Industrial Relations Commission of New South Wales CITATION: Inspector Marilyn Lewis v Northern Sydney and Central Coast Area Health Service [2006] NSWIRComm 61 Prosecutor: Inspector Marilyn Lewis PARTIES: Defendant: Northern Sydney and Central Coast Area Health Service (ABN 48 344 669 728) FILE NUMBER(S): 4347 of 2003 CORAM: Backman J CATCHWORDS: Occupational health and safety - plea of guilty to one offence under s 15(1) of the Occupational Health and Safety Act 1983 - factual particulars disputed by the defendant - defendant's employees become ill after exposure to chemical fumes from a product supplied for the operation of its x-ray processing machine - whether the product was a hazardous substance under the Occupational Health & Safety (Hazardous Substances) Regulation 1996 - whether the product was used without adequate material safety data sheets; appropriate templates or appropriate advice regarding its chemical constitution - whether defendant failed to conduct an adequate assessment of the risks to health and safety posed by the product - whether failure to provide adequate ventilation - whether failure to provide adequate information; instructions; training and supervision - maximum penalty where subsequent offence but prior conviction under occupational health and safety legislation - consideration of s 51A of the 1983 Act - whether risk to safety was reasonably foreseeable - deterrence - remedial steps - consequence of the breach - prior safety system - personal factors - application s 10 Crimes (Sentencing Procedure) Act 1999 considered and refused - penalty - orders - costs. Anderson v The Queen (1993) 177 CLR 520 Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 Dean Craig McInerny (1986) 28 A Crim R 318 Hutchins (1957) 75 WN (NSW) 75 Inspector Mark Wright v Northern Sydney and Central Coast Area Health Service [2005] NSWIRComm 463 LEGISLATION CITED: Maddaford v CSR Limited & Mulgoa Quarries [2004] NSWIRComm 337 Morrison v Powercoal Pty Ltd & Anor (No. 3) [2005] NSWIRComm 61 Reg v O'Neill (1979) 2 NSWLR 582 R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 A Crim R 104 The Queen v Olbrich (1999) 199 CLR 270 Winchester (1992) 50 A Crim R 345 WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 Crimes (Sentencing Procedure) Act 1999 CASES CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety (Hazardous Substances) Regulation 1996 HEARING DATES: 16/05/2005; 17/05/2005; 18/05/2005; 19/05/2005; 24/05/2005; 31/01/2006 DATE OF JUDGMENT: 03/10/2006 Prosecutor: Mr R. Reitano, of counsel Solicitors: Phillips Fox LEGAL REPRESENTATIVES: Defendant: Mr R. Buchanan, of Senior Counsel Mr M. Shume, of counsel Solicitors: Sparke Helmore JUDGMENT: - 32 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Backman J Friday, 10 March 2006 Matter No IRC 4347 of 2003 Inspector Marilyn Lewis v Northern Sydney and Central Coast Area Health Service (ABN 48 344 669 728) Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2006] NSWIRComm 61 1 In this matter the defendant has pleaded guilty to one offence under s 15(1) of the Occupational Health and Safety Act 1983. The circumstances in which the plea of guilty was entered were that on 19 March 2004 before Boland J the defendant's legal representative informed the Court: My client enters a plea of guilty, that is it informs the Court that it pleads to a breach of s 15(1) in that it exposed employees to a risk to their health and safety on 13 August 2001 and that risk is identified in the allegation which makes up paragraph 1.13 of the application in these words: "The defendant failed to remove, isolate, or clearly label the hazardous nature of the Fuji Hunt product." So that is the failure that we plead guilty to, to that failure on 13 August. 2 In an amended application for order, the offence to which the defendant entered the plea of guilty and which includes the particulars set out in paragraph 1.13 is as follows: It is alleged that on or about 10 and 13 August 2001 the Defendant, Northern Sydney and Central Coast Area Health Service (ABN 48 344 669 728), an employer, at Wyong Hospital, Pacific Highway, Kanwal, in the State of New South Wales (Wyong Hospital), breached s 15(1) of the Occupational Health & Safety Act 1983, in that it failed to ensure the health, safety and welfare at work of all its employees at the premises, and in particular Robert Broug, Robyne White, Joyce Hayward, Mark Thompson, Sandra Booth, Ashley Peters, Anthony Nutt, Richard Smith, Thomas McLaren, Sharon Illes and Geoffrey Smith. Particulars of the Defendant's breach are as follows: . . . . . 1.13 Following an incident on 10 August 2001, the defendant failed to remove, isolate or clearly label the hazardous nature of the Fuji Hunt product. 3 As the facts will shortly reveal, the offence as particularised in paragraph 1.13 concerned an incident at the defendant's premises at Wyong hospital on 13 August 2001 during which certain of its employees became ill after being affected by fumes from chemicals which had been supplied by Hanimex Pty Limited for the operation of the defendant's x-ray film processing machine. 4 In relation to remaining particulars set out in the amended application for order the prosecutor sought to prove those particulars in the usual way, that is, in the context of the guilty plea those remaining particulars assumed the status of disputed factual matters which the prosecutor sought to establish as circumstances of aggravation. The prosecutor bears the onus of establishing such matters beyond reasonable doubt. This approach has been illustrated in a number of authorities to which I will briefly refer. 5 In Reg v O'Neill (1979) 2 NSWLR 582 Moffitt ACJ made a number of observations about the proper approach where factual matters are in dispute in the context of a guilty plea. He said (at 588): I think three elemental matters can be stated. First a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Second, beyond that, any facts relied on by the Crown and, in particular, any that aggravate the offence must be established by the Crown by some acceptable procedure. Third, any dispute as to matters beyond the essential ingredients of the offence admitted by the plea must be resolved by ordinary legal principles, including resolving relevant doubt in favour of the accused. 6 The standard and onus of proving disputed factual matters on a guilty plea was referred to in Anderson v The Queen (1993) 177 CLR 520 per Deane, Toohey and Gaudron JJ (at 536): If, on a sentencing hearing after a plea of guilty, the Crown wishes to rely on some alleged, but disputed, factual circumstance as aggravating the offence, the ordinary rule is that the onus lies upon the Crown to establish the existence of that circumstance. It is common ground, and rightly so, that the standard of proof which rests upon the Crown in such a case in South Australia is the ordinary criminal standard, namely, beyond reasonable doubt. If the Crown fails to establish the disputed circumstance of aggravation to that standard of proof, the offender must be sentenced on the basis that that circumstance of aggravation has not been shown to exist. 7 The standard and onus of proof on sentencing hearings was revisited by the High Court in The Queen v Olbrich (1999) 199 CLR 270 (at 293 per Kirby J): ... for a single offence, where the Crown asserts that the case constitutes an aggravated example, it must prove beyond reasonable doubt the facts demand that conclusion. 8 When the sentencing proceedings commenced before me the defendant made a number of admissions which were contained in a document headed "Admissions by Central Coast Area Health Service". The relevant parts of that document are set out below: . . . . . 2. The defendant is an employer. 3. On 13 August 2001 the defendant employed Joyce Hayward, Mark Thompson, Sandra Booth, Anthony Nutt and Thomas McLaren. 4. The defendant was at the relevant time a registered Government entity with ABN 80 956 267 042. 