Industrial Court of New South Wales CITATION: Inspector Vierow v Catholic College Lismore Limited t-as Trinity Catholic College Lismore [2009] NSWIRComm 128 Prosecutor: Inspector Vierow PARTIES: Defendant: Catholic College Lismore Limited t/as Trinity Catholic College Lismore FILE NUMBER(S): IRC1472 of 2008 CORAM: Kavanagh J CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - Breach of section 10(2) of the Act - Plea of Guilty - Failure to ensure gate system safe at Catholic College - Alleged failure to adequately maintain proper system of reporting and rectification of defects - Alleged failure to risk assess - Fatal injuries sustained by 5 year old child - Failure to ensure rectification achieved desired effect - Relevant principles - Foreseeability - Contribution to the risk from third party - Objective seriousness of offence - General and specific deterrence - Mitigating factors - Maximum penalty $550,000 - Ability to pay substantial fine - Victim impact statement - Penalty Civil Liability Act 2002 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Inspector Glass v Fomex Polystyrene Pty Limited (2004) NSWIRComm 100 Inspector Jones v Buddy Charbel Challita; Inspector Jones v Mr Pump Pty Ltd [2005] NSWIRComm 385 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 CASES CITED: Markarian v R (2005) 215 ALR 213 Morrison v Powercoal Pty Limited (2003) 130 IR 364 R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Way (2004) 60 NSWLR 168 WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited (unreported, Schmidt J, 25 February 1994) HEARING DATES: 1 July 2009 DATE OF JUDGMENT: 6 August 2009 Prosecutor: Mr M Cahill of counsel Solicitors: WorkCover Authority of NSW LEGAL REPRESENTATIVES: Defendant: Mr J.J.E. Fernon SC Solicitors: Carroll & O'Dea JUDGMENT: - 19 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: KAVANAGH J Thursday 6 August 2009 Matter No IRC 1472 of 2008 INSPECTOR MAURICE VIEROW v CATHOLIC COLLEGE LISMORE LIMITED (ACN 002 823 305) t/as TRINITY CATHOLIC COLLEGE LISMORE Prosecution under s10(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2009] NSWIRComm 128 1 This prosecution is brought by Inspector Maurice Vierow of the WorkCover Authority of New South Wales against Trinity Catholic College Lismore Limited (ACN 002 823 305) t/as Trinity Catholic College Lismore (the defendant) under s10(2) of the Occupational Health and Safety Act 2000 (the Act) by way of a Amended Application for Order filed in Court at the time of the hearing. 2 It is alleged the defendant, on 17 October 2005, contravened s10(2) of the Act in that it failed to: ensure the said plant was safe and without risks to health when properly used contrary to section 10(2) of the Occupational Health and Safety Act 2000. In particular: (a) The defendant failed to adequately maintain a proper system for the reporting and rectification of defects with respect to the plant in that: (i) The defendant failed to ensure that its computerised reporting system was utilised to report defects in the construction and maintenance of plant, identified by members of its staff, and to ensure rectification of defects in the plant; (ii) the defendant failed to carry out an adequate risk assessment with respect to the plant; and (iii) the defendant failed to supervise the repair works performed on the plant by the defendant's maintenance staff so as to ensure that the plant was safe and without this to health and safety when properly used. (b) The defendant failed to ensure that the plant was safe and without risk to health when properly used in that: (i) The defendant failed to ensure that the metal stopper which was fitted to the left hand leaf of the plant was adequate to restrain the gate leaf whilst it was in operation. As a result of the defendant's failures Gabriel McBurney suffered fatal injuries. 3 The defendant pleads guilty to the charge. 4 Mr Mark Cahill, of Counsel, appeared for the prosecution and Mr John J.E. Fernon SC, appeared for the defendant. The prosecution relied upon an Agreed Statement of Facts, Photographs, a Test Safe Serious Incident Technical Report dated 1 December 2005, Improvement Notice 7-95048 and Victim Impact Statements. 5 The defendant relied upon an affidavit of Brother Peter Gerard Carroll sworn 26 June 2009 with attachments and two affidavits of Warren Bruce Cox sworn 26 June 2009. A number of relevant documents were attached to the affidavits including documents in relation to the Occupational Health and Safety Policies and Maintenance Records and several Photographs. 6 The Agreed Statement of Facts relevantly reads: 3. At all material times the defendant was an employer. 4. At all material times the defendant occupied premises located in and about Dawson Street, Lismore, in the State of New South Wales known as "the Trinity Catholic College Lismore" ["the premises"]. 5. At all material times the premises consisted of two "sites", namely, "the St Mary's Site" and "the St Joseph's Site", at which the defendant employed persons. 