Keenan v Kyogle Council [2002] NSWIRComm 137 at paragraph 81 per Glynn J; (iii) there is a need for specific deterrence or encouragement of a higher level of safety: WorkCover Authority of New South Wales (Inspector Keelty) v The Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 3) [2002] NSWIRComm 1 at paragraph 25 and in (2002) 112 IR 141. 14 There is no reason why a public authority should be treated more leniently than a private company. To request the Court to focus upon the social activity of an undertaking is at once a dangerous exercise and unrewarding exercise: WorkCover Authority of New South Wales (Inspector Searle) v Western Sydney Area Health Service (2001) 111 IR 414 at paragraph 29. 15 Thirdly, an objective consideration calling for an increase in the seriousness of the penalty is the nature of the offence in that it involved obvious and foreseeable risks - see WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64: 37. Those factors are to be considered in light of the obvious risks and dangers in the welding of the truss in an upright and unsecured position. Also, seen in terms of the requirements of the Act as discussed by Hill J in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd, these factors demonstrate clearly that the offence committed was of real gravity. See also the judgment of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting (unreported, 13 April 1995, Matter No CT94/1037 at 17-18) where his Honour said: … 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 foreseeable technical risks in industry. and the judgment of Walton J, Vice-President in WorkCover Authority of New South Wales Inspector Glass) v Kellogg (Aust) Pty Ltd (unreported, IRC97/4332 - 4333, 19 October 1999) at 35-36. 16 The Full Bench in Capral Aluminium Ltd in paragraph 81 also said: The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice-President in Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432, the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence: see Camilleri's Stock Feeds (32 NSWLR at 700); James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at 17) and WorkCover Authority of New South Wales (Inspector Kelsey v University of Sydney (unreported, Hill J, CT1280, 12 April 1997 at 16). 17 In particular, it is inconsistent with the requirements of the Occupational Health and Safety Act that the defendant permit its employees to be the subject of physical assault: WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service [2002] NSWIRComm 44 at paragraphs 83, 84, 89 - 91 and at (2002) 112 IR 245. 18 Fourthly, it will be a serious offence where there is an obvious risk or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible. Lawrensen Diecasting at 476.5. See also, as going to the objective seriousness of the offence, the availability of simple and straightforward steps to remedy the defects in the system in WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Ltd, unreported, Schmidt J, 25 February 1994, at 12.2 and Department of Mineral Resources of New South Wales v Kembla Coal and Coke Pty Ltd at 27.2. Whilst the response by the defendant after the accident was laudable, the actions taken were such as to reveal in clear terms the decisive steps which may have been taken by the defendant to actually prevent this accident and thereby demonstrate a flaw which existed in the previous system: at 27.3. Again, this was another submission that the Full Bench in Profab said: "We conclude that there is a great deal of substance in the submissions of the appellant in relation to the gravity of the offence". 19 The system of work was a skeletal system more akin to a paper system of workplace safety because of its failure to ensure the safety of persons in the defendant's workplace. Evidence shows a history of working plans and incident reviews which failed to ensure the safety of workers: Inspector Barnard v Rail Infrastructure Corporation (No 2) [2002] NSWIRComm 107 at paragraph 33. Factors of particular importance and which aggravate the offence include, (by analogy to paragraph 38): (a) some of the incidents could have been simply avoided by using available steps; (b) the defendant took no remedial steps for months after some of the previous incidents. 20 Fifthly, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the respondent: Lawrenson Diecasting at 476.8. In Capral Aluminium Ltd it was said in paragraph 94: The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9; Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131; WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408-409; Lawrenson Diecasting Pty Ltd at 476; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Ltd at 90-91: and Page v Walco Hoist Rentals Pty Ltd (No 2) at 22. 21 Sixthly, the Act requires a pro-active approach on the part of an employer to safety, particularly in an industry which is very dangerous or perhaps even inherently unsafe: Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 210.7. The terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or where experience indicates that a risk of safety has arisen and requires remedy. Section 15 limits considerably the ability to rely upon previous experience as to either liability or culpability: 210.3. The s 15 and s 16 obligations mean it is essential that an employer should be pro-active and not re-active; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare: Nelmac Pty Ltd at 210, where reference was made to Hill J in WorkCover Authority of New South Wales v Atco Controls Pty Ltd. (1998) 82 IR 80 at 85. 22 Seventhly, it is well established that the criminal history should not lead to the imposition of a penalty which is disproportionate to the seriousness of the offence, but may be relevant to show that the instant offence has manifested a continuing disobedience of the law or that the offence was not an uncharacteristic aberration: Lawrenson Diecasting at 477.3 23 The defendant is disentitled to the measure of leniency which would normally be given to a person of previous good character or a person without a prior criminal record: Inspector Barnard v Rail Infrastructure Corporation (No 2) in paragraphs 30-31. 24 However, in assessing the penalty, it may be appropriate to take into account the size of the defendant's workforce, the number of work sites and the nature of the work carried out by the defendant and its employees: WorkCover Authority of New South Wales (Inspector Sheppard) v The State Rail Authority of New South Wales [2000] NSWIRComm 179 (6 October 2000) (The SRA) in paragraph 47 (Wright J, President). Subjective Circumstances 25 Appropriate subjective circumstances that might be taken into account in mitigation are, firstly, the plea of guilty. However, it is submitted that the defendant's discount in terms of the utilitarian considerations is eroded somewhat due to the protracted nature of the plea, and the prosecutor, in relation to factual matters said to be in dispute, confirming those actual matters were made out in cross-examination of witnesses called by the defendant. 