5. At the relevant time the defendant provided health care services on the Central Coast of NSW including at Wyong Hospital, Pacific Highway, Kanwal. 6. As part of its business the defendant provided x-ray and diagnostic services. 7. In connection with the provision of these services it owned and operated an x-ray film processing machine. 8. The operation of that x-ray film processing machine required the use of chemicals to develop and fix the x-ray films taken by the staff of the defendant in connection with the provision of medical services. 9. At all relevant times the necessary chemicals were supplied by Hanimex Pty Limited. 10. From 27 July 2001 until 10 August 2001 the defendant used Fuji Hunt Automatic X-ray Developer Replenisher Parts A, B and C (Fuji Hunt Product). 11. On 10 August 2001 certain employees of the defendant were affected by fumes produced by the chemicals provided to it by Hanimex Pty Limited for use in the x-ray film processing machine. 12. On 13 August 2001 the employees identified, in paragraph 3 above, were affected by fumes produced by the Fuji Hunt Product. 13. The defendant admits that on 13 August 2001 it failed to remove, isolate or clearly label the Fuji Hunt Product that it was not to be used and as a result the employees identified, in paragraph 3 above, were exposed to risk to their health contrary to s 15(1) of the Occupational Health and Safety Act 1983. 9 It will be seen that the last item although in large part duplicating particular 1.13 in the amended application for order is not in identical terms. In opening submissions, Mr Buchanan of Senior Counsel for the defendant informed the Court that the admission in paragraph 13 reproduced above, "underpins the plea of guilty that was entered on 19 March last year". This approach seems to have been acquiesced in by the prosecutor during the course of the proceedings. 10 I should at this point set out the disputed factual matters which the prosecutor has sought to prove in the proceedings. These matters have been set out in the amended application for order under the rubric "particulars", as follows: 1.5 The Fuji Hunt Product was a Hazardous Substance under the Occupational Health & Safety (Hazardous Substances) Regulation 1996; 1.6 The defendant was aware that the Fuji Hunt Product was delivered without Material Safety Data Sheets, appropriate templates or advice on the Fuji Hunt Product's chemical constitution; 1.7 The defendant failed to ensure that employees in the Department did not use the Fuji Hunt Product without adequate Material Safety Data Sheets, appropriate templates or appropriate advice regarding its chemical constitution; 1.8 The defendant failed to conduct an adequate assessment of the risks to health and safety posed by the Fuji Hunt product; 1.9 The defendant failed to provide adequate ventilation in the department; . . . . . 1.11 The defendant failed to provide adequate information and instructions to all employees to ensure they were informed of risks to health and safety identified in relation to the Fuji Hunt product; 1.12 The defendant failed to provide adequate training, instruction and supervision to employees working with the Fuji Hunt Product in the department; 11 Evidence was heard over a number of days during which the prosecutor sought to establish each of the disputed matters to the requisite standard. 12 By way of brief background, on or about 28 May 2001 Hanimex Pty Limited (Hanimex) commenced supplying the defendant with an x-ray developer known as Fuji Hunt Automatic X-ray Developer Replenisher Parts A, B and C (the Fuji Hunt product). Each part was contained in a separate bottle. Contents which were printed on the label of the Part C bottle included the substance glutaraldehyde at a concentration of 50-55%. This was a much higher level than had been indicated on the previous X-ray developer used at Wyong hospital by the defendant which had also been supplied by Hanimex (the Ilford product). Part A according to the label contained quantities of hydroquinone and potassium hydroxide. Part B contained acetic acid. Clause 7 of the Occupational Health and Safety (Hazardous Substances) Regulation 1996 requires a manufacturer or importer before supplying a substance for use at work to first ascertain whether it is listed in a document entitled List of Designated Hazardous Substances. This list is prepared by the National Occupational Health and Safety Committee (NOHSC). A report of Dr Maxwell Thomas McEwan which formed part of the evidence during the proceedings examined the content of Material Safety Data Sheets (MSDS) generated in Singapore and supplied by Hanimex to the defendant on about 20 July 2001. Several findings in the report are based on a number of chemical ingredients contained in Part A of the Fuji Hunt product. These chemical ingredients include potassium hydroxide, hydroquinone and various sulphites which according to the report are possibly classifiable as hazardous under the List of Designated Hazardous Substances depending on the level of concentration of the particular chemical in the product. The report also states that glutaraldehyde (present in Part C) is the most readily recognised hazardous substance associated with the x-ray developing process although as I understand the report's findings in this regard the concentration of glutaraldehyde in Part C must be equal to or more than 10% to be classified as hazardous in accordance with the list. Nevertheless the report refers to the chemicals as "potentially hazardous substances" in the context of a failure to classify their hazardous nature in the Singapore MSDS supplied to the defendant. A second report by Associate Professor Chris Winder which formed part of the evidence proceeds upon the basis that the Fuji Hunt product contained materials which were classifiable as hazardous substances. 13 The Fuji Hunt product was delivered to Wyong hospital without any accompanying MSDS. According to the evidence MSDS were not received by the defendant until about 20 July 2001. Minutes of a radiographers' meeting held on Friday 20 July 2001 at the defendant's Gosford premises record the following item: 4.1 Wyong developer - Old stock at Wyong just about all used. The new developer will have to be mixed manually. MSD sheets have been received and the glutaraldehyde is shown to be lower than that shown on the bottles. This is to be investigated further. The MSDS were prepared in Singapore and did not in certain respects conform to requirements under Australian law. The prosecutor has also alleged that they were deficient. I will return to this aspect of the prosecutor's case in more detail shortly. 14 Under the terms of clause 15 of the Regulation the defendant as an employer was required to obtain MSDS for each hazardous substance supplied to its place of work either before or on the first occasion on which the substance or substances were supplied. The defendant's obligation under the clause also extended to ensuring that MSDS were readily accessible to any employee who could be exposed to a hazardous substance. The terms of this clause serve to indicate the various requirements under Australian law placed on employers with regard to the provision, receipt and content of MSDS. 15 Besides the delivery of the Fuji Hunt product on 28 May 2001 further deliveries to Wyong hospital occurred on 27 June 2001 and 3 August 2001. One delivery of the product was made at Gosford hospital on 26 July 2001. According to the evidence of Robert Martin Broug a technical officer employed by the defendant working in the medical imaging department at Wyong hospital he first became aware of the Fuji Hunt product sometime in early July 2001 when he was contacted by a co-worker, Robyne White. Mr Broug had a number of concerns about the new product. One concern was that templates or mixer plates for the product had not been received from Hanimex. The templates used for the outgoing Ilford product did not fit the bottle size of the new product. These templates had a particular purpose which was to prevent the product splashing from the mixers. Another concern was that the glutaraldehyde level (50 - 55%) printed on the bottles of the Fuji Hunt product was much higher than the level indicated on the Ilford product. Mr Broug advised his supervisors of his concerns. He and other employees of the defendant contacted Hanimex attempting to obtain MSDS for the new product. When the MSDS arrived Mr Broug noticed an anomaly between the amount of glutaraldehyde (5 -10%) indicated in the MSDS and the amount (50 - 55%) indicated on the label of the Part C bottle. His attempts to obtain some explanation for the anomaly from Hanimex were unsuccessful. Attempts by Mr Broug to obtain the correct templates from Hanimex also proved unsuccessful. Mr Broug as a last resort adapted the templates used for the Ilford product to accommodate the Fuji Hunt product bottles. He did this by cutting the Ilford product templates with a jigsaw. 