Industrial Court of New South Wales CITATION: Inspector Jennifer Short v The Crown in the Right of the State of New South Wales (NSW Police) [2007] NSWIRComm 138 PROSECUTOR Inspector Jennifer Short PARTIES: DEFENDANT NSW Police FILE NUMBER(S): 689 of 2006 CORAM: Boland J CATCHWORDS: Occupational health and safety - Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 - Plea of guilty - Injuries to police officers - Riot - Failure to provide adequate personal protective equipment - Failures to provide adequate training, information and supervision - Objective and subjective considerations - Whether appropriate to make orders under s 116 of Occupational Health and Safety Act 2000 - Whether orders should be made under s 10 or s 10A of Crimes (Sentencing Procedure Act) 1999 - Whether a requirement to consider general deterrence - Penalty imposed Occupational Health and Safety Act 2000 s 8(1), s 12, s 116 LEGISLATION CITED: Industrial Relations Act 1996 s 164A, s 164A(1)(c) Crimes (Sentencing Procedure) Act 1999 s 10, s 10A, s 17 Cahill v State of New South Wales (NSW Police) No 2 [2005] NSWIRComm 400 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Day v Smidmore (No 2) (2005) 149 IR 80 CASES CITED: Haynes v C I & D Manufacturing Pty Limited (No 2) (1995) 60 IR 455 Inspector Covi v The Crown in the Right of the State of New South Wales No 2. [2004] NSWIRComm 400 Inspector Legge v Intercast & Forge Pty Limited [2006] NSWIRComm 182 WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 HEARING DATES: 16 May 2007 DATE OF JUDGMENT: 6 June 2007 PROSECUTOR Mr J Agius SC with Mr R Reitano of counsel Solicitor: Ms Paola Blackmore WorkCover Authority LEGAL REPRESENTATIVES: DEFENDANT Mr M Neil QC with Mr M Spartalis of counsel Solicitor: Mr A Popov Legal Services, NSW Police JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: BOLAND J 6 June 2007 Matter No IRC 689 of 2006 Inspector Jennifer Short v The Crown in the Right of the State of New South Wales (NSW Police) Application under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 138 1 Between about 3.20 pm on 15 February 2004 and about 4.30 am on 16 February 2004, NSW Police ('the defendant') required police officers to attend an area bounded by Cleveland, Abercrombie, Lawson, Vine, Eveleigh, Louis and Caroline Streets, including Redfern Railway Station, in Redfern in the State (an area known as 'the Block'), in order to perform work described as "dealing with unplanned civil disorder", otherwise known as the 'Redfern Riot'. 2 Some 217 officers, employees of the defendant, attended the incident. Each of the officers was not present during the whole of the incident but was present for a substantial period of time. Whilst attempting to contain the crowd and restore public order, some 42 employees sustained various injuries ranging from psychological damage to bruising, cuts, abrasions and at least one employee was rendered unconscious. 3 The defendant was subsequently prosecuted by Inspector Jennifer Short of the WorkCover Authority of New South Wales for breach of s 8(1) of the Occupational Health and Safety Act 2000, which provides: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 4 It was alleged in the Application for Order that the defendant: [D]id between about 3:23 pm on 15 February 2004 and about 4:30 am on 16 February 2004 at the area bounded by Cleveland, Abercrombie, Lawson and Vine Streets Redfern in the State of New South Wales fail to ensure the health, safety and welfare at work of all of its employees, and in particular those whose names are set out in Annexure "A" hereto [Annexure "A" contained the names of 217 officers], contrary to section 8(1) of the Occupational Health and Safety Act 2000. The particulars of the charge are: (a) The defendant was at all material times an employer. (b) Between about 3:23 pm on 15 February 2004 and about 4:30 am on 16 February 2004 all of the persons whose names who are set out in Annexure "A" were employees of the defendant. (c) The defendant required all of the employees to attend at the Block in order to perform work, which work involved dealing with unplanned civil disorder, the management of a riot, restoration of public order and crowd control. (d) The Defendant failed to ensure the health, safety and welfare at work of its employees in that it failed to provide such personal protective equipment to the employees so as to ensure their health, safety and welfare at work. (e) The Defendant failed to ensure the health, safety and welfare at work of its employees in that it failed to provide sufficient instruction, information and training to its employees in the use of and the proper operation of personal protective equipment so as to ensure their health, safety and welfare whilst at work. (f) The Defendant failed to provide adequate training, information and instruction to the employees in relation to dealing with the unplanned civil disorder at Redfern on the 15 and 16 February 2004 so as to ensure their health, safety and welfare at work. As a result of the said failures, its employees were placed at risk of injury and some employees were injured. The defendant pleaded guilty to the charge. Evidence 5 Tendered in the proceedings was an agreed statement of facts. There were a number of annexures and schedules to the agreed statement. These were as follows: Annexure A - names of employees who were present at the incident. Annexure B - colour photographs of the location of the scene of the incident taken by Inspector Short. Annexure C - a report dated 22 March 2003 describing the personal protective equipment that was carried in a police vehicle ('RF 14') attached to the Redfern Local Area Command that was out of date, worn or broken and in need of replacement. Annexure D - colour photographs taken by Inspector Short showing old and new personal protective equipment used by police. Annexure E - a weekly inspection report in relation to vehicle RF 14 dated 15 February 2004 on the serviceability of the vehicle and its contents. Annexure F - Final Report Part A. Analysis - Redfern Local Area Command. Civil Unrest 15-16 February 2004. The schedules referred to particulars of the charge and named the individual police officers to whom the particulars related. In addition to the agreed facts and the attachments thereto the prosecutor tendered a record of the defendant's prior convictions. 