Industrial Court of New South Wales CITATION: Geoff Derrick v Westpac Banking Corporation [2006] NSWIRComm 76 This decision has been amended. Please see the end of the judgment for a list of the amendments. PROSECUTOR: Mr Geoff Derrick PARTIES: DEFENDANT: Westpac Banking Corporation FILE NUMBER(S): IRC 1465 of 2005 CORAM: Staunton J CATCHWORDS: Occupational health and safety - plea of guilty - general principles - objective seriousness of the offence - foreseeability - general and specific deterrence - subjective features taken into consideration - no prior convictions - discretionary power of the Court to allocate a moiety of the penalty imposed to persons other than the usual statutory authority - moiety to prosecutor granted - penalty imposed - orders made as to penalty, moiety and costs. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Fines Act 1996 Occupational Health and Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Coombes v Patrick Stevedores Holdings Pty Limited [2005] NSWIRComm 56 Geoff Derrick v ANZ Group Limited (2005) NSWIRComm 59 Geoff Derrick v ANZ Group Limited (No. 2) [2005] NSWIRComm 145 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 CASES CITED: Markarian v The Queen [2005] HCA 25: 18 May 2005 O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) [2003] NSWIRComm 303 Peter Presdee v Commonwealth Bank of Australia [2005] NSWIRComm 389 R v Gallagher (1991) 23 NSWLR 220 R v Thomspon; R v Houlton (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131 Thorneloe v Filipowski (2001) 52 NSWLR 60 HEARING DATES: 10/3/2006. DATE OF JUDGMENT: 03/20/2006 PROSECUTION: Mr S Whybrow of counsel SOLICITORS: Gary Robb & Associates LEGAL REPRESENTATIVES: DEFENDANT: Mr H Dixon SC SOLICITORS: Minter Ellison JUDGMENT: - 29 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Staunton J DATE: 20/3/2006 Matter No IRC 1465 of 2005 Geoff Derrick v Westpac Banking Corporation Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2006] NSWIRComm 76 1 The defendant has pleaded guilty to an offence arising pursuant to s 8(1) of the Occupational Health and Safety Act 2000. 2 The prosecutor in these proceedings is Mr Geoff Derrick. Mr Derrick is the Secretary of the Finance Sector Union of Australia, New South Wales Branch. He is prosecuting these proceedings pursuant to s106 of the Occupational Health and Safety Act 2000. 3 The defendant's business involves the operation of retail banking facilities within Australia, New Zealand and the Pacific Islands. It has 213 retail banking branches in New South Wales alone, including a branch at Avalon, on the Northern Beaches of Sydney. 4 The incident that gave rise to the offence was a robbery which occurred at the Avalon branch on 21 September 2004. Three male offenders entered the branch. The first male offender climbed onto the counter and over the Anti-Jump Barrier (AJB) and bulkhead, to the employee side of the counter. He also demanded access to the cash handling area. A second offender gained access to that area. A sum of money from a safe was taken. The second offender removed money from three teller drawers. In total, the three offenders escaped with approximately $25,000. 5 As a result of these events, the defendant was charged with an offence under s 8(1) of the Occupational Health and Safety Act 2000. In relation to that offence, it is alleged that the defendant: Failed to ensure the health, safety and welfare at work of all its employees, in particular, Helen Filatoff, Herbert (Nick) Saravia and Debbie Short whilst conducting banking operations at its Avalon branch at Avalon, Sydney, contrary to Section 8(1) of the Occupational Health & Safety Act 2000. 6 The particulars of that charge are: (a) The defendant, at all material times, employed a number of persons, including Helen Filatoff, Nick Saravia and Debbie Short to undertake banking duties on its behalf at its branch at Avalon, Sydney in the State of New South Wales. (b) The defendant, at all material times, failed to provide or maintain adequate plant so as to ensure the safety of the said employees, namely, adequately designed and installed anti-jump barriers that extended full height from the banking counters to the ceiling. (c) The defendant failed, in its risk assessment(s) to fully appreciate the risk of an offender climbing over the anti-jump barrier, having regard to the design of the anti-jump barrier and all the circumstances. (d) As a result of the said failure, Helen Filatoff, Nick Saravia and Debbie Short were placed at risk of injury. 7 An agreed statement of facts was tendered by the prosecution, which discloses the events relevant to the offences alleged. The facts are as follows: A. Incident [1] As part of Westpac's banking operations, it operates a branch in Avalon, New South Wales. [2] On 21 September 2004, the Westpac Avalon branch was subject to a robbery by three male offenders ('Robbery'). [3] At the time of the Robbery at the Avalon branch there was in place a range of security measures including an Anti Jump Barrier ('AJB') above the customer counter that separated the cash handling area from the customer area in the branch. Members of public do not have access to cash handling area, with locked doors separating it from the customer area. (a) The AJB had a vertical gap for the teller, to enable transactions between teller and customer to occur (which is known as the 'Chandler Gap'). The Chandler Gap had bars at the side and horizontal cross bars (which are known as 'WSSC bars'). The WSSC bars serve the dual purpose of preventing an offender climbing through the Chandler Gap and bracing the vertical bars (which otherwise could flex because of