16 The Fuji Hunt product was used at Wyong hospital for the first time on 27 July 2001. Early that day Mr Broug purged the system. He emptied the processor tanks of all the old chemistry, washed and rinsed the processor and mixer tanks and the replenishment lines. Water was then poured into the tanks followed by the chemistry. By the time Mr Broug had completed those tasks other staff had begun arriving at the hospital. Mr Broug checked that the film quality was all right. At about that time he received complaints about the smell of the chemistry. Soon after his skin began to burn and his eyes became irritated. Mr Broug recorded the incident that day in a Communications Book. Part of his entry in the book read: Today we started using the new CHEMISTRY (DEV). I cleaned the mixer, purged the lines, cleaned the tanks. Mmmm - Strong smell, eyes stinging oh well the MSD says its under 1% and its OK, but thats not what it says on the bottles in the box.... Not Happy! Mr Broug did not discuss the incident with anyone at Wyong hospital, although he had a few telephone conversations with others including a radiographer who reported that the new chemistry was "scummy" and odorous. 17 Another employee who suffered some ill effects from the new chemistry on 27 July was Joyce Hayward who was employed at the time at Wyong hospital as a registered nurse. Her work station she said was eighteen inches (about forty five centimetres) from the processor tank. She first noticed a strong smell. By about 9.30am she had a headache, felt nauseous and developed rhinitis and her eyes stung. She also felt faint, and began to lose concentration. She made an entry in the Hazard Register for that day in the following words: Since the chemicals have been changed this morning I have experienced headaches, rhinitis, burning sensation of the mucosa and generally feeling "ill". Possible control measures: Improve extraction of chemical fumes. Whats in these chemicals??? Are they a hazard to health. No one at any stage according to Nurse Hayward discussed her entry in the Hazard Register or issued any instructions to her about the incident. 18 Ashley Peters, a radiographer in the defendant's employ at Wyong hospital on 27 July 2001 also detected a "very odorous" smell in the medical imaging department. He said the smell made him light headed and "blurry-eyed". He also made an entry in the Hazard Register where he wrote: Note: Ashley Peters, Bob Broug and other staff in the area experienced various reactions to the new chemicals - smell, stinging eyes + irritated throats were some of the problems. 19 Robyne White, a radiographer employed by the defendant at the time of the offence also said in evidence that she mixed the new chemicals sometime around the end of July 2001. She thought the date may have been 28 July 2001. She recalled that earlier she had had a conversation with Mr Broug during which they discussed the new chemicals. She said that the boxes containing the new chemicals were marked "new" and a notation was made on a whiteboard to the effect that the chemicals were not to be used. Mr Broug she said nevertheless used them on 27 July because the hospital had run out of the old brand. Shortly after that she also used the new chemicals. She experienced runny eyes. She observed that the new chemistry was different in colour from the old brand and that it was foaming, "...like a head of beer". She made an entry in the Hazard Register recording her observations. She also thought she contacted Mr Broug and Mr Horner about the incident. No one she said gave her any instructions following the incident. No one instructed her, for example, to refrain from using the new chemistry. 20 On Friday 10 August 2001 Mr Broug purged and cleaned the chemicals from the x-ray processing machine. The reason he did this was because of the complaints from staff about the smell of the new chemistry and the scum in the tanks. At this stage there had been between eight to twelve mixes of the new chemistry by radiographers. When Mr Broug commenced purging and cleaning he first noticed a scum forming in the tanks which later formed into granules. Mr Broug wore protective clothing at the time including a face mask. He felt a burning sensation on his skin. Other people had gone to casualty complaining of feeling ill. Mr Broug developed a bad headache and went to casualty where he said he was diagnosed with high blood pressure. Shortly after that the department was closed down. Later Mr Broug was asked to return to the department and retrieve a sample. That evening Mr Broug experienced hot burning eyes which he said was akin to conjunctivitis. The next morning he could not open his eyes. His nose was bloodied. He also felt very depressed and developed a rash. 21 Ms White started work at Wyong Hospital on 10 August 2001. Upon entering the building she noticed a very strong smell. She saw Mr Broug cleaning the processor. She opened a number of doors in order to let in some fresh air. Later she felt dizzy, nauseous, a burning and tightness in her chest and she developed a severe headache. After spending several hours in accident and emergency she filled out an Incident Report and drove home. 22 Nurse Haywood was also on duty on 10 August. She recalled a strong chemical smell at Wyong hospital that day and developed a number of symptoms including headache, nausea, burning on the skin and an ache in the stomach area. She also spent time in accident and emergency. 23 Mr Peters on 10 August 2001 also experienced adverse effects after smelling what he described as an odorous smell in the medical imaging department at Wyong hospital. He attended the casualty section of Wyong hospital for treatment. 24 Francis Leung the manager of the medical imaging department on 10 August 2001 and one of Mr Broug's supervisors explained that on that day Ms White contacted him and told him that staff at Wyong hospital had been overcome by chemical fumes from the Fuji Hunt product. Mr Leung instructed her to close the department and then seek medical assistance. He then contacted Hanimex and spoke to John Gaunt. Mr Gaunt promised to send a technician to Wyong hospital to clean the processor and remove the Fuji Hunt product. Mr Leung then rang the director of medical services of Wyong hospital, Dr Andrew Lancaster and informed him of the incident and of his decision to close the department. He asked Dr Lancaster to increase the ventilation in the department in order to get rid of the fumes. Later that day a technician from Hanimex, Martin De Rooy arrived at Wyong hospital and after some brief instructions from Mr Broug he proceeded to flush the system through, remove the Fuji Hunt product and replace it with Ilford product that he had collected from Gosford hospital en route to Wyong hospital. Mr De Rooy did not, contrary to Mr Leung's request to Mr Gaunt, remove the Fuji Hunt product from the premises. Nor did Mr Leung who assumed it would be removed check to ensure that it had been removed. Nor it appears were any weekend staff told of the incident of 10 August 2001 or given any instruction about using the Fuji Hunt product. 