26 Secondly, co-operation with authorities such as WorkCover is an important matter in this area of the law: Camilleri's Stock Feeds at 70. However, the SRA in paragraph 50 said: … its assistance to the authorities. As to the last aspect, I do not consider that it should carry as much weight as it might carry in the usual sentencing context. Although it is relevant in cases such as the present, nevertheless there is no direct comparison in a major corporation, whether public or private, co-operating with the WorkCover Authority in the context of a breach, or possible breach, of the occupational health and safety laws as compared to a situation where a criminal apprehended by police renders assistance to them in relation to, for example the apprehension of co-offenders. 27 Thirdly, "the steps taken by the defendant to remedy the defective equipment and to rectify the communication problems as to safety between the various statutory bodies": The SRA in paragraph 50. Totality 28 See Inspector Barnard v Rail Infrastructure Corporation (No 2) in paragraphs 34-37. Application 29 The prosecutor applies for the following: (a) costs, but with leave granted to the parties to apply to the Court within 21 days to fix the quantum if agreement cannot be reached; (b) Moieties of penalties imposed on the defendant. DEFENDANT'S SUBMISSION ON SENTENCE The defendant made the following submissions: Objective Circumstances 30 In the circumstances of the matters presently before the Court there has been "no neglect of well known precautions in circumstances where there was every indication of a major risk of injury (which takes the matter towards a "worst case" category". 31 Prior to and during the period of the offences (3.8.98 to 19.7.99) the defendant was actively and continuously involved in implementing procedures and refining and adapting current procedures in efforts to obviate the risk occasioned by clients with the potential to exhibit aggressive behaviour at the Burwood Road Group Home. 32 It follows from the evidence that the defendant was not idle during the relevant period. It was constantly reviewing and modifying client intervention plans; medication regimes; staff training etc., with a view to minimising the risk in the work environment. 33 No simple, straightforward steps existed to remedy defects in the system where intellectually disabled clients with potentially aggressive behaviour were in constant close contact with staff in the Burwood Road home. 34 The work environment was complex with staff dedicated to integrating into society people with intellectual disabilities. 35 This dedication was (and is) in conformity with the Disability Services Act 1986 which supported the transition from institutional to community-based services for client with disabilities. One of the objects of that Act is that intellectually disabled persons achieve their maximum potential as members of society. In order to reflect the objects of the Act, the defendant adopted certain policies, procedures and concepts in relation to its group homes; e.g. the concepts of normalisation, integration, the developmental model of disability and the dignity of risk. 36 There exists an inevitable tension between the objects of the Disability Services Act, the policies and procedures of the defendant in relation to it, and the obligation under the Occupational Health and Safety Act 1983 to ensure the health and safety of employees in the workplace. 37 Notwithstanding the competing considerations there is authority for the proposition that the obligation to provide employees with a safe place of work takes precedence: WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service (2002) NSWIRComm 44 per Schmidt J at paragraphs 89 and 90; WorkCover Authority of New South Wales (Inspector Stewart) v Crown in Right of the State of New South Wales (Department of Juvenile Justice, Department of Education and Training and TAFE) (2002) NSWIRComm 259 per Staunton J at paragraphs 45 and 46. 38 While acknowledging the paramountcy of employee safety, the competing considerations nevertheless highlight the complexity of the issues faced by the defendant in its endeavour to reconcile those completing considerations and obviate the risks. 39 Staff at the Burwood Road Group Home were not placed in life-threatening situations. GK, who was the most potentially aggressive of the clients in the home, usually directed his aggression towards himself. 40 Nevertheless, the defendant concedes that three offences to which the defendant has pleaded guilty involved serious assaults on staff by GK. 41 The offence involving PM was also a serious assault but occurred in circumstances where a staff member (Poha) was discussing PM's earlier conduct with other staff members, in his presence. PM reacted by hitting Poha with his hands and with a book. 42 The offence involving SH was also a serious assault although a practice had been successfully implemented of locking the coffee away in a kitchen cupboard, thereby preventing SH's access to it. 43 In relation to the offence involving JJ, the original version confirms that there was no assault and no threat of assault on Poha. The original version is contained on the evidence in three contemporaneous reports of the incident. 44 The defendant does not concede that the 27.9.98 Clovelly Beach incident involving JJ was a serious offence nor that it was an assault. 45 In relation to the remaining five offences, the defendant concedes that the principles of general and specific deterrence are relevant and that the risks were foreseeable. 46 The defendant had limited options in relation to the developmentally disabled clients under its responsibility. Those clients with violent or aggressive tendencies could not, for example, be scheduled to psychiatric institutions. This was because, under the Mental Health Act 1990, only persons diagnosed with a mental illness or a mental disorder could meet the criteria for involuntary admission. Those persons diagnosed as having a developmental disability of mind did not come and do not come within the definition of mentally ill or mentally disordered persons under the Act: sections 8, 9; 11. 47 In relation to GK, he was diagnosed on 18.8.98 as having a mixed affective disorder. This diagnosis gave GK access to emergency mental health resources. 48 According to Smith, however, the Department of Health did not agree with the dual diagnosis of GK. Instead, the Department of Health left the defendant "high and dry". On those occasions when GK was admitted to Rozelle Psychiatric Hospital, hospital staff would only keep him a couple of days and then release him. 49 Since the only reasonable alternative for clients like GK was group home accommodation under the defendant's responsibility, then potential risk of violence or aggression on the part of the clients towards staff could not be eliminated or avoided; at best, they could be minimised. Subjective circumstances: Early Plea of Guilty 50 The plea of guilty was entered at the earliest opportunity before the Registrar of the Industrial Relations Commission and following replies to the defendant's request for further particulars. It is submitted that the defendant should therefore receive a "substantial" discount on sentence, that is, one at the higher end of the available range of 10-25 per cent: see s 22 Crimes (Sentencing Procedure) Act 1999; R v Thomson (2000) NSWLR 383 at 419; Cameron v R (2002) 187 ALR 65 at 68, 69, paragraphs 14 to 15, 20 to 23, per Gaudron, Gummow and Callinan JJ (plea of guilty at the first reasonable opportunity). 