6 For the defendant six volumes of material were tendered. The material was as follows: Volume 1 - Statement and evidence of Superintendent Catherine Burn, Local Area Commander, Redfern. The Statement dealt with "Strategies to enhance Policing in Redfern", "Standard Operating Procedures for Redfern LAC, May 2006", "Standard Operating Procedures for Redfern LAC, March 2004" and a Report submitted by Superintendent Burn as to the response at Redfern LAC since the incident in February 2004. Volume 2 - Redfern Riots: Offences and criminal proceedings. This volume detailed the charges laid against individual persons (mainly under the Crimes Act 1900) involved in the riot and the outcome for those persons. Volume 3 - Statements by 15 officers regarding the incident and other relevant documents. Volume 4 - Current Training in Public Order: Policing and Equipment. Volume 5 - Submissions on Improvement Plan under s 116 of the Occupational Health and Safety Act 2000. Volume 6 - Additional statements filed on behalf of the Commissioner of Police. There was no requirement for any person to be cross-examined. 7 In relation to parts of the material tendered by the defendant, Mr M Neil QC sought a non-disclosure order. Those parts were as follows: · Volume 1 in its entirety. · Volume 3 in respect of the statements by members of NSW Police behind tabs 1, 2, 3, 4, 8, 11 and 14, which describe certain equipment and its operational use by Police; the whole of the document behind tab 17 which includes the name and contact details of members of the NSW Police. · Volume 4 in its entirety. · Volume 5 in relation to the submission at pages 10-12, which refer to operational safety standards in riot situations, and pages 13-15 of the submission which refer to standards for public order management personal protective equipment; and, the whole of the document behind tab 6 which is the NSW Police Incident Command and Control System. 8 Section 164A of the Industrial Relations Act 1996 provides: 164A Powers of Commission as to the disclosure of matters before the Commission (1) A non-disclosure order is any of the following orders: (a) an order prohibiting or restricting: (i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Commission or a witness summoned by, or appearing before, the Commission), or (ii) the doing of any other thing that identifies, or may lead to the identification of, any such person, (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Commission, (c) an order prohibiting or restricting the publication of evidence given before the Commission, whether in public or in private, or of matters contained in documents lodged with the Commission or received in evidence by the Commission, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Commission, or of the contents of a document lodged with the Commission or received in evidence by the Commission, in relation to the proceedings. (2) The Commission in Court Session may make any non-disclosure order if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. (3) The Commission (other than in Court Session) may make any non-disclosure order only if: (a) in relation to proceedings under Subdivision 2 of Division 2 of Part 7 of the Commissioner for Children and Young People Act 1998 — it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, or (b) in relation to any other proceedings—it is satisfied that it is necessary to do so in the interests of justice. (4) The Commission may from time to time vary or revoke an order it has made under this section. (5) Nothing in this section operates to limit any power of the Commission in Court Session apart from this section to make a non-disclosure order or any other order prohibiting or restricting the disclosure or publication of matters before the Commission. 9 Given the nature of the material in respect of which the non-disclosure order is sought, such an order would be made under s 164A(1)(c). I have had regard to what the Full Bench said about s 164A in Day v Smidmore (No 2) (2005) 149 IR 80, both in relation to the width of the power it provides to the Court to make orders under that provision and how it should be applied. I have looked closely at the material in respect of which the order is sought and I am satisfied that it is desirable to make the order by reason of the confidential nature of the material. The material discloses matters of an operational nature that I consider should remain confidential. I, therefore, propose to make the following orders: (1) Pursuant to s 164A(1)(c) of the Industrial Relations Act 1996, publication of the following parts of the exhibit marked "1" in these proceedings (consisting of six looseleaf folders) is prohibited and shall not be removed from the file for any reason until further order of the Court: (i) Volume 1 in its entirety. (ii) Volume 3 in respect of the statements by members of NSW Police behind tabs 1, 2, 3, 4, 8, 11 and 14, which describe certain equipment and its operational use by Police; the whole of the document behind tab 17 which includes the name and contact details of members of the NSW Police. (iii) Volume 4 in its entirety. (iv) Volume 5 in relation to the submission at pages 10-12, which refer to operational safety standards in riot situations, and pages 13-15 of the submission which refer to standards for public order management personal protective equipment; and, the whole of the document behind tab 6 which is the NSW Police Incident Command and Control System. (2) The terms of order (1) hereof shall be displayed prominently on the face of the file. Agreed facts 10 The Agreed Statement of Facts is a lengthy one so I have chosen to annex it to this decision. Of particular relevance though, are the following facts relating to the incident itself, which give some idea of the seriousness of the situation and the risks confronted by police as the violence escalated throughout the evening: · The beginning of the incident was marked by a number of projectiles being thrown at a police vehicle marked Redfern 450, being an unmarked police vehicle. · The defendant was asked to attend the area and to perform low impact, high visibility policing in an effort to deter any criminal activity. The defendant's response to the situation was to keep it as low key as possible. · At approximately 7pm, the roller shutters at Redfern Railway Station were closed due to the public disturbance in the vicinity. · The seriousness of the disturbance escalated considerably and at approximately 9pm, approximately 20 to 30 persons