Peter Presdee v Commonwealth Bank of Australia [2005] NSWIRComm 389 (31 October 2005)

Last Updated: 2 November 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Peter Presdee v Commonwealth Bank of Australia [2005] NSWIRComm 389

FILE NUMBER(S): 4730

HEARING DATE(S): 19/10/2005

DECISION DATE: 31/10/2005

PARTIES:

PROSECUTOR:

Mr Peter Presdee

DEFENDANT:

Commonwealth Bank of Australia

JUDGMENT OF: Staunton J

LEGAL REPRESENTATIVES

PROSECUTION:

Mr S Crawshaw SC

SOLICITORS:

Slater & Gordon

DEFENDANT:

Mr B Hodgkinson SC

SOLICITORS:

Freehills

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

Coombes v Patrick Stevedores Holdings Pty Limited [2005] NSWIRComm 56

Derrick v ANZ Group Limited (2005) NSWIRComm 59

Geoff Derrick v ANZ Group Limited (No 2) [2005] NSWIRComm 145

Hawkesbury City Council v Foster and Mushroom Composters Pty Limited [1997] 97 LGERA 12

Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464

O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) [2003] NSWIRComm 303

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

R v Way [2004] NSWCCA 131

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Fines and Penalties Act 1901

Local Government Act 1993

Occupational Health and Safety Act 2000

JUDGMENT:

- 19 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Staunton J

DATE: 31/10/2005

Matter No IRC 4730 of 2004

Peter Presdee v Commonwealth Bank of Australia

Prosecution under s8(1) of the Occupational Health and Safety Act 2000

JUDGMENT

[2005] NSWIRComm 389

1 The defendant has pleaded guilty to an offence arising pursuant to s8(1) of the Occupational Health and Safety Act 2000 (the Act).

2 The defendant is a publicly listed company comprising a number of business units, including Retail Banking Services. As part of that, it operates a number of retail banking premises around the country, including branches at Woy Woy, located on the Central Coast in New South Wales, and Guildford, located near Parramatta, also in New South Wales.

3 Two separate incidents give rise to the offence pleaded. The first of these occurred on 23 April 2004. At approximately 5.05 pm, while two employees of the Guildford branch were servicing the ATM located on the bank premises, two bandits entered the bank by smashing a side entrance with a sledgehammer. Upon entry, the bandits demanded one of the employees, Ms Pauline Huynh, to open the ATM. Threats were also made against her life. Ms Huynh subsequently escaped from the bandits and shortly after she escaped, the bandits also left the bank. No money was taken from the premises.

4 The second incident took place on 7 May 2004. At roughly 8.40 am, while two employees of the Woy Woy branch were reloading the ATM canisters with cash inside the bank, two hooded bandits approached the bank. They proceeded to smash the door with a sledgehammer to gain entry, and absconded with the ATM canisters.

5 As a result of these events, the defendant was charged with an offence pursuant to s8(1) of the Occupational Health and Safety Act 2000. In relation to that offence it was alleged that the defendant:

Failed to ensure the health, safety and welfare at work of the employees at the time and place and in the manner particularised below.

Particulars:

(1) On 7 May 2004 at the Woy Woy branch premises at 12-14 Blackwall Road Woy Woy the defendant failed to ensure the health, safety and welfare at work of Ross MacMillan, Jan Harding, Kristy Mullard, Emma Clunes and Lena Fenton who were employees of the defendant, and

(2) On 23 April 2004 at the Guildford branch premises at 323-325 Guildford Road Guildford, the defendant failed to ensure the health, safety and welfare at work of Michael Eggins, Linda Parkee, Prachitta Ing, Collette Bryant, Mohammed Aftab, Wedad Cheded and Pauline Huynh who were employees of the defendant,

by failing to ensure that the premises were not accessible to a person or persons carrying out, or attempting to carry out, a robbery where such failure arose as a consequence of inadequate risk assessment.

As a result of the said failures the said employees were placed at risk of injury.

6 The prosecution tendered an agreed statement of facts which discloses the events relevant to the offence particulars. The facts detailed in relation to the Guildford branch of the Bank applied as at 23 April 2004. The facts relating to the Woy Woy branch applied as at 7 May 2004.