51 In R v Thomson at 419, Spigelman CJ (with Wood CJ at CL, Foster AJA, Grove and James JJ agreeing) said: The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where, in the range, a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. The defendant is also entitled to leniency because of its plea of guilty, in addition to and as a separate consideration from utilitarianism: Winchester (1992) 53 ACrimR 345 at 350; R v Ellis (1986) 6 NSWLR 603 at 604. Co-Operation with WorkCover Authority of New South Wales and other Agencies 52 During the period of the offences and following, the defendant has actively co-operated and assisted the WorkCover Authority of New South Wales with its investigations and also other agencies such as the PSA. Post-Incident Action taken by the Defendant 53 In addition to the various measures taken by the defendant to either remedy or mitigate the risks of assaults by clients, the defendant has also introduced a number of measures as set out in the Dobosz affidavit, paragraphs 22 to 30 exclusive. Totality Principle 54 When sentencing a defendant for multiple offences, the Court is required to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality: Pearce v The Queen (1998) 194 CLR 610 at 624; Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) NSWIRComm 106 at paragraphs 21, 22 and 23. 55 In considering questions of totality the Court is requested to assess the six offences as representing a continuous course of conduct. Comparative Sentences 56 WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service (2002) NSWIRComm 44 per Schmidt J; (plea guilty, maximum penalty $750,000.00). The offence pursuant to s 15(1) of the Occupational Health and Safety Act 1983 occurred on 7 April 1997 in Ward 25 at Rozelle Hospital. The defendant was aware of the risk of violent incidents involving patients in Ward 25, particularly the patient TR, who had a history of violent incidents known to the defendant. There was a risk of injury from the use of breakable glass in a window, mirror and picture frame in Ward 25. TR used a piece of broken glass as a weapon to threaten Nurse Carrick, a employee of the defendant during the course of critical incident on 6 April 1997. Schmidt J found, in light of TR's history, that on 6 April 1997 there existed a risk that TR would attack and injure nursing staff and that the risk was readily foreseeable (paragraph 86). Her Honour also found specific deterrence was relevant to penalty (paragraph 102), that the prosecution case was strong (paragraph 106), that the plea was "relatively early" and that the offence was in the "upper level of a low to mid-range offence" (paragraph 110). The fine was fixed at $180,000.00. 57 WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of NSW)(No 3) (2002) NSWIRComm 1 per Hungerford J; (plea not guilty, maximum penalty $500,000.00). The charge under s 15(1) of the Occupational Health and Safety Act 1983 arose out of the fatal shooting of two police officers at Crescent Head, by the occupant of a house, John McGowan, when the two officers were investigating a complaint. His Honour found the offence "extremely serious" and the defendant's culpability towards the top of the mid-range. Fine was fixed at $275,000.00 and following a discount of 20 per cent, $220,000.00. 58 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 per Hungerford J; (plea guilty, maximum penalty $250,000.00). The offence under s 15(1) of the Occupational Health and Safety Act 1983 occurred in circumstances where an employee was alone in the Karalta Group Home with no mobile telephone or duress alarm when she was attacked and injured by a developmentally disabled resident ("client"). His Honour placed the seriousness of the offence in the mid-range and fixed the fine at $95,000.00 (see p 23). 59 WorkCover Authority of New South Wales (Inspector Batty) v Crown in Right of the State of New South Wales (Department of Education and Training) (2000) NSWIRComm 181 per Marks J; (plea guilty, maximum penalty $750,000.00). The offence under s 15(1) of the Occupational Health and Safety Act 1983 comprised a series of six assaults by developmentally disabled students against staff at a support unit operating inside the grounds of the West Port Technology High School, Port Macquarie. His Honour found the offence "serious" and fixed the penalty at $80,000.00. 60 WorkCover Authority of New South Wales (Inspector Stewart) v Crown in Right of the State of New South Wales (Department of Education and Training, Department of Juvenile Justice and TAFE) (2002) NSWIRComm 259 (per Staunton J); (plea guilty; maximum penalty $825,000.00). The offence under s 15(1) of the Occupational Health and Safety Act 1983 involved a person on remand (DA) at Yasmar with a known propensity to violence using knives, being allowed to attend a cooking class where knives were distributed to students during the class by teachers who had no knowledge of DA's propensity to violence and obsession with knives. On the first morning of the cooking class, DA picked up a knife and, without warning, fatally stabbed Scott Bremner, a teacher's aide assisting the teacher. In sentencing the defendant, her Honour found that the relevant risk was known and in fact foreseen (paragraph 39); and the offence "extremely serious" (paragraph 50). Taking into account all matters, including three prior convictions of the Department of Education and Training and an early plea, her Honour sentenced the defendant to a fine of $294,000.00. DELIBERATION 61 It is common ground that the penalty for a breach of the Act is to reflect the objective seriousness of the offence (Lawrenson Diecasting v WorkCover Authority of New South Wales). The defendant concedes that the three offences involving GK and the staff were serious assaults. It also accepts that the offence involving PM was a serious assault although that is attempted to be placed in a mitigating circumstance. Similarly, it is accepted that the offence involving SH was a serious assault, but the offence involving JJ is not conceded to involve an assault. I have rejected that submission. Foreseeability was conceded in five of the offences. 62 Because of the detail of this case with a close focus on each Particular relied on by the prosecutor, the nature of the assaults and their effects on the staff can be somewhat lost. It is therefore appropriate to briefly recount those matters. In relation to 3 August 1998 assault by SH, Ms Poha suffered bruising to her back, buttock and left arm but this required no time off work. On 18 August 1998, Mr Wilde was bitten twice by GK. GK struggled violently with both Mr Wilde and Mr Smith in the kitchen and threw kitchen objects about. Later in the lounge room he grabbed Ms Poha by the breasts and would not let go until eventually separated by other staff. GK then commenced to smash objects and began tearing Ms Poha's clothes from her. Ms Poha suffered bruises, strains and psychological trauma. The Clovelly Beach incident occurred on 27 October 1998. JJ swung at Ms Poha causing her to slip and fall on the rocks. She suffered lacerations to her toe and her knee and aggravated the injuries suffered on 18 August 1998 to her wrist and neck. Ms Poha received medical treatment and intensive physiotherapy. In the incident which occurred on 7 December 1998, PM