25 Mr Broug understood from what he had been told by Mr Leung that after 10 August all Fuji Hunt products had been removed from Wyong hospital. The failure to remove the product or to ensure that it was removed had the predictable result that it was used again on the weekend to top up the developer mixing tank, attached to the x-ray processing machine. 26 On Monday 13 August 2001 staff again complained of an offensive odour. In addition certain staff complained of symptoms similar to those experienced by staff on 10 August 2001. The department remained open for a short period that day and then later was closed. 27 At some stage between 13 August 2001 and on or prior to 23 August 2001 the Fuji Hunt product was removed by Hanimex from Wyong hospital and sent to Chemika Pty Limited. A letter of that date from Mr Gaunt to Dr Doughty then the chief chemist at Chemika Pty Limited requests an analysis of the Fuji Hunt product by Dr Doughty in order to ascertain the identity and contents of the chemistry and the mix by concentration of that chemistry, so that Hanimex can, ...determine whether or not the chemistry was correctly mixed or was within acceptable health exposure levels. 28 A report dated 20 November 2001 authored by Dr Doughty and sent to Hanimex focussed exclusively on the concentration of glutaraldehyde contained in the developer solution. That concentration was found to be 3.6% w/w. In a letter dated 23 November 2001 to Hanimex Dr Doughty provided the following comment in relation to the level of concentration saying: This concentration falls below the range of 5-10% w/w glutaraldehyde indicated on the MSDS for the product. 29 On 15 October 2002 Dr Max McEwan, a senior inspector employed by the WorkCover Authority of NSW attended Wyong hospital and collected samples of the Fuji Hunt product. He marked those samples Batch 175 and Batch 163. On 5 November 2002 Dr McEwan analysed the samples to ascertain pH values. His conclusion was that Part C of Batch 163 was significantly more acidic (pH 1.9) than had been indicated on the Singapore MSDS (pH 5.5). John Kilford, a chemist, in a report dated 1 October 2003 observed that the pH value of 1.9 found in Part C of Batch 163 was one thousand times in excess of the level of acidity that should normally be present. Part C of Batch 175 was found to have a pH of 4.7 which closely conformed to the predicted level in the MSDS. Dr McEwan speculated that the increased acid levels found in Batch 163 were consistent with the possible release of irritant/corrosive material as reported by the radiographers employed by the defendant. Dr McEwan also tested the pH levels of hydroquinone and glutaraldehyde contained in Batches 163A and 175A and Batches 163C and 175C respectively. He found that the levels did not differ from the predicted levels in the Singapore MSDS, and concluded that, "no cause for batch mist generation" could therefore be found in the sample analysed. 30 In January 2004 Dr Doughty also tested the pH values in samples from Batches 163 and 175. Dr Doughty also found a pH value of 1.9 for Part C of Batch 163. He noted however that Part C contained glutaraldehyde sodium bisulphite which he said is a component likely to degrade over time to form sulphur dioxide. Sulphur dioxide in turn forms acidic solutions making it more likely that the solution would become more acidic over time. Finally Dr Doughty observed that because his results were based on samples which were tested at least two and a half years after manufacture (January 2004) that no conclusions were possible as to the pH values of the solutions at the relevant time (which for present purposes would be August 2001). Whether the Fuji Hunt product was a hazardous substance under the Regulation 31 It is not entirely clear from the evidence outlined above that all the substances identified in the Singapore MSDS for the Fuji Hunt product fit the classification of hazardous substances under the Regulation. One means of determining whether a substance is a hazardous substance is to ascertain under clause 7 of the Regulation whether it is in the List of Designated Hazardous Substances. Another way is to ascertain whether it fits certain criteria set out in the "Approved Criteria for Classifying Hazardous Substances". Dr Winder concluded generally that the Fuji Hunt product contained materials which were "classifiable" as hazardous substances without nominating any particular constituent parts or chemicals that might fit the categories. According to Dr McEwan when a chemical is not on the List it may be classified as hazardous according to the approved criteria. A number of chemicals which made up the Fuji Hunt product however appear on the List. These include potassium hydroxide at a concentration greater than or equal to 5%; hydroquinone at a concentration equal to or more than 25%; and, glutaraldehyde at a concentration equal to or more than 0.5%. In the Singapore MSDS the concentration of potassium hydroxide is said to be 1-5% by weight and hydroquinone 5-10% by weight. The glutaraldehyde content is said to be 5-10% by weight. This means that potassium hydroxide and glutaraldehyde are both hazardous substances under the Regulation and I so find beyond reasonable doubt. 32 It is another issue however as to whether the product or any of its constituent parts nevertheless posed a risk to the safety of the defendant's employees. This issue will be examined in detail shortly. Was the defendant aware that the Fuji Hunt product was delivered without MSDS, appropriate templates or advice on its chemical constitution 33 The first delivery of the Fuji Hunt product was made to Wyong hospital on 28 May 2001. Minutes of the radiographer's meeting confirm that the hospital did not receive MSDS until about 20 July 2001. Other evidence which corroborates this sequence of events was also given by Mr Broug and Mr Leung. The same two witnesses also gave evidence that when the product arrived it was not accompanied by the correct templates. Instead after repeated and unsuccessful attempts by Mr Broug to attain them, Mr Broug was forced to resort to adapting the Ilford product templates with the aid of a jigsaw. Whether or not the use of these adapted templates had an impact on the risk to safety posed by the use of the product is another issue to which I will come shortly. The only advice on the chemical constitution of the product at the time of its delivery and before the arrival of Singapore MSDS, appeared on the labels on the bottles and on the boxes. On the box containing Batch 163 of the product certain information was written about the chemical components contained in Parts A, B and C. This information was reproduced on the labels of each bottle belonging the batch. The contents of Part C were said to contain: ...corrosive liquid, organic N. O. S. (50-55% glutaraldehyde) UN No. 1760. This solution is corrosive and may cause allergy. Underneath this information appeared safety directions. Those directions instructed persons to avoid contact with skin and eyes, avoid breathing vapour, and to wear certain specified articles of protective clothing. At the bottom of the box the words appeared: Additional information is listed in the Materials Safety Data Sheet. Mr Broug did some calculations based on the stated quantity of glutaraldehyde on the box and on the bottle and concluded that the concentration of the substance was four to five times in excess of the concentration present in other products such as the Ilford product. Later when the Singapore MSDS arrived (about 20 July 2001) the concentration of glutaraldehyde in Part C was stated to be 5-10 percent by weight. 