Industrial Court of New South Wales CITATION: Inspector Drewsen v Trevor Lansdown trading as Pyro-Tection [2007] NSWIRComm 21 PROSECUTOR: Inspector Larry Drewsen (WorkCover Authority of NSW) PARTIES: DEFENDANT: Trevor Francis Lansdown trading as Pyro-Tection FILE NUMBER(S): IRC 799 of 2006 CORAM: Schmidt J CATCHWORDS: Occupational Health and Safety - prosecution under section 9 of the Occupational Health and Safety Act 2000 - defendant self employed - business involving the servicing and sale of fire protection and rescue products for motor sport cars - plea of guilty - first offence - service and recharging of fire extinguishers - two separate explosions on the same day - general and specific deterrence - relative culpability - victim impact statements received - penalty imposed - discount LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 Inspector David Waterhouse v Innovative Property Developments Pty Ltd and Others [2006] NSWIRComm 97 CASES CITED: Inspector Drewsen v Confederation of Australian Motor Sport Ltd [2006] NSWIRComm 388 Inspector Drewsen v Vee 8 Supercars Australia Pty Limited [2006] NSWIRComm 331 R v Mansour (1999) 29 MVR 409 R v Noble and Verheyden (1996) 1 Qd:R 329 HEARING DATES: 12/02/07 DATE OF JUDGMENT: 21 February 2007 PROSECUTOR: Mr B Docking of counsel SOLICITORS: LEGAL REPRESENTATIVES: Shaw Mcdonald DEFENDANT: Mr C Wilson of counsel JUDGMENT: - 18 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Schmidt J 21 February 2007 Matter No IRC 799 of 2006 INSPECTOR LARRY DREWSEN v TREVOR FRANCIS LANSDOWN TRADING AS PYRO-TECTION Prosecution under section 9 of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 21 1 On 21 February 2004, two fire extinguishers exploded at the Wakefield Park Raceway, while they were being tested and recharged by Mr Trevor Francis Lansdown. Mr Lansdown was injured in the first explosion and two others, Mr Brian Phillip Eggleston and Mr Glenn Robert Simmons, were injured in the second. Mr Lansdown was charged with two offences under s 9 of the Occupational Health and Safety Act 2000 ('the Act'). On the first day of the proceedings, then listed for defended hearing, the prosecutor amended the charge in this matter, Mr Lansdown entered a plea of guilty to the amended charge and the second charge was withdrawn by consent, with no order as to costs being made. This judgment deals with the question of penalty. 2 The offence to which the plea was entered was: On 21 February 2004 at the Wakefield Park Raceway, Goulburn, in the State of New South Wales, being a self-employed person, failed to ensure that people (other than the employees of the person) were not exposed to risks to their health and safety arising from the conduct of the person's undertaking while they were at the person's place of work, in that the defendant failed to ensure that systems of work were safe and without risks to health to Ralf Rupprecht , Steven Davy Brow, Brian Phillip Eggleston, Glenn Robert Simmons, James Clarence Gardiner, Kerry Frederick Butchers and Jeremy Patrick Bird contrary to section 9 of the Occupational Health and Safety Act 2000 The further particulars of the charge are: a) There was an actual risk of injury to people (other than the employees of the person) from a vehicular fire extinguisher cylinder releasing pressure, rupturing or exploding. b) The defendant's undertaking was servicing, charging and re-pressurising vehicular fire extinguisher cylinders. c) Aspects of the defendant's unsafe systems of work were any of the following: i) The defendant performed his undertaking in or about the tented garage of Mr Rupprecht's racing team and not in an area of work away from other people ("the first incident"). ii) After there had been an earlier rupturing or explosion of a fire extinguisher whilst performing his undertaking in which he was injured, referred to in paragraph (c)(i) above, the defendant performed his undertaking in or about the tented garage of Mr Eggleston's racing team and not in an area of work away from other people ("the second incident"). iii) The defendant failed to prevent or minimise over pressurisation of the fire extinguisher cylinders during the first and second incidents. iv) The defendant omitted to use a safety cage whilst performing his undertaking in relation to the first and second incidents. v) The defendant omitted before the fire extinguisher cylinders were pressurised to adequately calibrate or check a regulator and gauge. vi) The defendant failed to adequately use a pressure valve to relieve pressure, in that the valve did not relieve pressure, the valve was incorrectly