6. At all material times, the St Mary's Site is and was bounded to the north by Brunswick Street, to the north-west by Keen Street, and to the east by Dawson Street at Lismore Installation of the Brunswick St Gates 7. In early to mid 2003 the defendant sought quotations for construction works to be undertaken in and about the St Mary's Site. The proposed construction works included the construction of perimeter fencing on the northern [or Brunswick Street] boundary of that site. 8. On 20 August 2003, the defendant accepted quotations from Northern Rivers Fencing Pty Ltd ["Northern Rivers Fencing"] for the supply and erection of security fencing. The Australian Business Number (ABN) of Northern Rivers Fencing was cancelled from 31 December 2005, and it was de-registered on 14 January 2007. 9. The fencing on the Brunswick Street frontage of the St Mary's Site included a set of double leaf open sliding gates – "the Brunswick St gates". 10. In about October and/or November 2003 Northern Rivers installed the fencing on the northern boundary of the St Mary's Site, including the Brunswick St gates. 11. Each leaf of the Brunswick St gates, as installed, was approximately 1600cm high, 3560cm wide and weighed approximately 100kg. 12. Each leaf of the Brunswick St gates was constructed of light, hollow, rectangular metal sections. 13. Each leaf of the Brunswick St gates was equipped with a pair of sliding rollers, with one roller near each end of the bottom cross-member of each leaf. In turn, each of these rollers sat on a metal track; and the metal track, in turn, sat on the concrete strip that ran across the driveway from Brunswick St into the St Mary's Site. 14. Each leaf of the Brunswick St gates had two upright metal gate posts, or "keepers", located either side of the driveway – one gate post or keeper on the outside of each leaf and one on the inside of each leaf. 15. The following observations were made when the Brunswick St gates were inspected on 27 October 2005: · each leaf of the Brunswick St gates was fitted with a single 50 mm wide x 150mm (long) x 10mm (thick) metal "stopper plate"; · Each "stopper plate" was fitted at a point about 60mm above the bottom member of each leaf - on the inside of the right upright member of the right leaf; and on the inside of the left upright member of the left leaf, respectively · the "stopper plate" fitted to the left-hand leaf appeared to be bent to the left; · the overlap of the stopper plate on the left-hand leaf with the left-hand internal gate or keeper posts was approximately 1mm; · the inner face of the inner left-hand keeper post had shiny scratch marks, 50 mm wide, at the same height as the stopper plate, consistent with damage to the keeper post being caused by the end of the stopper plate scraping past that face of the keeper post; and · there were three (3) holes in the relevant upright member of each leaf approximately one (1) metre above the stopper plates referred to above References to the "right" and "left" leafs and to the "right" and "left" keeper posts of the Brunswick St gates are: "right" and "left" as viewed from Brunswick St. The purpose of the "stopper plates" was to stop each gate leaf from travelling beyond its supports [i.e. the gate and keeper posts that supported each leaf]. When functioning correctly, the stopper plates struck and were prevented from sliding past the respective keeper posts [i.e. the respective inner gate post]. The Incident 16. On 17 October 2005 at approximately 4pm, Ms Mikhalia Gouros arrived at the Brunswick Street gates, with her two children, Ares and Gabriel, to pick up her husband, Mr Greg McBurney. Mr McBurney was an employee of the defendant. 17. Whilst within the confines of the "St Mary's Site", Gabriel took hold of the left-hand leaf of the Brunswick Street gates and slid that leaf across the driveway towards its "closed" position. The left-hand leaf of the Brunswick Street gates, which Gabriel was sliding towards its closed position across the driveway, continued to a point at which the whole of the leaf had passed the keeper or gate posts. Once the whole of the "leaf" was beyond its keeper or gate posts, the left-hand leaf fell towards the school buildings located within the St Mary's Site where it struck and trapped Gabriel McBurney on the driveway. 18. Staff at the school attended on Gabriel, and an ambulance attended shortly thereafter and conveyed Gabriel to Lismore Base Hospital. After Gabriel arrived at Lismore Base Hospital, treatment was continued until life was pronounced extinct by Dr Easton. 19. Gabriel McBurney died as a consequence of cranio-cerebral injuries occasioned by blunt trauma. System of Work Prior to the Incident 20. Prior to the incident the defendant had in place a web-based school intranet system which could be accessed by both staff and students. The intranet system included an intranet-based reporting system for the reporting of school maintenance matters and matters involving occupational health and safety concerns. 21. Under that system, where staff members and students wished to identify maintenance works or repairs that needed to be performed: · they were to forward a written report by email, via the school's intranet system, to the defendant's Maintenance Department; · a copy of that written email report would also be forwarded automatically to the College Manager, who was responsible for both the intranet maintenance reporting system and the performance of maintenance and repairs by the Maintenance Department [N.B. the head of the Maintenance Department reported to the College Manager, who in turn reported to the Principal of the School]; and · if the report was flagged by the author [i.e. the reporting staff member or student] as involving an occupational health and safety concern, a copy of the email would also be forwarded automatically to the College Bursar, who had management responsibility for occupational health and safety within the school. 