Guildford Branch

1. The defendant operated a bank branch at 323-325 Guildford Road, Guildford ("the branch").

2. Collette Bryant, Pauline Huynh, Michael Eggins, Wedad Chedad, Mohummed Aftab, Prachitta Ing and Linda Parkee (“the employees”) were employed by the defendant and worked at the branch.

3. The branch was open to the public from 9.30 am to 4.00 pm Monday to Thursday and 9.30 am to 5.00 pm on Friday.

4. The branch had three entrances. The main entrance was a glass double door at the front of the branch on Guildford Road. (Photo 8)

5. The second entrance, which had a ramp up to it, was a single glass door at the side of the branch (Photos 7 and 9). This entrance came off a laneway that ran along the length of the right hand side of the branch. The ramp to this side entrance provided disabled access to the building and also provided access to those customers who could not access the branch by the steps at the front of the branch.

6. There was a third entrance at the back of the branch. This entrance was glass doors and was permanently locked (Photo 2).

7. There was a security camera at the front of the branch facing the main entrance and another security camera at the rear of the branch.

8. The ground floor of the branch was divided by a counter into a secure area and a public area (Photo 23).

9. The counter was fitted with plastic anti-jump screens and pop up anti-bandit screens (Photo 23).

10. The branch had an automatic teller machine (ATM) set in the brick front wall of the branch, to the left of the front entrance looking from outside the branch (Photo 13).

11. The ATM was serviced by the employees when the branch was closed to the public and locked. That is approximately:

Monday to Thursday: 8.15 am to 9.30 am and 4.00 pm to 5.00 pm

Friday: 8.15 am to 9.30 am and 5.00 pm to 5.30 pm

12. Two employees were required to service the ATM, each of whom had a different combination that was required to open the ATM safe.

13. The ATM was serviced through the back of the machine. The back of the ATM was in a room (“the ATM room”) at the front right hand corner of the branch looking from inside the branch towards Guildford Road. The entrance to the ATM room was in the public area of the branch (Photo 22).

14. There was one entrance door to the ATM room. This was a wooden door with a key operated lock in the door handle (Photos 16 and 18).

15. Servicing the ATM included the loading of cash into the ATM and the removal of deposits from the ATM.

16. The ATM was serviced on a number of occasions each week. It was usually refilled with cash on Fridays so that it was operational over the weekend.

17. The cash to be loaded into the ATM was prepared in the secure area of the branch. The cash was carried by employees from the secure area to the ATM room after the branch was closed to the public and locked.

18. A person walking from the secure area of the branch to the ATM room could be seen through the glass front door of the branch and the glass side door of the branch.

19. When the ATM was serviced the screen on the ATM facing Guildford Road indicated that it was closed. This could be observed from the street.

20. In addition to servicing the ATM, the employees were required to perform other tasks outside the secure area of the branch while the branch was closed to the public and locked. For example, employees put up promotional material and replenished the deposit and withdrawal forms in the public area of the branch.

21. On Friday 23 April 2004, at approximately 5.05 pm, when the branch was closed to the public and locked, Ms Huynh and Mr Eggins went from the secure area of the branch to the ATM room.

22. Ms Huynh and Mr Eggins accessed the ATM room using a key. Once they were inside the ATM room the door was locked behind them.

23. Ms Huynh and Mr Eggins deactivated the ATM and used their combinations to open the ATM safe.

24. Ms Huynh then removed cash from the ATM deposit box and placed it in the ATM cash canister. Approximately $50,000.00 was removed from the deposit box and placed in the canister. There was then a total of approximately $200,000.00 in the ATM canisters.

25. Ms Huynh and Mr Eggins locked the safe and closed the ATM.

26. Mr Eggins took deposit envelopes back to the secure area of the branch. Ms Huynh remained in the ATM room to restart the ATM.

27. While Ms Huynh was in the ATM room two bandits gained access to the branch by smashing a glass panel in the side entrance door to the branch (Photo 10).

28. When Ms Huynh heard the sound of the glass breaking she opened the ATM room door and looked outside. She saw the bandits and moved back inside the ATM room. She then opened the ATM room again to ensure that the door to the ATM room was locked by checking the outside handle. She stood behind the ATM room door.