sized and/or the valve was not correctly adjusted. vii) The defendant failed to undertake an adequate risk assessment before performing his undertaking in relation to the first incident, in that he did not adequately consider the risk, the time pressure to complete his undertaking before the practice session, that part of the equipment to be used was from other people, that present in the work area were other people and no risk prevention or minimisation measures were identified. viii) The defendant failed to undertake an adequate risk assessment before performing his undertaking in relation to the second incident, in that he did not adequately consider the risk, why the earlier rupturing or explosion of a fire extinguisher cylinder occurred, the impact of the injuries that he suffered arising from the earlier rupturing or explosion, the time pressure to complete the undertaking, that part of the equipment to be used was from other people, that other people were to perform part of the work, such other people were not adequately trained, instructed or made aware of the risk associated with the tasks, that present in the work area were other people and no risk prevention or minimisation measures were identified. d) The rupturing or explosion of the fire extinguisher cylinders and the injuries to Mr Eggleston and Mr Simmons were manifestations of the risk. 3 An agreed statement of facts was tendered. It provided: 1. At all material times, Trevor Francis Lansdown ("the defendant") was self employed and operated a business trading under the business name Pyro-tection, that business name being registered in the State of Victoria. The defendant operated the business in partnership with his wife, Carolyn Maree Lansdown. 2. At all material times, the defendant's residential and registered business address was 1 Richards Road, Nar Nar Goon in the State of Victoria. The defendant's business involved the servicing and sale of fire protection and rescue products, including fire extinguishers installed in cars utilised in motor sport activities. The defendant's business activities required him to attend at different sites throughout Australia. 3. On 21 February 2004, the defendant attended the Wakefield Park Raceway ("the Raceway) at Goulburn in the State of New South Wales to undertake the servicing, discharging and re-charging of certain in-car fire extinguishers belonging to a number of competitors at the Raceway who were competing in the Konica Minolta V8 Supercar Series. 4. The Federation Internationale de I'Automobile ("FIA") is the international body which governs V8 motor sports globally and appoints the sole holder of motor sporting authority in a particular country. The FIA has appointed the Confederation of Australian Motor Sport Ltd [ACN 065 045 665] ("CAMS") as the sole authorised motor sport authority in Australia. . 5. CAMS, at all material times was a company duly incorporated, having its registered office at 851 Dandenong Road, Malvern East in the State of Victoria. The role of CAMS includes the regulation of motor sport in Australia in order to promote and achieve safety, fairness and social responsibility in the conduct of the sport. 6. CAMS develops and maintains systems for safety, technical, judicial, accreditation, training and compliance and issues an annual Manual for Motor Sports on 1 January of each calendar year. In 2004, CAMS issued such a manual. 7. Whilst CAMS is recognised as the authorised organisation appointed by FIA in Australia in relation to motor sport, in 2004 CAMS entered into an arrangement with Vee 8 Supercars Australia Pty Ltd, formerly known as Australian Vee Eight Supercar Company Pty Ltd [ACN 077 053 484] ("AVESCO") authorising AVESCO to undertake all aspects of conducting V8 supercar events in Australia. AVESCO was at all material times a company duly incorporated with its registered office located at Level 1, 64 Marine Parade, Southport in the State of Queensland. 8. Touringcar Entrants Group Australia Pty Ltd [ACN 069 655 269] ("TEGA") is and was a majority shareholder in AVESCO. TEGA is a company duly incorporated with its registered office located at Level 1, 64 Marine Parade, Southport in the State of Queensland. TEGA was responsible for procuring the supply of V8 supercars, teams and drivers in relation to motor sports events organised by AVESCO. TEGA was also responsible for the organisation and administration of the franchise systems in relation to V8 supercars, teams and drivers, the determination of amounts relating to appearance and prize money and the provision of technical resources and assistance in relation to motor sports events organised by AVESCO. 