began running towards the defendant's employees who were present throwing bricks, bottles and other objects. As a result, at approximately 9.04 pm Sgt Wayne Baxter called a Signal 1, being a signal used in a life threatening situation which is broadcasted on VKG and to other police and transmitted over all radio messages on the computerised incident dispatch system. · At approximately 9pm, Sgt Baxter requested that Senior Constable ('S/C') Wright obtain the protective equipment from RF14 and commenced distribution of RF14 Personal Protective Equipment ('PPE') to those present. The RF14 PPE comprised of 2 helmets, 5 shields and 4 ballistic vests. S/C Wright then directed a constable to contact Redfern station and gather riot gear (RSRG) in Redfern storeroom and deliver to the Command Post. Some of the said equipment was defective. · At approximately 9pm, City Rail evacuated the Redfern Railway Station. · At approximately 9pm, the crowd attempted to set Redfern Railway Station alight. · At approximately 9pm the RSRG was delivered to the command post and distributed to about 7 or 8 police who then formed a line across the southern side of Lawson Street. · S/C Crowe and S/C Snowden went and got the Operational Support Group ('OSG') equipment truck from the Sydney Police Centre ("SPC") and took it to the Command Post. They arrived at approximately 9.50pm. They deployed all the equipment on the truck which included approximately 18 shields, a tub of leggings, 12 resistant vests and 18 helmets. · By approximately 1am the crowd had increased in size to in excess of 100 people. During this time, the crowd continued to attempt to break into Redfern Railway Station, forcing steel grills from the wall and then using them as weapons. The crowd threw explosive devices similar to Molotov cocktails and fireworks at the employees at that location. Persons filled 'wheelie bins' with flammable material, which were ignited and pushed towards police. · The crowd at the intersection of Eveleigh and Lawson Streets threw projectiles at the employees present at that location. At approximately 1am, an employee in full OSGPPE was knocked unconscious when he was hit on the helmet with a brick. · The violence escalated and a fire hose was deployed by order of Superintendent Smith against the crowd. · At approximately 2am, attempts to set fire to Redfern Railway Station continued. · By approximately 2am, the fire in the ticket office of the Redfern Railway Station was brought under control by the Fire brigade. · At 2.30am Sgt O'Riordan, the OSG assistant co-ordinator arrived at which time, there were twenty three OSG trained personnel with OSGPPE on the police line. · The crowd was brought under control at 3.40am. 11 The Operational Support Group is a specialist group of employees specifically trained and specialised in dealing with crowd control and riots. Employees attached to the OSG are on call on a voluntary basis. Approximately 34 employees attached to the OSG were called to the incident. Most of them were not aware of any Standard Operating Procedure that applied to the Block. 12 The agreed facts also dealt with the issue of personal protective equipment ('PPE'). As the statement acknowledged some of the injuries to the defendant's employees were sustained because they were not provided with any or any adequate PPE. The RF14PPE was incomplete and inadequate for the purpose of totally protecting the employees and/or poorly maintained. The defendant knew of the deficiencies in the RF14PPE from at least March 2003. 13 Moreover, it was acknowledged that the riot gear ('RSRG') was obsolete and kept in a storeroom. Whilst Sgt Wright deployed that equipment to protect the employees it was incomplete and inadequate for the purpose of totally protecting the employees present and/or poorly maintained. 14 The problems encountered with the PPE were described in the Agreed Statement of Facts. Some examples are as follows: · Sergeant Baxter wore one of the full sets of equipment from the RF14PPE and the other was worn by Acting Sergeant Wright. Sergeant Baxter was unable to lower the visor on his helmet as it was so scratched that he was unable to see through it. Later, the visor on the helmet partially broke off when an object hit his helmet. He could feel the impact of the bricks and the pavers being thrown on his shield and helmet. · Only OSG personnel were issued with fire retardant clothing. · Senior Constable Matthew Bennett arrived at the scene of the incident at approximately 11pm. He noticed that a number of the employees were in general uniform and a large majority of the employees had ballistics vests, but no head protection at all. There were employees wearing OSGPPE standing in a line formation, and people standing approximately 50 metres away from the line throwing glass bottles, rocks, and bricks at the employees. · Probationary Constable Roslyn Carroll from Holroyd Police Station was on general duties during the incident. She arrived at the scene of the incident at approximately 2am, and upon arrival she was not supplied with PPE until approximately 45 minutes after her arrival. The helmet from either RF14 PPE or RSRGPPE that she was issued with was too large for her and kept falling forward. She asked for a smaller one and initially she was given a helmet without a visor and then swapped it for one with a visor. She also found it difficult to breathe in the helmet and lifted the visor to help her breathe but it kept falling down. She was not present in the police line. · Senior Constable Crowe said that when wearing OSGPPE he received multiple bruising and swelling to the upper left torso and arm, also to his upper legs. He sprained his right ankle, as a result of being hit by projectiles. He was also hit on the back by the fire hose. He was injured between 10:00pm and 4:00am. He found that the OSGPPE he wore did not protect his arms, legs and quadriceps and extra padding to the upper arms and upper leg area was required. · Probationary Constable Davis was behind the police line without PPE. Persons throwing objects were beside and behind the police line. He was hit on the side of the face by a brick. He ran to seek cover. Constable Paton pulled him out and told him to see the ambulance. At the ambulance he was issued with PPE of a shield, shin guards, a ballistics vest and a helmet. · Leading Senior Constable Michael McGowan from Ashfield Police Station responded to the incident as