Inspector Nguyen v Western Sydney Area Health Service [2003] NSWIRComm 268 (15 August 2003)

Last Updated: 17 December 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Nguyen v Western Sydney Area Health Service [2003] NSWIRComm 268

FILE NUMBER(S): IRC 2661

HEARING DATE(S): 22/07/2003

DECISION DATE: 15/08/2003

PARTIES:

PROSECUTION

Inspector Nguyen

DEFENDANT

Western Sydney Area Health Service

JUDGMENT OF: Boland J

LEGAL REPRESENTATIVES

PROSECUTOR

Ms A F Backman of counsel

Solicitor: Mr J Hanby

WorkCover Authority of New South Wales

DEFENDANT

Ms P E McDonald of counsel

Solicitor: Mr I Craig

Hunt & Hunt Lawyers

CASES CITED: Atholwood v The Queen (1999) 109 A Crim r 465

Cameron v The Queen (2002) 209 CLR 339

Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29

Ferguson v Nelmac Pty Limited (1999) 92 IR 188

Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66

Inspector Wolf v BHP Steel (AIS) [2003] NSWIRComm 119

Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (1999) 90 IR 464

R v Ellis (1986) 6 NSWLR 603

R v Thomson; R v Houlton (2000) 49 NSWLR 383

R v Winchester (1992) 58 A Crim R 345

Regina v Carter [2001] NSW CCA 245

Tyler v Sydney Electricity (1993) 47 IR 1

WorkCover Authority of New South Wales (Inspector Farrell) v David Carl Schrader (2002) 112 IR 284

WorkCover Authority of New South Wales (Inspector Searle) v Western Sydney Area Health Service (2001) 111 IR 414

WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80

WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Limited and Another (1999) 95 IR 383

WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (1999) 101 IR 261

WorkCover Authority v Integral Energy (2002) 113 IR 315

LEGISLATION CITED: Health Services Act 1997 (NSW)

Occupational Health and Safety Act 1983

Supreme Court (Summary Jurisdiction) Act 1967

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Boland J

Friday 15 August, 2003

Matter No IRC 2661 of 2002

INSPECTOR NGUYEN v WESTERN SYDNEY AREA HEALTH SERVICE

Prosecution under section 15(1) of the Occupational Health and Safety Act 1983

JUDGMENT

[2003] NSWIRComm 268

1 Donna Maria Bonello and Karl Paul Gladwell were employed by Western Sydney Area Health Service ("the defendant") as security officers responsible for the provision of security services to ensure the safety of staff, patients, clients and visitors and to safeguard the defendant's assets within the buildings and grounds of Blacktown Hospital.

2 At approximately 8.55 pm on 28 May 2000 Ms Bonello and Mr Gladwell had completed securing the staff compound and were in the process of returning on foot to the main hospital through the Bungarribee House carpark. When approximately half way through the carpark and in an area near the western boundary, Mr Gladwell thought he saw a shadow or movement on his left side. Without warning an unidentified male appeared from Mr Gladwell's left and struck him in the face causing him to be knocked to the ground. Ms Bonello went to Mr Gladwell's assistance when two further unidentified males appeared. The male who had assaulted Mr Gladwell pulled out a knife and attempted to slice the throat of Ms Bonello. Ms Bonello suffered lacerations to the palm of her left hand and throat. She stepped back and the male then stabbed her below the left breast with the knife. Mr Gladwell attempted to get up when one of the three males plunged a cutting instrument into the area of his abdomen. Mr Gladwell did not sustain a stab wound. All three males fled without being apprehended.

3 As a result of the assault Ms Bonello sustained a laceration to her throat approximately 5 cms in length not requiring sutures, a 5 cm laceration to her left palm requiring four sutures, a laceration below her left breast requiring one suture and psychological injury. As a result of the assault Mr Gladwell sustained permanent bruising to his left cheekbone, soft tissue injury to his groin and psychological injury.

4 Arising out of the events of 28 May 2000 Inspector Duy Nguyen of the WorkCover Authority of New South Wales charged the defendant under s 15(1) of the Occupational Health and Safety Act 1983. In an amended application for order under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 it was alleged that:

a) At all material times the defendant was a body corporate constituted by provisions of the Health Services Act 1997 (NSW).

b) At all material times the defendant undertook the care and hospitalisation of patients at the Blacktown Hospital which consisted of a general hospital, community health and mental care facilities.

c) At all material times Bungarribee House was a psychiatric inpatient unit located within the confines of the Blacktown Hospital.

d) At all material times Bungarribee House carpark was located adjacent to Bungarribee House.

e) At all material times the defendant employed Donna Maria Bonello ("Bonello") and Karl Paul Gladwell ("Gladwell") as security officers responsible for the provision of security services to ensure the safety of staff, patients, clients and visitors and safeguard the organisations assets within the buildings and grounds of the Blacktown Hospital.

f) At approximately 8.55pm on 28 May 2000 Bonello and Gladwell, acting in the course of their employment, completed the nightly duty of securing the staff compound and were in the process of returning on foot to the main hospital through the Bungarribee House carpark from that compound when they were subjected to acts of violence by persons unidentified.

g) The defendants failure and/or omission was the following:

i. failing to provide or maintain a place of work under its control, to wit, the Bungarribee House carpark, that was safe and without risks to health. In particular, the defendant failed to ensure the Bungarribee House carpark was adequately illuminated at night.

h) As a result of the said failure and/or omission there was a potential risk to the health, safety and welfare of the employees in that there was a risk of the employees being subjected to acts of violence and/or aggression whilst walking in the Bungarribee House carpark at night.