9. At relevant motor sports events, TEGA provided the technical category director, Paul Gregory Taylor ("Taylor") and his assistant, Steven Davy Brow ("Brow") In certain circumstances, participants at such events were unable to distinguish whether Taylor and Brow were representatives of TEGA or AVESCO and vice versa. On 21 February 2004, Brow and Taylor, both employees of TEGA, were present at the Raceway. 10. Wakefield Park Management Pty Ltd [ACN 093 720 140] ('Wakefield") owned and operated the Raceway and provided the physical and associated facilities and personnel, including security. Wakefield was a company duly incorporated with its registered office located at 21 Lucinda Avenue, Wahroonga in the State of New South Wales. 11. Wakefield organised and promoted various motor sports events at the Raceway, including the Konica Minolta V8 Supercar Series held at the Raceway on 20, 21 and 22 February 2004. That event was conducted under the auspices of CAMS, AVESCO and TEGA. 12. The Konica Minolta V8 Supercar Series is run with a mixture of volunteers and paid employees. The scrutineers and stewards, who are volunteers, examine vehicles to ensure that they comply with pre-set conditions and rules for the category of vehicle as set down by the FIA. CAMS is the national Australian body responsible for ensuring that the FIA conditions and rules are adhered to. In certain circumstances, CAMS contracts with separate organisations to implement the requirements of the conditions and rules at race tracks and motor sport events. In the case of V8 supercars CAMS, together with TEGA, have entered into a Deed of Acknowledgement whereby AVESCO runs these events. 13. AVESCO entered into a Sanction Agreement in September 2002 with Wakefield for the provision of facilities and personnel at the Raceway for the purpose of holding Konica Minolta V8 Supercar motor sports events at the Raceway. 14. The incidents that are the subject of the charge against the defendant occurred: a. on 21 February 2004 at the Raceway; and b. at the first Round of the 2004 Konica Development Series (the Wakefield Park Event). 15. On 20 February 2004, at the Raceway, an examination was undertaken by the scrutineers and stewards of the V8 supercar vehicles present to participate in the Konica Minolta Supercar series at the Raceway. The scrutineering revealed that some of the vehicles had on board fire extinguishers that were not compliant in that the on-board fire extinguishers in the vehicles had not been serviced and re-certified for more than 2 years. The vehicles containing the non-compliant fire extinguishers included vehicles belonging to the motor sport teams headed by Brian Phillip Eggleston ("Eggleston") and Ralf Rupprecht ("Rupprecht"). 16. As a result of the identification of the non-complaint fire extinguishers in a number of vehicles, a meeting took place between AVESCO representatives, Taylor of TEGA and the team managers of the racing teams in an attempt to address the problem. As a result of that meeting arrangements were made for the defendant to travel from Melbourne to attend the Raceway to service the fire extinguishers on site, as out of service and non-compliant fire extinguishers would disqualify the vehicles from competing. 17. The manufacturer of the on-board fire extinguishers was a company based in Coventry in the United Kingdom called Lifeline Fire and Safety Systems Ltd ("Lifeline"). The defendant was one of only two businesses in Australia that had been authorised by Lifeline to service and maintain its on-board fire extinguishers, the other business being Go Gear International Pty Ltd located at Perth in the State of Western Australia. 18. Sometime before 9.00 am on 21 February 2004, the defendant arrived at the Raceway and gained entry to the restricted garage of area of the V8 supercar teams at the Raceway. The defendant used a card pass, also known as a hard pass, issued by AVESCO to gain entry to the Raceway. The pass also allowed the defendant entry into the restricted areas for officials and motor sport participant team members, including the garage area adjacent to the pit lane. The garage area consisted of a number of tents adjacent to the pit lane. 19. The defendant was accompanied by an AVESCO representative when he attended the garage area. The AVESCO representative organised the V8 supercar teams who had non-compliant on-board fire extinguishers to line up with their fire extinguishers in and in the vicinity of the tent in the garage area allocated to Rupprecht's team. There were approximately 10-12 people in the vicinity of Rupprecht's tent at the time. Also present was Steven Davy Brow ("Brow"), an employee of TEGA holding the position of Assistant Category Technical Commissioner. 