Industrial Court of New South Wales CITATION: WorkCover Authority of New South Wales (Inspector Ross Wolf) v South Eastern Sydney and Illawarra Area Health Service (No. 3) [2007] NSWIRComm 268 Prosecutor: WorkCover Authority of New South Wales (Inspector Ross Wolf) PARTIES: Defendant: South Eastern Sydney and Illawarra Area Health Service FILE NUMBER(S): 2122 of 2005 CORAM: Backman J Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Mental Health Act 1990 Occupational Health & Safety Act 2000 Maddaford v CSR and Mulgoa Quarries Pty Limited [2004] NSWIRComm 337 Morrison v Powercoal Pty Limited (2003) 130 IR 364 WorkCover Authority of New South Wales (Inspector Ankukic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 ACrimR 104 Winchester (1992) 58 ACrimR 345 CASES CITED: WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service [2002] NSWIRComm 44 WorkCover Authority of New South Wales (Inspector Keelty) v Crown in the Right of the State of New South Wales (Police Service of New South Wales) (No. 3) (2002) 112 IR 141 WorkCover Authority of New South Wales (Inspector Tuckley) v Crown in the Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1 WorkCover Authority of New South Wales (Inspector Batty) v Crown in the Right of the State of New South Wales (Department of Education and Training) [2000] NSWIRComm 181 WorkCover Authority of New South Wales (Inspector Stewart) v Crown in the Right of the State of New South Wales (Department of Education and Training, Department of Juvenile Justice and TAFE) (2002) 118 IR 207 Inspector Keniry v Crown in the Right of the State of New South Wales (Department of Community Services) [2002] NSWIRComm 349 Inspector Ruth Buggy v Hunter Area Health Service (now known as Hunter New England Area Health Service) [2005] NSWIRComm 317 HEARING DATES: 03/04/2007 DATE OF JUDGMENT: 26 October 2007 Prosecutor: Mr S Crawshaw, SC Moray & Agnew Ms Rachel Sutton LEGAL REPRESENTATIVES: Defendant: Mr J Agius, SC, with Ms L McManus of counsel Sparke Helmore Ms Alice Parsons JUDGMENT: - 15 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Backman J Friday, 26 October 2007 Matter No IRC 2122 of 2005 WorkCover Authority of New South Wales (Inspector Ross Wolf) v South Eastern Sydney and Illawarra Area Health Service Prosecution under s 8(1) of the Occupational Health & Safety Act 2000 JUDGMENT [2007] NSWIRComm 268 1 The defendant, South Eastern Sydney and Illawarra Area Health Service (SESIAHS) has pleaded guilty to an offence under s8(1) of the Occupational Health & Safety Act 2000 (the Act). The offence arises out of an incident on 5 May 2003 at Shellharbour Public Hospital in the Eloura West ward, a psychiatric unit attached to the hospital which catered to patients who were suffering an acute phase of mental illness. The ward was one of three separate psychiatric inpatient units within the hospital. The other two were the Mirrabook and Eloura East units. A patient, RA, who was scheduled as an involuntary patient under the Mental Health Act 1990 was admitted to the Eloura West ward on 4 May 2003 following an incident that had taken place in one of the other psychiatric units during which he became demanding, abusive to staff and refused medication. He was transferred to the Eloura West ward by four members of a team, then known as the ALERT Team, and Neil Mullins, a clinical nurse specialist employed by the defendant. The acronym "ALERT" stands for "Aggression Level Emergency Response Team" and is now called the "Mental Health Interpersonal Response Team". This team was only available for the mental health units and consisted of five members on every shift. 2 At about 9pm on 5 May 2003, Mr Mullins and a registered nurse, Alan Teall, who were working in the Eloura West ward, commenced administering medication. At about 9pm, Mr Teall left the nurses' workstation within the ward with the medication to attend to another patient (DB) who could be seen in the courtyard located within the ward. Prior to leaving the nurses' workstation, Mr Teall informed Mr Mullins of his intention to administer the medication to DB. Insofar as Mr Teall was concerned the only patient in the courtyard at the time was DB. Mr Mullins remained in the nurses' workstation processing paperwork associated with the admission of a new patient who had been brought in by the police. Malcolm Phillip, registered nurse, was also admitting a new patient and, a fourth member of the shift, Sean Malloy, a health and security assistant (HASA) was off the ward and on a break. DB was standing in the doorway of the courtyard near the television room. She was known to be resistant to taking medication. While Mr Teall was attempting to give DB her medication he was struck two or three times from behind by RA and fell down causing his duress alarm to activate. Mr Phillip attended within approximately 30 seconds by which time an unidentified patient was restraining RA. Mr Teall was the only staff member in the courtyard at the time of the incident. 3 Later, Mr Teall was taken to the emergency unit at Shellharbour Hospital and was admitted for observation. He was diagnosed with concussion as a result of the assault and experienced symptoms of headaches, insomnia and reactive depression. He returned to work some weeks later on restricted duties outside of the Eloura West ward. He returned to work in the ward for two days between 17 and 19 June 2003, and did not return thereafter. He was offered the opportunity to work on another ward, but he declined, and following the end of his contract in July 2003, he ceased working as a mental health nurse and is currently engaged, on a casual basis, as a registered nurse at Shoalhaven Hospital. 