South Sydney Junior Rugby League Club Limited v Inspector Bestre [2005] NSWIRComm 116 (17 June 2005)

Last Updated: 20 June 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : South Sydney Junior Rugby League Club Limited v Inspector Bestre [2005] NSWIRComm 116

FILE NUMBER(S): IRC 5069

HEARING DATE(S): 11/04/2005

DECISION DATE: 17/06/2005

PARTIES:

Appellant

South Sydney Junior Rugby League Club Limited

Respondent

Inspector Sara Bestre

JUDGMENT OF: Wright J President Walton J Vice-President Backman J

LEGAL REPRESENTATIVES

Appellant:

Mr S Rothman, SC and Mrs W Thompson of counsel

Solicitor:

David Michael Vaughan

Home Wilkinson Lowry Solicitors

Respondent:

Mr M Cahill of counsel

Solicitor:

Michael O'Dea

Carroll & O'Dea Solicitors

CASES CITED: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610

Dinsdale v The Queen (2000) 202 CLR 321

Geoff Derrick v Australian and New Zealand Banking Group Limited [2003] NSWIRComm 406

House v King (1936) 55 CLR 499

Inspector Bestre v South Sydney Junior Rugby League Club Limited [2004] NSWIRComm 215

Inspector Robinson v Chubb Securities Pty Ltd [2003] NSWIRComm 467

Inspector Robinson v JAF Management Services Pty Ltd [2003] NSWIRComm 468

Markarian v The Queen [2005] HCA 25

O'Sullivan v The Crown in Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361

Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326

WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (1999) 95 IR 383

WorkCover Authority of New South Wales Inspector Dawson v Plastachem Pty Ltd and Others (2001) 110 IR 351

WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449

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 2) (2001) 104 IR 268

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) 121 IR 141

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Criminal Appeal Act 1912

Industrial Relations Act 1996

Occupational Health and Safety Act 1983

Occupational Health and Safety Act 2000

JUDGMENT:

- 6 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

FULL BENCH

CORAM: Wright J, President

Walton J, Vice-President

Backman J

Friday, 17 June 2005

Matter No IRC 5069 of 2004

South Sydney Junior Rugby League Club Limited v Inspector Bestre

Appeal by South Sydney Junior Rugby League Club Limited against the judgment of Boland J given on 30 July, 2004 in Matter No IRC 7117 of 2003.

JUDGMENT OF THE COURT

[2005] NSWIRComm 116

1 This is an appeal under s196 of the Industrial Relations Act 1996 and s5AA of the Criminal Appeal Act 1912 (NSW) against the judgment of Boland J of 30 July, 2004 in which his Honour convicted the appellant of an offence under s8(1) of the Occupational Health and Safety Act 2000 ("the 2000 Act") and imposed a fine of $195,000: Inspector Bestre v South Sydney Junior Rugby League Club Limited [2004] NSWIRComm 215.

Factual Background

2 The appellant conducted a gaming lounge, known as "Smithy's Bar", at its premises. Amusement devices such as poker machines were made available in the lounge for the use of members and guests. Employees of the appellant worked as cash handlers in the money change area of the lounge. On 5 March 2002, Mr Jose Santos, an employee of the appellant engaged as a barman, was working as the security doorman at a desk which faced glass doors to the street. At about 8.15pm, a person wearing a balaclava and armed with a knife entered through the glass doors, took Mr Santos hostage, and proceeded into the cash handling area of the lounge where he obtained $10,409 in cash from three other employees.

3 Mr Santos, at the time of the incident, had not received any training as a doorman. The facts tendered on sentence revealed that a red emergency button was located under the desk where Mr Santos had been seated but that he had not received any training in relation to its availability for use. The facts also revealed that the glass doors allowed automatic entry of persons from the street; there was no closed circuit television system in effective operation; and, the doors to the cash handling area of the lounge were left open in accordance with a prevailing practice. In addition, the facts revealed that no emergency button or duress alarm was available to employees in the cash handling area of the lounge, and, sums of cash were regularly located in the cash handling area. There was also, on the evidence, a safe located in the change handling area at the time of the incident, but, no time delay locks had been installed. An internal telephone located in the cash handling area was available for use of staff working there.