20. The first practice session of the day at the Raceway was scheduled for 10.00 am on 21 February 2004 and it was hoped that the defendant would be able to service, re-charge and re-certify the non-compliant on-board fire extinguishers before this practice session. Rupprecht said to the defendant that he should be working in a concealed room by himself rather than with a lot of people around him. The defendant said to Rupprecht "I know what I am doing. If you want your fire extinguisher checked, leave me to my job." Rupprecht then told his people who were close to the area to move away (Attachment 1, Interview with Rupprecht dated 24 November 2004, Qs 38, 42). There were approximately 10-12 people in the vicinity of the Rupprecht team garage (tent) at the time the fire extinguisher was being serviced. There were a number of team representatives lined up waiting to have their fire extinguishers tested and re-charged. Whilst the team members were waiting in the vicinity of Rupprecht's tent with their fire extinguishers, they were requested by the defendant to remove the detonators. 21. The defendant began recharging and re-pressurising a fire extinguisher and shortly afterwards, whilst it was being serviced by the defendant, the fire extinguisher exploded causing injury to the defendant. The defendant was attended to by on site medical staff and then was conveyed to Goulburn Base Hospital for treatment. 22. As a result of the incident involving the defendant, the Eggleston and Rupprecht teams arranged for the Eggleston team manager, Matthew Hunt ("Hunt"), to drive to Sydney and purchase new compliant on-board fire extinguishers for those teams' vehicles. A representative from CAMS, Bruce Keys, attempted to obtain permission for an extra practice session to take place later in the day to accommodate those teams who were making alternative arrangements to obtain compliant fire extinguishers for their vehicles. The request for an extra practice session was refused by AVESCO. 23. AVESCO was aware of the arrangements made by Hunt to source compliant fire extinguishers from Sydney for the Eggleston and Rupprecht racing teams. 24. Later in the afternoon at approximately 4.00 pm, on 21 February 2004, the defendant returned to the Raceway with a bandaged arm and leg. The defendant again used the card pass, also known as a hard pass, issued by AVESCO to gain entry to the Raceway and the garage area adjacent to the pit lane. 25. Upon his return to the Raceway from the hospital, the defendant made his presence known to Brow of TEGA and AVESCO representatives. The defendant stated his intention of continuing to test and recharge the remaining fire extinguishers. Brow voiced his concerns to the defendant regarding the safety of continuing the testing and recharging of the fire extinguishers. The defendant then went to the garage area where the first incident occurred in the vicinity of the Rupprecht race team's tent at the garage area adjacent to the pit lane of the Raceway. 26. The defendant then proceeded to the adjacent tented garage area occupied by the Eggleston motor racing team. Due to the injuries sustained by the defendant earlier in the day, he was unable to undertake the testing and recharging of the fire extinguishers himself and instructed two members of the Eggleston racing team, namely Eggleston and Glenn Robert Simmons ("Simmons") to carry out the task under the defendant's direction. Also present were Lindy Eggleston, Beth Eggleston, Jeremy Bird and two scrutineers, namely Kerry Butcher and Jim Gardiner. 27. Whilst the defendant was instructing Eggleston and Simmons how to recharge and re-pressurise the fire extinguisher, the fire extinguisher exploded causing injuries to both Eggleston and Simmons (Attachment 2 is the description of Eggleston of what occurred in an interview dated 25 November 2004). 28. Eggleston sustained a crushed hand with permanent loss of use of the right hand, his jaw was broken in several places, and an immobilised shoulder with permanent movement restriction. Simmons sustained a fractured wrist which required the insertion of plates and screws. Simmons' injuries have necessitated surgery on his hand on 4 occasions and he has suffered damage to the radial nerve in his right hand affecting feeling and sensitivity to the thumb. Simmons has also suffered hearing loss with constant ringing in the ears and post traumatic stress syndrome. 