34 It will be recalled that the analysis of Batch 163 by Dr Doughty from Chemika Pty Limited reproduced in his report of 22 November 2001 revealed that the percentage by weight of glutaraldehyde was 3.6. On the basis that Dr Doughty's analysis is both reliable and accurate the suggested concentration on the box and bottle was clearly wrong. 35 On the evidence therefore the defendant was aware at the time the Fuji Hunt product was delivered to Wyong hospital that it was not accompanied by MSDS or appropriate templates. There was advice on its chemical constitution which turned out to be incorrect. The stated quantity of glutaraldehyde was significantly in excess of the usual quantity associated with other similar products which prompted Mr Broug to make enquiries and eventually come into possession of the Singapore MSDS. The product was delivered with inadequate and inaccurate advice. Whether or not the defendant was seized with knowledge of these deficiencies at the time of delivery is not sufficiently clear on the evidence. What is clear however is that the defendant was of the view that it needed further advice on the chemical constitution of the product at the earliest available opportunity. In this regard, Mr Broug, Mr Horner and Mr Leung made a number of attempts to obtain MSDS for the product. I therefore find beyond reasonable doubt that the facts the subject of particular 1.6 in the amended application for order have been made out. The defendant failed to ensure the product was not used without adequate MSDS, appropriate templates or appropriate advice regarding its chemical constitution 36 In my view the Fuji Hunt product was used on 10 and 13 August 2001 without the correct templates and without accurate advice on its chemical constitution. As regards the templates Mr Broug was forced to adapt Ilford templates after several unsuccessful attempts to obtain Fuji Hunt templates. The evidence is not however conclusive as to whether this could have had an adverse impact on the safety of employees. There is no evidence for example that the use of adapted templates caused a chemical spill or caused chemical splashing. Dr Doughty in a second report dated 21 January 2004 noted that the use of the product without appropriate templates did not restrict the chemicals being added to the mixer tank to those contained in the Fuji Hunt product bottles. This meant that the use of the adapted templates could have increased the risk of incorrect chemicals being added. Apart from this comment there is little else in the evidence to suggest that a failure to prevent the use of the adapted templates posed a risk to the safety of the defendant's employees. Associate Professor Winder's report speculates that if the adapted templates had caused leakage of chemicals on top of the mixer then this could have contributed to the production of some irritating vapours but could not have accounted for the production of froth and scum and vapours sufficient to produce symptoms of irritation and toxicity. 37 It remains to consider here whether the evidence has disclosed a failure to ensure that the Fuji Hunt product was not used without adequate MSDS or appropriate advice regarding its chemical constitution. It is convenient in my view to consider the evidence concerning the Singapore MSDS and the available advice on the chemical constitution of the product together as the two areas overlap considerably. The relevant time frame in which to consider them is sometime following the use of the product at Wyong hospital for the first time that is on or after 27 July 2001. At that time the defendant had in its possession the Singapore MSDS and Mr Broug had been made aware of the disparity between the stated concentrations of glutaraldehyde on the box and bottle labels of Batch 163 and on the MSDS. 38 The Singapore MSDS were plainly inadequate in the context of what was required to be contained in such documents under the Regulation. The issue I am concerned with however is whether the content of these MSDS was sufficiently adequate or not adequate enough to obviate any risk to the safety of the defendant's employees who were using the product. Those who used the product on the evidence were Mr Broug and the radiographers. It was through Mr Broug's efforts and others that the Singapore MSDS came into the defendant's possession in the first place on 20 July 2001. Meanwhile, again chiefly through Mr Broug's efforts the radiographers were made aware first that the glutaraldehyde concentration on the bottles was much higher than other products, secondly the date when the MSDS arrived and, thirdly, the contents of those MSDS. Minutes of the radiographers' meeting of 20 July 2001 held at Gosford referred to earlier in this judgment confirm these matters. 39 It follows from this account of the evidence that those who used the product were in fact aware of the Singapore MSDS and their contents as early as 20 July 2001, that is one week before it was used for the first time, whether through the efforts of Mr Broug, the defendant's efforts or otherwise. Moreover, the MSDS contained clear indications of the dangers and risks to safety associated with the use of the product. Parts A and B of the MSDS for example under the heading "Hazard Identification" warn against potential health effects which are described as "corrosive to eyes...to skin...to respiratory tract and mucus membranes...". Part C in addition warns that contact on the skin can cause "severe irritation" and that ingestion may cause nausea and vomiting. This information would instantly alert any reader to the risks to safety posed by the product. It follows from this that the MSDS while they may have been deficient in terms of the requirements under the Regulation were not deficient in the sense that they failed to highlight certain dangers and hazards associated with the use of the chemicals. Instead the MSDS clearly indicated various risks to safety arising from the use or exposure to the chemicals. These facts do not provide sufficient evidence of the requisite causal link between the defendant's failure to ensure that its employees did not use the product without adequate MSDS, appropriate templates or appropriate advice regarding its constitution and the risk to safety. I am therefore not satisfied that particular 1.7 so described has been made out by the prosecutor beyond a reasonable doubt. The defendant failed to conduct an adequate assessment of the risks to health and safety posed by the Fuji Hunt product. 40 In relation to assessing the risks associated with the use of the product, Mr Broug on the evidence made a number of valiant efforts to make the product as safe as possible to use. These efforts included comparing the levels of glutaraldehyde contained on the box and labels of the bottles forming Batch 163 with the Singapore MSDS. Mr Broug made a number of calculations based on the glutaraldehyde levels specified on the box (50 - 55 percent), and compared the results with the glutaraldehyde levels contained in other x-ray developer products including the Ilford product, Agfa, Kodak and Konica. At the time he performed those calculations however he did not have the MSDS. Following receipt of the MSDS Mr Broug decided that the level of glutaraldehyde fell within an acceptable range. His decision was not based on any other tests performed or enquiries made by him. He had no other information and it was not open to him to subject the product to chemical analysis. 