22. Once a maintenance request received through the intranet reporting system had been actioned, the Maintenance Department was required to advise the sender by return email that the task had been completed. 23. Intranet reports to the Maintenance Department were to be attended to in priority order, with those matters "flagged" as raising occupational health and safety concerns to be given first priority. 24. The reports were also to be reviewed at fortnightly Maintenance management meetings chaired by the College Manager and attended by the Head of the Maintenance Department. 25. Further, as noted above, the Bursar was to automatically receive copies of all maintenance requests which were "flagged" as raising occupational health and safety concerns. The Bursar was notified in this manner so that maintenance requests flagged as raising occupational health and safety concerns could be included in, and followed up under, the defendant's occupational health and safety system. 26. Where a maintenance report or request was not made in writing and/or flagged as part of the original student or staff request as raising an OH&S issue or concern, the Bursar, was not directly notified. Where a report was not made in writing there was no system for the review or audit of the report or request. 27. As part of its occupational health and safety system, the defendant had in place an occupational health and safety consultative committee. The committee consisted of five members appointed by the defendant, including the Bursar. 28. Prior to and at the time of the subject incident, the defendant's OH&S consultative committee met each term to review and discuss occupational health and safety matters, including any occupational health safety concerns arising from the defendant's intranet based maintenance reporting system and its intranet based occupational health and safety reporting system. It was part of the Bursar's role to ensure that all relevant occupational health and safety matters reported on the school intranet, whether as occupational health and safety concerns or maintenance matters, were included on the agenda for review by the defendant's OH&S consultative committee. 29. The defendant also had in place a plant management committee which met twice per school term to review and discuss maintenance and occupational health and safety issues. Recommendations regarding longer term maintenance issues were also identified and discussed at these meetings. 30. The Minutes of the defendant's occupational health and safety consultative committee dated 3 December 2003 states: " Maintenance System is working well, but people are still not reporting OH&S problems ". The Brunswick St Gates Prior to the Incident 31. Prior to the incident the history of malfunction of the Brunswick St gates was as follows: (a) Shortly after the perimeter fence and gates were installed in late 2003 a fault was identified by the College Manager with the locking system on the Brunswick St gates whereby the two gate leafs could be pulled apart a small distance, possibly enough for a small child to gain entry to the defendant's premises. Northern Rivers were contacted by the College Manager, and subsequently reported to the College Manager that the problem had been rectified by installing a latch. This defect was not recorded in the defendant's intranet system and it was not included in the defendant's occupational health and safety system for review. (b) In January 2004 the College Manager was closing the left hand leaf of the Brunswick St gates when the left-hand leaf slid past its keeper posts and became unsupported. The College Manager was able to support the left-hand gate leaf and slide it back into position between its keeper posts. Northern Rivers were contacted and the principal of Northern Rivers attended the defendant's premises to examine the gates. The defendant was subsequently advised, due to rainfall around the time of installation, the cement securing the gate posts may not have set properly. Northern Rivers also reported that the gate posts to the Brunswick St gates were re-cemented so as to secure them properly. This defect was not recorded in the defendant's intranet system and it was not included in the defendant's occupational health system for review. (c) On 18 October 2004, having had difficulty in pulling the left hand leaf of the Brunswick St gate out across the driveway from its "open" to its "closed" position, the College Manager caused an email to be sent, via the defendant's intranet system, to the defendant's Maintenance Department which said: "Please modify [the Brunswick St] gate so it closes easier". The College Manager did not report this defect as an occupational health and safety concern and it was not included in the defendant's occupational health and safety system for review. (d) On an evening in 2004, whilst Mr McBurney was closing the Brunswick St gates, the left hand leaf of the Brunswick St gates slid past its keeper posts and fell inwards against Mr McBurney. Mr McBurney was able