a qualified OSG operative and arrived at the scene of the incident at approximately 11.45pm on 15 February 2004. He joined the police line at 11.55pm when he had OSGPPE including fire retardant overalls. At 2am while still wearing the OSGPPE he was struck on the head with a large object and was knocked unconscious and suffered severe concussion. This left him with whiplash type injury and bruising to his left shoulder and upper arm, headaches, fatigue, broken and chipped teeth, and loss of memory. He was unable to be left alone for 2 weeks following the incident as a safety measure. He was not able to drive or consume alcohol for one 1 month after the incident. He required further dental and psychological treatment. · Between approximately 9pm and 10pm on 15 February 2004 more PPE arrived from the Redfern Police Station storeroom. About 7 to 8 employees were suited up to form a police line with the available employees in PPE. Some of the PPE was defective in that the chinstraps on the helmets would not close. Some of the helmet face shields were scratched restricting vision out of the shields. Some of the hand shields were scratched restricting vision through the shields. Some of the handles of the shields were broken or cracked. Some of the leggings were unable to be secured due to damaged buckles and straps. The face shield of the helmet worn by Senior Constable Wright was so scratched that he was unable to see through it and it was hanging from one hinge so that he was unable to drop it down to protect his face. · Constable Peter Dziewior from City Central Transit Police attended the incident sometime after 9pm after hearing signal 1. Sometime after 9pm he arrived at the scene of the incident and saw a large number of persons hurling missiles at the employees and police vehicles. He saw broken rocks and bottles on the police vehicles and the whole area was littered with bottles, rocks, pavers and bricks. A large brick hit his leg and he felt extreme pain, which caused his leg to buckle. Later he was issued with OSGPPE and when he was on the police line the metal spring strap of the shield that held the shield onto his elbow fell off when the shield was hit. During the incident a missile hit his helmet and as a consequence he felt his neck snap back, and his mouth filled with small sharp items. He realised that they were parts of his teeth that had been chipped off. His facemask had clouded over constantly and he had to wipe it a number of times. At times he could not see clearly enough to see the missiles coming in order to dodge them. At one point he saw a large missile coming at his head so he raised his shield to intercept it, at the same time another missile was thrown hitting his inner right thigh, which caused him pain and he almost fell down, as he could not support his weight. The rubble beneath him made it difficult for him to walk. He could not look down to see where he was walking as he had to keep looking ahead to dodge missiles. Between around midnight and 1am his facemask fogged up again and as he tried to wipe it away, he felt three missiles hit his helmet in quick succession and he felt light headed. Another missile then hit him very hard in the front part of his helmet and he fell. He was treated for concussion by the ambulance officers at the scene of the incident and was given oxygen has he was having trouble breathing. He was taken to hospital. 15 The Agreed Statement stated that the PPE that was provided by the defendant was inadequate in various ways including: Helmets · a number of the RF14 and RSRG helmets had no visors. · some of their visors were scratched and visibility was restricted. · Some employees could not hear through some of the helmets. · At least one employee found it difficult to breathe in them. · Some helmets did not fit properly. · Some employees did not have helmets and had no head protection. Shields · Some employees had no shields so they wore their own ballistics vest. Leg Protection The straps on some of the protective leggings were: · broken and/or · kept coming off, so that the employees' legs were not protected, and there were leg injuries caused by thrown objects. 16 It was also stated in the Agreed Statement that some of the employees who were in attendance had not been trained or adequately trained in the use of PPE. Employees not trained in the use of PPE could not use it. Also, that not all employees in attendance at the incident had been trained or adequately trained in dealing with unplanned civil disorder. Not all employees who attended were aware of or had training in an SOP for dealing with an unplanned civil disorder. Not all employees who attended were aware of the SOP that specifically applied to the Block. 17 The Agreed Statement noted that following the incident the defendant conducted a review and a report was published as a result of this investigation that was known as the "Coburn Report". The report made wide-ranging recommendations in relation to the deficiencies that were found to exist in the defendant's response to what occurred on 15 and 16 February 2004. The Coburn Report identified the following: (a) The inadequacy of the PPE provided to the employees. (b) That a number of the employees who were in attendance were not familiar with the use of the PPE that was provided to them as they had not been trained in its use nor given information about its use. (c) It found that the incident at Redfern "highlighted opportunities to improve the level of training for Local Area Commanders, Duty Officers and Supervisors in site control, Command post management and public order management including riotous tactics and crowd behaviour". (d) Familiarisation training in riots and tactics should be introduced into recruitment training and it recommended a certain minimum level of training. (e) Other deficiencies that were identified as a result of the incident. 