29. Subsequent expert testing of the fire extinguishers which exploded suggested that the most probably cause of the explosions was over pressurising and that this resulted from either inadequate equipment, operator error or a combination of both (Attachment 3 is a copy of the report of Anthony Martin dated 31 January 2006). 30. Mr Bruce Keys (Keys) was employed by CAMS as the Manager - Medical and Safety Services. Keys was responsible for the administration of CAMS' safety and medical requirements in relation to motor racing events conducted under the auspices of CAMS. At some stage during the evening of 20 February 2004, Keys offered assistance in sponsoring a mid weekend rule change to allow those with non complying fire extinguishers to race – this was not permitted by AVESCO as its representatives "were very fixed in their attitude". He was present at the Raceway on 21 February 2004 to gain an overall impression as to how motor racing at that venue was conducted. He had no specific role in connection with the event. Keys was accredited by Wakefield as an official of the event. As a staff member of CAMS, he held an accreditation which allowed him access to all areas of the event. 31. Keys was not aware of the defendant's presence on site to recharge fire extinguishers before the first incident. After the first incident and being made aware of it sometime after the incident had occurred, Keys proceeded to the incident site with the Wakefield general manager. At the time they arrived, all traces of the incident had been removed. Keys was advised that a party was injured and taken to hospital and the motor race meeting was continuing. Keys was made aware of the second incident after he had left the Raceway and received a telephone call suggesting he return to the Raceway. Keys returned. Subsequent to the two incidents, 35 photographs were taken and Mr Keys has provided a description of the photographs (Attachment 5 photographs and descriptions). 32. The servicing of fire extinguishers at the Raceway was not a usual activity as such servicing is usually conducted in a controlled environment. No risk assessment or safe work method was undertaken in relation to the task. 33. The defendant co-operated with WorkCover during the investigation of the incidents. 34. The defendant has no prior convictions for occupational health and safety matters. 4 Other documents were tendered, including victim impact statements provided by Mr Brian Eggleston and Mrs Lindy Eggleston. No evidence was called in the defendant's case, but various uncontested factual material was put on instructions by his counsel. No objection was taken to that course, in the circumstances of this case. Accordingly, I have had regard to the matters brought forward in that way. 5 That material went to circumstances in which Mr Lansdown had no recollection of what had occurred in relation to the second explosion; his history of employment as a fire-fighter; his years of volunteer work as a member of the Volunteer Fire Service in Victoria, prior to moving to Queensland in 2006; as well as his business in the sale of fire rescue and outdoor equipment, as well as contracting for the supply, installation and maintenance of fire equipment, including for the International Motorcycle Grand Prix in Phillip Island for five years and his training and education in first aid, fire fighting and public safety. 6 It was common ground that this was Mr Lansdown's first offence under the Act. It was not disputed that he had no other criminal convictions. The parties' cases 7 The parties were agreed that the maximum penalty for this first offence was $55,000. Both parties submitted that in terms of parity, it would be open to conclude that Mr Lansdown was less culpable for what had occurred than was the defendant AVESCO, (see Inspector Drewsen v Vee 8 Supercars Australia Pty Limited [2006] NSWIRComm 331). 8 It was Mr Lansdown's case that his situation was akin to that of the defendant CAMS, which like him had been charged with one offence, which encompassed both explosions (see Inspector Drewsen v Confederation of Australian Motor Sport Ltd [2006] NSWIRComm 388). It was also submitted that in determining penalty, especially in considering the question of specific deterrence, account would be taken of the fact that Mr Lansdown had himself suffered considerable injury (see R v Noble and Verheyden (1996) 1 Qd:R 329 at 330-1). Consideration 9 Consistently with the Crimes (Sentencing Procedure) Act 1999, the penalty here to be imposed, must be fixed having regard to the nature and seriousness of the offence in question, together with aggravating and mitigating factors. In this case, I am satisfied that the evidence demonstrated, to the requisite degree, that the offence charged was proven and that the plea was properly entered. Most regrettably, the two separate explosions which occurred on the same day were the result of serious and obvious safety risks. 