to support the weight of the left hand leaf and slide it back past its keeper post into a position where the leaf was supported by the left hand gate and keeper posts. Mr McBurney reported the incident to the College Manager the following morning. This defect was not recorded on the defendant's intranet system and it was not included in the defendant's occupational health and safety system for review. (e) The defendant subsequently arranged for Mr John Allen of Allens Welding (Lismore) Pty Ltd ["Allens"] to attend the premises to inspect the Brunswick St gates with respect to rectification of the difficulty in moving the left hand leaf of the Brunswick St gates experienced by the College Manager on 18 October 2004 when she was pulling that leaf of the Brunswick St gates from its open position across the driveway to its closed position. (f) On 27 October 2004, Allens was engaged by the defendant to fabricate four roller bracket spacers that were to be fitted to the bottom of the Brunswick St gates. The spacers were subsequently fitted to the bottom of each leaf of the Brunswick St gates by the Head of Maintenance and the Maintenance Assistant. The effect of the spacers was to lift both leafs of the Brunswick St gates by approximately 25mm and assist both leafs to move freely on their track. Whilst installing the spacers, the Head of Maintenance observed that the stopper plates on the Brunswick St gates were secured only by a central screw. To prevent the stopper plates from swiveling, the Head of Maintenance and the Maintenance Assistant fixed the stoppers or retention plates on both the top and the bottom of each leaf of the Brunswick St gates with two additional hex head metal screws. During the Coronial inquest on 20 November 2006, Mr David Lynch, Head of Maintenance, gave evidence that he observed that the stopper plates were hitting the keeper posts at that time. However Mr Lynch also gave evidence that he did not have a positive recollection of opening and closing the Brunswick Street gates in October 2004 to test the stoppers. (g) On 9 June 2005, a Year 11 student was walking out of the St Mary's Site through the Brunswick St gates when he noticed that the left-hand leaf of the gates was out of position. The student pushed the left-hand leaf of the gates back towards its "open" position but, the leaf rolled back out towards its closed position, past its keeper posts and fell onto him. The student lifted the gate and pushed it back past its keeper posts into place. The student did not report the incident to anyone until several months after the subject incident and he did not make a report through the defendant's intranet system. (h) On and about 30 June and 1 July 2005 a flood occurred in Lismore, and flood waters entered the defendant's premises, including the St Mary's Site, via the Keen St and Brunswick St frontages. The flood waters caused damage to the defendant's premises, including some damage to the perimeter fence along the Keen St and Brunswick St frontages of the St Mary's Site. No damage to the Brunswick St gates was observed. However, repairs were undertaken by Poole Enterprises in relation to the perimeter fence on Brunswick St. 32. The defendant has no written record of checking or testing the operation of the Brunswick St gates following the rectification works performed in January 2004 by Northern Rivers Fencing as referred to in paragraph 31(b) above. 33. The defendant did not supervise the repair works performed on the Brunswick St gates by the defendant's maintenance staff so as to ensure that the Brunswick St gates were safe and without risk to health when properly used. 34. The defendant has no written record of requiring its Maintenance Department to conduct any tests on the Brunswick St gates following the repairs performed by the Maintenance Department in October 2004 to ensure the proper operation of the stopper plates. 35. The defendant failed to carry out an adequate risk assessment with respect to the Brunswick St gates. Investigation of the Incident 36. On 17 & 27 October 2005 whilst at the site, Inspector Vierow took a number of photographs which are attached and marked 'A'. 37. On 27 October 2005 Mr Bill Chachaty, Engineer, attended the site and conducted an inspection of the Brunswick St Gates. Attached, and marked with the letter "B", is a copy of the report prepared by Mr Chachaty. 38. On 18 October 2005, Inspector Vierow issued an Improvement Notice to the defendant (7-95048). Attached, marked with the letter "C", is a copy of the Improvement Notice. 39. Attached, marked with the letter "D" is a bundle of photographs taken on 17 October 2005 by Senior Constable Gary Kennedy of NSW Police Service Forensic Services Group. The bundle comprises Photographs marked 1-7, 9-16 and 21-30. Action Undertaken since the Incident 40. The Improvement Notice issued by WorkCover was complied with by the defendant within the requisite timeframe. Within days of the incident, chains and padlocks were installed for the first time (although the gates were previously padlocked shut), as were new steel stoppers, metal ties and modified guide rollers. 41. After the subject incident the defendant introduced changes to its intranet reporting systems to better integrate the maintenance reporting system with the defendant's occupational health and safety systems. 