41 The Regulation serves to give a useful indication of how to conduct an assessment of the risks to safety posed by the use of hazardous or dangerous substances, (see clause 20). Here, the defendant made no genuine attempts to assess the risks associated with the Fuji Hunt product. This product was a new product which at the outset and before it was used had caused a number of concerns at least in the mind of Mr Broug. Mr Broug had also communicated those concerns to his supervisors, sometime before the events of 27 July 2001. After those events it would or should have been starkly apparent that the product which was new and untested may be dangerous or unsafe to use and required a thorough assessment of the risks. This however was not done. 42 According to Mr Leung the defendant had in place at the time a system for assessing and testing new chemistry, which Mr Leung explained in the following way: Normally we will replace the chemistry, so before we change we will test the chemistry to make sure it fits into the system. We obtain the MSDS's (sic) to make sure it fits with the Australian Standards and all staff are informed of the date of the change and what has changed. Inexplicably, this system was not implemented for the Fuji Hunt product. 43 For these reasons I am of the view that particular 1.8 has been made out by the prosecutor beyond reasonable doubt. The defendant failed to provide adequate ventilation 44 The prosecutor also alleges that the defendant failed to provide adequate ventilation in the medical imaging department on 10 and 13 August 2001. 45 Mr Leung explained that at the time of the two incidents the medical imaging department had an "in vent" and an "out vent". He believed the ventilation was adequate based on a report by Dr Claire Hollo, an occupational physician. He said that air quality testing performed by Dr Hollo found that the air quality was within acceptable levels. Mr Broug was also of the view that the ventilation within the department was adequate. 46 Associate Professor Winder in his report dated 13 August 2004 dealt with the issue of ventilation in the medical imaging department. He said: The ventilation in the Medical Imaging Department of Wyong Hospital was of the dilution ventilation type, and its use in this situation was reasonable, bearing in mind the low risk of materials and equipment used (that is, local exhaust ventilation was not considered necessary). This was further justified by a lack of problems with the system in its normal operations until the incidents described in this report. Dilution ventilation should not be considered an appropriate control in a situation where there may be release of excessive or toxic contaminants sufficient to put a number of workers in hospital. The Medical Imaging Department ventilation system was adequate for purpose prior to the change over to the Fuji Hunt chemicals. Further, it has been adequate since the change to Kodak chemicals. The problem of ventilation was also noted in a ventilation risk assessment carried out on 10 September 2001. Following this risk assessment, the machine was moved closer to the extraction vent and a recommendation to install an extraction hood over the machine was made. These changes will improve the problem of vapours from the machine in normal operations. In my opinion, the issue of ventilation for the film processing machine in the Medical Imaging Department is a minor issue, as long as the machine is filled with suitably formulated chemicals and the equipment operated properly. It is only when there is production of excessive irritating vapours that the ventilation may not be adequate for purpose. 47 It follows from the above account that the ventilation which consisted only of one "in vent" and one "out vent" was not adequate on 10 and 13 August 2001 when employees were exposed to chemical fumes from the products and suffered adverse effects. The risk assessment performed on 10 September referred to by Associate Professor Winder did not form part of the evidence in this matter. Nevertheless, in my view had such assessment been conducted no doubt it would have anticipated the possibility at least of the exposure to fumes from the use of new and in this case untested chemicals and then taken further steps to assess the suitability of the ventilation. The failure to provide adequate ventilation in the department on the dates in question meant that a number of employees working in and in the near vicinity of the department were exposed to the chemicals and suffered adverse effects. Particular 1.9 has therefore been proved by the prosecutor beyond reasonable doubt. Failure to provide adequate information, instructions, training and supervision 48 In submissions the prosecutor dealt with the two particulars concerning information, instruction, training and supervision to employees together. I intend to approach them in the same way. 49 It is apparent on the evidence in my view that the defendant provided little, if any, information and instruction to its employees about the risks associated with the product. This failure to provide information and instruction has to be recognised against the background of the events of 27 July 2001 when a risk to safety from the use of the product was clearly identified. A number of affected employees had recorded their experiences in the Communications Books and also in the hazard register yet according to their evidence the defendant had made no attempts to inform, instruct or train any of them about the likely consequences of such an event or possible preventative measures. It seems there had been no feedback at all. Mr Broug as a result of his own efforts had obtained the MSDS and attempted to compare the glutaraldehyde concentration stated on the Fuji Hunt box and labels with other samples. His expertise and limited training however precluded him from conducting anything other than a rudimentary examination. Moreover Mr Broug had discussed his concerns with his supervisors Mr Horner and Mr Leung. Even when the decision was made to remove the product from the premises after the incident on 10 August, the defendant did nothing to ensure it had been removed. As a result uninformed and uninstructed staff over the weekend preceding 13 August mixed the product and it was used again on 13 August 2001 with deleterious results. 50 Mr Broug who worked with the product was not given any training instruction or supervision by the defendant on how to perform his work safely. He had received no instruction or training for example in how to identify any risks associated with the use of new chemistry. Mr Broug had some training in the use of personal protective equipment and the safe handling of chemistry. This latter training involved the disposal of empty bottles and dealing with potential chemical spills. He received no instructions in relation to the use of the Fuji Hunt product. 51 Ms White received no instructions concerning any dangers relating to the use of the product and had received no training from the defendant in the use of chemistry generally. She received no training instruction or information from the defendant in relation to the use of the Fuji Hunt product. Other radiographers including Mr Peters were similarly untrained uninstructed and uninformed by the defendant about the use of the product. 52 Despite the fact that the Fuji Hunt product was a new product the defendant took no steps at all to inform or instruct those who worked in the department. This is notwithstanding the concerns raised by Mr Broug, and, the events of 27 July 2001. Given the circumstances of 27 July when it became obvious that the new product posed a risk to safety the need to instruct and train persons in relation to the product should have been accorded the highest priority. 