4 During the sentence proceedings, Geoffrey Douglas Knight, the appellant's general manager, gave evidence concerning the size and business of the appellant, and, various safety measures which he said were implemented by the appellant after the commission of the offence. According to Mr Knight at the time of the offence, detailed and expensive renovations were being undertaken by the appellant at the premises. The renovations included an open plan development of bar areas including Smithy's Bar to allow easier access to security personnel and security cameras. A risk to safety in the Smithy's Bar area had been earlier identified as involving intoxicated patrons becoming argumentative and violent. In response to this, a security guard had been employed in Smithy's Bar from midnight each night. On the day of the offence, a security camera located in the bar was concealed by hoarding. This hoarding was part of the renovations works and, according to Mr Knight, was moved daily or weekly.

5 Mr Knight also gave evidence that prior to the offence, the appellant had been the victim of two earlier armed hold-ups. Mr Knight advised the Court that at the time of the offence the appellant had approximately thirty security cameras within the premises, and, that approximately $2,000 was spent weekly on security arrangements and security guards by the appellant.

Judgment at first instance

6 Boland J, after reciting the facts, including those referred to above, remarked that the prevailing circumstances on 5 March 2002 at the appellant's premises, "... presented themselves almost as an invitation for the premises to be robbed and, in the process, for employees to be placed at risk of harm." His Honour added that the risk of a robbery occurring, and, thereby placing employees at risk, was "obvious". His Honour characterised the risk in the following terms:-

"The risk to safety in this case was that of employees being confronted by an armed offender whose intention was to rob the premises of money. The facts reveal that:

(a) Access to the club premises was via glass doors that automatically opened as a person approached and the doorman had no control over persons entering from the street;

(b) The robber was armed with a knife and no measures were in place to protect Mr Santos from being taken hostage by the offender;

(c) The doorman at the time of the incident had not received any relevant training in that role including operation of an emergency button underneath the desk where he would normally be seated;

(d) There was no close circuit television system in effective operation;

(e) The doors to the cash handling area of the Lounge were, in accordance with common practice at the time, left open;

(f) There was no emergency button or duress alarm available to employees in the cash handling area of the Lounge;

(g) The cash handling area operated in such a way as to result in sums of cash being located in that area on a regular basis;

(h) The security arrangements that were in place were woefully inadequate."

7 His Honour then observed that the post-offence measures which the appellant had implemented (as outlined in the Agreed Statement of Facts tendered on sentence) indicated that although the provision of security is an expensive exercise, "...there was nothing impractical or difficult about having in place adequate security measures to avoid any risk to the health and safety of employees"(at [16]).

8 His Honour observed that this was the appellant's second offence under the occupational, health and safety legislation. The appellant therefore faced a statutory maximum penalty of $825,000.

9 The principles of general and specific deterrence were then referred to by his Honour who considered that appropriate weight should be given to the principle of general deterrence, but that, in relation to specific deterrence, little weight would be given to it, because Mr Knight's evidence supported the conclusion that the appellant's propensity to re-offend must be regarded as low.

10 His Honour also expressly stated that s3A and s21A of the Crimes (Sentencing Procedure) Act 1999 were relevant to the sentencing process. His Honour also noted that the appellant had demonstrated a commitment to proper occupational health and safety standards. A number of subjective factors were also taken into account by his Honour. The subjective factors, according to his Honour, warranted a discount of 35 per cent (including 25 per cent for the utilitarian value of the guilty plea).

Grounds of the Appeal

11 The grounds of the appeal are that the penalty did not reflect the nature and quality of the offence, and was excessive. A further ground advanced by the appellant is that the penalty imposed was outside the range of penalty available within the exercise of his Honour's sentencing discretion. The error in the exercise of the discretion is said to arise from his Honour's findings in relation to the objective seriousness of the offence, in particular, the level of foreseeability of the relevant risk. The appellant also contends that Boland J fell into error by placing undue weight as an aggravating factor on material in the Agreed Statement of Facts which disclosed that two armed holdups had occurred at the plaintiff's premises prior to the sentencing proceedings.

Appellant's submissions

12 The appellant contended in written submissions that Boland J 's sentencing remarks failed to adequately take into account security measures which were in place prior to the offence. The appellant developed this submission orally, by suggesting that the relevant risk could not be avoided; rather, the security measures that were in place could do no more than reduce the risk. The appellant also contended that by characterising the prevailing circumstances at the time of the offence as, "an invitation to be robbed", his Honour had overstated the risk. The risk to safety was more accurately characterised here as the risk of a robbery or armed hold-up. This risk arose because the premises was a club, open to the public.