29. The ATM room door was forced open by the bandits.

30. One of the bandits entered the ATM room and demanded that Ms Huynh open the ATM. One bandit had a sledgehammer. Both the bandits grabbed Ms Huynh at different times. One of the bandits threatened to kill Ms Huynh. Ms Huynh gave the bandits her combination but informed them that she was not able to open it by herself.

31. One of the bandits forced Ms Huynh out of the ATM room and into the public area of the branch (Photos 25 and 26).

32. The anti-bandit screens had been activated so the other employees could not see Ms Huynh or the bandits.

33. One of the bandits yelled towards the secure area words to the effect of: “If you don’t come out I am going to kill her.”

34. Ms Huynh also yelled towards the secure area using words to the effect of: “Please somebody come out and help me. Please help me.”

35. All the employees inside the secure area could hear the yelling coming from the banking chamber. Some of them could hear the actual words.

36. The bandits then took Ms Huynh into the ATM room and demanded that she open the ATM.

37. Ms Huynh was able to break free. She escaped through the front entrance door of the bank.

38. The bandits left the branch. The police arrived at the branch a short time later.

39. The defendant arranged trauma counselling for each of the employees on the evening of 23 April 2004. The defendant made further trauma counselling available to those employees who requested it.

40. Following the attempted robbery Ms Huynh took approximately three weeks off work. She made a claim for workers compensation in which she claimed that she suffered a psychological injury as a result of the attempted robbery on 23 April 2004.

41. Prior to 23 April 2004 the defendant conducted risk assessments and completed Branch Security Checklists with respect to the branch approximately every six months. (Document 4)

42. Following the attempted robbery on 23 April 2004 the defendant arranged for the attendance of an unarmed security guard at the branch for a number of weeks.

43. Following the attempted robbery on 23 April 2005 the defendant carried out the following remedial works at the branch:

· The installation of internal grilles in the ATM room.

· The installation of internal grilles on all ground floor back office windows.

· The installation of internal grilles in upstairs toilets.

· The replacement of the ATM room door with a solid core door which is outward opening and includes a spy-hole. The door also has a nib lock allowing the door to be locked from the inside.

· The door at the side entrance was changed to a solid core door with a magna lock allowing it to be locked from the inside.

Woy Woy Branch

44. The defendant operated a bank branch situated at 12-14 Blackwall Road, Woy Woy (“the branch”).

45. Ross MacMillan, Jan Harding, Kristy Mullard, Emma Clunes and Maddalena Fenton (“the employees”) were employed by the defendant and worked at the branch.

46. The branch was open to the public from 9.30 am to 4.00 pm Monday to Thursday and 9.30 am to 5.00 pm on Friday.

47. The ground floor of the branch was divided by a counter into a secure staff area and the public area (Photo 18).

48. The counter was fitted with plastic anti-jump barriers and pop up anti-bandit screens.

49. The branch had a suspicion camera directed at the door near the front of the branch.

50. The entrance to the branch on Blackwall Road was a glass door which was set back in a vestibule area. The sides of the vestibule area were also glass (Photo 1).

51. There was an automatic teller machine (ATM) facing Blackwall Road on the right side of the vestibule area which was set into the glass window (Photo 1).

52. The back of the ATM was in the public area of the branch (Photo 5).

53. The ATM was serviced by the employees when the branch was closed to the public and locked. That is approximately:

Monday to Thursday: 8.15 am to 9.30 am and 4.00 pm to 5.00 pm

Friday: 8.15 am to 9.30 am and 5.00 pm to 5.30 pm

54. Two employees, each of whom had a different combination, were required to open the ATM safe. The branch had two sets of two employees who could do this work.

55. The employees were required to service the ATM each working day. On approximately two days per week employees were required to load cash into the ATM.

56. The cash which was to be loaded into the ATM was prepared in the secure area of the branch. The cash was carried by employees to the back of the ATM. The alarm deactivated and the ATM opened, the ATM safe accessed with two combinations, the canister holding the cash removed, loaded with cash and then reinstalled. The ATM safe was then locked, the ATM closed and a code entered to restart the machine. This process normally took about two to three minutes.

57. An employee who was walking from the secure area of the branch to the area at the back of the ATM was visible from the street at the front of the branch (Photos 1 and 19).