jumped on Ms Poha and hit her in the back of the head and neck with his hands and with a book. Ms Poha's hand was in a brace and she was not able to properly defend herself. Ms Flick was also injured. Ms Poha suffered swelling to her wrists, upper arms and hands, neck pains and severe headaches, pain and weakness in the right knee. By April 1999, Ms Poha was limited to household duties and relied on medication to reduce her pain. By March 2000, Ms Poha was medically retired suffering stress disorders as a result of the assaults at the Group Home which were said to play a significant part in her medical retirement. In the 16 January 1999 incident, GK grabbed and verbally abused Mr Rarere and Ms Flick. In the bedroom GK head butted Mr Rarere in the left shoulder, grabbed him around the neck and his clothing. GK held on to the clothing of Mr Rarere for a considerable period before his grip was broken. The violence involved was such that the police were called. GK then attacked PM and head butted Mr Rarere. Mr Rarere suffered a torn muscle ligament in the left arm and a torn shoulder muscle in the right arm. Ms Flick suffered strain to her right groin. Ms Flick and Mr Rarere thereafter suffered sleep disturbances. Mr Rarere took three weeks off work. Ultimately, Ms Flick had 12 months off work but still suffered nightmares but made several attempts to return to work. Ms Flick was medically retired ultimately at the end of 2000 suffering post traumatic stress disorder with major depression as a result of the incident. At the time of giving evidence she was still seeing a psychiatrist. On the 19 July 1999, GK attacked Mr Rarere in the street after attempting to jump from the vehicle. GK grabbed Mr Rarere's shirt and scratched the left hand side of his face and neck and bit him on the right shoulder. Mr Rarere had to hold GK down with the assistance of a member of the public. Mr Rarere suffered bites and scratches necessitating a tetanus injection and was given the rest of the week off. 63 Although the defendant contests a number of particulars on the basis of a certain incident, and whether or not the more recent behaviour of the client justified a conclusion that the particular behaviour which was exhibited, was foreseeable, the reality is that the Department was aware that the very nature of its undertaking meant that client behaviour may lead to staff injury. The prosecutor points to the October 1996 document entitled "Policy on the effective management of client behaviour to prevent injury or illness to staff". There is no doubt that some of the incidents involved attacks and assaults which were more serious than the others. How serious the injuries could have been may be a matter for conjecture but these various incidents highlight the serious nature of the risk. There is an air of the blasé in the defendant's submission that no-one was placed in a life-threatening situation. Overall, there were a number of deficiencies in the Department's methods for protecting its staff. These risks appear to have been emphasised by the number of clients in the house and an inappropriate mixture of disabilities. The house itself was unsuitable, both in terms of space and being on two levels instead of one level. There was an acknowledgement that the staffing itself was not adequate. A number of simple measures were not implemented. Although attention had previously been given (in a 1992 document) to the security of the staff, the Group Home did not have what has been described as a "safe room"; it did not provide a duress alarm system with a backup; the on-call system did not provide a timely reply; the defendant did not provide a detailed evacuation plan. The overall impression I gained from reading the material and hearing the evidence was that of a Departmental system under stress. There are undoubtedly many more resources which could be and perhaps should be provided, in an ideal world, for this type of operation conducted by the Department: whatever resources the Department had available to it, the provisions of the Act required it to ensure the health, safety and welfare of their employees at work. 64 The defendant points to its limited options in relation to the developmentally disabled clients under its responsibilities and the fact that those clients with violent or aggressive tendencies could not, for example, be scheduled at psychiatric institutions. It was said that, under the Mental Health Act 1990, only persons diagnosed with a mental illness or a mental disorder could meet the criteria for involuntary admission. In addition, the work environment was said to be complex, with staff dedicated to integrating into society people with intellectual disabilities. That was said to be in conformity with the Disabilities Services Act 1986 which supported the transition from institutional to community based services for clients with disabilities. One of the objects of the Act was that intellectually disabled persons achieved their maximum potential as members of society and, to reflect that object, the defendant adopted certain policies, procedures and concepts in relation to its group homes, for example, the concepts of normalisation, integration, the developmental model of disability and the dignity of risk. This was said to lead to an inevitable tension between the objects of the Disabilities Service Act, the policies and procedures of the defendant in relation to it and the obligation under the Act to ensure the health, safety and welfare of employees in the workplace. This submission was an echo of the submission made in WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service. In that case, evidence was given that the defendant's obligation to a patient was such as to give an emphasis inconsistent with the obligations which the Act imposed in relation to the safety of employees. Schmidt J noted that was a possibility against which the defendant must plainly be on guard as the Act required the defendant not only to have appropriate policies in place in relation to the risks to which its undertaking exposed staff and to train staff in such risks, but it also had to ensure that the policies and training were implemented and were effective in ensuring safety. Her Honour continued: 89. Given the evidence as to the conditions from which TR and other patients treated at Rozelle suffer, and the fact that the defendant and those whom it employs are dedicated to the care and treatment which such people require, it can readily be appreciated that staff might be slow to move to physically restrain a patient. That, indeed, would seem consistent with the policies in evidence. Empathy, care and even pity for such patients are, however, not a proper basis upon which employees may be permitted to place themselves into danger. There can be no doubt that in a situation where the choices facing the defendant are physical intervention in order to ensure that a patient is restrained from hurting others and a risk to the health, welfare or safety of employees, if such steps are not taken, the absolute obligations imposed upon the defendant by s 15 of the Act, require that safety of employees be preferred. 