13 The appellant also complained, about his Honour's finding that although the provision of security measures is an expensive exercise, there was nothing impractical or difficult about having in place adequate security measures in order to avoid a risk to safety. On the contrary, the appellant contended that the high cost of the security measures and the degree of difficulty involved in the implementation of those measures, is such that his Honour is precluded from making the finding that the security measures were neither impractical nor difficult.

14 It was conceded by the appellant on appeal that the risk to safety was foreseeable, but, according to the appellant, the foreseeability of the risk to safety was not as high as Boland J had determined when he found that the risk of a robbery was "obvious". The appellant in further reliance on this submission, referred to another decision of Boland J which had dealt with an armed robbery at the Brookvale Branch of the ANZ Bank : Derrick v Australian and New Zealand Banking Group Limited [2003] NSWIRComm 406. According to the appellant, the circumstances in the Australian and New Zealand Banking Group case showed a higher degree of foreseeability of the risk than in the present circumstances.

15 Various cases including Australian and New Zealand Banking Group case are also relied upon by the appellant by way of comparative material to support a submission that the fine imposed by Boland J in the present proceedings was outside the range . The appellant contended that the facts in the present case present a less serious offence when compared to those other cases.

16 As a further submission the appellant contended that the particular offence before Boland J involved a risk which arose from the "unlawful and uncontrollable acts of other persons", as opposed to risks which may be wholly attributable to the employer. The former situation, the appellant submitted, involves a lesser or different level of culpability, because it tends to confirm that not all of the circumstances of the robbery were attributable to the appellant. The actions of the robber were outside its control.

17 The appellant also advanced a submission that the two prior armed hold-ups at its premises should either have been disregarded by Boland J as an aggravating factor in the objective seriousness of the offence, or, should have been regarded as an aggravating factor at the lower end of the scale.

Respondent's submissions

18 The respondent, in response to the appellant's submissions, contended that the correct approach in principle, and in law, is that an offence in which the risk is said to arise from the unlawful and uncontrollable acts of persons other than employees, does not constitute a separate and lesser class of offence under the occupational health and safety legislation.

19 On the issue of foreseeability, the respondent submitted that it was open to Boland J to find that the risk to safety was "obvious". The facts plainly support such a finding. Those facts reveal that the appellant's premises had been subjected to two prior armed robberies; large amounts of cash were held and moved about the appellant's premises from time to time; Mr Knight had acknowledged in his evidence that the appellant was aware of the risk of armed robberies prior to the offence and, was aware that Smithy's Bar was particularly vulnerable at the time of the offence to an armed robbery.

20 The respondent also submitted that Boland J's finding that the security arrangements which were in place at the time of offence were, "woefully inadequate", was also open, given the weight of the evidence.

21 The finding by his Honour that there was nothing impractical or difficult about having in place adequate security measures was also open on the evidence, according to the respondent. The appellant tendered a substantial amount of evidence on sentence that went to the cost of its renovations and the associated costs of providing additional security. It led no evidence, however, on the impracticality or otherwise of these security measures, (by implication, therefore, the appellant could not now complain that Boland J's finding on this point was not open to him to make).

22 The respondent also contended that his Honour did not overstate the risk. The evidence shows that the risk to safety of employees posed by armed robbery was serious, and the appellant's breach of the Act was a serious one.

23 The respondent also directed attention to the appellant's assertion that Boland J placed undue weight on the evidence concerning the two prior robberies which occurred at the appellant's premises. According to the respondent, the appellant's assertion is unsustainable since it fails to identify where, in the sentencing remarks, Boland J placed such undue weight on the prior robberies . On the contrary, the sentencing remarks support a conclusion that his Honour in fact gave little weight to the incidents of prior robberies.

24 Finally, the respondent sought to emphasise the difficulties associated with an attempt to make any meaningful comparisons, for the purpose of identifying an appropriate range, with the present matter and other judgments of the court under the occupational, health and safety legislation which have dealt with incidents of armed hold-ups.

Consideration

25 The issues in the appeal may be conveniently set out in the following way:-

(i) whether there was a failure to adequately take into account security measures in place prior to the offence;

(ii) whether the finding was open that there was nothing impractical or difficult about having in place adequate security measures;

(iii) whether the finding was open that the risk to safety was "obvious";

(iv) whether the offence involved the unlawful and uncontrollable acts of a third party, and, if so whether that involved a lesser or different level of culpability;

(v) whether undue weight (as an aggravating factor) was given to the incidents of prior robberies;

(vi) whether the fine imposed by Boland J was outside the appropriate range.