their length). The WSSC bars are designed to rotate if an offender tries to climb them. [4] The AJB was made of laminated glass that extended 1655mm from the counter to the underside of the bulkhead. The bulkhead was 350mm high and extended 400mm beyond the AJB. The combined height of the AJB and bulkhead above the counter was therefore 2005mm. The top of the bulkhead was 3060mm off the ground. The ceiling was 5550mm off the ground and there was a 2490mm gap between the top of the bulkhead and the ceiling. [5] At approximately 2.10pm on 21 September 2004 three offenders entered the Avalon branch. [6] Three Westpac employees were present during the Robbery, Ms Filatoff, Nick (Herbet) Savaria and Debbie Short ('Employees'). [7] During the Robbery: (a) the first offender sought to gain access to the secure cash handling area by getting over the top of AJB and bulkhead; (b) the first offender initially tried to climb the AJB using the WSSC bars but kept slipping as the bars would turn; (c) instead the first offender used his sneakers on the glass to push himself up and eventually over the AJB and bulkhead. He then jumped down from the top of the bulkhead to the floor, on the employee side of the counter thereby gaining access to the cash handling area; (d) while the first offender was attempting to climb the AJB, Mr Saravia activated the alarm at his work station; (e) Ms Filatoff observed that one offender was carrying a small handgun; (f) the Employees and customers (of whom there were approximately three or four) were instructed by the second and third offender to lie down on the floor and all complied; (g) the first offender instructed Ms Short to show him where the door was that divided the cash handling area and the public area - Ms Short complied; (h) the first offender pushed Ms Filatoff to the floor after she had walked out of her office; (i) having gained access to the cash handling area the first offender opened the locked employee entrance door and let the second offender into the cash handling area, the third offender remained in the customer area; (j) the first offender instructed Ms Short to open the safe (inside the strong room), he then pushed her in the back and shoulders and she subsequently used the keys in her possession to open her safe compartment; (k) the first offender removed a sum of money from Ms Short's safe compartment; (l) the first offender instructed Ms Short to open the other compartment in the safe (which was Mr Saravia's compartment); (m) Ms Short asked Mr Saravia for the keys to his safe compartment and he then handed them to her; (n) Ms Short walked back to the strong room with the first offender and opened Mr Saravia's safe compartment, the first offender then removed a pile of notes from that compartment; (o) the first offender instructed Ms Short to get money from Ms Filatoff. However Ms Short informed the first offender that as the manager Ms Filatoff did not have any money. At some stage Ms Short was pushed in the face by the first offender, who was wearing gloves; (p) the second offender removed money from three teller drawers; and (q) the offenders escaped with approximately $25,000. [8] Police immediately attended the Avalon branch after the Robbery but to date no one has been apprehended or charged for the Robbery. [9] The Employees: (a) were provided with trauma counselling on the day of the Robbery and two of the Employees were taken home after giving statements to the police; (b) did not sustain any physical injuries during the Robbery; (c) returned to work the day after the Robbery and had no time off; and (d) did not lodge any workers compensation claims in relation to the Robbery. [10] The Employees followed the appropriate procedure in responding to the Robbery. B. Prior to the Robbery [11] For a number of years prior to the Robbery the FSU and Westpac had been corresponding, and discussing in security work group meetings, security issues - including AJBs, their design and employee safety. As part of this: (a) on 2 February 1995, Michael Johnston, Head of Employee Relations at Westpac wrote to Mr Tony Beck, Joint National Secretary, Finance Sector Union ('FSU') about the Westpac Security Agreement. A copy of this letter is Annexure 1; (b) on 31 August 1998, the Informant, Secretary, FSU wrote to Russell Chandler, National Manager, Group Security, Westpac concerning branch security and bandits gaining access across counters. A copy of this letter is Annexure 2; (c) on 19 October 1998, Mr Chandler wrote to the Informant about branch security and the installation of AJBs. A copy of this letter is Annexure 3; (d) on 23 February 1999, the Informant wrote to Mr Chandler in relation to a robbery at the Gymea Branch. A copy of this letter is Annexure 4; (e) on 5 March 1999, the Informant wrote to Mr Chandler about a robbery at the Petrie Plaza Branch, Australian Capital Territory. A copy of this letter is Annexure 5; (f) on 12 March 1999, Brian Wright, National Manager (Rlg) wrote to the Informant about the Gymea and Petrie Plaza branches. A copy of this letter is Annexure 6; (g) in Autumn 1999 the FSU's article 'Beating the Bandits' appeared in Inside Finance. A copy of this article is Annexure 7; (h) on 24 June 1999, the Informant wrote to Mr Chandler about Westpac's retail counter AJBs. A copy of this letter is Annexure 8; (i) on 29 June 1999, the Informant wrote to Mr Chandler concerning an incident at the Liverpool Central Branch and AJBs. A copy of this letter is Annexure 9; (j) on 15 July 1999, Mr Chandler wrote to the Informant concerning AJBs. A copy of this letter is Annexure 10; (k) on 19 July 1999, Mr Chandler wrote to the Informant