42. The defendant conducted an audit of all of the school's gates on both sites. 43. The defects in the Brunswick St gates were rectified. The rectification works included: a. Installation of metal ties at the top of the external gate or keeper post tying that post to the internal keeper or gate post to maintain the integrity of the gap between those posts; b. Installation of modified guide rollers; c. Installation of modified retention or stopper plates; and d. Chains and padlocks were installed to enable each leaf of the Brunswick St gates to be secured or locked in the open position to prevent unauthorised operation of the gates. 44. Following the audit of all the gates to the defendant's premises, modifications of a similar kind to those carried out on the Brunswick St gates were carried out on other gates to the premises, including similar modifications to the single leaf access gate to the St Mary's Site and the Keen St gates. 45. The defendant cooperated with the investigation by WorkCover. 46. The defendant has no prior convictions Relevant Principles 7 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s10(2) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23 and 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 8 Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 9 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly recognised this "instinctive synthesis" approach to sentencing given the consideration in Markarian saying at [57]: [57] The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such element ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 10 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. Of particular relevance is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999. Consideration 11 In a consideration as to penalty, the Court first assesses the objective seriousness of the offence as charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474): In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ... And in Morrison v Powercoal Pty Limited (2003) 130 IR 364 at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected ... 12 The defendant is charged with failing to ensure a gate system at the College entrance was safe. It is asserted the defendant failed to adequately maintain a proper system for the reporting and for the rectification of defects with respect to the school gates at its Brunswick Street entrance. Further, it also failed to risk assess the gate system to ensure the gate system was safe and secure. 13 I am satisfied the defendant was well aware the gate system which made up part of its perimeter fencing of the school was not in good working order. Some rectification had been carried out on the gate given complaints had been received. The rectification work had been carried out on the identified faults. Rectification work, be it in the nature of additional rollers added to height, or additional bolts to the stopper plates or simply pushing the gate back on its rollers, all were steps which failed to ensure the gate system was made safe. However, there was, by the defendant, a failure to recognise that the left stopper plate, fitted to hold the left gate, was not adequate and would not stop the gate from falling after it went past the gate keeper posts. 14 The College had a site safety system in place from 2002 for the reporting of occupational health and safety matters. This system was subsequently improved in 2005 and was utilized to report safety concerns by both staff and students. While staff were trained on the operation of this internet system and new members of staff were initiated into the use of the system, that training was not sufficiently rigorous to ensure absolute compliance. There was evidence at least one occasion where the gate had been sighted off its runners and on the ground and this incident had not been reported. 15 The College was aware the gate system had faults and some defects had been recognised and resolved, either through rectification work by outside contractors or through the skilled endeavours of the Head of Maintenance. The problem particularly related to the stopper plates failing to hold the gate on track went unrecognised. No rectification was made, therefore, to this fault in the gate system. 16 In assessing the nature and quality of this breach, I take into account there was an occupational health and safety system in place at the College, requiring the reporting and identification of risk and the evidence that all the identified faults in the gate system were rectified. However, there was a failure to ensure the rectification achieved the desired effect of making the fencing and gate system safe. 17 The defendant, while entering a plea of guilty, submits there was a defect in the metal stopper concerned, which was not adequate to restrain the gate leaf, and this was therefore not an obvious risk. The gate had operated without apparent problem by opening and closing each day for some years. Therefore, it was submitted, the Court would find there was no foreseeable element to the risk. 18 The principle of foreseeability is a factor in determining the objective seriousness of an offence. This was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610. On the issue of foreseeability, the Full Bench in Capral stated at [82]: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: "… reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very 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 when experience indicates that a risk to safety has arisen and requires remedy. 