18 A copy of the Coburn Report was in evidence. The defendant has complied with the recommendations of the Coburn Report. Consideration 19 Both the prosecutor and the defendant helpfully provided a written outline of their submissions, which were supplemented orally. There is no need to recount those submissions, even in summary form, because the issues that present themselves for consideration in these sentencing proceedings, and which are addressed in the submissions, are familiar ones and do not diverge from those that usually arise in such proceedings, except for three matters. Those three matters are: (i) whether there is any requirement to consider general deterrence given the defendant's submission that NSW Police is, in effect, sui generis; (ii) whether the defendant is entitled to a consideration under s 10 or s 10A of the Crimes (Sentencing Procedure) Act 1999; and, (iii) whether the Court should make an order under s 116 of the Occupational Health and Safety Act for the offender to carry out a specified project for the general improvement of occupational health, safety and welfare and, if so, whether this should be taken into account in setting any penalty. I shall deal with these matters in due course. 20 I turn to the charge. It is alleged, and conceded by the defendant, that the defendant failed in its duty to ensure the health and safety of its employees present at the incident on 15 and 16 February 2004 in three respects. First, that the defendant failed to provide such personal protective equipment to the employees, in particular those referred to in Schedule B to the Agreed Statement of Facts, so as to ensure their health, safety and welfare at work. Secondly, that the defendant failed to ensure the health, safety and welfare at work of its employees, in particular those referred on in Schedule C to the Agreed Statement, in that it failed to provide sufficient instruction, information and training to its employees in the use of and the proper operation of personal protective equipment so as to ensure their health, safety and welfare whilst at work. Thirdly, that the defendant failed to provide adequate training, information and instruction to the employees, in particular those referred on in Schedule D to the Agreed Statement, in relation to dealing with the incident so as to ensure their health, safety and welfare at work. 21 The charge, including each of the particulars, needs to be considered in the light of a "well established body of principles that have been developed by the courts over a long period of time". In Inspector Legge v Intercast & Forge Pty Limited [2006] NSWIRComm 182 I identified matters to which the Court should have regard in sentencing proceedings in this jurisdiction and I consider they provide a useful guide in these proceedings: 25 In the sentencing process in this jurisdiction there are a number of core matters (putting aside issues such as parity and totality, which will arise for consideration in individual cases) that must be consistently taken into consideration by the sentencing judge, in addition, of course, to those matters set out particularly in ss 21A and 22 of the Crimes (Sentencing Procedure) Act 1999 and s 6 of the Fines Act 1996. As to the relationship between the core matters that have been developed in this jurisdiction and the matters going to aggravation, mitigation and other factors identified in s 21A (1) of the Crimes (Sentencing Procedure) Act , it was stated in R v Way (2004) 60 NSWLR 168 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). 26 The core matters are as follows: (1) The maximum penalty for the offence: Careful attention should be given to the maximum penalties because, firstly, the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick: See Markarian v R (2005) 215 ALR 213 at [31]. (2) An analysis of the offending conduct with a view to determining the nature and quality of the offence: See Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 475. This would involve an assessment of the seriousness of the breach. Although the damage or injury caused by the breach does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: See Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [94] and [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 at 428; and Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. (3) An identification of the risk and the degree of foreseeability of the risk. This is a significant factor to be taken into account when assessing the level of culpability of the defendant: See Capral Aluminium Limited at [81], confirming the approach taken by Walton J, Vice President, in Department of Mineral Resources of New South Wales (McKensey) v Kembla Coal and Coke Pty Limited (1999) 92 IR 8 at 27. (4) Whether there were simple and straightforward remedial steps that were available, which could have avoided the accident. The existence of simple and straightforward remedial steps which could have been taken by the defendant to avoid the risk to safety are relevant to assessing the seriousness of the offence: See Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Limited (1999) 92 IR 8 at 27; WorkCover Authority of NSW (Inspector Glass) v ACI Operations Pty Limited [1994] NSWIRComm 11; Inspector Elizabeth Benbow v Planada Holdings Pty Limited [2001] NSWIRComm 275. (5) The need for general and specific deterrence: See Capral Aluminium at [71] to [80]. (6) Subjective considerations including such matters as a plea of guilty entered by the defendant, remorse, contrition, whether there are prior offences, cooperation with the investigating authority, measures taken by the defendant to prevent a re-occurrence of the breach, and assistance provided to any worker injured as a consequence of the breach: See Lawrenson Diecasting at 475. Maximum penalty 22 In light of the defendant's prior convictions the maximum penalty in this case is $825,000: section 12 of the Occupational Health and Safety Act; s 17 of the Crimes (Sentencing Procedure) Act. The offending conduct 23 Dealing with incidents of public or civil disorder is obviously a dangerous business, even for police who are properly trained and equipped. In these proceedings, the agreed facts demonstrate quite starkly how dangerous it is. There was clearly a risk of very serious injury to employees of the defendant from being hit by the various missiles being thrown at them over a period of many hours by a large and angry mob or being burnt by Molotov cocktails. Some 42 officers attending the incident were injured, although fortunately none seriously enough to be hospitalised for any length of time. 24 The failures by the defendant to ensure safety as particularised in the charge amount to serious failures. Given the dangers faced by police officers in dealing with a riot there is no question that they should be provided with the equipment that best protects them from injury and training in the use of that equipment as well as training in dealing with civil disorder incidents. Whilst the OSG had personal protective equipment, there was not enough of it. There was other personal protective equipment although it was defective or in some cases obsolete or otherwise inadequate or incomplete. As the prosecutor submitted, the very purpose of personal protective equipment was to protect employees against the risk of injury – the equipment that was provided did not achieve that result because it was either defective or incomplete. 