in relation to AJBs and their specifications. A copy of this letter is Annexure 11; (l) on 17 August 1999, the Informant wrote to Mr Chandler about the fitting of suitable AJBs in Westpac retail workplaces. A copy of this letter is Annexure 12; (m) on 3 December 1999, Mr Frost, Industrial Officer OHS, FSU, wrote to Mr Chandler about branch security and AJBs. A copy of this letter is Annexure 13; (n) on 17 December 1999, Mr Chandler wrote to the Informant in relation to Branch Security and AJBs. A copy of this letter is Annexure 14; (o) on 2 January 2001, Mr Chandler wrote to Anthony Beck, National Secretary, FSU about a security agreement between Westpac and the FSU. A copy of this letter is Annexure 15; (p) on 22 January 2001, Mr Frost wrote to Mr Chandler about an incident at the Figtree branch. A copy of this letter is Annexure 16; (q) on 29 March 2001, Mr Frost wrote to Mr Chandler in relation to a robbery of the Maroubra branch. A copy of this letter is Annexure 17; (r) on 9 April 2001, Mr Chandler wrote to Mr Frost in relation to the Maroubra Junction Branch. A copy of this letter is Annexure 18; (s) on 16 April 2001, Mr Frost wrote to Mr Chandler concerning a robbery at the Flemington Market's branch. A copy of this letter is Annexure 19; (t) on 10 July 2001, Mr Onley wrote to Mr Frost regarding workplace security and AJBs. A copy of this letter is Annexure 20; (u) on 20 January 2002, Mr Frost wrote to Mr Chandler in relation to branch security and AJBs. A copy of this letter is Annexure 21; (v) on 11 February 2002, Leslie Martin, General Manager, Westpac wrote to the Informant in relation to an AJB upgrade program. A copy of this letter is Annexure 22; (w) on 22 February 2002, the Informant wrote to Ms Martin in relation to an AJB upgrade program. A copy of this letter is Annexure 23; (x) on 16 May 2002, Mr Frost to Mr Onley in relation to a robbery at the Westpac Cronulla branch. A copy of this letter is Annexure 24; and (y) on 13 June 2002, Mr Onley wrote to Mr Frost in relation to the robbery of the Cronulla Branch. A copy of this letter is Annexure 25. [12] On 10 December 2003 Ms Filatoff, the Manager at Westpac's Avalon branch, telephoned Physical Security (a section of Westpac responsible for physical security matters) to report a concern raised by employees about the gap between the top of the bulkhead and the ceiling at the branch. [13] In December 2003, a member of Westpac Physical Security conducted an assessment of the Avalon branch in order to investigate the concern raised by Ms Filatoff. [14] During the assessment the employee from Physical Security expressed the view to the employees at the Avalon branch that there was little or no risk of anyone climbing over the gap between the top of the bulkhead and the ceiling because of the WSSC bars and the bulkhead. C. Action taken by Westpac after the Robbery 15. Following the robbery: (a) a security guard was dispatched to the Avalon branch immediately after the Robbery; (b) a security grill was installed above the bulkhead on top of the AJB to the ceiling; and (c) Westpac took steps to identify other branches around the country where the AJB went up to a bulkhead and there was then a gap between the bulkhead and ceiling. Branches that were identified were remedied. D. Training [16] At the time of the Robbery the Employees had undergone security training, which among other things, dealt with how to respond to a hold-up. In particular: (a) Ms Short attended Group Security Assessment 1 and 2 training in 2002, 2003 and 2004; (b) Mr Savaria attended Group Security Assessment 1 training in 2002, 2003, 2004 and 2005 and Group Security Assessment 2 training in 2002, 2003 and 2004; and (c) Ms Filatoff attended Group Security Assessment 1 training in 2002, 2003 and 2004 and Group Security Assessment 2 training in 2002 and 2003. [17] During the Robbery the Employees acted in accordance with their security training by activating the alarm system and complying with the offenders' demands. E. Security Agreement [18] On or about 2 January 2001 Westpac and the FSU entered into an agreement called 'The Joint Security Agreement' ('Security Agreement') which was a re-negotiated agreement, replacing an earlier security agreement dated 21 July 1995. [19] Westpac is the only bank with a security agreement with the FSU. [20] As part of the Security Agreement, there is a security work group that meets to discuss security issues. F. WorkCover [21] Westpac has no prior occupational health and safety convictions. [22] The WorkCover Authority carried out an investigation into the Robbery and did not take any action in relation to it. G. Conclusion [23] As a consequence of the Robbery, the Employees were placed at risk of injury. 8 As referred to in the facts, the prosecution has also tendered, without objection, a bundle of documents comprising correspondence between the defendant and the FSU going to security issues. 9 Westpac has no prior convictions. 10 On behalf of the defendant, an affidavit of Mr Paul Maihi, sworn 17 February 2006, together with annexures, was tendered without objection. Mr Maihi is the Head of Physical Security Services for Westpac Bank and has been employed in this position since October 2003. Mr Maihi's responsibilities in this role include implementing physical security services throughout the national branch, ATM and commercial network. He is also responsible for overall management of security incidents and personal protection of employees. In his affidavit, Mr Maihi describes the defendant's occupational health and safety policies and procedures in relation to branch security as well as the consultative process between the defendant and the FSU, particularly with reference to the Joint Security Agreement. He also details the defendant's security measures in existence prior to the robbery at the Avalon branch and remedial steps which were taken after the incident, including photos of the branch post-incident. 