5 The defendant pleaded guilty to the amended charge against it. In the proceedings the prosecutor tendered: a statement of facts; a bundle of 27 colour photographs taken on 29 May and 6 June 2000 by Inspector Bruce Clark showing various aspects of the carpark and lighting arrangements; two hand drawn sketches of the Bungarribee House carpark; a copy of a report entitled "Security Officer Safety Review Blacktown Hospital" with a covering memorandum dated 5 February 1998; a police report dated 16 February 2000 into an incident that occurred on 23 January 2000 near the hospital building when Ms Bonello was assaulted with a sharp instrument that cut her uniform; a report of the defendant's prior convictions showing two such convictions, the first being on 1 June 1998 under s 15(1) of the Act where a penalty of $7,500 was imposed and the latest being on 26 January 2001 for an offence under s 15(1) of the Act and which attracted a penalty of $76,000.

6 The defendant's evidence consisted of a substantial affidavit by Susan Elayne Shaw, acting director of corporate services of Blacktown/Mount Druitt Health (a unit of the defendant), and a report prepared on behalf of Unisearch Limited by Dr Gordon Watson, lighting consultant, in relation to lighting in the Bungarribee House carpark.

7 The prosecutor's statement of facts dealt extensively with the events of 28 May 2000 and the issue of lighting arrangements in the carpark. At par [8] of the statement it was said that:

The area of the Bungarribee House carpark where the assault took place was near to the western boundary of the carpark. There was neither direct lighting provided to the carpark generally nor the area near the western boundary particularly. The only nearby lighting was that located at Bungarribee House situated near the eastern boundary of the Bungarribee House carpark. That lighting failed to illuminate to any extent the area in which the assault took place. Gladwell described the area where the assault took place as “extremely dark”, “the worst lighted (sic) area in the carpark” and the lighting as “extremely poor and not suitable” and that he could “probably see no more than three car spots”. Bonello described it as “pitch black”.

8 The statement also described the result of inspections of the carpark and surrounds undertaken by Inspector Clark on 29 May and 6 June 2000 as follows:

10 At approximately 11.40am on 29 May 2000 and 4.00pm on 06 June 2000 Inspector Clark of the WorkCover Authority attended the Blacktown Hospital and made inspections of the Bungarribee House carpark. As a result of the inspections a series of coloured photographs were caused to be taken, sketch plans drawn and factual inspections compiled. The observations of Inspector Clark revealed the following (Annexure A: 24 photographs; Annexure B: 2 sketch plans):

(a) the Bungarribee House carpark was approximately 75 metres in length and 19 metres in width;

(b) 27 car parking spaces were located along the western boundary of the carpark and approximately 5 bus spaces and 8 car spaces were located along the eastern boundary of the carpark;

(c) to the west of the western boundary of the carpark was located a 2 metre wide grassed area and a 1.5 metre high colour bond steel fence that extended the length of the carpark. The fence constituted the boundary between the hospital grounds and domestic premises;

(d) to the east of the eastern boundary of the carpark was located Bungarribee House. The building alignment of the western wall of Bungarribee House (the wall nearest to the eastern boundary of the carpark) stepped away from the carpark at three points with the effect that the building alignment was located between 2 to 9.5 metres from the eastern boundary of the carpark;

(e) several light fittings were installed at different positions along the western wall of Bungarribee House near the eastern boundary of the carpark and, because of the building alignment, were between 2 and 9.5 metres from the eastern boundary of the carpark. The light fittings were small wall mounted fittings.

(f) a flood light was mounted to the southern wall of Bungarrribee House near the southwestern corner of the building and directed to a turning circle located at the southern end of the carpark. A second flood light was mounted to the northern wall of Bungarribee House near the north western corner of the building and directed to walkways leading from the north eastern boundary of the carpark;

(g) there were no lights directed to the Bungarribee House carpark; and

(h) between the date of the first inspection and the second inspection bushes situated between Bungarribee House and the eastern boundary of the carpark were heavily pruned and five (5) 500 watt floodlights installed on the western wall of Bungarribee House and directed toward the Bungarribee House carpark.

9 The prosecutor's statement revealed that there had been previous incidents where security officers had been assaulted in the hospital grounds although the assaults had not resulted in physical injuries to the officers:

12 The risk of security officers being subjected to acts of violence and/or aggression including such acts involving sharp implements was known to the defendant prior to 28 May 2000. Prior to that date Bonello had been subjected to two separate incidents at the Blacktown Hospital in which persons produced and, in one instance used against her, sharp implements. At approximately 9.00am on 23 January 2000 Bonello observed 3 youths huddled near a hospital building. As she approached to investigate one of the youths assaulted her with a sharp implement which cut her uniform from the 2nd to the 4th button. On 07 April 2000 Bonello observed two males within a building near an unsecured door. The two males ran before one stopped and threw a knife towards her. Neither of the incidents occurred at the Bungarribee House carpark.