58. When the ATM was being serviced the screen on the ATM facing Blackwall Road indicated that it was closed. This could be observed from the street.

59. In addition to servicing the ATM, the employees were required to perform other tasks outside the secure area of the branch while the branch was closed to the public and locked. For example, employees put up promotional material and replenished the deposit and withdrawal forms in the public area of the branch.

60. On 7 May 2004 at approximately 8.40 am employees in the secure area prepared the cash which was to be loaded into the ATM. The cash totalled approximately $170,000.00 (“the cash”). It was in bundles held together with rubber bands.

61. At about 8.40 am, Ms Harding and Mr MacMillan walked from the secure area to the back of the ATM. They put the cash on a bench near the ATM and disengaged the ATM alarm and opened the door of the ATM. They entered their combinations to unlock the ATM safe.

62. Mr MacMillan removed the canisters from the ATM and put them on a counter near the ATM. He proceeded to load the cash into the canisters and replace the canisters into the ATM.

63. While the ATM was being reloaded with cash two bandits wearing hoods approached the front of the branch. At this point they were approximately two metres away from Mr MacMillan on the other side of the glass.

64. One of the bandits hit the bottom half of the front door of the branch a number of times with a sledgehammer. He smashed a hole in the bottom part of the door (Photo 3) and gained access to the branch.

65. The anti bandit screens were activated. All staff were in the secure area except for Mr MacMillan and Ms Harding. Ms Harding retreated and was let into the secure area.

66. The bandits entered the branch and confronted Mr MacMillan.

67. The bandits picked up the canisters of cash and left through the front door of the branch. The police attended a short time later.

68. The defendant arranged trauma counselling for each of the employees on the evening of 7 May 2004. The defendant made further trauma counselling available to those employees who requested it.

69. Ms Harding, Ms Mullard, Ms Fenton and Ms Clunes each made claims for workers compensation as a result of the attempted robbery on 7 May 2004. Ms Mullard had approximately two weeks off work. Ms Harding had one week off work.

70. Prior to 7 May 2004 the defendant conducted risk assessments and completed Branch Security Checklists with respect to the branch approximately every six months. (Document 5)

71. Following the robbery on 7 May 2004 the defendant arranged for the attendance of an unarmed security guard at the branch for a number of weeks.

72. Following the robbery on 7 May 2004 the defendant assessed the security of the branch. The defendant arranged for the installation of sensors in the branch plant room and roof and a more secure door between the second floor of the branch and the secure area on the first floor.

73. Following the robbery on 7 May 2004 the defendant directed that the employees were not to service the ATM. Since 7 May 2004 the ATM has been serviced and loaded with cash by armed guards from Chubb Security.

7 As referred to in the agreed facts, the prosecution tendered a number of photographs which have assisted me in understanding the nature and layout of the premises at which the incidents occurred.

8 The prosecution also tendered without objection a bundle of documents including, inter alia, the following material:

· Guildford branch Risk Assessments and Security Checklists.

· Woy Woy branch Risk Assessments and Security Checklists.

· Australian Standard AS/NS 4360:199 "Risk Management".

· Judgment in Peter K Presdee v Commonwealth Bank of Australia File No: 20069312/2000: 20 August 2001, Chief Industrial Magistrate Miller.

9 While there is no prior conviction recorded by the WorkCover Authority with respect to the defendant, the defendant acknowledged the prior conviction arising out of the private prosecution reflected in the decision of Chief Industrial Magistrate Miller identified above. That was a matter in which the defendant also entered a plea of guilty.

10 On behalf of the defendant, an affidavit of Ms Lisa Siomnetta Hunt, sworn 12 October 2005, together with annexures, was tendered without objection. Ms Hunt is the General Manager, Employee Strategy and Information Services for the Commonwealth Bank. She has held this position since 18 March 2005 but has been employed by the defendant since 1984 in diverse positions. In her current role, Ms Hunt is responsible for the development of policies and systems concerning workplace relations, employee engagement and occupational health and safety. In her affidavit, Ms Hunt described the business groups which form part of the bank’s business as well its occupational health and safety policies and practices in regard to branch security and security procedures. She also detailed the defendant's security training prior to the incidents and its security measures before and after the hold-ups at both Woy Woy and Guildford.