4 On 20 February 2007, the prosecutor filed in court an amended application for order containing particulars of the charge. The defendant entered a formal plea of guilty to that charge, as amended, on the same day. It alleges that an offence was committed between 29 April 2003 and 5 May 2003 at Shellharbour Public Hospital by the defendant when it failed to ensure the health and safety at work of its employees, in particular Alan Teall. Two failures to ensure the health and safety at work of employees are particularised in the charge as follows: (i) a failure to provide adequate lighting in the courtyard of the Eloura West Ward of Shellharbour Hospital; and, (ii) a failure to maintain a system of work that was designed to ensure that staff members did not enter and perform nursing duties in the courtyard area of the Eloura West Unit in the presence of patients, on their own. 5 In written submissions, the prosecutor requested an order that the patients involved in the offence be referred to in the proceedings by pseudonyms. Such orders have been granted in other proceedings in this jurisdiction (see, for example, in WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service [2002] NSWIRComm 44 where her Honour Justice Schmidt was satisfied that the Court had power to make the order and that it was appropriate to do so in the circumstances). In my view, it is not necessary to make pseudonym or non-publication orders in the present proceedings. The Court has delivered a number of judgments in this matter and has proceeded at all times on the basis that patients have been referred to by their initials only. No issue has been taken by either party to this approach. In the circumstances therefore it is not necessary to make a formal order as to the non-publication of those patients' names involved in the offence and I decline to do so. Background 6 The defendant's sphere of operations encompasses some 13 local government areas which provide medical and health services to in excess of one million people. This number is inflated by an estimated 750,000 persons transiting daily through the area. The area serviced by the defendant is 6,327 square kilometres and ranges from Sydney Harbour in the north to Durras in the south. It includes urbanised, rural and industrial zones. Shellharbour is one such local government area which provides hospital and health facilities. In addition to operating hospital and health care facilities, the defendant also operates kitchens, maintenance workshops, laboratories, childcare centres, offices, supplies warehousing, equipment lending pools and community and mobile outreach services. 7 The Illawarra Area Mental Health Services (SESIAMHS) operates within the defendant's structure. It employs 800 full-time staff, 300 of those are employed in the southern network of the mental health programme, which includes Shellharbour Hospital. The three mental health units operating within the hospital at the time of the offence provided inpatient and outpatient psychiatric assessment and treatment resources for the Illawarra area. The Eloura West ward, or unit, was a 9-bed high dependency locked ward catering mainly for involuntary patients. These patients were admitted to the ward after they were scheduled under the Mental Health Act. They required the highest level of care and nursing supervision and were seen to be at a greater risk of harming themselves and others. All patients in the ward were viewed as being potentially aggressive. The patient, RA, for example, had admitted himself (that is, a voluntary admission) to the Mirrabook Unit on 29 April 2003. He was transferred from Mirrabook to another of the units, Eloura East, on 1 May 2003 following an incident in which he grabbed a telephone from another patient and threatened her. Prior to his admission to Eloura East he was scheduled as an involuntary patient. 8 The offence to which the defendant has pleaded guilty particularises two discrete failures on the part of the defendant to ensure the health and safety of its employees. The first failure involves inadequate lighting in the courtyard at the time of the offence. The risks to the safety of staff posed by potentially assaultive patients within the ward arose by reason of this failure during the period of the offence. The evidence supports the conclusion that inadequate lighting, and the failure to provide adequate lighting in the courtyard, persisted during the period of the offence (29 April 2003 to 5 May 2003) and caused a risk to the safety of staff in the courtyard. On the other hand, the evidence in relation to the second failure (to maintain a system designed to ensure staff did not enter the courtyard unaccompanied when patients were present) appears to be confined to the circumstances of the incident. The defendant submitted that there is no evidence which might support a conclusion that the courtyard had not been identified by the defendant as a risk to staff prior to the offence or that no safe working procedure had been implemented to ensure that when patients were present in the courtyard staff did not enter the area on their own. The prosecutor, in oral submissions, conceded the correctness of the submission concerning both matters. Later, in oral submissions, the defendant returned to the point, contending that there is no evidence before the Court that any medication was administered to a patient in the courtyard by any nurse acting alone or that any nursing duties were undertaken in the courtyard prior to 5 May 2003. 