19 Given the notice the defendant had as to the unsatisfactory operation of its gate system and, not withstanding it did not recognise the exact fault which caused the breach, I am satisfied there was a foreseeable element to the offence which makes it a more serious offence. In the rectification process there was a failure to make the system safe. The defendant had knowledge through a number of reports that the gate system was unsafe. It failed to make it safe. Had there been a proper risk assessment of the gate system after notice was given of its unreliability, the particular fault as to the ineffectiveness of the stopper plate may have been recognised. 20 However, evidence also reveals the fencing and gate system around the school perimeter was never properly installed. Expert evidence of a mechanical engineer, Mr Bill Chachaty (for consistency transfer right leaf to read left leaf) identified the following: a. The right leaf of the gate fell because the ineffectiveness of the stopper plate allows it to travel past the support rollers and once this support was lost it toppled. b. The stopper plate was too short, either due to incorrect design and/or by installation of the gateposts further away from the gate than was considered in the design. c. The posts should be installed at least 30 mm closer to the centreline of the ground track. Alternatively longer and more robust keeper plates should be used. d. The top rollers should be modified to ensure continuous contact with the gate. This may be achieved by the use of longer rollers or realignment of the track. e. The clearance between the rollers and the gate should be reduced by repositioning the gatepost or by using larger diameter or adjustable top rollers. f. The gate should be operated by authorised personnel only and secured against unauthorised use in both the open and closed positions. 21 I accept the design of the gates by Northern Rivers Fencing was faulty (a & b above). The installation itself revealed faulty workmanship (c & e above), Therefore, there has been a contribution to the risk from a third party. This must be given consideration in the Court's assessment as to penalty and such a contribution to the risk effects the objective seriousness of this defendant's breach. 22 The availability of simple and straightforward steps to remedy the defects in the system is also relevant to the consideration of the objective seriousness of the offence (WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited, unreported decision of Schmidt J dated 25 February 1994). There were obvious steps that could have been taken which either singly or in combination would have eliminated or reduced the risk. These steps have now been implemented. Such activity after the incident is indicative of the fact each amendment to the system of work was readily available and practical. 23 The gravity of the potential risk to safety flowing from a breach is relevant as a measure of gravity of the breach and the culpability of the defendant (Lawrence Diecasting Limited and WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474)). The potential risk of a significant injury or death was not a remote possibility. There was a high risk to the safety of any person being required to walk through this gate, which gate was not sufficiently secured into the fencing. Unfortunately this risk became a reality with the death of a small child in front of his mother at the College when the gate did not stop from continuing past the keeper post. The event has brought grief and anguish not only to the family but to the school community where the deceased had a sister attending and where the father was employed at the College. Nonetheless, it is important to note it is to the seriousness of the breach of the Act in respect of which the defendant pleads guilty and which the Court assesses in order to fix penalty. 24 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken has been considered in some detail in Capral at [71]-[77]. Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. The College continues to operate so specific deterrence must be an element in the consideration as to penalty. Further, many schools now have the opportunity (through government funding) to erect fencing and gates around their school premises to protect them. There is a general obligation on all schools to ensure the safe erection of these fences and gates and their safe operation. It is imperative that in the use of local product and the hiring of local trades persons that regional (and city) schools ensure products chosen not only meet the need but are designed with safety as a prerequisite. Furthermore, the workmanship in the installation of the fencing and gates is to be of the highest standard. There must be an element of general deterrence in penalty. 25 It is also necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the Crimes (Sentencing Procedure) Act 1999 relevant to the defendant. As was said in R v Way (2004) 60 NSWLR 168 at [56]: [56] In this regard, it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c). Ultimately, all of the factors must be considered as part of "a complex of inter-related considerations" ( R v Gallagher (1991) 23 NSWLR 220 (at 228)). 