10 The statement referred to the Australian Standard AS 4485.1 - 1997 entitled "Security for health care facilities" and the minimum lighting requirements for such facilities. Paragraph [14] of the statement referred to the process of consultation and negotiation from 1997 onwards regarding differing security needs and requirements of each of the defendant's component units at Blacktown Hospital. The statement indicated that a product of the process was the defendant's 'Security – Policy and Procedures Manual’ published in draft form in September 1999. It was said that the defendant's draft recognised that standards contained in AS 4485 “have created a need to re-examine safeguards and practices”.

11 Chapter 15 of the defendant's draft outlined its policy in relation to lighting as follows:-

Each unit must ensure its internal and external lighting is sufficient to deter a security breach.

and provided the following guidelines:-

Security lighting is internal and external lighting which is used to improve security and safety....................

Unit management must ensure:

1 ......................

2 ......................

3 ......................

4 ......................

5 Lights are to be located and styled so as to gain the maximum benefit and coverage.

6 Lights are bright enough to provide a safe entry and safe exit from the workplace, and provide acceptable levels of light in car parks.

7 .....................

8 .....................

12 The statement explained that implementation of the defendant's draft Manual was delayed until a date after the 28 May 2000 due to industrial disputation. The statement continued:

16(a) During December 1997 in response to the Improvement Notice the defendant caused Philip Tapper, employed by the defendant as the OH & S Manager and Robert Bradley, employed by the defendant as the Senior OH & S Coordinator, to carry out the required assessment. ...

(b) the Review analysed the number of incidents at Blacktown Hospital involving aggression/violence or the potential for aggression/violence which had occurred over a three-month period from 8 September 1997 to 7 December 1997. It was concluded that the greatest percentage of incidents (35%) occurred at Bungarribee House which was nominated in the Review as a "High Risk Department". These incidents occurred within Bungarribee House. The third greatest percentage of incidents were concluded to have occurred in Carparks and Other External Areas (12%). It was observed in the Review that “The Security Department plays a major role in responding to incidents of violence and aggression at Blacktown Hospital with the systems used in key areas relying on effective assistance from the security officers”;

(c) in identifying controls to eliminate or minimise risks to the safety of security staff at Blacktown Hospital a number of recommendations were made in the Review. Recommendation 6 in the Review recommended that the OH&S Unit conduct a survey of lighting levels at the hospital. This recommendation followed a finding in the Review that, "lighting levels have not been taken in the carparks and other high risk areas to ensure that the light levels meet the appropriate standards";

(d) on 05 February 1998 a copy of the Review was forwarded to and received by Mr C Osborne, employed by the defendant as the Executive Director, Blacktown – Mount Druitt Health Service;

(e) prior to 20 March 1998 Robert Bradley, in accordance with recommendation 6 of the Review, conducted a review of lighting in the car parks at Blacktown Hospital;

(f) on 20 March 1998 Robert Bradley reduced the outcome of his review to writing in the form of a memorandum that was forwarded to John Clement, employed by the defendant as a Facilities Manager. The memorandum contained the results of the Review of lighting in carparks at Blacktown Hospital which had been conducted by Bradley. In relation to the Bungarribee House car parks the results of the review were:

"The lighting is very poor. The general lighting in the area does not light the carpark. Additional lighting for the carpark should be provided.

____________________________________________________________

The lighting is very poor. There is no lighting in the area from the boom gate until the light on the corner near the main entrance. A sensor light on the corner of the building near the boom gate is blocked by vegetation. Additional lighting for the carpark should be provided."

(g) minutes of a 17 November 1999 OH&S Committee, Blacktown campus, meeting recorded:

6.1 Lighting Surveys

A question was raised in regards to the frequency of Lighting Surveys. It was acknowledged that the last survey was completed less than 12 months ago. The surveys are conducted on a regular basis via the Deputy Director Corporate Services group in conjunction with Maintenance and Security.

(h) the only activity connected to lighting that was carried out between Bradley's 20.3.98 survey and the OH&S Committee minutes of 17.11.99 was an audit carried out by security officers in May 1999. The audit resulted in a list of repairs to be carried out to various light fittings in the Blacktown campus, at a cost of $1,250.00. The list made no specific mention of Bungarribee House or its carparks.

(i) on 3 April 2000 David Tape ("Tape"), Manager, Security Services at Blacktown and Mt Druitt Hospitals, WSAHS, sent a memorandum to the OH&S Unit (Cumberland campus) requiring a lighting survey of the Blacktown campus and carparks. The memorandum states, "Your earliest assistance would be appreciated". On 16 May 2000 Tape sent a second memorandum addressed to Clive Bradburn of the OH&S Unit requesting a lighting survey of the Blacktown Hospital Campus. Tape made the requests set out in his memoranda as he formed the opinion that “some areas were poorly lit and there was area with no light at all”;

(j) both of Tape’s memoranda were also forwarded to Susan Shaw, employed by the defendant as the Deputy Director, Corporate Services. Susan Shaw did not supervise the OH&S Unit (Cumberland Campus);

(k) Minutes of the Blacktown Campus Occupational Health and Safety Committee dated 17 May 2000 record that a lighting survey is to be conducted "very soon" in conjunction with the Cumberland OH&S Unit; and

(l) as at 28 May 2000 no such lighting survey had been completed by the defendant and no additional lighting provided to the Bungarribee House carpark in response to the suggestion made by Bradley in his memorandum of 20 March 1998.