11 Mr Maihi and the informant, Mr Geoff Derrick, were required for cross-examination. Relevant principles 12 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account. 13 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]: ....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.' 14 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. 15 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646. 16 On the issue of foreseeability, the Full Bench in Capral also stated: 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. 17 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows: ... 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. 18 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]: ... 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). 19 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure: ... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender. 20 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends . ... (emphasis added) 21 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]: ...The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice... 22 Overall, I observe nothing in Markarian that precludes me, properly in my view, from identifying a discount for the entry of an early plea of guilty. Additionally, to the extent that there are subjective and mitigating features relevant to the defendant, they are matters which also should be considered in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular s 21A(1) earlier referred to. Considerations 23 The defendant has no prior convictions and as such, the maximum penalty that can be imposed is $550,000. 24 The day to day operations of retail banking have long been recognised in the community as prime targets for robbery. As such, they represent workplaces with inherent risks to safety for staff employed in them and the public who use them. It is apparent the defendant recognised, in the day to day work at a retail branch of it's business, the risk of a hold up occurring was a distinct possibility. To that end, training provided by the defendant to employees reiterated that security awareness and training in dealing with such a possibility in order to minimise risks to their personal safety were of utmost importance. 25 As part of that process, the defendant's employees received training on a computerised system known as E-Academy, which had a number of modules that highlighted this risk. The modules sought to explain that despite the best intentions and rigorous security awareness by employees, breaches could still occur. In addressing those breaches, employees were urged to adhere to strict procedures and rules to minimise trauma and disruption. 26 In addition to the training and security awareness procedures, the defendant has also put in place a number of other security devices designed to act as a robbery deterrent and to minimise risks to safety and flowing from such an event. One of those devices are known as a Anti-Jump Barriers (AJBs). An AJB is a security mechanism that separates the cash handling area from the customer area of the bank. 27 As part of the process of addressing security concerns generally, the defendant consulted with the Financial Sector Union (FSU) on behalf of its members in the industry. The best evidence of that consultative process was a Joint Security Agreement entered into with the FSU in 1995, which was re-negotiated and re-signed in 2001. The aim of the agreement was to allow the defendant to have a flexible security policy, which would assess branch security on a site specific basis. As Mr Maihi deposed in his affidavit: It was recognised by both the parties that the numerous configurations of branch premises comprising size, location, internal and external design, local environment, social and economic conditions, did not lend themselves to a uniform, pre-conceived security layout. 28 The agreement also required for the parties to form a Security Work Group and to consultatively discuss security issues. That has continued. The defendant has included copies of the minutes from the Security Work Group meetings held between 27 May 1997 and 30 September 2004 as annexures to Mr Maihi's affidavit. 29 As part of the documentary material presented to the court, the prosecutor provided evidence of a number of bank hold-ups at various branches through out New South Wales and the ACT between 1999 and 2002. The evidence provided by the prosecutor included some 23 letters exchanged between the FSU and the defendant from 1998 to 2002 discussing Security Work Group issues such as AJBs at various locations around New South Wales. A common element of many branch hold-ups had been counter jumping. 