90. No matter how dedicated to patient welfare a nurse or other employee might be, it is inconsistent with the requirements of the Act, that the defendant permit them to be the subject of physical assault, or indeed, repeated physical assault, by patients who are not restrained from harming others. Employment on such a basis is not permitted by the Act. Those observations of Schmidt J were endorsed in not too dissimilar circumstances by Staunton J in WorkCover Authority (NSW) (Inspector Stewart) v The Crown in Right of the State of New South Wales (Department of Education and Training, Department of Juvenile Justice and TAFE) [2002] NSWIRComm 259 at [45]. There is also relevance in the comments made by Hungerford J in an admittedly completely different employment context in WorkCover Authority of New South Wales (Inspector Keelty) v The Crown in Right of the State of New South Wales (Police Services of New South Wales) (No 2) (2001) 104 IR 268 at [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 … Hungerford J stated that 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. It was not open to plead in mitigation the inability to control the risk of violent behaviour of those with whom the employees must deal: the admitted failure was the defendant's failure to provide appropriate training to enable the employees to properly deal with the behaviour of the person in a manner to preserve their safety. The same considerations are relevant in the present case although the circumstances of the two cases are admittedly quite different. 65 It is undoubtedly correct that the Department provides a most worthwhile service in the operation of Group Homes. It is also undoubtedly correct that in order to provide such a service it relies on caring people to involve themselves in such an environment. In my view, those circumstances do not detract from an employer's duty under the Act. I accept that in their different contexts the charges here involve serious breaches. Two members of the Department's staff have prematurely retired on medical grounds and in circumstances which will undoubtedly scar them for life. These facts are important to bear in mind in the setting of an appropriate penalty. I am, however, unable to accept the proposition that the breaches and their seriousness which is evident from the material before the Court disclose a situation which can properly be described as falling within the "worst case" category. 66 It was common ground that the maximum penalty available for each offence was $825,000 with the Department having two prior convictions: the first under s 15(1) of the Act where it was fined $95,000 in 1999; the second under s 16(1) of the Act when the Department was fined $13,000 in Chief Industrial Magistrate's court. The prosecutor also tendered the prior convictions record for the Crown in Right of the State of New South Wales in relation to the operation of other Departments of Government. That record disclosed a further 23 offences where fines were imposed ranging from $1,500 to a high of $220,000. There was one case where no penalty was imposed pursuant to the provisions of s 10 of the Crimes (Sentencing Procedure) Act. In WorkCover Authority of New South Wales (Inspector Keelty) v The Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 3) (2002) NSWIRComm 1, Hungerford J considered the effects of s 121 of the Occupational Health and Safety Act 2000 in considering prior convictions. His Honour accepted the prosecutor's submission in that case that the effect of prior convictions of the Crown were relevant even though the most relevant consideration would concern the record of the Department involved in the breach. His Honour then adopted a passage from his judgment 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 at 22: Having in mind the role played by prior convictions for the purpose 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 that 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. His Honour was of the view that the Vice President, Walton J, had adopted an approach consistent with this decision, 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. 67 In reaffirming the view that the fundamental duty of the Court, in this important area of public concern, was to ensure a level of penalty for breaches that will compel attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace, Hungerford J further remarked in Tuckley (at 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. 68 I regard the objective of general deterrence as being a significant feature in the present case. Employers who operate in circumstances which expose their employees to risk to their health, safety and welfare must do more than simply acknowledge the obligation and rely upon the fact that the nature of the risk cannot be eliminated: the duty is to ultimately ensure that the employees are protected from the risks. 69 This is the third occasion the defendant has been subject to consideration for the imposition of a fine for breaches of the Occupational Health and Safety Act. The Department itself is a large employer and the Crown is probably the largest employer in the State of New South Wales. The Department continues to operate group homes and its employees will inevitably face the risks associated with challenging or aggressive and assaultive behaviour. For that reason, the issue of specific deterrence is also of significance in the present case. In this respect, I bear in mind what was said by a Full Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 at 644 [77]: At least where the offender continues to be an employer, risk to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely re-active: WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 and 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd. [2000] NSWIRComm 53 at [46]. Further, in approaching the issue of specific deterrence, I have in mind the submissions made by the defendant drawing attention to what it perceived as being tensions between the statutory responsibility imposed upon the Department in dealing with intellectually disabled persons and its obligations under the Occupational Health and Safety Act. As earlier pointed out, the Department's obligations under the Occupational Health and Safety Act are clearly stated and cannot be diluted by such considerations. In addition, submissions that the defendant was not idle during the relevant period in attempting to minimise risks in the work environment and that there were no simple straightforward steps to remedy the defects of the system, where intellectually disabled clients with potentially aggressive behaviour were in close contact with staff, suggests that the role of specific deterrence is particularly important in this case. The submission concerning the defendant's attention to continuing review of its procedures suggests a certain level of self delusion which these various incidents, occurring as they did over a period of nearly a year, should have dispelled. The penalty to be imposed will, at least in part, be designed to focus the defendant's attention upon the need for effective measures to be taken in relation to its employees performing duties in group homes. 70 The prosecutor submitted that, in assessing penalty, it may be appropriate to take into account the size of the defendant's workforce, the number of worksites and the nature of the work carried out by the defendant and its employees. I am prepared to take those matters into account in a broad way, both in relation to the particular Department and the Crown generally. 