9 There does not appear to be any issue in relation to these matters. I therefore intend to approach the sentence proceedings in relation to the second failure as particularised, on the basis that the evidence is confined to the circumstances of the incident on 5 May 2003. Objective factors 10 The evidence tendered during the sentencing proceedings by both parties indicates that the defendant had in place prior to the offence an impressive and comprehensive system, or systems, designed to guarantee the safety of its employees and persons in the workplace. It was recognised and acknowledged by the defendant that all of the patients in the Eloura West ward posed a risk of violence to staff, other patients, and to themselves. There is considerable material before the Court concerning measures which were devised and implemented by the defendant and which addressed the need to obviate or minimise the risk to the safety of staff, in particular, that posed by patients who had been admitted to the psychiatric units administered by the defendants. I intend to refer briefly to some of this material. 11 The Eloura West ward where the incident of 5 May 2003 took place, had in place at that time a number of safety devices and procedures. Duress alarm sensors were located above the doors and exits of the nurses' station. Located in the work station were two monitors. One was linked to the duress alarm system, the second gave staff a view of the entry and exit doors of the ward. Staff members could also view areas of the ward from various windows located inside the work station. There was also a glass door in one corner of the work station through which the courtyard could be viewed and accessed. The agreed statement of facts records that at the time of the incident the view of the courtyard was partially obscured by a drink dispensing machine which had been placed in the courtyard. The prosecutor does not rely on this fact as being causatively linked to either of the two failures particularised in the charge. Also within the work station on a wall were located three push button/electrical switches labelled "Cardiac Arrest" (red button), "Security" (yellow button), and "Internal Press For Help" (blue button). 12 When patients were admitted to the psychiatric units they were assessed by a medical officer who made a judgment on the potential level of aggression, the risk of suicide and the risk of absconding. The medical officer would then give a patient an aggression rating. A Mental Health-Outcomes and Assessment Tool (MH-OAT) form was generally completed by the medical officer following the assessment. The form was part of a system called the MH-OAT system which is a standard assessing and reporting system for all mental health services in New South Wales. It consists of a set of clinical modules to record and report mental health assessments, care plans, clinical reviews, discharge summaries and outcome measures in a standardised way. At the Shellharbour Hospital between the end and beginning of each shift a handover occurred. During this period which took approximately 30-45 minutes the nurse in charge on duty would provide to the incoming staff a thorough briefing of each individual patient beginning with whether a particular patient was considered a high risk in terms of aggressive behaviour. It was a common practice for nurses to keep notes in respect of each patient during a shift and to use those notes to convey information at handover time to the incoming staff. These notes were kept separately from the nursing notes that were made in the patient's medical record. At Eloura West, patients were allocated to specific nurses during the handover session. Generally two or three patients were allocated to each nurse. 13 In addition a patient's medical records provided written information of all instances of aggressive behaviour as well as other details. Aggressive/Assaultive Incident forms were completed by nurses after any aggressive incidents regardless of whether the incident involved acts of physical or verbal aggression and whether against a person or object. In relation to medication, the psychiatric nurses were responsible for administering medication to patients in accordance with prescribed medication and times (routine medication) as well as at their own discretion within the confines of doctor's orders. This latter type of medication, referred to as PRN medication, was only to be administered as required dependant upon a patient's condition. Nurses were required to use their clinical judgment to assess when it was appropriate to administer the PRN medication in addition to a patient's routine medication. It was commonly provided to patients who were particularly agitated. It was general practice for this medication to be administered by more experienced nurses. There was also regular consultation between the psychiatric nurses and the doctors concerning the behaviour of patients in order to facilitate a proper assessment of what appropriate medication should be prescribed. Procedures were also in place in relation to those patients who refused to take medication. 