30 The Avalon branch was fitted with Anti-Jump Barriers (AJB). The exact date of the installation of the AJBs at the branch is unclear but it is obvious they were in place at least by 4 March 1998, as set out in the Security Work Group Minutes of the same date. 31 The AJB at the Avalon branch consisted of laminated glass that extended 1655mm from the counter to the underside of the bulkhead. The height of the bulkhead above the counter and including the AJB was 2005mm. There was a gap of 2490mm between the ceiling and the bulkhead and the ceiling was 5500mm off the ground. The AJB also had a vertical gap (known as the Chandler Gap) through the middle in order for tellers and customers to conduct transactions, with horizontal crossbars and bars on the side. The horizontal bars, called WSSC bars, braced the bars on the side and rotated if an offender attempted to climb on them. 32 In their consultative process with the FSU, the defendant emphasised that AJBs were not bullet resistant and that their prime objective was to act as a robbery deterrent. By themselves, AJBs will never make a branch robbery proof. Overall, the defendant had emphasised long before the incident at Avalon that security procedures were to be followed at all times in order to minimise harm to customers and employees in a hold-up scenario. That emphasis is supported by a letter from the defendant to the FSU dated 12 March 1999, which stated: In the preamble to procedures which all staff are required to be familiar with, and which is set out in Westpac's Administration Manual under "Site Security" we have indicated to staff: Experience has shown that physical barriers put in place to prevent hold ups, have not resulted in the elimination of them but rather the bandits have become more skilful and resourceful in their efforts to overcome them. There does seem to be a misconception by some staff that these barriers, particularly when installed in conjunction with fly up screens, will prevent all access. Bearing in mind that the fly up screens are in place within .7 of second after alarm activation, these barriers provide the delay tactic to permit staff to activate alarms. 33 Given all of the above and notwithstanding the security measures in place to deal with such an occurrence, the risk of a hold-up and breach of the cash handling area in a bank premises by an offender was foreseeable. The defendant has acknowledged this fact by its plea of guilty and in doing so has acknowledged the causal link between its breach and the risk to safety as particularised. 34 As was stated in Capral, the presence of foreseeability 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. (Lawrenson Diecasting at 476). 35 The process of installing AJBs in the defendant's network of retail banks since the issue was first raised has been a slow process. In saying that I acknowledge the cost implications arising in undertaking such a task across the defendant's retail branch network. 36 As the evidence before me highlighted, there have been design and height issues that have arisen for consideration as part of the AJB installation process. The height issue centred around whether a particular AJB in a bank should extend from the counter to the bulkhead above the counter or whether the AJB should extend from the counter all the way to the ceiling. This was particularly pertinent in the Avalon branch in that the AJB extended to the bulkhead only, leaving a 2490 mm gap between the bulkhead and the ceiling of the bank. 37 The FSU had pursued the matter of height provisions for AJBs generally, amongst others, with the defendant prior to the Avalon robbery. In a letter dated 31 August 1998, the FSU wrote to the defendant requesting that appropriate AJBs be fitted to all branches in Sydney, Newcastle, Central Coast, Illawarra, and Blue Mountains areas as a result of a spate of robbers gaining access behind counters by jumping over them. In response to that letter, the defendant developed a programme to install full length AJBs within the Sydney and Central Coast areas, to commence immediately. 38 However, as the correspondence between the parties demonstrate, AJBs were not installed in every branch. Hold-ups continued to occur in branches where no AJBs were installed despite promises made by the defendant to do so. The defendant alleged that it never promised to install AJBs in every branch and that rather, it would assess security needs and installation on a case by case basis as per the Joint Security Agreement. 39 In a letter dated 11 February 2002, the defendant wrote to the FSU, committing to install or replace AJBs to meet new requirements the defendant had implemented. The defendant modified AJBs to further prevent attacks. These modifications included a minimum 2000mm height from the top of the counter to the ceiling or bulkhead and a width of 150mm for the Chandler Gap. The defendant set out that it would undertake to do this in a two-stage process. The first stage was to ensure all branches within the Sydney, Wollongong, Blue Mountains and the ACT were compliant. The second stage involved implementing the new AJBs within the Central Coast, Newcastle and other sites in NSW within the 2003 financial year. 40 However, in spite of the modifications, robberies still occurred where counters were being jumped. In the Security Work Group Minutes dated 29 April 2003, the FSU raised the issue of a gap between the barriers and WSSC bars providing a possible 'ladder' for an offender to gain access to the employee area behind the counter. This had occurred at a branch in Cronulla. The defendant, in those minutes, noted that the problem had been "rectified" but also that the "problem could have been avoided, however due to the outsourcing of building works, contractors are not always aware of problems". 