17 On 30 May 2000 the defendant caused to be installed five (5) 500 watt floodlights around Bungarribee House in order to provide lighting to the Bungarribee carpark.

18 On 2 June 2000 the defendant caused lighting assessment’s of all carparks and regularly used egress routes on the Blacktown Hospital Campus to be undertaken. The first reading in the Table referred to a different car park ie the Embark car park. Lux readings taken at 8 separate locations within the boundaries of the Bungarribee House carpark established that lighting levels in all 8 locations were below the average lux levels as required by AS4485.1-1997 and lighting levels in 5 locations below the minimum lux levels as required by AS4485.1.

19 ...

13 The affidavit and comprehensive annexures to the affidavit of Ms Shaw dealt with the following matters:

· A description of the operation of the defendant with particular reference to the upgrading of the Blacktown Hospital site between 1997 and 2000 including the construction of carparks;

· A description of the escort service at the Hospital including the job description for a security officer;

· The development of a security policy at the Hospital including risk assessments, the development of safe work practices including confronting aggression and the development of a security awareness handbook. It was noted that "All staff are required, according to WSAHS OH&S Policy to endorse Safe Work Practices. Failure to do so results in disciplinary action."

· The implementation of security policy including the requirement for patrols to be carried out in a "buddy system" and that a radio and torch were to be carried;

· A reference to the incident on 28 May 2000 and, in particular, that Ms Bonello and Mr Gladwell were not carrying torches at the time of the attack and that Mr Gladwell and Ms Bonello failed to comply with the safe work practices: "Challenging suspicious activity in tandem"; "Working in tandem"; "Confronting aggression";

· The incidence of violence and aggression in Bungarribee House including that to the deponent's knowledge there had not been any incident of violence and/or aggression in the Bungarribee House carpark prior to 28 May 2000 although there had been such incident in the House itself and in other carparks.

· Reviews of lighting in the grounds and carparks of the Hospital in 1996 and 1998. A finding in 1998 that lighting in the Bungarribee emergency and main carparks was "very poor" and the steps taken to install adequate lighting; subsequent complaints by neighbouring residents regarding the lights in the carpark; continuing difficulties with complaints by residents about the lighting in 2000; the conduct of further lighting surveys in June, July and October 2000; the installation of a new lighting regime in 2001 including pole mounted luminaries being installed along the western boundary of the Bungarribee House carpark;

· Details of the incidents involving prior prosecutions under the Act;

· Occupational health and safety policies and procedures including training of staff and auditing arrangements.

14 The report by Dr Watson detailed a visit to the Bungarribee House carpark on 11 June 2003 including measurements taken of illumination levels when operating a security torch, a review of lighting requirements for carparks and a discussion on the visibility pertaining to the carpark. Importantly, Dr Watson concluded that: at the time of the incident "there would have been an adequate level of light within the carpark"; and, when a torch supplied by the defendant was operated in the carpark it would have added to the available level of illumination.

Submissions of the parties

15 Ms A F Backman of counsel appeared for the prosecutor. Ms Backman submitted the offence was serious. She addressed the objective features of the offence by reference to:

(a) the maximum penalty for a corporation prescribed by Parliament for the offence at the time it was committed was $825,000.00;

(b) the need for general deterrence;

(c) the need for specific deterrence;

(d) the nature of the offence in that it involved obvious risks;

(e) the nature of the offence in that it was actually foreseen (known);

(f) the nature of the offence in that there were simple steps available to remedy the failures;

(g) the nature of the offence in that the injuries manifested the degree of seriousness of the relevant detriment to health and safety.

16 It was submitted there was a need for both general and specific deterrence to be taken into account in assessing penalty: Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 at 59-60; WorkCover Authority of New South Wales (Inspector Farrell) v David Carl Schrader (2002) 112 IR 284.

17 Ms Backman contended that the risk to safety presented by the inadequate lighting in the carpark was both obvious and known to the defendant. It was submitted this added to the seriousness of the offence: WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Limited and Another (1999) 95 IR 383 at 452; WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (1999) 101 IR 261 at 267. Ms Backman submitted:

The chronology of events which identified inadequate lighting of the Blacktown campus and in particular of its carparks, and the risk associated with that inadequate lighting, commenced at least as far back as 5 February 1998. From that date until 28 May 2000 the defendant was on notice that security officers on patrol within the Blacktown Hospital campus were at risk of being subjected to aggressive and/or violent incidents or potentially aggressive and/or violent conduct and that one of the controls recommended to eliminate or minimise the risks to the safety of security officers at Blacktown Hospital was ensuring that lighting levels in the hospital carparks (which as at 28 May 2000 had not been taken) met appropriate standards ...