10 On the evidence the work of recharging fire extinguishers such as those which here exploded, was usually undertaken in quite a different setting - in a workshop where Mr Lansdown had his own equipment. On this occasion the work was undertaken under time pressure, in a tent using equipment which belonged to other people, who used it for different purposes and where safety measures, such as performing the operation in a safety cage, were not implemented. 11 Mr Lansdown was one of only two people in Australia authorised to undertake this work. He was the person with the relevant expertise, brought to the racetrack to ensure that various race teams had fire extinguishers which complied with the applicable safety requirements. It was not disputed that at the trackside before the first explosion, the safety of undertaking the work in a trackside tent, rather than in a 'concealed room' by himself, was raised directly with Mr Lansdown by Mr Rupprecht. Mr Lansdown asserted that he knew what he was doing. He proceeded to perform the work, using a nitrogen bottle belonging to one of the teams, which was used to change tyres, without reducing the pressure of the regulators. Almost immediately, there was an explosion, in which Mr Lansdown was so seriously injured, that he had to be taken to hospital. 12 While Mr Lansdown could not recollect what occurred in connection with the second explosion, it was not disputed that after Mr Lansdown's return to the racetrack later that afternoon, Mr Rupprecht again raised the question of safety with him, saying 'I have warned you before you can't do this in an open space and you can't use other people's equipment without checking what the pressure on the regulators are'. Mr Lansdown, nevertheless, went to another tent and offered to repressure Mr Eggleston's fire extinguisher, telling him 'I'm not going to let this beat me and I have to do this but I have a broken arm so you will have to do what I tell you.' Regrettably, Mr Eggleston agreed, even though a new fire extinguisher was about to arrive from Sydney. There was time pressure, because Mr Eggleston needed to be able to get onto the track in order to qualify for the next day's race. 13 Despite encountering problems in successfully undertaking the process, Mr Lansdown and Mr Eggleston persisted with their efforts. Mr Eggleston felt that 'something just didn't gel', but the work was still continued and there was a second explosion. The subsequent expert assessment was that the most probable cause of the two explosions was overpressuring, as the result of inadequate equipment, operator error, or a combination of both. 14 In light of this evidence, Mr Lansdown's entry of the plea can be seen to have been a proper one. He had the expertise, he selected the equipment used and he controlled the operation being undertaken on both occasions. His initial approach was plainly not consistent with considerations of safety. His return to the track and his insistence on trying to recharge a second fire extinguisher after the first explosion must be regarded as entirely inconsistent with any proper attention being paid to safety considerations. This makes the offence a more serious one than would have been the case, if he had not persisted. While Mr Lansdown cannot recall what occurred in connection with the second explosion, the agreed evidence suggested that he was lucid and intent on persisting with the operation, even though too injured to undertake the work alone and so attempted the work with Mr Eggleston's assistance. 15 In submissions, it was put that Mr Lansdown had been treated with pethidine at the hospital. There was no evidence about the treatment Mr Lansdown received, or what effect, if any, such treatment might have had on his capacity to safely proceed with what he was doing. Nor was there evidence that the first explosion had affected his capacity to appreciate what he was about. Persisting with the recharging of a second fire extinguisher does not seem rational, given what had already occurred. Nevertheless, the undisputed evidence was that Mr Lansdown insisted on proceeding despite the question of safety being raised directly with him. 16 I am unable to accept, on the basis of all of this evidence, that in terms of parity, it could properly be concluded that Mr Lansdown had less culpability for what occurred this day, than did the defendant AVESCO. True it is that AVESCO could have dealt with the problems which the fire extinguishers presented that day in ways other than having Mr Lansdown undertake the work in question. The time pressure which, undoubtedly, influenced Mr Eggleston in agreeing to assist Mr Lansdown, was no doubt created by AVESCO, which could have taken a different course. 