14 At the time of the incident Eloura West had a staff consisting of the nurse unit manager (NUM), registered nurses, wards people and a HASA. The NUM was in charge of the unit and responsible for rostering, performing management, discipline and other managerial tasks. The registered nurses were highly trained and specialised nurses who were required to undertake tertiary studies before being qualified to work in any mental health facility or service in New South Wales. Wards people, although they did not have nursing qualifications, nevertheless played an important role in engaging patients and advocating on behalf of patients and contributing to safety issues by being present in the unit. The HASA was required to undertake limited duties associated with the care of patients such as general assistance in wards, cleaning duties, routine clerical and administrative work. They also undertook security, watching, guarding and protecting as directed, including responding to alarm signals and attendances. In addition the ALERT team was available to provide assistance in the mental health units. 15 At the time of the incident Shellharbour Hospital had in place a personal duress alarm system. It was also mandatory for all staff in the Eloura West ward to wear a personal duress alarm at all times while on duty. Members of the ALERT team were also required to wear personal duress alarms when on duty. The duress alarm was activated by either pressing a button or pulling a cord. It could also be activated automatically if the alarm was in a horizontal position for more than 15 seconds so that if a nurse or staff member should be pushed or fall over, the duress alarm would automatically be activated. 16 According to the affidavit of Matthew Thomas Daly sworn on 28 March 2007, which was relied upon by the defendant, the Illawarra Area Mental Health Services, the predecessor to the SESIAMHS (IAMHS), recruited a risk manager in February 2003. In March 2003 an audit was undertaken by the Australian Council of Health Care Standards which made a finding that the defendant's risk management programme was, "very well addressed at both the Area and Illawarra Mental Health Service levels and there was ongoing evaluation of the implementation of the effectiveness of the policy and trending analysis of reportive results is regularly undertaken." There was also at the time of the offence an occupational health and safety committee in place for the Shellharbour Psychiatric Mental Health units. Meetings of this committee were held quarterly and minutes were taken. There was also developed as an initiative for the IAMHS, a programme referred to as the INTACT programme, to provide training to the staff of the area in aggression management. There were also several collaborative research programmes in the area of aggression management which were being undertaken by the IAMHS and a number of departments of the University of Wollongong including the IAMHS and the nursing and psychology departments as well as the business school. In 2001 the Illawarra Area Health Service, the defendant's predecessor, (IAHS), provided funding for an aggression management task force to assist in an aggression management project. A university team was established to conduct research into this area and report to the IAHS. In mid 2003 the IAHS also commissioned the Illawarra Institute of Mental Health to conduct further research into aggression management. Following this research a further proposal was made to fund a key trainer from United Kingdom to visit the IAHS in order to train aggression minimisation trainers in the latest skills and techniques. The proposal was approved and senior trainers from the United Kingdom visited the defendant in November 2003 to run a pilot programme for the trainer workshop. 17 According to the affidavit of Michelle Marie Bradley sworn on 28 March 2007, and relied upon by the defendant, the Eloura West ward engaged three registered nurses and one HASA for every day and afternoon shift as well as a NUM for the day shift. Two registered nurses and a HASA were on duty for each night shift. As earlier noted the ward has a nine bed facility. According to Ms Bradley there is a higher nurse/patient ratio in the Eloura West ward compared to other acute inpatient units at the SESIAMHS other than psychiatric emergency care centres which are attached to emergency departments. 18 All these programmes and initiatives instituted by the defendant prior to the offence illustrate the extent of the defendant's systems in place which were designed to minimise any risks to the safety of staff, and others, from patients who exhibited a propensity for violence. Staffing ratios for example were proportionately high and staff on duty on 5 May 2003 in particular were experienced and included a clinical nurse specialist, two registered nurses and a HASA. Mr Teall was a registered nurse who had been working in the Eloura West ward for over twelve months prior to the incident. There was a system in place at the time of the offence which ensured that staff were informed of information about each patient at a handover. The patient RA had been placed in the most secure psychiatric inpatient unit at Shellharbour Hospital following the incident of 4 May 2003. This incident had been noted in an aggressive/incident report. On 5 May 2003 RA had been seen by a registrar and his treating psychiatrist. He had also been seen by a medical practitioner once on 2 May 2003 and again on 5 May 2003. None of these doctors had recommended that RA receive special attention or precaution, or that his medication be varied. There was no evidence to suggest that RA presented a management problem on 5 May 2003. 