Notwithstanding the defendant's awareness of the identification of inadequate lighting of the carparks and the identified attendant risks to security officers' safety, the defendant did not, on or prior to 28 May 2000, ensure that the lighting levels within the Blacktown Hospital campus were assessed to see whether they met the "appropriate standards". The task of assessing whether the lighting met Australian Standard 4485.1 recommendations was not performed until 2 June 2000, at which time the assessment of the Bungarribee carpark revealed that at 9 separate locations within that carpark average lighting levels were below the levels required by AS4485.1-1997 and lighting levels in 5 of the 9 locations within the carpark were below the minimum levels required by the Standard. (These levels were taken after the addition of 5 x 500 watt floodlights to Bungarribee House on 30 May 2000.)

In addition, between 5 February 1998 and 28 May 2000 the issue of inadequate lighting had consistently been brought to the defendant's attention:

a. Tapper and Bradley Review;

b. 20.3.98 Bradley's lighting survey which identified the lighting of Bungarribee emergency carpark and Bungarribee main carpark as "very poor";

c. 17.11.99 OHS Committee minutes of meeting which recorded a query raised in relation to the frequency of lighting surveys;

d. 3.4.00 Tape's memorandum requesting the defendant conduct a lighting survey of the Blacktown campus including its carparks;

e. 16 May 2000 Tape's second memorandum requesting the defendant conduct a lighting survey of the Blacktown campus.

18 It was submitted for the prosecutor that with respect to the availability of simple and straightforward steps to remedy defects as a factor going to the objective seriousness of the offence, it was open to the defendant at any time prior to the assault to conduct a lighting assessment to see if lighting levels in the Bungarribee carpark were appropriate and if not to install lighting to meet relevant standards. See Department of Mineral Resources of New South Wales v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8.

19 Ms Backman referred to Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 79, 80 and Capral at par [94] to support the contention that the gravity or otherwise of the potential risk to safety flowing from a breach of the Act is relevant as a measure of the gravity of the breach and the culpability of a defendant.

20 It was further submitted that the obligation on an employer under s 15(1) of the Act means it is essential that an employer should be proactive and not reactive; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare: Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210 where reference was made to Hill J in WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85.

21 Ms Backman submitted that:

Here the defendant's conduct is made even more serious in that even when consistently confronted with material suggesting that its security officers were being placed at risk to their safety because of inadequate light it effectively did nothing.

22 The prosecutor referred to a number of cases involving prosecution under s 15(1) of the Act that it described as "comparative" for the purpose of sentencing in that they have common features with the present case and all involved "Government institutions". These may be summarised as follows:

Name

Plea

Maximum penalty

Fine

Comment

WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service [2002] NSW IRComm 44

guilty

$750,000

$180,000

WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of NSW) (No 3) (2002) 112 IR 141

not guilty

$500,000

$220,000

Discount of 20 per cent

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

guilty

$250,000

$95,000

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

guilty

$750,000

$80,000

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

guilty

$825,000

$294,000

Inspector Keniry v The Crown in Right of the State of New South Wales (Department of Community Services) [2002] NSW IRComm 349

guilty

$825,000

$328,000

6 offences. Totality principle applied. Discount of 20 per cent.

23 In relation to subjective features, the prosecutor contended that the defendant's plea of guilty was not made at the earliest possible opportunity. It was submitted that the first indication from the defendant to the prosecution of a plea of guilty was on the morning of the first day of hearing, that is, 23 June 2003. Further, Ms Backman submitted that in relation to the aspect of leniency (as a separate consideration from utilitarianism), the plea was entered in circumstances where the prosecution case in relation to the offences could be described as strong. Where, for example, the plea has been entered in recognition of the inevitability of conviction, the extent of leniency to be afforded by way of discount on sentence may have much less weight: R v Winchester (1992) 58 A Crim R 345 at 350; see also R v Ellis (1986) 6 NSWLR 603 at 604; Regina v Carter [2001] NSW CCA 245 at par [13].

24 The prosecution sought costs and a moiety of the fine.

25 Ms P E McDonald of counsel appeared for the defendant. Ms McDonald canvassed the relevant principles relating to sentencing. Ms McDonald submitted that the risk to health and safety identified in the charge is the risk of employees being subjected to acts of violence and/or aggression whilst walking in the Bungarribee House car park at night. She submitted that:

Generally, WSAHS recognised that there was a degree of violence and criminal activity in and about the Hospital. However, WSAHS had not foreseen that the risk would arise in respect of the Bungarribee House car park. Bungarribee House was a psychiatric unit located within Blacktown hospital ...The car park was adjacent to the unit and on its western boundary were private residential ...The Register of Serious Incidents attended by security officers for the period 1996 to March 1997, revealed that with the exception of 2 incidents the Bungarribee house incidents involved the restraint of patients within that building. The vast majority of incidents reported occurring in car parks referred to theft of vehicles and occurred in other main car parks within the Hospital grounds ... As recognised by Wright P. in Ferguson v Nelmac (1999) 92 IR 188 at 210, when determining culpability a Court can have regard to reliance on hindsight and to the fact that the previous experience of the defendant had not alerted it to the particular danger.