41 In relation to the robbery at the Cronulla branch, the FSU wrote a letter to the defendant, dated 16 May 2002, expressing its concern: … However, we must stress that there is still a potential problem with the AJBs. Whilst they do extend well above the counter, the addition of the post and rails now clearly provides what is a simple and effective ladder that again may assist bandits gaining access over the counter. We strongly recommend that the AJBs extend all the way to the ceiling . (emphasis added) 42 The Avalon branch had new AJBs installed as part of the AJB upgrade program in 2002. The AJB heights were extended from 1100mm off the counter to the height of the bulkhead and the Chandler Gap was narrowed from 300mm to 150mm. Horizontal WSSC bars were also installed to the front of the AJB. 43 On 10 December 2003, Ms Filatoff, the manager of the Avalon branch expressed concern about the gap between the top of the bulkhead and the ceiling. In December 2003, in response to those concerns, a risk assessment was undertaken of the Avalon branch by the Physical Security division of the defendant. That assessment concluded that there was little to no risk of anyone climbing over the gap to gain access to behind the counter, because of the presence of the WSSC bars and the bulkhead. That assessment subsequently proved to be incorrect. Further, the defendant was aware, at least as early as 29 April 2002, that the WSSC bars could be used as a ladder to breach the area up to and including the bulkhead. 44 Given all of the above, the absence of an AJB that extended up to the ceiling at the Avalon branch clearly represented a risk to safety. As well, the consequences of a hold-up also represented a risk to safety where there was every chance of serious repercussions. As was stated in Capral at 650: 'a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences'. In isolation, the potential for 'serious consequences' is not conclusive of the nature and quality of the offence, but it is clear that such a factor may be considered when assessing the ultimate culpability of a defendant. 45 While it is fortunate that none of the employees who were present at the time of the hold-up suffered any physical injuries, the potential for serious injury was very real. Ms Filatoff, the branch manager, stated that she had noticed that one of the offenders had a gun but it was not used. During the hold-up, Ms Filatoff was pushed to the ground by one of the offenders, while Ms Short, another employee, was pushed in the face. 46 The defendant's obligation to provide a workplace free of risks to safety extends to all the foreseeable consequences that could arise from a hold-up scenario. This includes risks not only to employees' physical safety but to their psychological safety as well. In addition to the extensive safety policies, education and training programs of the defendant regarding security and hold-ups generally, the defendant provided trauma counselling to employees on the day of the robbery. The defendant also endeavoured to ensure employees got home safely after giving statements to the police regarding the incident. Having access to prompt psychological services was beneficial to the employees. 47 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps that could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable. 48 Mr Maihi's affidavit set out that the defendant already had in place a number of security measures at the Avalon branch. However, simple remediation efforts such as the installation of a security grill between the bulkhead and ceiling could easily have been implemented. The defendant undertook to investigate the gap between the bulkhead and the ceiling soon after the incident and effected this change promptly. The defendant provided a guard until the installation of the grill was complete. 49 The defendant also took steps to identify and remedy the same problem at other branches around the country where the AJB went up to a bulkhead and there was a gap between the bulkhead and the ceiling. 50 Since the incident, the defendant has also upgraded its risk assessment procedure and developed a new Security Risk Framework. The new framework requires a routine security risk assessment every 12 to 24 months on every branch in its network, depending on the security classification of the branch. 51 In submissions, counsel for the informant noted the similar factual features of Geoff Derrick v ANZ Group Limited [2003] NSWIRComm 406 when compared with the matter now before me. That matter referred to an offence charged pursuant to s 8(1) of the Occupational Health and Safety Act 2000 against the ANZ Banking Group. The defendant in that matter pleaded guilty. Briefly, the relevant facts in that matter were similar to the one I am now dealing with. That is, in June 2002 robbers jumped over the AJB at Brookvale branch of the ANZ bank and effected a hold up. Like this matter, they were able to do so because of the gap between the top of the AJB and ceiling. 52 Given the height of the AJB at its branch at Avalon, counsel for the informant pointed to that matter as evidence that, as an industry wide issue, the defendant was clearly on notice by 2003 there was a distinct risk to safety that needed to be addressed. And yet, he said, they did nothing. This fact he said emphasised the objective seriousness of the offence, particularly, when taken together with the FSU's letter to the defendant in May 2002 following the Cronulla branch hold-up. 53 That submission, in my view, is incorrect in a number of respects. The defendant did carry out a risk assessment on the gap as requested by Ms Filatoff, the Avalon branch manager, in December 2003. The conclusion of that risk assessment was that the gap presented little or no risk of being climbed over because of the WSSC bars and the bulkhead. However, it is clear that the risk assessment was inadequate. 54 Further, it cannot be assumed that the defendant before me was necessarily appraised of what had occurred at one of its competitor's branches in 2002. In any event, the defendant here well knew of the risks that the gap between the AJB and the ceiling represented and obviously assessed it as low. They were wrong. 