25 As to the second and third particulars, some employees were trained in the use of that equipment, but again not all of them. Nor were all employees trained in dealing with civil disorder. 26 As I earlier noted, a number of officers were injured during the riot. I also note that some of the officers were in fear of their lives and understandably so given the violence they were confronted with. In the absence of adequate personal protective equipment there was every prospect of serious consequences for the health and safety of officers. 27 It must be conceded, however, that this was not a case where there were no policies or procedures in place to deal with riots or that the defendant had no regard for the safety of its officers in such situations. But plainly, those policies and procedures were inadequate. 28 The defendant sought to downplay some of the deficiencies in the equipment. The fact is though, there was not sufficient equipment to meet the circumstances of the riot and undeniably some of the equipment was defective and its use exposed some of the officers to a greater degree of risk of injury than if the equipment had been sound. The risk and its foreseeability 29 The risk in this case was the risk of serious injury from being hit by the various missiles being thrown because of inadequate personal protective equipment or lack of training, information or instruction, or from burns in the absence of fire retardant clothing. The risk was obviously foreseeable but in this case the defendant undoubtedly knew of the risk to which its employees became exposed because its role includes protection of the public against the consequences of civil disorder and that from time to time it has been, and continues to be, necessary to deploy its employees in carrying out that role. That the defendant formed the OSG, which may be called upon to deal with riots, and had trained some of its officers and made provision for personal protective equipment in case of that eventuality, confirms the defendant's understanding that officers might be placed at risk in such circumstances. Remedial steps 30 The steps available to the defendant to avoid the risk were straightforward; provide PPE in adequate quantity and quality; train employees in its use; and provide training, information and instruction in dealing with civil disorder incidents. I note that the defendant has now taken these steps but in light of risks to health and safety that were known prior to the Redfern Riot there was no reason why the defendant could not have, and every reason why it should have, had in place adequate arrangements beforehand given the absolute duty on the employer to ensure health and safety. General deterrence 31 In Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 the Full Bench observed at [74]-[75] that: 74 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 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 Limited (No. 2) [2000] NSWIRComm 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. ... Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act undeniable. 32 As I mentioned earlier, the defendant contended that there was no requirement for general deterrence because "there is only one defendant of this kind in NSW". In Inspector Covi v The Crown in the Right of the State of New South Wales No 2. [2004] NSWIRComm 400 a similar submission was made. At [26] I held as follows: 26 Mr Hodgkinson submitted that general and specific deterrence should not play a significant role in the determination of penalty. In relation to general deterrence, I disagree. In Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. Whilst there is only one NSW Police, that body is not alone in employing personnel to undertake hazardous operations as part of their employment. A significant rationale underpinning criminal penalties is to deter others from committing the same or similar offences. Any penalty imposed in this case will be in respect of an offence involving the defendant's failure to ensure the safety of an employee when he was undertaking a hazardous task. It is appropriate to include in the penalty an element for the purpose of deterring others, particularly those employers who are engaged in providing emergency services, from committing a similar offence. Nothing has been put to me in these proceedings that would cause me to take a different view. I, therefore, consider there is a requirement for general deterrence. Specific deterrence 33 In Capral Aluminium the Full Bench observed in relation to specific deterrence at [76]-[77]: 76 On the other hand, the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence: see Ruby, Sentencing (5th Edition, Butterworths, Toronto, 1999) at 10. The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence… 77 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 Macdonnell (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 case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] IRComm 53 at [46]. 34 The defendant submitted that as to specific deterrence this requirement had been met by its "comprehensive remedial action/section 116 plan." The details of this plan were set out in Volume 5 of the exhibit marked "1" in the proceedings. The plan consists of four projects. First, arising from a number of internal and external inquiries following the Redfern Riot a project was commissioned to investigate the current state of Public Order Training and Incident and Emergency Management Training. The investigation was conducted over four months and developed a series of recommendations for improvement in training for the NSW Police. The recommendations have been endorsed. I have read the report and the recommendations. 