As deposed by Susan Shaw there had not been any incidence of violence and/or aggression in the Bungarribee House car park prior to 28 May 2000 ...The Bungarribee car park was a relatively small car park which was used at night by the skeleton staff who were employed at Bungarribee House ... Although the Tapper and Bradley Review recognises that staff rely on assistance from security guards in the management of violence and aggression it was noted that the same number of incidents occurred during the day and at night ... The previous attack on Ms Bonello occurred during the day and in circumstances in which she disregarded procedures again when she approached the persons alone and without recharging her radio battery.

26 The defendant submitted that it was not the case that it did nothing about the risk to safety and referred to the development and implementation of safe working practices in consultation with security officers. It was submitted that the evidence of Dr Watson established that the torches provided additional illumination which would have assisted to minimise the risk to security guards and that neither Bonello nor Gladwell were carrying the torches at the time of the incident. It was contended this was in violation of the safe work practices. The fact that there was a system in existence which if adhered to would have prevented the accident is relevant to mitigation.

27 Ms McDonald submitted that a lighting survey was undertaken in March 1998 which concluded that additional lighting for the car park should be provided. The defendant implemented the recommendations by installing lights along the western side of Bungarribee House. However, due to complaints by the neighbours adjacent to the western boundary, the lights were removed. It was submitted that the intention was to try something different but at that time the construction of the new hospital and demolition of the old hospital was being undertaken. For security guards torches were purchased and the new safe work practices were implemented and the escort system for staff was introduced. These matters were raised in mitigation.

28 As to the gravity of the offence it was submitted by the defendant that the risk to the security officers would have been lessened by their compliance with the safe work practices and the use of the torches; that just before the incident in the car park Mr Gladwell thought that he saw a shadow or movement on his left hand side – if he and Ms Bonello had the required torches they would have been able to shine the torch in that vicinity.

29 The defendant submitted that immediately after the accident, emergency lighting was installed. It was contended that although superficially such action might indicate that there were simple remedial steps available, it was a short term measure. The long term solution, however, involved the obtaining of a special grant for capital expenditure and the construction of substantial lighting in consultation with the neighbours.

30 As to the plea of guilty Ms McDonald contended that the defendant entered a plea to the amended order at the earliest opportunity: Cameron v R (2002) 209 CLR 339. Reference was made to WorkCover Authority v Integral Energy (2002) 113 IR 315 at 325 in which Kavanagh J found that although the matter had been listed for hearing, the first opportunity for the defendant to enter its plea of guilty was when the prosecutor amended the orders sought. The amended application for order brought a different charge even though it involved the deletion of specific elements of the original application. Kavanagh J found that in those circumstances the defendant entered its plea at the first opportunity.

31 Ms McDonald contended that the maximum discount on sentence was available to the defendant: R v Thompson: R v Houlton (2000) 49 NSWLR 383.

32 In relation to the defendant's prior record, it was submitted the Court should note that the defendant has been in existence for over 13 years. Further, that the defendant is a large concern comprising of 15 units including seven hospitals and employing over 10,000 employees in diverse occupations. Ms McDonald submitted that both prior convictions concerned Westmead Hospital and the first offence involved the maintenance at an accommodation complex and the second one involved exposure by an employee to bacteria at Pathology Department. It was submitted that as recognised by Haylen J in WorkCover Authority of New South Wales (Inspector Searle) v Western Sydney Area Health Service (2001) 111 IR 414 at [23] and [33] the defendant's record is a good one considering the nature of the industry in which it operates and the many potential risks to health and safety it has to handle: see WorkCover Authority of New South Wales (Inspector Searle) v Western Sydney Area Health Service at 424.

33 It was further submitted that the Commission in Court Session has often recognised that where the defendant is a large organisation such as the Crown in the Right of New South Wales or a large company it is appropriate, in considering the antecedents, to focus on the history of the particular division or section of the organisation that committed the offence: Inspector Wolf v BHP Steel (AIS) [2003] NSWIRComm 119 at [27,28].

34 Reference was made to the defendant's occupational health and safety system and that the Department of Health's comment in May 2002 that it was "approaching best practice".

35 Ms McDonald rejected the prosecutor's reliance on other cases for the purpose of drawing comparisons regarding sentence.

36 The defendant also submitted the sentences in the other cases should not be seen as comparative as they differed considerably from the circumstances of the offence which is the subject of these proceedings.

Consideration

37 The primary factor to be considered in determining penalty is the objective seriousness of the offence charged. Subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, play a subsidiary role. In considering the objective seriousness of the offence in this case it is relevant to observe that there was evidence of incidents involving violence or aggression or the potential for such aggression or violence within areas of Blacktown Hospital and its grounds, including carparks, both during the daylight hours and at night. This was known to the defendant at least by 1998. In March 1998 the lighting in the Bungarribee House carpark was considered to be "very poor" and that there was a need for additional lighting.

38 In September 1999 the defendant acknowledged the need to "ensure its internal and external lighting is sufficient to deter a security breach" and guidelines for achieving this were published in a draft policy and procedure manual dealing with security. Implementation of the manual was delayed until after 28 May 2000 due to industrial disputation.

39 In response to the lighting survey in March 1998, lights were installed along the western side of Bungarribee House. However, these were subsequently taken down because of complaints from neighbours that the lights were keeping them awake at night. Despite the issue of lighting having been brought to the defendant's attention on a number of occasions, no further action was taken in relation to lighting in the Bungarribee House carpark prior to the incident on 28 May 2000.