26 We propose to deal with each of these issues in turn.

Safety measures prior to the offence

27 In the sentencing remarks, Boland J set out the security measures in existence at the time of the offence, and found them, "woefully inadequate". We consider that it was open to his Honour to make this finding.

28 The appellant had at the time of the offence some thirty operating security cameras. The cameras had monitors at the reception desk which was staffed at all times. Some staff had received training in dealing with armed hold-ups, and the regular doorman at Smithy's Bar had a security licence. Moreover, the appellant spent some $2,000 per week on security arrangements and security guards. Against this, however, the evidence revealed that some time prior to the offence, the appellant had undertaken a risk assessment of cash handling areas of the premises. As a result, at the time of the offence, an extensive renovation programme was in progress which included opening up Smithy's Bar to allow easier access for security patrols and the operation of security cameras. Smithy's Bar had a cash handling area but the principal risk that had been identified in the area was the risk of patrons becoming intoxicated and violent, not the risk of a robbery or an armed hold-up. This was despite the fact that the premises had experienced two earlier armed hold-ups. On the day of the offence, the uncompleted renovations exacerbated the risk of a robbery in Smithy's Bar because a hoarding which was being used in the renovations obscured the security camera that was focused on the cash handling area.

29 Although some staff had received training in the event of an armed hold up, other staff, including Mr Santos, had not. Mr Santos, a barman, was relieving the regular doorman who was on his dinner break at the time of robbery. A red emergency button was located underneath the desk where the doorman was usually located. Mr Santos was not trained in relation to the availability of the emergency button. It was common practice to leave open the doors to the doors of the cash handling area of Smithy's Bar.

30 The appellant relied on the prevailing security measures which it said indicated that it was neither indifferent to safety, nor that it had failed to take any steps to ensure safety. This reliance is misplaced. The fact that some security measures were in place at the time of the offence does not preclude the finding that those existing security measures were woefully inadequate.

Nothing impractical or difficult about adequate security measures

31 His Honour found that there was nothing impractical or difficult about having in place adequate security measures prior to the offence. This finding was also open to his Honour on the facts before him.

32 The finding was made in the context of the evidence in the Agreed Statement of Facts concerning the remedial steps taken by the appellant following the offence, and, an acknowledgement by his Honour that the provision of security is an expensive exercise.

33 The appellant pointed to expenditure on security arrangements which rose from $2,000 per week to $10,000 per week, after the offence, and, additional security costs to support its submission that the evidence did not support his Honour's conclusion that the subsequent security measures were neither difficult nor impractical.

34 We are of the view that this submission is misconceived. His Honour's finding was not based upon the costs of security. His Honour expressly acknowledged that security measures were expensive. The availability and implementation of the post-offence security measures by the appellant prompted the finding, not the cost of those measures.

The risk to safety was obvious

35 The finding by Boland J that the risk to safety was obvious was also open on the evidence. That evidence revealed serious deficiencies in the prevailing security measures, in circumstances where the appellant had experienced two prior robberies at the premises.

36 The appellant submitted that the penalty imposed by Boland J indicated that his Honour viewed the foreseeability of the risk at its premises as of a high nature. In support of this submission the appellant relied on a finding by Boland J on the foreseeability of the risk in Derrick v Australian and New Zealand Banking Group Pty Limited [2003] NSWIRComm 406. In that case, the defendant, a bank, was the victim of a robbery at its Brookvale branch when armed robbers scaled a six-foot high screen known as an anti-jump barrier to access the cash handling area. The defendant had no prior convictions and therefore faced a maximum penalty of $550,000. His Honour assessed the gravity of the offence at $240,000. After allowing a discount of thirty five percent for mitigating factors imposed a fine of $156,000.

37 The appellant contended that the foreseeability of the risk in the present proceedings was not as high as that assessed by Boland J in Derrick v Australian and New Zealand Banking Group.

38 It is not necessary, or appropriate, for us to attempt to assess the relative degrees of foreseeability of the respective risks in order to determine whether his Honour assessed the foreseeability of the risk as of a higher degree than assessed in Derrick v Australian and New Zealand Banking Group.

39 Even if some form of comparison were available, it would not preclude a finding in the present case that the risk to safety was obvious.