35 The second project involved the development of National Training Competencies/Standards for Operational Safety, Public Order and Police Driving. NSW Police is the lead agency on this project, which was due for completion in March 2007. The third project is the development of Australian and New Zealand Standards for Personal Protective Equipment for Public Order Management. NSW Police is also the lead agency on this project. The fourth project involved the development of the NSW Police Incident Command and Control System (ICCS). Training in the ICCS is being rolled out through the NSW Police, commencing with the development of Major Incident Response Teams and the Major Incident (Public Order) Commanders' Course. 36 In addition to these four projects, the Court was asked to take into account, in the context of whether there was a requirement for specific deterrence, the following: · The defendant had pursued those responsible for the riot and had been successful in obtaining a number of convictions. · There are now 824 OSG trained personnel State wide. · OSG personnel now have available a plentiful supply of new helmets, riot shields and leggings. · The Public Order and Riot Squad, a newly formed squad, has 65 members and is being raised to 100 members, all fully equipped. 37 The actions taken by the defendant following the Redfern Riot were executed speedily and comprehensively and were entirely fitting. In that respect, the defendant is to be commended. These actions have had a considerable influence on my deliberations in respect of specific deterrence and thus the weight I would otherwise have attached to it has been reduced significantly. However, for the reasons expressed in Capral I am unable to reduce it to zero. The defendant remains a large employer of persons who are engaged in one of the most dangerous occupations in the State and undoubtedly there will be future riotous incidents given that there are hundreds of public order incidents in the State per year, albeit most of them, fortunately, relatively minor. Subjective factors 38 The defendant indicated an intention to enter a plea of guilty at the first directions hearing of the matter before the Court on 13 April 2006. I accept that the plea was an early one and that it has significant utilitarian value, especially as it avoids what inevitably would have been a lengthy trial. 39 The defendant also cooperated with the WorkCover Authority in its investigation of the incident and took appropriate steps, as I have described, to avoid a re-occurrence of the risk. Indeed, it is difficult to envisage a more complete response by the defendant. Those steps, in my view, coupled with the defendant's obvious commitment to workplace safety, make it much less likely that the defendant will re-offend. The defendant has also express its remorse, which I accept as being genuine given the early plea and the cooperation with the investigating authority. 40 There is no dispute the defendant has prior convictions including in its emanation as NSW Police. However, in having regard to the defendant's record I note the size, nature and diversity of both its operations and those of NSW Police. This is a relevant factor to be taken into account: Haynes v C I & D Manufacturing Pty Limited (No 2) (1995) 60 IR 455 at 457. I also note that the defendant does not have any prior convictions in relation to an incident similar to that which occurred on 15 and 16 February 2004. Section 116 order 41 Section 116 of the Occupational Health and Safety Act provides: 116 Orders to undertake OHS projects (1) The court may order the offender to carry out a specified project for the general improvement of occupational health, safety and welfare. (2) The court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order. (3) A Local Court may not make an order under this section unless it is satisfied that the cost of complying with the order does not exceed the jurisdictional limit of a Local Court when sitting in its General Division within the meaning of the Local Courts Act 1982. 42 The question of the application of s 116 arose in Cahill v State of New South Wales (NSW Police) No 2 [2005] NSWIRComm 400. In that case an employee of NSW Police suffered acute acoustic trauma after the siren of a police motor vehicle was sounded close to the employee's ear. NSW Police proposed an order under s 116 that involved it paying an industrial deafness consultant to undertake a project, in the form of a written study, on how to secure a general improvement of occupational health, safety and welfare in respect of acute acoustic trauma at places of work. This was to be in lieu of a fine. The application was refused for the reasons set out in the judgment. At [52]-[54] of the judgment I stated: 52 It seems to me that s 116 could be a useful tool in appropriate circumstances. The power to make such an order is discretionary. Any order made under s 116 would be in addition to and not in substitution for an order, for instance, under s 12 of the Act imposing a penalty. In this respect, I agree with what Mr Miller CIM said in Inspector George Hyland v Penrith City Council [2004] NSWCIMC 45. In that case the defendant submitted that in lieu of a fine being imposed, an order should be made under s 116 requiring the defendant to undertake a project. His Honour stated: Although I understand the defendant's argument that the money to be expended on a fine could be better spent elsewhere in promoting occupational health and safety the defendant must remember that it is before the Court for failing in its duty to ensure the health safety and welfare of all of its employees. In this regard the community through the Legislature has set heavy penalties upon an employer and others for failing to carry out their duties under the Act. The principal objectives of sentencing, such as deterrence, must also be borne in mind. To allow the defendant to carry out a project, which strictly under the Act it should do anyway to ensure its message of a safe work culture is in place amongst its workforce, in lieu of a fine is not in my view penalising the defendant for the breach of the law. 53 Section 112(2) provides that: Orders may be made under this Division in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence. 54 Section 112(2) reinforces the discretionary nature of the power to make an order under s 116 but makes it clear that such orders are in addition to any penalty or any other action (eg., an order under s 10 of the Crimes (Sentencing Procedure) Act ) that may be taken in relation to the offence. I do not consider there is any power to reduce a penalty imposed under the Act in consideration, for example, of the cost of a project ordered to be undertaken under s 116. An order under s 116 is not concerned with penalty but is in addition to a penalty and for an entirely different purpose to punishment, namely, achieving general improvement of occupational health, safety and welfare. 