40 Moreover, there had been attacks on Ms Bonello in January and April 2000. Whilst these did not take place in the carpark or at night, they do serve to underline a risk to the safety of security officers carrying out their duties in the precincts of Bungarribee House. The attacks also highlight the need to be vigilant in avoiding any risk whether it presents itself inside the building or in a carpark and regardless of whether it is day or night.

41 It was submitted for the defendant that the particular risk arising out of the incident on 28 May 2000 was not foreseen and that, therefore, the offence was relatively less serious. The prosecution, on the other hand, contended that the risk was foreseen and this added to the overall seriousness of the offence. Whilst the defendant did not actually foresee the incident that occurred on 28 May 2000, it is perfectly clear from the evidence that the defendant was aware of incidents involving violence or aggression in the Hospital grounds, including carparks and that security officers might be subject to violent or aggressive acts. The defendant was also aware of the need for adequate lighting in carparks to deter aggressors and in relation to the Bungarribee House carpark was aware that the lighting was inadequate for that purpose. In my opinion, the defendant was conscious of the risk to safety presented by the inadequate lighting in the Bungarribee House carpark. The defendant failed to take action to remedy that inadequacy in a timely manner.

42 I do not accept that because no security officer had been assaulted in a carpark prior to 28 May 2000 that the defendant was not alerted to the danger of that occurring. Vehicles had been reported stolen from the Hospital's carparks. If a security officer had come upon a thief at night in the acting of stealing a vehicle from a carpark it is obvious there is potential for violent confrontation.

43 In mitigation, I accept that the defendant did have a system of safety procedures designed to minimise the risk to security officers in carrying out their duties and that these procedures were conveyed to officers and they understood them. This included the requirement for officers to work in tandem and to carry radios, mobile phones and torches. Neither Mr Gladwell nor Ms Bonello were carrying torches at the time of the incident. It is impossible to say whether the carrying of torches would have avoided the risk but it may well have and, therefore, the requirement to carry should count in the defendant's favour. I do not find Mr Gladwell's reasons for not carrying a torch at all convincing.

44 The defence referred to the difficulties with complaints by neighbours about lighting and the fact that the Hospital was turned into a construction site during the period 1997 to 2000. These are not, in my opinion, mitigating factors. Given the foreseeable risk to security officers caused by inadequate lighting in the Bungarribee carpark, there was an onus on the defendant to find a timely solution to the problem in order to avoid the risk.

45 There was an issue as to whether a simple, straightforward remedy was available to the defendant to avoid the risk to security officers in the carpark. The longer term solution, which involved securing adequate funding, conducting a lighting survey and putting in place new lighting arrangements, could not be described as simple and straightforward. Nevertheless, the short term solution was to erect temporary floodlighting and this was done on 30 May 2000.

46 Given the nature of the institution at Bungarribee House and the record of incidents of violence and aggression, it seems to me that the work of the security officers was inherently dangerous. Moreover, whilst the injuries sustained by Mr Gladwell and Ms Bonello were not serious or life threatening it could easily have been otherwise. This highlights the need for every precaution to have been taken to protect their wellbeing. In this respect, the defendant was clearly conscious of the need for a safe working environment and had gone to considerable effort to develop and implement safe working practices for security officers. However, the failure to ensure the Bungarribee House carpark was adequately illuminated at night was a serious lapse on the part of the defendant, especially given that it was aware of the risk to safety presented by the inadequate lighting.

47 It appears that in order to address the problem of inadequate lighting the defendant relied on the provision of torches to security officers. Whilst it must be acknowledged that torches would provide additional illumination they could not be regarded as an appropriate substitute for lighting that met the appropriate standard set by Australian Standard 4485.1 - 1997, Security for Health Care Facilities which provides in section 5 that for outdoor carparks the lighting levels are to be 20 lux average and 10 lux minimum. This is especially so, I consider, given the prospect of security officers being assaulted.

48 A lighting survey carried out by Mr Clive Bradburn on 2 June 2000 gave an average reading in the Bungarribee House carpark of 9.2 lux. I note that Dr Watson in his report of 25 June 2003 referred to AS1158.1 Road Lighting Part I Performance and Installation design requirements which provided for a minimum average illuminance of 5 lux and a minimum illuminance of 1 lux for exterior car parks with low night activity. It appears from the material, however, that the appropriate standard to be applied is AS 4485.1 which is the standard in relation to which Mr Bradburn made his measurements and the standard applied by the firm of engineers which installed the new lighting in 2001.

49 I note further that in his report Dr Watson concluded that:

(i) Considering the result of Clive Bradburn's lighting survey there would have been an adequate level of light within the carpark.

(ii) When a torch supplied by the defendant was operated within the car park it would have added to the available level of illumination by the illuminances set out in Table 7.1 [Table 7.1 recorded illuminance at various distances from a torch being shone in the car park with the car park lighting on the western boundary being switched off].

50 The difficulty in giving much weight to Dr Watson's conclusions is that the lighting survey conducted by Mr Bradburn was carried out on 2 June 2000. That is, after five 500 watt floodlights were installed on the western side of Bungarribee House.