55 By way of detailed cross-referencing between the Security Work Group Minutes and correspondence between the FSU and the defendant over a number of years, counsel for the defendant tracked the history of AJBs as part of the security framework utilised by the defendant together with the FSU's involvement in the design and development of this security strategy. 56 In doing so, counsel for the defendant contended that the FSU was, as it were, complicit in the defendant's failure given the FSU's role in the consultative process involving security issues, including AJBs. As he submitted: In my respectful submission, the FSU accepted what the bank proposed to do and it accepted that those were appropriate measures… …There was a proactive stance taken by the bank in trying, with the co-operation of the FSU, to improve matters, and there was an agreed position reached in relation to this particular deterrence. 57 While I agree the FSU did work cooperatively with the defendant on security issues, including AJBs, that does not and cannot displace the responsibility that rests with the defendant to ensure a workplace free of risks to safety. 58 On the issue of steps to be taken to address risks to safety in the workplace, I endorse the statements of Boland J in Geoff Derrick v ANZ Group Limited (2005) NSWIRComm 59 at [28]: It may be the case that there are no practicable measures available to a bank to ensure that its employees are never put at risk of injury in circumstances where a robbery occurs. But that does not relieve a bank of the obligation to do all that is reasonably practicable to ensure safety. 59 Considering all of the above, I assess the offence as being objectively serious and will assess penalty on that basis. 60 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process. 61 It is pertinent at this point to consider general deterrence. The defendant operates a business where armed robbery and hold-ups exist as a very real threat. As was stated by Boland J in Geoff Derrick v Australian and New Zealand B Group Ltd [2003] NSWIRComm 406 at [28]: …Armed hold-ups represent a serious threat to employees not only in banks but also in all manner of places where goods and cash are kept including service stations, retail outlets and warehouses. The duty on employers is to make certain employees are not exposed to risks to their health, safety and welfare whilst at work and that responsibility extends to circumstances where an armed offender might confront employees. I would agree with his Honour's view and consider that general deterrence is a factor to be considered in determining penalty. 62 In respect of specific deterrence, the Full Bench held in Capral at 644-645: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. 63 In the present circumstances, considerations as to specific deterrence should be tempered against the defendant's longstanding and ongoing efforts to ensure a safe and secure workplace for its employees. Prior to the hold-up, the defendant had in place comprehensive occupational health and safety policies and security training. That much is evident by looking at the training records of Ms Short, Mr Savaria and Ms Filatoff, who had all attended Group Security Training annually since 2002. It is also supported by Mr Maihi's affidavit by reference to the defendant's consultative approach to work with the FSU to ensure safety in its workplace. As deposed by Mr Maihi, the defendant is the only banking institution that has a Joint Security Agreement with the FSU. Overall, Mr Maihi's evidence points to a defendant who heavily invests in workplace safety and continues to seek to do so and does so in cooperation with the FSU. The fact that it has pleaded guilty to the offence it has been charged with represents the defendant's acknowledgment that it had a lapse in judgment in its risk assessment as to the adequacy of the height provisions of the AJB installed at the Avalon branch. 64 The defendant is entitled to have taken into account the plea of guilty entered. In assessing the impact of the plea, the Court is guided by the decision of R v Thomspon; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. In this matter, I assess that discount at twenty five per cent. 65 There are also additional subjective features which the defendant is entitled to have taken into consideration in assessment of the sentence. I refer to the defendant's full cooperation with WorkCover in its initial investigation as well as with the prosecutor in this matter. The defendant has expressed remorse for any undue stress caused to employees or customers involved in the incident. As well, the defendant's strong commitment to occupational health and safety is also a positive factor to be taken into account. As counsel for the informant confirmed: It's accepted that this defendant has strong subjective features in its favour. … 66 Both the defendant and the FSU are to be commended for their cooperative efforts and commitment to ensuring a safe workplace for the defendant's employees. 67 Considering all the subjective elements I have identified, a further discount in my penalty considerations is warranted. 68 The issue of moiety remains to be dealt with. The prosecutor has made an application pursuant to s122(2) of the Fines Act 1996 (NSW) for an order that a moiety be paid to him of one half of the fine imposed. 