43 Nothing put in these proceedings causes me to take a different view to that expressed in Cahill v State of New South Wales (NSW Police) No 2 in relation to s 116. That is to say, there is no power to reduce a penalty imposed under the Act in consideration, for example, of the cost of a project ordered to be undertaken under s 116. 44 The question remains, though, whether I should make an order in any event for the defendant to carry out the projects earlier described. The projects would obviously contribute to an improvement of occupational health, safety and welfare within NSW Police. Whether that is what is contemplated by s 116(1) when it uses the word "general", I am not sure, because that matter was not the subject of argument. In other words, does the word "general" mean something more than occupational health and safety within the employer's place of work or undertaking? 45 It is unnecessary for me to decide this question because I do not propose to make an order under s 116. NSW Police is well advanced in developing the four projects, which are not only commendable initiatives but, it seems to me, essential ones. This has clearly been recognised by the defendant. Any order I was to make in respect of the four projects would be mere tokenism. Sections 10 and 10A of Crimes (Sentencing Procedure) Act 46 The defendant submitted that in this case it was appropriate to make orders under either s 10 or s 10A of the Crimes (Sentencing Procedure) Act. Those sections relevantly provide: 10 Dismissal of charges and conditional discharge of offender (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. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (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. … 10A Conviction with no other penalty (1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty. (2) Any such action is taken, for the purposes of the Crimes (Local Courts Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender. 47 I do not accept that an order under s 10 is appropriate. As it was observed by the Full Bench in WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 at [45], s10 will be available only in rare, limited circumstances in proceedings under the Occupational Health and Safety Act. Where the risk to health and safety was known, where the breach had potentially very serious consequences for the health and safety of employees, where the risk was easily preventable, where the main factor to be considered in determining an appropriate penalty to be imposed is the objective seriousness of the offence, and where the subjective factors do not outweigh the objective considerations, there is no scope, in my opinion, to apply s 10. That is the case here. 48 As for s 10A, that was inserted into the Crimes (Sentencing Procedure) Act in 2006. In the second reading speech (Legislative Council, 21 November 2006, p 4326) the purpose of s 10A was explained: Schedule 1.9 makes a number of amendments to the Crimes (Sentencing Procedure) Act 1999. Item [1] creates a new sentencing option for courts by inserting new section 10A providing that the court may decline to make any further sentencing order other than the recording of a conviction against the person. This option addresses an anomaly in the sentencing regime to overcome situations where inappropriate sentences have been imposed such as fines of 50¢. Imposing very small nominal fines costs the courts, and State Debt Recovery Office, more to administer and recover, than the value of the fine; and where the offender is already serving a sentence of imprisonment, the fine is rarely recovered in any event. This amendment will address such cases. 49 Whatever may have been the legislature's intention regarding s 10A, for the reasons earlier expressed in relation to s 10, disposal of the proceedings under s 10A is not an appropriate course for the Court to take in this matter. Penalty 50 In coming, finally, to the question of the amount of penalty, the breach by the defendant was objectively serious. The defendant placed employees in a situation where they were at serious risk to their personal safety because many of them were neither adequately equipped nor trained to deal with the situation. However, in fixing the penalty I must also have regard to the subjective factors in mitigation, which in this case are significant, especially the comprehensive steps taken by the defendant following the riot to improve its handling of public disorder incidents, its early plea of guilty, and its obvious strong commitment to maintaining high standards regarding occupational health and safety. 51 In the range of penalty that is available to me, namely zero to $825,000, I consider an appropriate penalty in all the circumstances is $100,000. Orders 52 The Court makes the following orders: (1) The offence is proven and a verdict of guilty is entered. (2) The defendant is fined an amount of $100,000 with a moiety thereof to the prosecutor. (3) Pursuant to s 164A(1)(c) of the Industrial Relations Act 1996, publication of the following parts of the exhibit marked "1" in these proceedings (consisting of six looseleaf folders) is prohibited and shall not be removed from the file for any reason until further order of the Court: (i) Volume 1 in its entirety. (ii) Volume 3 in respect of the statements by members of NSW Police behind tabs 1, 2, 3, 4, 8, 11 and 14, which describe certain equipment and its operational use by Police; the whole of the document behind tab 17 which includes the name and contact details of members of the NSW Police. (iii) Volume 4 in its entirety. (iv) Volume 5 in relation to the submission at pages 10-12, which refer to operational safety standards in riot situations, and pages 13-15 of the submission which refer to standards for public order management personal protective equipment; and, the whole of the document behind tab 6 which is the NSW Police Incident Command and Control System. (4) The terms of order (1) hereof shall be displayed prominently on the face of the file. (5) The defendant shall pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment. _____________________________________________________________ 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.