51 It has been held by a Full Bench that in the industrial context, it will be rare that a sentencing court need not impose a sentence that includes an element of general deterrence: Capral 99 IR 29 at pars [71] - [80]. Consistent with the decision in Capral it is appropriate for the penalty to include an element for general deterrence.

52 Notwithstanding the defendant's proactive approach to safety, the penalty should also reflect an element for specific deterrence, In this respect, I have taken into account the defendant is a large organization operating at a number of sites where security is a significant aspect of the defendant's responsibilities and it will continue to face the challenge of dealing with violent or aggressive behaviour. I do not consider, however, that the defendant's record of prior convictions indicates a disregard for the occupational health and safety laws. The defendant may be regarded as a good corporate citizen.

53 There are a number of subjective factors to be considered. Firstly, there was a plea of guilty by the defendant. The prosecutor contended, however, that the plea was not entered at the earliest opportunity, indeed, that it was not entered until the first day of the hearing on sentence.

54 In R V Thomson; R V Houlton (2000) 49 NSWLR 383 Spigelman CJ (at par [160]) set out the following guidelines applicable to offences against State laws

(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.

(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate.

(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.

(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.

55 The Chief Justice also said at pars [154] to [156]:

154 There are however two circumstances which will generally affect the appropriate level of discount in a particular case:

(i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.

(ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.

155 The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, e.g. on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.

156 Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the "discount" will be reflected in a step down in the hierarchy of sentencing options.

56 In Cameron v The Queen (2002) 209 CLR 339 at 345, after referring with approval to what was said by Ipp J in Atholwood v The Queen (1999) 109 A Crim R 465 at 468, Gaudron, Gummow and Callinan JJ appear to have endorsed the proposition that the test as to whether the plea was entered at the earliest opportunity is when it is reasonable, in all the circumstances and as a matter of practicality, to have expected a plea of guilty to be announced and, further, that regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others remained pending against him.

57 In the present case, in the original application for order which was filed on 8 May 2002, it was alleged that the defendant's failures and/or omissions were:

i. failing to provide or maintain a system of work, to wit, a system of work for the conduct of security patrols of the grounds of Blacktown Hospital at night, that was safe and without risks to health.

ii. failing to provide or maintain a place of work under its control, to wit, the Bungarribee House carpark, that was safe and without risks to health. In particular, the defendant failed to ensure the Bungarribee House carpark was adequately illuminated at night.

58 On 30 October 2002 the defendant pleaded not guilty to the charge against it and the matter was set down for hearing on 23 June 2003. On that day the Court was informed that discussions had taken place and that the defendant was intending to enter a plea of guilty to an amended charge. The matter was stood over until 25 June 2003 when the prosecutor filed in Court an amended application for order in which the first of the alleged failures was omitted and the defendant pleaded guilty to a charge involving the second failure, that is a failure to provide or maintain a place of work etc. There was no evidence before the Court as to when it was that discussions took place between the parties as to a plea. On the face of it, an amended summons was filed and a plea of guilty entered soon thereafter.

59 Understandably, the defendant resisted a charge alleging a failure to provide a safe system of work for the conduct of security patrols because it seems to me that the system of work was in fact safe. What was not safe was the place of work where the system operated. Having regard to what was said in R v Thomson; R v Houlton and Cameron v The Queen, I consider that the plea was entered at an early opportunity and I would allow a discount of 20 per cent.

60 As to the submissions by the prosecutor regarding comparisons with other cases involving emanations of the Crown, it was not entirely clear whether it was being contended that these should be taken into account in determining sentence and/or they were presented for the purpose of assisting the Court to fix a penalty because of common features. I consider the purpose was the latter. I acknowledge that there were similarities in that the cases concerned episodes of violence that involved assaults on employees of the various defendants and the defendants were emanations of the Crown. Beyond that, however, I do not draw much assistance from the other cases as they involved quite different factual circumstances and, as Ms McDonald rightly submitted, in Capral the Full Bench said at 641 that in considering consistency in sentencing:

When sentencing or hearing appeals from different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.

61 The defendant has prior convictions and the maximum penalty is, therefore, $825,000. Notwithstanding the prior convictions and having regard to the size and nature of the defendant's operations and the number of persons employed, it may be concluded that to date the defendant has a reasonably good record and that is to be taken into account in sentencing.

62 I also take into account the defendant's occupational health and safety policies and practices and its commitment to providing and maintaining a safe working environment.

63 I see no evidence of contrition or remorse and I consider that no discount is warranted in that respect. In respect of other subjective factors (other than the utilitarian value of a guilty plea) I would allow a discount of five per cent thereby giving a total discount of 25 per cent.

64 I consider that having regard to the relevant objective and subjective factors an appropriate penalty in this case is $120,000. Given the discount of 25 per cent the fine to be imposed on the defendant is $90,000.

Orders

65 The Court makes the following orders:

1) The offence is proven and a verdict of guilty is entered.

2) The defendant is convicted of the offence as charged.

3) The defendant is fined an amount of $90,000 with a moiety thereof to the prosecutor.

4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

LAST UPDATED: 20/08/2003