19 All of these measures serve to mitigate quite substantially the otherwise objective seriousness of the offence to which I will come in more detail shortly. The failures to which the defendant has pleaded guilty highlight deficiencies in an otherwise comprehensive, effective and well run system. These deficiencies in the system however fall for assessment against what can only be described as a dangerous working environment in which a staff member's safety was placed constantly at risk from the patients within the ward who were known by the defendant, and acknowledged, to have a propensity for violent and assaultive behaviour. 20 It was also, in my view, reasonably foreseeable that inadequate lighting in the courtyard and the attempt, unaccompanied by another staff member, to administer medication to a patient in the courtyard, exposed Mr Teall to the risk of being assaulted by one of the patients. In relation to this latter point the defendant in written submissions suggested that there was nothing inappropriate about Mr Teall administering medication to a patient whenever the patient was in the ward. Support for this submission was sought to be found in Ms Bradley's affidavit who, according to the defendant, described the practice of medicating patients by approaching them separately as "best clinical practice" because it minimised the risk (to staff of being assaulted). Ms Bradley however qualified her comments in her affidavit when she said that "best clinical practice" was achieved when administering medication to a patient separately, "within the safety of the ward environment". Clearly, as the incident of 5 May 2003 starkly demonstrates, the courtyard was not a safe environment for Mr Teall when he ventured in there alone to medicate DB. 21 The injuries suffered by Mr Teall were also serious. The significance of serious injuries occasioned as a direct result or manifestation of the relevant risk to safety, is well known. Although the fact of injury alone does not dictate the seriousness of an offence it may indicate, as it does here, that the breach of the Act had every prospect of serious consequences: Maddaford v CSR and Mulgoa Quarries Pty Limited [2004] NSWIRComm 337 at [17] [18] [23]; WorkCover Authority of New South Wales (Inspector Ankukic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 at [428]; Morrison v Powercoal Pty Limited (2003) 130 IR 364 at [32]. 22 General deterrence is also an important consideration in the circumstances. There have been a number of occupational health and safety decisions in this jurisdiction where the risk to the safety of staff posed by persons with a propensity towards violent and assaultive behaviour was known and acknowledged by the defendant, prior to the offence. The problem seems to be ongoing and requires constant vigilance and the taking of reasonable steps on the part of an employer, with a view to obviating or minimising the risks: WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service [2002] NSWIRComm 44; WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No.3) (2002) 112 IR 141; WorkCover Authority of New South Wales (Inspector Tuckley) v Crown in Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1; WorkCover Authority of New South Wales (Inspector Batty) v Crown in Right of the State of New South Wales (Department of Education and Training) [2000] NSWIRComm 181; WorkCover Authority of New South Wales (Inspector Stewart) v Crown in Right of the State of New South Wales (Department of Education and Training, Department of Juvenile Justice and TAFE) (2002) 118 IR 207; Inspector Keniry v Crown in Right of the State of New South Wales (Department of Community Services) [2002] NSWIRComm 349; Inspector Ruth Buggy v Hunter Area Health Service (now known as Hunter New England Area Health Service) [2005] NSWIRComm 317. 23 In the last mentioned judgment, a member of staff, while working alone in a courtyard, was assaulted by an inpatient in the psychiatric unit within Morisset Hospital. The facts of that case revealed that staff had been expressly instructed not to enter courtyards alone when accompanying patients. The minimum number of staff directed to enter the courtyard at anytime was two. In relation to the principle of general deterrence the sentencing judge, his Honour Justice Haylen commented (at [62]): [62].....The gravity of the underlying risk being potentially grave physical injury and the fact that the patterns of patients suffering from mental illness were so unpredictable served to highlight the nature and extent of the risk. These factors highlighted the need for all Area Health Services involved in the delivery of inpatient psychiatric services including the defendant to adopt a greater degree of vigilance and proactivity in identifying and eliminating the risk, in risk management policies and programmes and flaws in essential plant/equipment associated with safety such as duress alarms. 24 The comments apply with equal force to the present circumstances. Specific deterrence is also an important consideration in the present circumstances. The defendant is a large organisation employing 800 full time staff, of which 300 are employed in the southern network of the mental health programme which includes Shellharbour Hospital. As the prosecutor has pointed out, the defendant continues to operate as a major area health service with responsibilities for the supply of a wide range of psychiatric services. The defendant emphasises that the number of steps taken by it since the offence such as installing additional lighting in the courtyard following an internal risk assessment may have relevance to the application of the principle. Nevertheless the defendant's mental health services and facilities continue to operate on a large scale and in an inherently dangerous work environment. These factors, of necessity, highlight the importance of applying the principle when imposing penalty in order to deter the defendant from re-offending. 