11 No oral evidence was received in the course of these proceedings.

Relevant principles

12 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A (Purposes of Sentencing), 21A (Aggravating, mitigating and other factors in sentencing) and 22 (Guilty plea to be taken into account).

13 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]:

....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.'

14 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474.

15 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646.

16 On the issue of foreseeability, the Full Bench in Capral also stated:

The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms:

... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy.

17 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues, I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows:

... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

18 In the context of the above well established sentencing principles, it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]:

... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c).

Considerations

19 The defendant has a prior conviction. Accordingly, the maximum penalty for the offence is $825,000.

20 In assessing the culpability of the defendant, it is a relevant consideration that the work being performed by the defendant's employees at the time of the respective incidents involved a procedure fraught with risks to safety. That much is evident by the defendant's own security handbook in place at the time of the robberies relating to hold-ups and the types of attack and weapons used to commit bank robberies. The handbook states:

Burst in attack

Staff should be aware of the possibility of a surprise 'burst in' attack outside trading hours.

When servicing ATMs or Night safes, care must be taken and where possible service areas locked.

21 As well, there is an acknowledgement in the handbook that sledgehammers are one of the weapons of choice used in a hold-up.

22 Additionally, the defendant's security handbook identifies indicia of security vulnerability, particularly when staff are handling large amounts of cash such as the refilling of ATMs and doing so at the same time each day.

23 In short, the risk of a bank hold-up is and was clearly foreseeable. The defendant acknowledged that and the entry of the plea of guilty reflects it's acknowledgment that it's response to that foreseeable risk to safety was, in all the circumstances, inadequate.

24 As was stated in Capral at 646, the existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. As such, the starting point for the determination of culpability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken.' (Lawrenson Diecasting at 476).

25 As part of the documentary material presented to the Court, the prosecutor provided evidence of hold-ups of a number of the defendant's branches that occurred in the 2002-2003 period where sledgehammers were predominantly used to gain forced entry after-hours for the purposes of accessing funds from ATMs. Details of those hold-ups were as follows:

· On 5 July 2002, a Surry Hills branch, at 9.23 am, prior to the branch opening for business, three offenders used a sledgehammer to smash open the front doors of the branch. Access was gained to the secure area.

· On 29 May 2003, at Beecroft Branch, at 4.07 pm, three disguised offenders attacked the glass panel adjacent to the ATM with sledgehammers. Access was gained to the branch. The branch manager was attacked and injured by the offenders.

· On 31 July 2003, at Hamilton branch, at 4.07 pm, after the branch was closed to the public, two offenders attacked the glass rear door and adjacent window of the branch with a sledgehammer. Access was gained to the branch.

· On 8 May 2003, at Narrabeen branch, at 8.50 am, before the branch was open to the public, two disguised offenders attacked the glass panel adjacent to the ATM and night safe with a sledgehammer. This occurred as the ATM custodians were preparing cash in a nearby room to reload the ATM. Staff ran to the secure staff area. The money was stolen.

· On 5 December 2003, at St James Branch, at 5.18 pm, after the branch was closed to the public, two disguised offenders gained access to the branch while the ATM was being reloaded by staff. After that attack the Defendant arranged for the ATM to be reloaded by Chubb Security rather than staff.

26 The prosecutor points to that evidence as evidence pointing to a spate of bank robberies over a relatively confined space of time that had common factual elements to the Guildford and Woy Woy robberies. That is, ATMs were clearly a target, they were being targeted either before or after opening hours of the banks and the predominant weapon of choice was a sledgehammer (a gun was used in one of the incidents). Overall, there was an identifiable modus operandi evident by the end of 2003 that would have alerted the defendant that bank hold-ups targeting ATMs were becoming increasingly foreseeable.

27 The defendant's own internal reporting mechanisms clearly recognised this as an important consideration. On 9 December 2003, following the St James branch hold-up, an internal memorandum was sent by Ms Lisa Bartak, Senior Manager, Service and Sales for the defendant's CBD Area Office in Sydney to Ms Leanne Finney, Business Services, Group Security and Investigations. In that memorandum, apart from reporting on the St James hold-up, Ms Bartak wrote that she:

Recommended that review of ATMs located in the branch area in all sites immediately as it is quiet (sic) obvious that they are security insufficient.