40 The differences in the statutory maximum penalty would in any event make any attempt at a comparison of very limited value. Foreseeability of the risk was one of many factors assessed by his Honour in both cases in determining the objective gravity of each offence. References to the amounts assessed in relation to the gravity of the respective offences show that, taking into account the different maximum penalties, his Honour in fact viewed the offence in Derrick v Australian and New Zealand Banking Group case as objectively more serious.

Unlawful and uncontrollable acts of third parties

41 The appellant also submitted that a different or lesser level of culpability arises in the circumstances of the offence because the actions of the robber were outside its responsibility or control. A related submission advanced by the appellant was that in determining the nature and quality of the offence, his Honour erroneously focused on the incident itself, that is, the specific risk posed by the robber as opposed to the general risk of armed robbery.

42 We agree that focusing too closely on the specific risk posed by the robber on the day of the offence could lead to the error of concentrating on the incident or accident instead of the general risk to safety: O'Sullivan v The Crown in Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361.

43 We do not agree, however, that Boland J impermissibly concentrated on the incident when assessing the gravity of the offence. His Honour identified in clear terms the risk which was the subject of his consideration in the sentence proceedings, namely:

The risk to safety in this case was that of employees being confronted by an armed offender whose intention was to rob the premises of money.

44 Nor do we agree with the submission that the appellant's culpability falls into a different or lesser category because of external factors beyond its responsibility or control which were present at the time of the offence.

45 The principles in this area of occupational health and safety law are well established. The legislation is directed at obviating, not eliminating risks, and, sections 8(1) and 8(2) of the 2000 Act (as well as ss15 and 16 of the 1983 Act) compel attention to the failures of the employer to ensure, by its acts or omissions, against the risks to safety of persons either at work or at the workplace of the employer.

46 An employer has responsibilities under the occupational health and safety legislation to ensure against risks to safety in circumstances where extraneous factors (that is, extraneous to the elements of the offence) may be outside the employers immediate control and may present a specific manifestation of the relevant risk to safety.

47 These principles were examined in some detail by Hungerford J in 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. 2) (2001) 104 IR 268, and, in his Honour's sentencing remarks in 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) 121 IR 141.

48 In both decisions Hungerford J dealt with charges that arose in circumstances of a fatal shooting of two police officers at a house in Crescent Head by the occupant John McGowan. The charge, to which the defendant pleaded guilty, concerned a failure by the defendant to provide training to police officers in tactics to be employed in high-risk operational situations. The defendant had advanced a proposition in both decisions that the real risk to the police officers who attended at the Crescent Head house was that posed by Mr McGowan, and was a risk against which the defendant could not make provision. In rejecting the submission, Hungerford J said (104 IR at [24] and [26]):-

[24] Although the defendant may not be able to "control", or otherwise affect, the conduct of persons such as Mr McGowan who confront police officers from time-to-time in the performance of their duties, the defendant is able to directly control and dictate the measures which should properly be made in preparing and equipping police officers to perform operational duties which are of such a nature as will ensure the health, safety and welfare of those officers...

[26] ... any failure by the defendant here was its acts or omissions as alleged in each charge in circumstances where the relevant risks to the two officers' safety were not created by Mr McGowan but by the officers being required by the defendant to work in an environment where they were at risk of being shot or otherwise suffering physical harm. In other words, the risks faced by officers engaged on operational type duties were well known to the defendant, even though the specific risk of Mr McGowan may not have been known, and who was therefore responsible under s 15 for its failures in ensuring against those risks...

49 In WorkCover Authority of New South Wales (Inspector Keelty) (No.3), his Honour added, in the context of the sentencing proceedings (at [20]):

Put another way, the failure by the defendant was its omission to provide a safe working environment in respect of training which addressed in a practical way the tactics to be employed in high-risk situations and mandatory training in the use and reloading of weapons, use of torches, defensive tactics and communications. Those elements were admitted by the defendant by its plea of guilty. It is no answer, in my view, to plead in mitigation of penalty the inability to control the risk of violent behaviour by Mr McGowan; the admitted failure here was the defendant's failure to provide appropriate training to enable the two officers to properly deal with Mr McGowan in a manner to preserve their safety: see by analogy the reasoning of the Full Court in WorkCover Authority of New South Wales (Inspector Viesis) v Thiess Contractors Pty Ltd (1996) 85 IR 12 at p 32 as to the relevance of extraneous factors in the sentencing process on a plea of guilty where, of course, all of the essential elements of the charge are admitted.