53 The defendant's failure to provide adequate information and instructions to employees to ensure they were informed of risks to their health and safety identified in relation to the Fuji Hunt product, and, the defendant's failure to provide adequate training, instruction and supervision to employees working with the product, exposed employees to a risk to their health and safety and I so find beyond reasonable doubt. Consideration of sentencing principles Maximum penalty 54 The defendant is a first offender facing a maximum penalty as a corporation of $550,000. Both parties have approached the sentence on this basis, notwithstanding that on 9 December 2005, Haylen J convicted and sentenced the defendant for an offence committed on 23 January 2003: Inspector Mark Wright v Northern Sydney and Central Coast Area Health Service [2005] NSWIRComm 463. It was the agreed position between the parties that this Court was bound by the decision of the Full Bench in Morrison v Powercoal Pty Ltd & Anor (No. 3) [2005] NSWIRComm 61 in relation to what was said in that judgment about the construction of s 51A of the 1983 Act. In Morrison v Powercoal, Powercoal was convicted on appeal in November 2003 for an offence committed on 1 July 1999. Subsequent to that conviction the Full Bench on 7 March 2005 convicted the defendant of an offence committed between September 1993 and 17 July 1998 that is before the offence of 1 July 1999 and before the conviction in November 2003. Nevertheless, the Full Bench held that s 51A did not apply because that section was concerned with previous offences not previous convictions. 55 In the present proceedings, the offence with which Haylen J was concerned was committed on 23 January 2003 and therefore is not a previous offence in accordance with the construction given in s 51A in Morrison v Powercoal (No. 3). 56 The prior conviction imposed by Haylen J however is still relevant to the present sentence proceedings, at least on the basis that it concerns a subsequent offence which may be relevant in the exercise of the sentencing discretion as to whether leniency should be withheld. 57 The issue arose directly in Hutchins (1957) 75 WN (NSW) 75. At first instance, the sentencing judge took into account subsequent offences and subsequent convictions. This was upheld on appeal. Street CJ, with whom Owen J and Roper CJ in Eq. agreed said: I think it is clear that in sentencing the applicant in June 1957, for a crime committed in September 1954, his Honour was entitled to take into account as matters for his consideration the convictions which the applicant had incurred between those two dates, and he was entitled to take them into account for the purpose of considering whether he should reduce what he would otherwise have regarded as the proper sentence because some leniency should be extended to the applicant in the light of his youth. 58 Although the above quotation appears to consider only subsequent convictions, the point was squarely dealt with in Dean Craig McInerny (1986) 28 A Crim R 318, a decision of the Court of Criminal Appeal South Australia. At 329, 330, Cox J said: So far as subsequent offences are concerned, they cannot justify the Court in imposing a higher sentence than the instant offence intrinsically merits but they might well lead the Court to conclude that any leniency to the defendant would be misplaced. As always, of course it will depend upon the circumstances of the particular case. Risk to safety was reasonably foreseeable 59 The relevant risk to safety which existed at the time of the offence was the risk occasioned by the use of the Fiji Hunt product. That product contained a number of chemicals the hazardous nature of which was indicated on the boxes and labels accompanying the product and in the Singapore MSDS. The risk to safety, moreover, became manifest on both 10 and 13 August 2001. Given the evidence in these proceedings, the risk to safety was both obvious and actually foreseen by 10 August 2001 by virtue of the use of the new product and the events of 27 July 2001. From that day, the defendant was on notice of the possible dangers posed by the use of the Fiji Hunt product. These circumstances render the offence an objectively serious one: Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 at [87-92]. Deterrence 60 Both general and specific deterrence are relevant principles to be taken into account in these proceedings. In relation to general deterrence, x-ray services and radiology remain an important function of the defendant forming a significant part of its work in the treatment and diagnosis of pathologies, diseases and injuries. In relation to specific deterrence this work is also ongoing. Notwithstanding that the incidents concerning the Fuji Hunt product which occurred on 27 July, 10 and 13 August 2001 were of a kind never experienced by the defendant or its staff the processing of x-rays still involves the use of potentially hazardous chemicals. The defendant in these proceedings cited an affidavit of Darrin Gray sworn 23 May 2005. Mr Gray says in that affidavit that since January 2005, the defendant at Wyong hospital has installed computer radiography machines. These machines use dry processing of images. There is no longer a requirement for manual or automatic mixing of chemistry. The previous system which was in use at the time of the offence however remains in use at Gosford hospital for mammography and remains a back-up system at Wyong hospital should the digital system fail. Remedial steps 61 The background to the offence already referred to in some detail, involved a prior awareness on the part of the defendant of the possible dangers posed by the chemicals. This awareness necessarily arose from the information available about the composition of the Fuji Hunt product contained on the box and the labels and in the Singapore MSDS as well as the incident which occurred on 27 July 2001. A relatively simple step following that awareness which could have been taken well before 10 August 2001 would have been to conduct a proper assessment of the risks. Such an assessment at best could have removed the risk entirely (by removing the chemicals) or obviated the risk by implementing a number of safety measures. Consequences of the breach 62 The consequences of the breach have resulted in some serious injuries. This fact does not justify an increase in the penalty imposed but certainly demonstrates the seriousness of the risk to safety. The injuries sustained and the number of persons affected on the two days in question are matters which in my view emphasise the objective seriousness of the offence: see Maddaford v CSR Limited & Mulgoa Quarries [2004] NSWIRComm 337 at [23]. Prior safety system 63 A second affidavit relied upon by the defendant in these proceedings, the affidavit of Dianne Jean Chiofalo sworn 23 May 2005, attests to the defendant's commitment to occupational health and safety systems, practices and procedures in existence prior to the offence. These systems should be assessed against the then size and structure of the defendant. It was a large organisation employing approximately 3,000 full-time staff and administering public health services to some 310,000 persons in Wyong Shire and in Gosford city. (Later, on 1 January 2005, two Area Health Services merged to form the Northern Sydney and Central Coast Area Health Service which presently provides care for approximately 1.1 million people.) In 2001, the defendant had twenty five OHS committees. As at August 2001, health surveillance (medical monitoring) was provided to employees who may be exposed to hazardous substances in accordance with statutory requirements. OH&S policies and procedures were available via the intranet or in hard copy in each ward or department. These included specific procedures, together with standard work practices, risk assessment forms and job safety analysis forms. An emergency flip chart was also available at all facilities, including the medical imaging department at Wyong hospital during July and August 2001. This chart provided information on emergency procedures. In addition, all staff were trained in its use. Safety equipment and personal protective equipment have been provided and maintained at each workplace for the use of employees and contractors. The defendant has also remained committed to ensuring safety. This is reflected, for example, in its implementation of the practice that all incidents are reported and recorded in a Hazards Register, Communications Book or some other document. (I note in this regard that several employees took the step of recording their experiences in various documents following the incidents of 27 July and 10 August 2001.) In 2001/2002, the defendant donated some $625,412 towards an occupational health and safety unit now known as the workplace injury and management service. 