17 Mr Lansdown, however, also had safety obligations. He could have declined to undertake the work, if it could not have been performed safely in the circumstances prevailing at the track. He was the one with the expertise in the work. It was he who decided to undertake the work, utilising equipment other than in his own, at a location not equipped with a safety cage. It was, no doubt, in his commercial interests to do so. Despite the patent deficiencies of his first attempt to recharge a fire extinguisher with the equipment available, he later returned to the racetrack and attempted to recharge a second fire extinguisher, even though he was too injured, to undertake the work himself. This resulted in the unfortunate injuries which Mr Eggleston and Mr Simmons suffered. By that stage, even if there had been the slightest doubt about the safety of the operation at the outset, that doubt must have been removed, by the first explosion. Despite this, a further attempt to undertake the work was made. I am satisfied that this situation does not leave open the conclusion that AVESCO had greater culpability for what here occurred, than did Mr Lansdown. Like AVESCO he had an obligation to ensure safety. He utterly failed to do so. 18 In fixing penalty account must of course be taken of the fact that AVESCO was charged with two offences, the penalties for which were fixed in part by application of the totality principle. Only one charge was finally pressed against Mr Lansdown, the charge dealing with both explosions, as did the charge to which the defendant CAMS had earlier entered a plea. Mr Lansdown was also himself injured in the first explosion. All of these matters must be taken into account, in determining penalty in this case. Nevertheless, it cannot be overlooked that this was a serious first offence, on any view. The risk involved in the work being undertaken was foreseeable, indeed, it had materialised, before the second explosion. The risk was the risk of serious injury, which in fact resulted. There were also obvious steps which could have been taken to remove the risk. 19 On the evidence, I am satisfied that specific and general deterrence have a role to play in the penalty here to be imposed. General deterrence because of the widespread use of fire extinguishers throughout industry and the need to repair and maintain them. Specific deterrence because Mr Lansdown continues to operate his business, albeit these events have had a negative impact on its success. In the circumstances, I cannot accept that the need for specific deterrence was reduced by the fact that Mr Lansdown was himself injured. It was not only he who was at risk of injury in the steps taken which led to the first explosion. Despite having been injured in that explosion, thereby his attention having been so graphically drawn to the risk of what he was undertaking, he later returned to attempt to recharge a second fire extinguisher. In those circumstances, I take the view that the role of specific deterrence cannot be reduced in the penalty imposed in this case. 20 As to mitigating matters, I note that apart from contrition which might be reflected by entry of the plea, no evidence was led as to such matters. Nor was there any suggestion that any steps have been taken by Mr Lansdown to assist those injured, or to alter the approach which he had earlier taken to safety matters, in the business which he continues to pursue. No evidence was led to suggest that any steps were taken after this day by Mr Lansdown, to ensure that the events which had occurred could not be repeated. The Court was not addressed on anything relevant to such considerations, a quite different picture to that of the other two defendants. 21 Mr Lansdown still operates his business, notwithstanding that these events have had a deleterious effect and that he has now relocated to Queensland. His business now operates only at about 40% of its former level. It follows that but relatively little was led by way of mitigation of this offence. 