26 The defendant is a non-profit organisation as well as a co-educational Catholic secondary college serving the educational needs of children from the Lismore district in classes for years 7 to 12. It formally commenced in 1985 with the amalgamation of St Mary's Girls College and St Joseph's Boys High School. The defendant company consists of six persons nominated by the Marist Bros, the Presentation Sisters and the Cathedral Parish of Lismore. I accept Trinity College is a good corporate citizen. It holds a significant place in the Lismore community. It provides education in a low socio economic region to over 12,000 students coming from a large geographic area surrounding Lismore. The defendant has done much to contribute to the provision of quality education. Through its rigorous educational standards, it has contributed significantly to the local community in training many of its citizens to assume leadership. The College employs over 152 staff which makes it a major employer in the region. 27 The defendant has no prior convictions under the Occupational Health and Safety Act. It is agreed by the prosecutor the defendant would have the benefit of a discount for an early plea of guilty in accordance with R v Thomson; R v Houlton (2000) 49 NSWLR 383. The defendant is, therefore, entitled in the circumstances, notwithstanding there was received by the Court an Amended Application for Order, to a discount of 25 per cent for the utilitarian value of its plea. It is accepted the defendant fully co-operated with the WorkCover Authority throughout the investigation of the incident. 28 I accept the defendant did have in place, prior to the incident on 17 October 2005 an existing system for ensuring occupational health and safety issues were recognised, were reported and attended to at its work site. The system required the identification and reporting of hazards; electronic recording of such matters; the involvement of staff as well as students. The system was reviewed and in fact improved in 2004 in accordance with that review. Consultative group meetings were held each school term. 29 Since the incident the College has introduced changes to its intranet reporting system to better organise maintenance and follow-up. Rectification reports are now prepared and assessed. An external review has been conducted of the occupational health and safety system in the College. All the recommendations arising from the audits and reviews have been implemented. Rectifications of a similar kind were carried out on other gates surrounding all the College's premises. Such audits and occasional reviews are ongoing. There continues to be proactive maintenance inspections. 30 The new, large, heavy metal stopper plates installed with the large rollers and with metal ties applied to the keeper posts now ensure appropriate distance is maintained between the posts and the gates which distance keep the gates from movement and therefore, safe. 31 The College asserts a significant penalty would deleteriously affect its ongoing capacity to operate this educational institution effectively. In considering this matter, it is relevant to note the maximum penalty for such an offence is $550,000. 32 The defendant does not own its College premises or any other real property and does not have a large cash reserve available to pay a substantial fine. The defendant may well have to borrow in order to pay the fine imposed. I accept the fine could reduce the College's ability to provide other services for its students and its staff. Reliance is placed on the reasoning of Boland J in Inspector Glass v Fomex Polystyrene Pty Limited (2004) NSWIRComm 100 (22 April 2006) where consideration of an accused's means to pay was given consideration. However, the circumstance before me are not similar to that of a family business. The words of Wright J, President, in Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 (at 209) are relevant: The financial position and more particularly the means of the defendant should be taken into account in relation to the question of penalty. . . . Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. . . . Whilst I accept the imposition of a heavy fine would be a burden on the defendant and its financial resources, such consideration does not necessarily result in the court not imposing a heavy penalty, I do take into account the financial status of the defendant but penalty must reflect the objective seriousness of the offence. 33 Pursuant to s28 of the Crimes (Sentencing Procedure) Act, the Court received a Victim Impact Statement from the mother of the deceased, Ms Gouros. She spoke of the daily torment she suffers at the loss of her son at age five which will be with her for the rest of her life. The child died in her arms. It is a pain that one accepts will never go away. The Court extends its sympathy to Ms Gouros for the pain and suffering she has experienced and the impact the incident must continue to have on her life. 34 The content of her statement however reveals a dilemma for the Court in considering whether it would be appropriate to take her statement into account in its consideration of penalty. Ms Gouros said in her Victim Impact Statement: There was no apology from the school for over three years. Because of this, I have lost faith in my religious beliefs and find it difficult to trust people generally. 