71 The submission of a guilty plea in each of these matters by the defendant is a matter to be taken into account in mitigation of penalty. It is to be noted that, on the first occasion that these matters were in the Registrar's list, there was a request for particulars to be provided by the prosecutor and the matters were then stood over on a further three occasions before a plea of guilty was entered in May 2001. The prosecutor submits, however, that the utilitarian consideration is eroded somewhat due to the protracted nature of the plea and the extensive debate over factual matters said to be in dispute. There is some force in the submission, considering that there were five days of hearing of evidence, primarily in relation to the context in which these various offences arose and only to a limited extent as to the steps taken by the Department to redress the risks which were demonstrated to exist in its workplace. The matter was then listed to hear the submissions and, even at this point, the parties were not in agreement as to all the relevant facts and a substantial amount of time was taken dealing with debate as to those facts. I have found some of those matters in dispute in favour of the prosecution and others in favour of the defendant. There are a number of disputed facts where I have found that the focus of the defendant has been on the incident rather than upon the risk as charged. Overall, having regard to the elements of the offence which were pleaded to without dispute, I am not convinced that any of the matters in dispute were of such a high level of significance as to warrant the extent of the evidence and cross-examination that was conducted by the defendant. In view of the time taken by the defendant in pursuing its case in relation to the disputed facts, it is difficult to conclude that these matters would have taken much longer in Court time if they had been fully contested. It is in these circumstances that I propose a discount of 15 per cent for the defendant's pleas of guilty. I am also prepared to take into account the evidence from the defendant in relation to the various measures it has taken to either remedy or mitigate the risks of assault of its employees by clients. In relation to these and other subjective matters, I would allow a further discount of 5 per cent of the penalty. 72 The defendant drew attention to a number of penalties imposed in circumstances similar or in some way analogous to the circumstances under which the Department's employees were exposed to risks arising from their interaction with its clients. Probably the most significant of those cases was the judgment of Hungerford J in WorkCover Authority of New South Wales (Inspector Tuckley) v The Crown in Right of the State of New South Wales (Department of Community Services). There were a number of similarities with the present matters, namely, the absence of a duress alarm, an emergency mobile telephone and a secure place for staff to shelter during a violent attack. There were important differences, the most important, in my view, being the fact that the employee assaulted in this case was working alone and the client involved had a clear and known record of aggressive and violent behaviour. The matter was a first offence and, after discounting for the plea of guilty and the subjective elements, his Honour imposed a penalty of $95,000 in circumstances where the maximum penalty available was $250,000. 73 The defendant has asked that, in relation to these multiple offences, the principle of totality should be applied and the Court should assess the six offences as representing a continuous course of conduct. In making that submission, the approach of Marks J in WorkCover Authority of New South Wales (Inspector Batty) v The Crown in Right of the State of New South Wales (New South Wales Department of Education and Training) was urged by the defendant. I note, however, in that case originally there were 29 summonses alleging a variety of offences. By the time the matter came before his Honour for the imposition of penalty, there was an amended Summons to which the defendant pleaded guilty and the remaining summonses were either withdrawn or were dismissed. The charge covered a period between May 1997 and August 1997 and involved two of the Department's clients. In the present matter, there are six separate charges and a plea of guilty entered in relation to each of them. 74 A Full Court in Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 considered the proper approach to the principle of totality when dealing with multiple offences with common elements arising under the Occupational Health and Safety Act. The Full Court noted that, since the High Court judgment in Pearce v The Queen (1998) 194 CLR 610, it was no longer appropriate to impose one sentence which represented the totality of the overall criminality involved in a number of offences. It was stated that the effect of Pearce was that, in sentencing a defendant for more than one offence, the court was required to fix an appropriate sentence for each offence and then consider questions of accumulation, concurrence and totality. It was only after determining an appropriate sentence for each offence that the court should consider whether the sum of the separate sentences properly reflected the totality of the criminality involved. The Full Court concluded that, in an appropriate case, however, it may still be open to impose a single penalty for multiple offences under the Act, but only as the result of the operation of the principle of totality after separate penalties had been assessed for each offence. The court expressed the preferred course, nevertheless, to be that separate penalties should be imposed after the principle of totality is applied. 75 Approaching these cases on the principles set out in Pearce and Keenan, the penalties to be imposed in each of these matters are as follows: In Matter IRC 3863 of 2000 a fine of $75,000. In Matter IRC 4022 of 2000 a fine of $85,000. In Matter IRC 4018 of 2000 a fine of $45,000. In Matter IRC 4021 of 2000 a fine of $75,000. In Matter IRC 4020 of 2000 a fine of $85,000. In Matter IRC 4019 of 2000 a fine of $45,000. A total fine thus produced is $410,000. With a total discount of 20 per cent that amount is reduced to $328,000. 