28 By December 2003, the defendant had both sufficient information and an internal management recommendation that it review it's security in relation to ATMs because they were, at that time, 'security insufficient'.

29 Whether any specific action was undertaken following the receipt of Ms Bartak's memorandum is not clear to me. If any steps were taken as recommended, they were clearly insufficient as far as risk assessment was concerned given that the Guildford and Woy Woy branches were robbed some four and five months later respectively. In entering it's plea of guilty, the defendant has acknowledged that.

30 Given all the above, not only was the risk to safety clearly foreseeable but the consequences of a hold-up represented a risk to safety where there was every prospect of serious consequences. As was said in Capral at 650:

... The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. ...

31 The likelihood of serious consequences arising in a bank robbery are obvious. Invariably, there is a combination of a threat of physical harm to the employees concerned accompanied by the presence of a weapon or suspected weapon. In the case of both hold-ups, the weapon of choice was a sledgehammer. In the case of the Guildford hold-up, one of the defendant's employees, Ms Huynh, was physically assaulted and the robbers threatened to kill her. That possibility was very real and it was indeed fortunate Ms Huynh was able to escape physically unharmed. The psychological consequences of such an occurrence are self evident in that Ms Huynh did not return to work for three weeks. Trauma counselling was provided for those staff who required it. At the Woy Woy hold-up, Mr MacMillan was physically confronted by the robbers when they gained access to the public area of the bank by smashing the bottom half of the front door with a sledgehammer.

32 It cannot be ignored that the defendant's obligation to provide a workplace free of risks to safety extends to all the foreseeable consequences that a bank hold-up represents, which includes the risks to the employee's psychological as well as physical safety. In my view, the defendant recognises that by the extensive policies, including educational and training programmes, in place in relation to security and bank hold-ups generally as well as the steps taken by the defendant to provide trauma counselling immediately following such incidents. The prompt provision of such services would do much to minimise any long-term psychological consequences for affected employees that the direct exposure to violence a bank hold-up represents.

33 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable.

34 It is evident from Ms Hunt's affidavit there were security measures already in place in both banks. Equally, there were simple and available remediation measures that could have been implemented prior to the incidents if proper risk assessments had been undertaken. These are identified in para [43] of the agreed facts in relation to the Guildford branch and paras [72] to [74] of the agreed facts in relation to the Woy Woy branch.

35 On the issue of steps to be taken to address risks to safety in the workplace, I endorse the comments of Boland J in Derrick v ANZ Group Limited (2005) NSWIRComm 59 at [28] as follows:

It may be the case that there are no practicable measures available to a bank to ensure that its employees are never put at risk of injury in circumstances where a robbery occurs. But that does not relieve a bank of the obligation to do all that is reasonably practicable to ensure safety.

36 Taking into account all relevant considerations, I assess the seriousness of the offence particularised as being in the mid to higher end of the penalty range.

37 As earlier identified in relation to the relevant sentencing principles applicable, the decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. There are no exceptional circumstances in this matter that would warrant excluding either factor in my sentencing considerations.

38 In saying that, however, it must be said that in relation to specific deterrence, the defendant is entitled to have such considerations tempered by its significant and commendable efforts in meeting it's ongoing commitment to workplace safety. That much is evident by the extensive details in Ms Hunt's affidavit together with relevant annexed material.

39 Taken together, Ms Hunt's evidence, unchallenged as it was, points to a defendant who has not only invested heavily in relation to workplace safety, and continues to do so, but does so in a comprehensive and ongoing manner. I am satisfied the defendant has proper and due regard to it's obligations to provide a workplace free of risk to safety. That it has pleaded guilty to the offence before me cannot be taken as evidence of any systemic or ongoing disregard for the workplace safety of it's staff or the public who use it's facilities. It represents a lapse in judgment in the area of risk assessment which, to it's credit, the defendant has acknowledged and acted upon.

40 The defendant is entitled to have taken into account the benefit of the early plea entered to the amended charge. The prosecutor conceded that. In assessing that, the Court is guided by the decision of R v Thompson; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. Those principles accord with the provisions of s22 of the Crimes (Sentencing Procedure) Act 1999. I assess that discount at twenty five per cent.