50 The aforementioned aspects of the decision of Hungerford J in WorkCover Authority of New South Wales (Insp Keelty) v Police Service (No 2) were followed by Walton J, Vice-President, in O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361. As his Honour observed:

[140] The distinction must be drawn between a risk, such as the violent behaviour of a member of the public or severely intellectually disabled student, occurring independently of the employer, the general nature of which may be known, and the risks which arise from the manner in which the employer exposes the employee to that risk. To put it another way, the employer fails to ensure the health, safety and welfare at work of its employees by failing to appropriately equip or protect them from risks inherent in their work (as opposed to risks which are merely speculative or unduly remote — see Drake at [145]), notwithstanding that such risks may be caused by external factors, known or unknown. As Hungerford J noted at [20] of WorkCover v Police Service (No 2), the duty imposed upon the employer is directed at obviating risks where the circumstances create a potential danger to the health and safety of employees at the workplace. It is upon this distinction between a specific risk (the particular actions of an individual in a given context on a given day) and a general class of risk that analysis must concentrate, for focusing too closely on the specific risk immediately preceding the incident under scrutiny can lead to the error so frequently warned against: concentrating on the incident itself. Appreciation of this distinction also makes it clear that the defendant’s preliminary submissions are based upon the wrong risk: when attention is focused upon the risks which arise from the manner in which the employer exposes the employee to the risks, the defendant’s submissions in this case, as in WorkCover v Police Service (No 2), fall away.

[141] Although it is implicit in the judgment of Hungerford J, and indeed in the foregoing analysis, I make it plain that I reject the defendant’s submission in this case that the prosecutor must establish that the step required to have been taken by the defendant would have eliminated the entire risk. There is no justification for limiting the broad words of s 15 of the Act in such a manner, particularly in the context of an Act which has the stated purpose of securing the health, safety and welfare of persons at work. To accept such a submission would virtually render s 15 ineffective and belie almost every decided case, for what risk in an operating workplace can be eliminated entirely? Although it was only pleaded by the prosecution in the charge relating to counseling, the assault by JB on 8 March 1999 was frequently used by the defendant in support of this argument. However, the fact that the assault by JB on 8 March may not have been preventable, or may not have been caused by a failure on the part of the defendant, is no answer to the charge that other assaults, by other students, could have been prevented and were caused by failures on the part of the defendant.

51 We consider that the approach taken by Hungerford J was correct. In relation to the present proceedings, an inability on the part of the appellant to control the specific risk posed by the robber on the day of the offence does not enable it to plead the robber's conduct as mitigating the failures with which it was charged and to which it pleaded guilty.

Whether undue weight placed on prior robberies

52 The appellant's submission that Boland J placed undue weight as an aggravating factor on two earlier armed hold-ups at its premises has little, if any, support in the sentencing remarks. His Honour did not expressly refer to those earlier incidents in his consideration. The Agreed Statement of Facts reproduced in the sentencing remarks contains the limited reference to ".. at least two other robberies" which had occurred at the premises on unspecified dates prior to the offence. A summary of Mr Knight's affidavit evidence, which appear in the sentencing remarks mentions that prior to the date of the offence, the premises had experienced armed hold-ups on two prior occasions but that neither of these armed hold-ups occurred in similar circumstances to the present incident. No details are provided as to the circumstances of the prior armed hold-ups.

53 It is possible that his Honour had in mind the earlier incidents when considering the application of specific deterrence to the facts before him. After mentioning the post-offence measures which his Honour considered were "extensive and appropriate", his Honour assessed the appellant's propensity to re-offend as "low", and added, that he did not propose to give much weight to the need for specific deterrence.

54 These remarks tend to suggest that his Honour placed no weight at all on the earlier armed hold-ups, if in fact those earlier incidents formed part of his Honour's consideration of the application of specific deterrence.

Whether the penalty was outside the appropriate range

55 The appellant contended that the fine imposed by Boland J for the offence the subject of the present proceedings was outside an appropriate range. In support of this contention reliance was placed on other decisions decided under the occupational health and safety provisions which involved armed hold-ups.

56 Two such decisions were extempore judgments of Curtis AJ in Inspector Robinson v Chubb Securities Pty Ltd [2003] NSWIRComm 467 and Inspector Robinson v JAF Management Services Pty Ltd [2003] NSWIRComm 468.