69 As was stated in my judgment in Peter Presdee v Commonwealth Bank of Australia [2005] NSWIRComm 389, there have been a number of first instance decisions of this court that have previously canvassed the issue of the allocation of a moiety of the penalty imposed to individuals other than the statutory authority of WorkCover within the scope of s122 of the Fines Act 1996. See the decision of Walton J Vice-President in O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) [2003] NSWIRComm 303 at [185]-[194]; Haylen J in Coombes v Patrick Stevedores Holdings Pty Limited [2005] NSWIRComm 56 at [101]-[111] and Boland J in Geoff Derrick v ANZ Group Limited (No. 2) [2005] NSWIRComm 145 at [3]-[25]. In each of those cases, the Court ordered a moiety of one half of the penalty imposed to be paid to the prosecutor. 70 The cases referred to represent an exhaustive consideration of this issue. I do not propose to repeat it in this judgment. Suffice to say, I concur with the overall conclusion in those judgments that the prosecutor in this matter falls within the scope of s122 of the Fines Act 1996 and that the Court has the discretionary power to order a moiety in his favour. 71 The informant did not tender an affidavit for the application of moiety and the informant, Mr Derrick, was called upon to give oral evidence. In giving his evidence, Mr Derrick stated that he was seeking 50% of the penalty imposed and gave a personal undertaking to remit all funds ordered to be paid as the moiety to the FSU. He stated that the moiety would be allocated in one-third equal shares for the following purposes: · Continuing occupational health and safety education and training for delegates and members of the union as well as improving consultation processes between employers and employees; · Compliance and enforcement of the Occupational Health and Safety Act 2000; and · As payment to members of the union who were affected or involved in the incident at the Avalon branch. Mr Derrick deposed that the money would be disbursed as detailed above, subject to any contrary decision by the management committee of the union. 72 Counsel for the defendant objected to the allocation of a moiety to the defendant on two grounds. Firstly, it was said, the policy of disbursing the moiety, as stated by Mr Derrick, was subject to a potential contrary decision of the union management committee thus negating the personal undertaking made by Mr Derrick in respect of the moiety. Secondly, the defendant and the FSU had worked co-operatively to achieve safe working conditions and, upon things going wrong, the union was seeking to gain a benefit by way of a moiety. 73 I do not accept those submissions. With regard to the first submission, the possible contrary decision by the management committee of the FSU as to how the moiety is to be allocated or spent is speculative at best. Mr Derrick was not cross-examined as to that aspect of his evidence. What is in issue here is whether the moiety should be granted at all. What is clear is if the informant is granted the moiety, its intends to put the moiety funds towards occupational health and safety purposes. To that end, the union is fulfilling its objectives as a registered industrial organisation, which include protecting the rights and interests of all its members in relation to their employment. Any financial gain which accrues to the FSU by being granted the moiety is one which is beneficial to it's members in terms of their occupational health and safety at work. 74 Furthermore, there is no requirement, implicitly or explicitly under the Occupational Health and Safety Act 2000, that where an industrial organisation such as the FSU is granted a moiety, that the purpose for which the moiety will be put towards needs to be articulated. Nor is there any need for the court to be satisfied, in its discretion in granting a moiety, that the funds of the moiety will be used for industrial purposes. This issue was considered by Boland J in Geoff Derrick v ANZ Group Limited (No. 2) [2005] NSWIRComm 145 at [20] where he stated: …It does not seem to me that it is an implicit requirement, that where the court directs a portion of the fine to be paid to the prosecutor it has to be satisfied that the purpose for which that portion will be used will be related to occupational health and safety …I consider if that is to be the purpose, no issue should arise to whether the Court should exercise its discretion to grant the moiety or part of it. His Honour went to say at [21]: … There is not much utility in speculating on the circumstances in which a court may not direct a portion of the fine to be paid to a prosecutor, but if the prosecutor is the secretary of an industrial organisation of employees and the evidence is that the portion of the fine is to be fully remitted to the organisation and then used for a lawful purpose or purposes in accordance with the requirements of the organisation's registered rules, whether it be directly for occupational health and safety purposes or not, that does not, in my opinion, constitute a proper basis for declining to grant the moiety or part of it. I would agree with the views expressed and, in the exercise of my discretion, I propose to order the payment of a moiety as sought by the prosecutor. 75 Taking into account all the matters I have referred to, I determine a penalty in this matter of $145,000. 76 I make the following orders: (i) The defendant is guilty of the offence charged. (ii) I impose a penalty in this matter of $145,000. (iii) I allocate a moiety to the prosecutor of one half of the penalty imposed. (iv) I order the defendant pay the costs of the prosecutor as agreed or assessed. Failing agreement within 28 days, the matter may be referred to the Registrar for assessment. AMENDMENTS HISTORY: 20/03/2006 - Amendment - Paragraph(s) 25 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.