41 There are also additional subjective features which entitles the defendant to further favourable consideration in the sentencing process. I refer specifically to the defendant's cooperation with the prosecutor in relation to this matter together with the defendant's proper expression of regret for the stress the hold-up incidents created for the employees concerned. As well, the defendant's overall strong commitment to workplace safety is a factor that is a positive one for the defendant.

42 There is one outstanding matter between the parties. The prosecutor has made an application pursuant to s122(2) of the Fines Act 1996 (NSW) for an order that a moiety be paid to him of one half of the fine imposed.

43 The defendant opposes the making of such an order. In registering it's opposition to such an order, counsel did so mindful of earlier first instance decisions of this Court on the issue.

44 There have been a number of prior first instance decisions of this Court that have dealt with the issue of the allocation of a moiety of the penalty imposed to persons other than the usual statutory authority such as WorkCover as being within the scope of s122 of the Fines Act 1996: see the decision of 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] NSWIRComm 303 at [185] - [194]; Haylen J in Coombes v Patrick Stevedores Holdings Pty Limited [2005] NSWIRComm 56 at [101]-[111]; and Boland J in Geoff Derrick v ANZ Group Limited (No 2) [2005] NSWIRComm 145 at [3]-[25]. In each case, for the reasons stated, the Court ordered a moiety of one half of the penalty imposed to be paid to the prosecutor.

45 As reference to the cases referred to will attest, taken together, they represent an exhaustive consideration of this issue. I do not propose to repeat it in this judgment. Suffice to say, I would concur with the overall conclusion in those judgments that the prosecutor in this matter falls within the scope of s122 of the Fines Act 1996 and that the Court has the discretionary power to order a moiety in his favour.

46 The basis of the defendant's objection to the allocation of a moiety is a point that has not been previously considered in the above three matters referred to. As I have understood the contention put, it goes to one of perception in the overall administration of justice. That is, that the Court must have regard to the requirement that the system of justice should be administered in a way that is transparent and, as was submitted, 'does not give rise to a perception that persons who hold a position, statutorily recognised as a prosecutor, might benefit or their organisation might benefit'.

47 In summary, the defendant contended that to award the prosecutor both a moiety and costs created the opportunity for a windfall gain by the prosecutor and had 'the potential to raise a perception that the very fact of prosecuting might be for other than the legitimate purpose of pursuing breaches'. In making such a submission, counsel for the defendant was at pains to emphasise that no such inference could be laid at the feet of the prosecutor in this matter.

48 Somewhat in support of his general submission on this issue, counsel pointed to the decision of the New South Wales Court of Appeal in Hawkesbury City Council v Foster and Mushroom Composters Pty Limited [1997] 97 LGERA 12. In that matter, the appellant and the first respondent had sought a restraining order from the Land and Environment Court against the second respondent. The order was granted and later breached. The appellant and the first respondent then sought orders for the second respondent to be punished for contempt. The second respondent pleaded guilty and was fined. The council then made application seeking the payment of the whole of the fine imposed pursuant to s694(1) of the Local Government Act; and alternatively, to be paid a moiety of the fine pursuant to the Fines and Penalties Act. That application was dismissed by Pearlman J.

49 The council appealed to the Court of Appeal claiming the right of the council to recover all or part of the fine imposed by Pearlman J in the Land and Environment Court for contempt of an order, being an order granted in proceedings initiated by the Council. The appeal was dismissed with costs (Meagher and Sheller JJA, Mason P dissenting).

50 A reading of the judgment referred to makes it clear that the Court of Appeal was primarily concerned with the proper interpretation and application of s694(1) of the Local Government Act 1993 (NSW). To the extent that the Court considered her Honour's first instance decision not to exercise her discretion ordering the payment of a moiety under the then provisions of s5(3) of the Fines and Penalties Act 1901 (NSW), it was a consideration done almost in passing. Indeed, as Mason J said at 16:

Since, however, the Fines and Penalties Act delivers only a moiety of a fine to the informer, the council's preferred position is reliance upon s694(1) of the Local Government Act 1993. If applicable, this section would see the whole of the fine imposed on Mushroom Composters paid to the council.