76 The common elements in these six matters are demonstrated by the prosecutor's amended Statement of Facts which lists approximately 15 matters that are relevant to all cases. The relevant detriment to safety was the potential risk to the health, safety and welfare of the Department's employees and was said to exist in a potential risk that those employees could be subject to an assault perpetrated by one of the clients of the group care homes. Each charge has as a common element the failure to provide adequate emergency procedures, while a failure to assess the behaviour of certain clients and the failure to properly investigate incidents resulting from client behaviour also ran through a number of the charges. In some of the cases, there was an added factor of a failure to ensure that clients who had a predisposition to aggressive or violent behaviour did not have access to dangerous implements. This is not a case where the several breaches arise out of one incident. Bearing in mind that this is a course of conduct over nearly 12 months during which steps should have been taken to address the risks that became obvious by each and every new incident, I would reduce the total penalty to $285,000. Applying this figure, the appropriate fine in each case becomes as follows: In Matter IRC 3863 of 2000 a fine of $51,300. In Matter IRC 4022 of 2000 a fine of $59,850. In Matter IRC 4018 of 2000 a fine of $31,350 In Matter IRC 4021 of 2000 a fine of $51,300 In Matter IRC 4020 of 2000 a fine of $59,850. In Matter IRC 4019 of 2000 a fine of $31,350. ORDERS 77 The Court makes the following orders: In Matter IRC 3863 of 2000: (a) the defendant is convicted of the offence as charged under s 15(1) of the Occupational Health and Safety Act 1983; (b) the defendant is fined the sum of $51,300 with moiety thereof to the prosecutor. In Matter IRC 4022 of 2000: (a) the defendant is convicted of the offence as charged under s 15(1) of the Occupational Health and Safety Act 1983; (b) the defendant is fined the sum of $59,850 with moiety thereof to the prosecutor. 78 In Matter IRC 4018 of 2000: (a) the defendant is convicted of the offence as charged under s 15(1) of the Occupational Health and Safety Act 1983; (b) the defendant is fined the sum of $31,350 with moiety thereof to the prosecutor. In Matter IRC 4021 of 2000: (a) the defendant is convicted of the offence as charged under s 15(1) of the Occupational Health and Safety Act 1983; (b) the defendant is fined the sum of $51,300 with moiety thereof to the prosecutor. In Matter IRC 4020 of 2000: (a) the defendant is convicted of the offence as charged under s 15(1) of the Occupational Health and Safety Act 1983; (b) the defendant is fined the sum of $59,850 with moiety thereof to the prosecutor. In Matter IRC 4019: (a) the defendant is convicted of the offence as charged under s 15(1) of the Occupational Health and Safety Act 1983; (b) the defendant is fined the sum of $31,350 with moiety thereof to the prosecutor. 79 At the request of the parties, the issue of costs is adjourned to a date to be fixed. ANNEXURE A Matter No. IRC 3863 of 2000 …THE CROWN IN RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF COMMUNITY SERVICES), an employer with its Inner West Area Office located at 56 Liverpool Street, Summer Hill in the State of New South Wales. DID FAIL To ensure the health, safety and welfare at work of its employees, contrary to Section 15(1) of the Occupational Health & Safety Act 1983 in such case made and provided in that: It is alleged that the Defendant, The Crown in Right of the State of New South Wales (Department of Community Services), an employer, breached Section 15(1) of the Occupational Health & Safety Act 1983 on 3 August 1998 at premises located at 132 Burwood Road, Concord in the State of New South Wales, in that it failed to ensure the health, safety and welfare of its employees, in particular, Sharon Poha. In particular, the Defendant failed: (a) to provide adequate emergency procedures and equipment to ensure the safety of its employees when the employees were confronted by clients who demonstrated aggressive or violent behaviour; (b) to ensure that incidents resulting from client behaviour that represented a risk of injury to employees were adequately reported, investigated and monitored; (c) to ensure that employees were adequate supervised in managing the behaviour of clients; (d) to ensure that employees were provided with adequate information to be able to properly and safely manage the behaviour of clients; (e) to ensure that employees were provided with adequate training to be able to properly and safely manage the behaviour of clients; (f) to ensure that clients who had a predisposition to violent or aggressive behaviour were properly and safely managed; (g) to ensure that employees received adequate counselling following incidents with clients involving violent or aggressive behaviour; (h) to ensure that clients who had a predisposition to violent or aggressive behaviour did not have access to substances which increased the potential for violent or aggressive behaviour; (i) to ensure that adequate communication facilities were made available to employees at the premises. Matter No. IRC 4018 of 2000 …THE CROWN IN RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF COMMUNITY SERVICES), an employer with its Inner West Area Office located at 56 Liverpool Street, Summer Hill in the State of New South Wales. DID FAIL To ensure the health, safety and welfare at work of its employees, contrary to Section 15(1) of the Occupational Health & Safety Act 1983 in such case made and provided in that: It is alleged that the Defendant, The Crown in Right of the State of New South Wales (Department of Community Services), an employer, breached Section 15(1) of the Occupational Health & Safety Act 1983 on 27 September 1998 at Clovelly Beach in the State of New South Wales, in that it failed to ensure the health, safety and welfare of its employees, in particular, Sharon Poha. In particular, the Defendant failed: (a) to provide adequate emergency procedures to ensure the safety of its employees when the employees were confronted by clients who demonstrated aggressive or violent behaviour; (b) to ensure that incidents resulting from client behaviour that represented a risk of injury to employees were adequately reported, investigated and monitored; (c) to ensure that employees were adequately supervised in managing the behaviour of clients; (d) to ensure that employees were provided with adequate resources to be able to properly manage the behaviour of clients; (e) to ensure that employees were provided with adequate training to be able to properly manage the behaviour of clients; (f) to ensure that employees received adequate counselling following incidents with clients involving violent or aggressive behaviour; (g) to ensure the employees received adequate assistance in managing clients while on day trips away from the Group Care Home. Matter No. IRC 4019 of 2000 …THE CROWN IN RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF COMMUNITY SERVICES), an employer with its Inner West Area Office located at 56 Liverpool Street, Summer Hill in the State of New South Wales. DID FAIL To ensure the health, safety and welfare at work of its employees, contrary to Section 15(1) of the Occupational Health & Safety Act 1983 in such case made and provided in that: It is alleged that the Defendant, The Crown in Right of the State of New South Wales (Department of Community Services), an employer, breached Section 15(1) of the Occupational Health & Safety Act 1983 on 19 July 1999 at Lyons Road, Drummoyne in the State of New South Wales, in that it failed to ensure the health, safety and welfare of its employees, in particular, Matenga Rarere. In particular, the Defendant failed: (a) to provide adequate emergency procedures to ensure the safety of its employees when the employees were confronted by clients who demonstrated aggressive or violent behaviour; (b) to ensure that incidents resulting from client behaviour that represented a risk of injury to employees were adequately reported, investigated and monitored; (c) to ensure that employees were provided with adequate training to