22 Otherwise, it was submitted for Mr Lansdown and accepted by the prosecutor, that the defendant's record and his years of work in fire fighting, evidenced preceding good citizenship. I accept that submission, although noting that while a record of no offences under the Act was plainly a good one, there was no evidence as to how long the business in question had been conducted. Nevertheless, these are matters to which I have paid attention in fixing the penalty here to be imposed. I have also taken account of Mr Lansdown's acknowledged co-operation with the prosecutor. Victim Impact Statements 23 Victim impact statements made by Mr Brian Eggleston and his wife, Mrs Lindy Eggleston were also tendered without objection. They were both present in Court when the matter was heard. 24 Sections 27 and 28 of the Crimes (Sentencing Procedure) Act 1999, provide for the provisions of such statements, in cases where the offences result in actual physical bodily harm. 25 I was satisfied that to receive the statements was appropriate in the circumstances of this case. The statements outlined the serious physical and psychological injuries Mr Eggleston has suffered and the consequences resulting for he and his family. The various medical reports attached to Mr Eggleston's statement put into context the harm he continues to suffer as a direct result of the offence here in question. 26 In R v Mansour (1999) 29 MVR 409, Spigelman CJ explained when dealing with a victim impact statement which had led the trial judge to comment on the 'immeasurable grief' of the family of the deceased victim that: It is entirely appropriate that trial judges acknowledge the impact of crime on victims and their families in this public way. The purposes of the criminal justice system are well served by such public recognition of the grief imposed on families of victims. 27 In this case, there was no issue that the risk to which Mr Lansdown himself, as well as Mr Simmons and Mr Eggleston were exposed, was the risk of serious injury. Most regrettably such injury materialised for each of them. Given the evidence, it was apparent that the injuries which they each suffered could have been even more serious than they in fact were. 28 In the circumstances, I took the view that a just exercise of the discretion given by s 28 of the Crimes (Sentencing Procedure) Act 1999 involved the receipt of these statements and I have accordingly considered them consistently with the legislative scheme. The effect of the legislation is that no matter how serious the injuries which have most regrettably been suffered, the receipt of Mr and Mrs Eggleston's statements, cannot lead to the imposition of a higher penalty than would have been imposed, in the absence of such evidence. Their receipt, nevertheless, is a proper, public, recognition by the Court of the explanations given by Mr and Mrs Eggleston, of what has had to be endured, as the direct consequence of this offence. As the Chief Justice explained, in this way the Court publicly acknowledges the awful impact which the offence has had. Penalty 29 I accept that this plea was entered immediately upon the amended charge being filed in Court, but note that this occurred only on the first day of a hearing long fixed, in circumstances where two co-defendants had already entered a plea and had been dealt with. That development was only communicated to the Court on the Friday preceding the hearing. While, as the prosecution accepted, significant utilitarian savings were achieved as a result, I cannot take the view that a discount of 25% properly reflects the savings achieved in this case by entry of that plea. In all of the circumstances, I have concluded that a discount of 22% is a proper reflection of the utilitarian savings achieved. In arriving at that figure, I note that I adopted the approach discussed in Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 at [29] to [31] and Inspector David Waterhouse v Innovative Property Developments Pty Ltd and Others [2006] NSWIRComm 97 at [64] to [67]. 30 The penalty which I concluded was appropriate in this case having weighed the various matters mentioned is, $12,750. Orders 31 For the reasons given, I find the defendant guilty of the charge to which the plea was entered. Trevor Francis Lansdown is ordered to pay a penalty of $12,750 in Matter Number IRC 799 of 2006, with a moiety to the prosecutor. 32 I also order the defendant to pay the prosecutor's costs as agreed, or in the absence of agreement, the matter may be referred to the Registrar for assessment. The parties have liberty to approach in that respect. ------------------------ 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.