64 The foregoing matters I take into account as mitigating the otherwise objective seriousness of the offence. Subsequent offence 65 The offence, the subject of Haylen J's judgment in Inspector Mark Wright v Northern Sydney and Central Coast Area Health Service is also relevant in this sentencing process for the reasons stated above which examined the application of the principle in Hutchins' case and McInerny's case. The offence before Haylen J involved an employee of the defendant attending to a maintenance task relating to a tipper truck which resulted in the employee being fatally injured. Although the background to that offence was quite different from those surrounding the present offence, both offences nevertheless involved breaches of the occupational health and safety legislation. For that reason, the subsequent offence is relevant to the present offence for the limited purpose of this Court withholding leniency to which the defendant may otherwise have been entitled in the exercise of the Court's sentencing discretion. Cooperation with WorkCover 66 The defendant is entitled to some discount with respect to its cooperation with the WorkCover Authority during the investigation into the incidents of 10 and 13 August 2001. It made its employees and facilities available for interview with WorkCover, as well as complying with requests for information concerning the investigation from WorkCover authorities in a timely and openly co-operative manner. Plea of guilty 67 The defendant entered a plea to the offence at an early stage (19 March 2004). It is therefore entitled to a discount of its sentence in accordance with the principles outlined in R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 A Crim R 104. 68 I consider that in the circumstances here, an appropriate discount for the utilitarian value of the plea is 25 percent. Contrition and remorse 69 The defendant is also entitled to a measure of leniency by virtue of its expression of contrition and remorse. The defendant has expressed deep regrets that its employees suffered ill effects as the result of the use of the Fuji Hunt product in 2001. Although these sentiments of themselves do not warrant the extension of leniency on the grounds of contrition and remorse, certainly the entering of a plea of guilty at an early stage is a reflection of contrition which attracts leniency: Winchester (1992) 50 A Crim R 345 at 350. Post accident measures 70 The defendant also implemented a number of post accident safety measures which entitles it to a further discount on penalty. Application of s 10 Crimes (Sentencing Procedure) Act 1999 71 The defendant asked the Court to consider the application of s 10 of the Crimes (Sentencing Procedure) Act 1999 which it says would appropriately reflect the level of its culpability in relation to the offence. In pursing the application, the defendant directed the Court's attention to s 10(3)(a) and (c) as being relevant to its present circumstances. In addition, the defendant also relied on s 10(3)(b) which requires a court to have regard to the trivial nature of the offence. In support of the application of s 10(3)(b) the defendant reminded the Court that the offence to which it pleaded guilty was an example of an obligation arising at the level of absolute liability rather than involving the concept of mens rea. 72 The prosecutor opposed the application on the basis that the offence was serious. The risk to safety was known by the defendant on 27 July 2001 but still it took no steps to obviate that risk over the ensuing two weeks period leading up to 10 August 2001. The injuries suffered by the staff from the incidents of 10 and 13 August 2001 revealed that those staff had been exposed to a serious risk to safety. 73 It may be convenient to extract below the relevant portion of s 10 of the Crimes (Sentencing Procedure) Act 1999: (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. . . . . . (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person s character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. 74 The circumstances in which s 10 should be applied in connection with prosecutions under occupational health and safety legislation have been comprehensively examined by the Full Bench of this Court in WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449. At [57] of that judgment the Full Bench said: ...it is critical when determining a sentence to clearly distinguish those factors which are special considerations in sentencing, and in particular those which warrant the application of s 10 of the Crimes (Sentencing Procedure) Act . In our view, the utterance of the above words alone is insufficient, in our view, to justify the making of an order under s 10 of the Crimes (Sentencing Procedure) Act . Given the existence of a clear line of authority establishing that such orders are available only in limited circumstances, any decision to make such an order must necessarily include an examination of the relevant circumstances and an explanation as to why those circumstances fall within the limited class of circumstances contemplated by the established authorities. The Full Bench in Profab Industries expressly stated (at [26]) that "...when a defendant seeks [the exercise of the discretion under s 10] cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission." 75 In my view the application of the section is entirely inappropriate to the present circumstances. While the defendant had in place prior to the offence a comprehensive and impressive system of safety policies and procedures, which is evidence of its positive commitment to occupational health and safety issues, and, a previous good record, these matters do not of themselves justify the application of s 10. The offence was clearly a serious offence. The defendant knew of the risk to safety at least two weeks before the date of the offence yet took no steps to obviate that risk. The risk to safety was itself a serious risk which manifested in serious injuries to several members of staff following their exposure to chemical fumes on 27 July and 10 and 13 August 2001. Notwithstanding that the chemistry was new no efforts were made to test it to ensure that the premises, machinery and equipment were all safe to use. Adequacy of the ventilation in the medical imaging department for example was not assessed in relation to the possibility of adverse effects from exposure to vapour or fumes that may arise from use of the new chemistry. Between 10 and 13 August 2001 despite exposure to staff on a prior occasion of the new chemistry and consequent harmful side effects, no serious attempts were made by the defendant to remove or isolate the product or ensure someone else removed or isolated it. The defendant issued no instruction, or information to its staff in relation to the use of the product and implemented no training or supervision regime following staffs' exposure to the product and its harmful effects. Penalty 76 In determining penalty I have taken into account the objective seriousness of the offence, personal factors described above and the absence of prior convictions. All these factors have been considered by reference to the Crimes (Sentencing Procedure) Act 1999 in particular s 10 and s 21A. Orders 77 In Matter No IRC 4347 of 2003 I make the following orders: 1. The defendant Northern Sydney and Central Coast Area Health Service is convicted of the offence. 2. The defendant Northern Sydney and Central Coast Area Health Service is fined $100,000 with a moiety to the prosecutor. 3. The defendant Northern Sydney and Central Coast Area Health Service is to pay the prosecutor's costs as agreed or in the absence of agreement as assessed by the Court. ______________________ 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.