25 It is acknowledged by the Court that the defendant's obligations under the occupational health and safety legislation to ensure the safety of staff and other persons in the work place must be met in circumstances where the defendant is required to operate in a difficult and dangerous work environment. There is an ongoing tension between the obligation to ensure the safety of persons at work and in the workplace, on the one hand, and the special needs of persons who are mentally ill and require treatment and care in a least restrictive environment which enables the care and treatment to be effectively given. The expression "least restrictive environment" is taken from the objects of the Mental Health Act which seek to emphasise a programme of care and treatment more focussed on individual patient care and recovery. There is no easy solution as to how this tension might be resolved. The approach in this jurisdiction gives paramountcy to the obligations of an employer under the occupational health and safety legislation while recognising at the same time the need to take into account the desirable outcome of pursuing worthwhile programmes for persons with disabilities: see for example WorkCover Authority of New South Wales (Inspector Batty) at [32]; WorkCover Authority of New South Wales (Inspector Pompili) at [84], [89]; WorkCover Authority of New South Wales (Inspector Stewart) at [42]-[47]. 26 All of these factors are relevant to an assessment of the objective seriousness of the offence. Overall the factors compel the conclusion that the offence is a serious one. Nevertheless, as earlier indicated, the objective seriousness of the offence is substantially mitigated by the systems in existence prior to the offence which were comprehensive, efficient and effective. The system also operated in a very difficult but high-risk working environment. These conditions, of necessity, required the defendant to be vigilant, proactive and alert in seeking out and minimising the exposure of its staff to any risks to their safety. 27 The objective seriousness of the offence has also been considered by reference to the maximum penalty in respect of the subject charge, which by reason of a prior conviction of IAHS, the defendant's predecessor, is $825,000. Subjective Factors 28 Because of the prior conviction, the defendant is not entitled to leniency which might normally be extended to a first offender. 29 The defendant entered a plea of guilty to the amended application for order. The charge, as amended, was in substantially different terms from the original charge. The circumstances in which the plea was entered allow the finding that it was entered at the earliest opportunity. The defendant is therefore entitled to a discount of the sentence in accordance with the principles in R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 ACrimR 104. I consider the appropriate discount for the utilitarian value of the plea is 25 per cent. 30 The defendant is also entitled, as a separate matter from utilitarian considerations, to leniency on the basis that its plea of guilty is an indication of contrition: Winchester (1992) 58 ACrimR 345 at 350. 31 The defendant is also entitled to rely in its favour on the steps taken after the incident to meet its occupational health and safety obligations. These steps include rectifying the lighting problem in the courtyard. In addition, following the incident the defendant developed various protocols for use in units such as the Eloura West ward. One protocol in relation to nursing management requires, in the interests of staff safety, "no less than two staff present and able to maintain visual contact at all times in the high dependency unit". After the incident, the defendant's policy on high dependency nursing in mental health inpatient units requires, in relation to nursing staff in the Eloura West ward, that a procedure be implemented whereby nursing staff will have no less than two staff present and be able to maintain visual contact at all times; and, that medication will only be administered with at least two nurses present. 32 The defendant also co-operated with WorkCover in the investigation of the incident. It also provided immediate assistance to Mr Teall following the incident. He was contacted in hospital by a representative of the defendant who offered support on the defendant's behalf. Several return to work plans were also developed to assist Mr Teall return to work. 33 All of these subjective considerations will be taken into account in the defendant's favour when assessing penalty. 34 In determining penalty against the defendant, I have taken into account the objective seriousness of the offence, the personal factors described above, and the prior conviction. The objective and subjective factors, and the prior conviction have been considered by reference to the Crimes (Sentencing Procedure) Act 1999 in particular s 21A. Orders 35 In Matter No. IRC 2122 of 2005, the Court makes the following orders: 1. The defendant, South Eastern Sydney and Illawarra Area Health Service, is convicted of the offence. 2. The defendant is fined $100,000 with a moiety to the prosecutor. 3. The defendant is to pay the costs of the prosecutor as agreed or assessed. _________________________ 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.