51 In his judgment dismissing the appeal, Meagher JA considered her Honour's decision in relation to the payment of a moiety to the council, and said as follows at 21:

The next ground of appeal concerned her Honour's refusal to make an order under s5(3) of the Fines and Penalties Act 1901 (NSW), which provides:

Where the Act imposing or authorising the imposition of a fine penalty or forfeiture makes no direction as to the application thereof the court before which such fine penalty or forfeiture is recovered may where the informer or other person prosecuting or suing for the same is not a member of the police force direct that such portion of the fine penalty or forfeiture as the Court thinks fit (but not exceeding a moiety thereof) shall be paid to the informer or other person prosecuting or suing for the same.

Her Honour's reasons were as follows:

I am not, however, prepared to exercise my discretion in the council's favour by directing the payment of a moiety of the fine to it. The council has a statutory duty to enforce the planning law of this State, and the actions it took in these proceedings were in furtherance of that duty. That is far from the rationale of s5(3). As I noted in the February judgment, provisions such s5(3) are designed to encourage common informers to sue for breach of statutes by allowing the informer to recover part of the resulting penalty. A provision such as s5(3) is not designed to reward a party bringing proceedings in the discharge of its ordinary functions. Furthermore, s5(3) is not designed to reimburse a party for its costs, and in this case the costs of the council in bringing the proceedings were the subject of a costs agreement between the parties.

I can detect no error in what her Honour says. Nothing is overlooked. Nothing is mis-stated. The result is, far from being unreasonable, perfectly plausible...

52 In his judgment, Sheller JA said that the exercise of her Honour's discretion under s5(3) of the Fines and Penalties Act 1901 'is not shown to have proceeded on any wrong principle. This Court cannot interfere'.

53 Section 129 of the Fines Act 1996 wholly repealed the Fines and Penalties Act 1901 on and from 1 July 1998. As is clear, s5(3) of the Fines and Penalties Act gave her Honour a discretion in the allocation of a moiety, as does s122(2) of the Fines Act 1996.

54 Notwithstanding the submissions made by counsel for the defendant, it is clear the discretion exists for the Court to order the payment of a moiety to a union secretary who has the power to initiate prosecutions under s106(1)(d) of the Occupational Health and Safety Act. The prosecutor is the Secretary of the Finance Sector Union of Australia, Commonwealth Bank Officers Section, New South Wales Branch.

55 Pearlman J determined not to exercise the discretion available to her under s5(3) of the Fines and Penalties Act 1901 because, she said, the 'council has a statutory duty to enforce the planning laws of this state and the actions it took were in furtherance of that duty ... provisions such as s5(3) are designed to encourage common informers to sue for breach of statutes by allowing the informer to recover part of the resulting penalty.' As Mason J said in Hawkesbury City Council v Foster and anor at 14:

There is no magic in the expression 'common informer'. It means no more than a private person suing for private benefit to recover a statutory penalty. The expression 'common informer' is only used to distinguish that person from a state or official informer, such as the Attorney General or a Director of Public Prosecutions.

56 Given that description, it is arguable that a person such as a union secretary is a 'common informer' for the purposes of the Occupational Health and Safety Act. The legislature clearly intended such persons to have a specific power to initiate prosecutions under the Occupational Health and Safety Act. Given the manifest involvement of unions in relation to workplace safety, such a role is not surprising. There is no legislative or other basis, in my view, for a union secretary, rightfully exercising that power, being denied the allocation of a moiety of the fine imposed as a result of such a person exercising a clear statutory power.

57 Counsel for the prosecutor stated in submissions that it was the intention of the prosecutor that the moiety will be used for the purposes of occupational health and safety prosecutions. That was a proposition that was accepted by counsel for the defendant and, as such, I accept it as a statement to which I can attach due weight.

58 In all the circumstances, I am satisfied that I should make the order for the payment of a moiety in favour of the prosecutor as sought.

59 In relation to the offence before me and taking account of all relevant considerations, including those identified by ss21A and 22 of the Crimes (Sentencing Procedure) Act 1999, I determine a penalty of $162,500.

60 Accordingly, I order as follows:

(i) The defendant is guilty of the offence as charged.

(ii) I impose a penalty in this matter of $162,500.

(iii) I allocate a moiety to the prosecutor of one half of the penalty imposed.

(iv) I order the defendant to pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be further listed before me to be dealt with.

LAST UPDATED: 31/10/2005