57 In Chubb Securities Pty Ltd, Curtis AJ's assessment of the culpability of the defendant as "moderate" appears to have been based on a finding that the offence involved an aberrant failure to train the particular men who were the victims of an armed hold-up. JAF Management Services Pty Ltd concerned the same incident as the incident in Chubb Securities Pty Ltd. Curtis AJ found that in the second case, the objective gravity of the offence was serious but felt constrained by considerations of parity not to impose a penalty greater than the one imposed by him in Chubb Securities Pty Ltd. His Honour assessed the objective seriousness in each case as warranting fines of $150,000. After taking into account subjective considerations he imposed fines of $100,000 on each defendant.

58 In both judgments the sentencing remarks occupy some one to two pages in length, and, the facts were not reproduced in any detail. There is little by way of reference to the objective criteria usually examined in the context of breaches under the occupational health and safety provisions, such as the principles of deterrence and whether the risk to safety was foreseeable. In both cases the maximum penalty was $550,000.

59 In the Australian and New Zealand Banking Group decision referred to earlier the defendant also faced a maximum penalty of $550,000. By contrast, the appellant in these proceedings, being a prior offender, faced a maximum penalty of $825,000.

60 The differences in the statutory maximum penalties alone would severely limit any meaningful comparison being made for the purposes of ascertaining an appropriate range and therefore whether the appellant's fine fell within such a range.

61 During oral submissions, the appellant referred to a second case in which the defendant, ANZ Group Limited, had pleaded guilty to a second offence under the 2000 Act. This second offence exposed the defendant to the higher statutory maximum penalty of $825,000: Derrick v Australian and New Zealand Banking Group Limited [2005] NSWIRComm 59.

62 The facts of this subsequent decision concerned a series of three armed hold-ups at the defendant's Peakhurst branch. Boland J assessed a fine of $270,000 to reflect the objective seriousness of the offence. The fine however took into account factors which his Honour found mitigated the objective seriousness of the offence. No such factors were found to exist by his Honour in the present case.

63 It follows from this examination of the decisions relied upon by the appellant that the facts, that is, those capable of being ascertained, and the circumstances applicable to each decision, differ to such an extent that no direct comparisons can be made with the present decision in order to establish whether the fine imposed by Boland J was outside the appropriate range.

64 Any suggestion that the parity principle applies to the decisions finds little support in any authority. The parity principle normally applies to co-offenders, being relevant only to comparisons of like with like: Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 340-341.

65 Nor does the principle of consistency in sentencing assist the appellant. It is not possible to determine with any precision whether the decisions put forward by way of comparison involve different offenders with similar characteristics who have committed similar crimes: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [62] - [65].

66 Nor do the circumstances of the present offence lend themselves to an assessment of the seriousness of the appellant's offence by reference to offences committed by other defendants who can be said to have contributed to the relevant risk: WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (1999) 95 IR 383.

67 This submission by the appellant must also fail.

68 We would conclude by emphasising that the principles to be applied in an appeal from a sentencing decision are those laid down in House v King (1936) 55 CLR 499: WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449.

69 The approach to be taken by an appellant court in relation to discretionary decisions dictates that even if the judges on appeal consider that if they had been in the position of the primary judge a different course would perhaps have been taken, they are nevertheless constrained from so doing because of the manner in which such appeals are to be determined.

70 Accordingly, in light of the established principles which must be followed in the appeal we can discern no specific error in the reasoning of the sentencing judge, or any error of the type identified in Dinsdale v The Queen (2000) 202 CLR 321; that is, an error on the face of the judgment that may be demonstrated by the sentencing judge's conclusion, such as a manifestly inadequate or excessive sentence: Dinsdale at 325.

71 We refer, in this respect, to the recent decision of the High Court in Markarian v The Queen [2005] HCA 25:

[27] Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.

[26] The proceedings in the Court of Criminal Appeal being a prosecution appeal, brought pursuant to s5D of the Criminal Appeal Act 1912 (NSW), it was, of course, necessary for the prosecution to show error in the sentence passed below - either specific error or manifest inadequacy. As the whole Court pointed out in Lowndes v The Queen (1999) 195 CLR 665, a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.

72 The appeal should be dismissed.

Orders

73 The Court makes the following orders:

1. The appeal is dismissed;

2. The appellant is to pay the respondent's costs of the appeal as agreed, or in default of agreement, as assessed.

ooo000ooo

LAST UPDATED: 17/06/2005