be able to safely and properly manage the behaviour of clients being transported in a motor vehicle; (d) to ensure the employees were provided with adequate resources to be able to safely and properly manage clients while being transported in a motor vehicle; (e) to ensure that clients being transported in a motor vehicle did not represent a risk to the health and safety of employees; (f) to ensure that employees received adequate counselling following incidents with clients involving violent or aggressive behaviour. Matter No. IRC 4020 of 2000 …THE CROWN IN RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF COMMUNITY SERVICES), an employer with its Inner West Area Office located at 56 Liverpool Street, Summer Hill in the State of New South Wales. DID FAIL To ensure the health, safety and welfare at work of its employees, contrary to Section 15(1) of the Occupational Health & Safety Act 1983 in such case made and provided in that: It is alleged that the Defendant, The Crown in Right of the State of New South Wales (Department of Community Services), an employer, breached Section 15(1) of the Occupational Health & Safety Act 1983 on 16 January 1999 at premises located at 132 Burwood Road, Concord in the State of New South Wales, in that it failed to ensure the health, safety and welfare of its employees, in particular, Sharon Poha. In particular, the Defendant failed: (a) to provide adequate emergency procedures to ensure the safety of its employees when the employees were confronted by clients who demonstrated aggressive or violent behaviour; (b) to ensure that incidents resulting from client behaviour that represented a risk of injury to employees were adequately investigated, reported and monitored; (c) to ensure that employees were adequately supervised in managing the behaviour of clients; (d) to ensure that employees were provided with adequate information to be able to properly and safely manage the behaviour of clients; (e) to ensure that employees were provided with adequate training to be able to properly and safely manage the behaviour of clients; (f) to ensure that clients who had a predisposition to violent or aggressive behaviour were properly and safely managed; (g) to ensure that employees received adequate counselling following incidents with clients involving violent or aggressive behaviour; (h) to provide established safe areas or escape routes at the premises for employees and clients in the event of violent behaviour by a client; (i) to ensure that adequate communication facilities were made available to employees at the premises; (j) to institute adequate procedures to determine the suitability of client placements at the premises; (k) to institute adequate procedures for reviewing client behaviour and treatment programs. Matter No. IRC 4021 of 2000 …THE CROWN IN RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF COMMUNITY SERVICES), an employer with its Inner West Area Office located at 56 Liverpool Street, Summer Hill in the State of New South Wales. DID FAIL To ensure the health, safety and welfare at work of its employees, contrary to Section 15(1) of the Occupational Health & Safety Act 1983 in such case made and provided in that: It is alleged that the Defendant, The Crown in Right of the State of New South Wales (Department of Community Services), an employer, breached Section 15(1) of the Occupational Health & Safety Act 1983 on 7 December 1998 at premises located at 132 Burwood Road, Concord in the State of New South Wales, in that it failed to ensure the health, safety and welfare of its employees, in particular, Sharon Poha. In particular, the Defendant failed: (a) to provide adequate emergency procedures to ensure the safety of its employees when the employees were confronted by clients who demonstrated aggressive or violent behaviour; (b) to ensure that incidents resulting from client behaviour that represented a risk of injury to employees were adequately investigated, reported and monitored; (c) to ensure that employees were adequately supervised in managing the behaviour of clients; (d) to ensure that employees were provided with adequate information to be able to properly and safely manage the behaviour of clients; (e) to ensure that employees were provided with adequate training to be able to properly and safely manage the behaviour of clients; (f) to ensure that clients who had a predisposition to violent or aggressive behaviour were properly and safely managed; (g) to ensure that employees received adequate counselling following incidents with clients involving violent or aggressive behaviour; (h) to ensure that clients who had a predisposition to violent or aggressive behaviour did not have access to dangerous implements; (i) to institute adequate procedures to determine the suitability of client placements at the premises; (j) to institute adequate procedures for reviewing client behaviour and treatment programs. Matter No. IRC 4022 of 2000 …THE CROWN IN RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF COMMUNITY SERVICES), an employer with its Inner West Area Office located at 56 Liverpool Street, Summer Hill in the State of New South Wales. DID FAIL To ensure the health, safety and welfare at work of its employees, contrary to Section 15(1) of the Occupational Health & Safety Act 1983 in such case made and provided in that: It is alleged that the Defendant, The Crown in Right of the State of New South Wales (Department of Community Services), an employer, breached Section 15(1) of the Occupational Health & Safety Act 1983 on 18 August 1998 at premises located at 132 Burwood Road, Concord in the State of New South Wales, in that it failed to ensure the health, safety and welfare of its employees, in particular, Sharon Poha, Christopher Smith and Taragh Wilde. In particular, the Defendant failed: (a) to provide adequate emergency procedures to ensure the safety of its employees when the employees were confronted by clients who demonstrated aggressive or violent behaviour; (b) to ensure that incidents resulting from client behaviour that represented a risk of injury to employees were adequately investigated, reported and monitored; (c) to ensure that employees were adequately supervised in managing the behaviour of clients; (d) to ensure that employees were provided with adequate information to be able to properly and safely manage the behaviour of clients; (e) to ensure that employees were provided with adequate training to be able to properly and safely manage the behaviour of clients; (f) to ensure that clients who had a predisposition to violent or aggressive behaviour were properly and safely managed; (g) to ensure that employees received adequate counselling following incidents with clients involving violent or aggressive behaviour; (h) to ensure that clients who had a predisposition to violent or aggressive behaviour did not have access to dangerous implements; (i) to ensure that adequate communication facilities were made available to employees at the premises; (j) to institute adequate procedures to determine the suitability of client placements at the premises; (k) to institute adequate procedures for reviewing client behaviour and treatment programs. oo00oo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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