35 The defendant submits since the incident it continued to provide a range of assistance and support to the McBurney/Gouros family. Staff members visited the family after the incident. Counselling was offered. Financial and other assistance was provided for the funeral. The Greek Orthodox Priest attended the College to perform a blessing where the incident occurred in accordance with the family request. It has erected a memorial stone near the gates at the site. Collection moneys were taken up to give the family a holiday. The anniversary of the child's death is respected each year at the College and Mr McBurney was given assistance with a job offer at another site. The school itself was greatly affected given the father was employed at the school and there were family of the deceased attending the school. 36 The school on hearing of her complaint that she had received no apology, was taken aback. It had relied upon its activities as an expression of its concern for Ms Gouros and had been hopeful such expression provided her with consolation. If there was to be any doubt at the hearing it offered a formal apology. Whilst apologies cannot be used against interest in civil litigation (see Civil Liability Act 2002) this matter was a criminal matter and there was a prior Coroner's Inquiry conducted to determine cause. 37 Nonetheless, there is evidence before me that the school, after the tragedy, acted in a way demonstrative of contrition. One can infer it was on legal advice that the school was advised not to make admissions. This is a criminal prosecution. The defendant needed time to consider its plea. The school entered a plea of guilty to the charge under the Occupational Health and Safety Act in the early stage as has been accepted by the prosecution. The College has now clearly offered and thought it had offered the appropriate support to Ms Gouros and hopefully this litigation coming to a conclusion will allow her to understand the College's expression of sincere sorrow. 38 I accept the reasoning of Staff J in Inspector Jones v Buddy Charbel Challita; Inspector Jones v Mr Pump Pty Ltd [2005] NSWIRComm 385 in my consideration of Ms Gouros' Victim Impact Statement: 137 In Inspector Sharpin v A Team Concrete (Aust) Pty Ltd & Ors [2004] NSWIRComm 182, I discussed recent decisions of the New South Wales Court of Criminal Appeal and of this Court which considered Pt 3 Div 2 of the CSP Act. I observed at [136] - [139]: [136] In light of s 28(4)(b) of the CSP Act, I do not think I am constrained from taking into account the contents of the victim impact statement from Ms Gowans in coming to a conclusion as to what is the appropriate sentence in this case. The question is whether it is appropriate to do so. I accept the general reasoning of Hunt CJ at CL in Previtera, Boland J in Foamex and Haylen J in Tomago Aluminium Co Ltd. However, the legislation does leave it open, in an appropriate matter, for the Court to consider a victim's impact statement given by a family victim. [137] Mr R Debus, Attorney General and Minister for the Environment, during the second reading of the Victims Legislation Amendment Bill in the Legislative Assembly on 21 May 2003 (at page 926) commented: On the one hand, the Government supports the admissibility of victim impact statements by immediate family members, because that provides a forum for the victim's family to assist in the healing process in the aftermath of the crime that has affected them. On the other hand, the Government agrees with the views of then Justice Hunt to the extent that, to use his words: "It is ... offensive to fundamental conceptions of equality and justice ... to value one life as greater than another". That would be the result of a harsher sentence on the accused made on the basis that, in some way, the death of a person who was, say, young and surrounded by a loving family and friends is more serious than, say, the death of a person who was alone, unhappy and elderly. [138] Victim impact statements presently serve two distinct purposes. In the case of family victims, where a family member has died as a result of a breach of the Occupational Health & Safety Act 2000, it provides an opportunity for the family to express their feelings of grief and loss, and allows proper public respect to be paid to these feelings. In cases where there has not been a death, not only does the victim impact statement provide an opportunity for the victim to have proper public respect paid to their pain and suffering, but it also has a role to play in the determination of the appropriate sentence to be imposed by the Court. The statement will explain to the Court the extent of the impact the crime has had on the victim's life. [139] I respectfully agree with the reasoning of Hunt CJ at CL in Previtera that a court should not, in cases involving death, permit a victim impact statement to affect the sentence... 39 For all the above reasons, I make the following orders: 1. In Matter No IRC 1472 of 2008, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $80,000 with a moiety to WorkCover Authority of New South Wales. 3. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.