Inspector Drewson v Confederation of Australian Motor Sport Ltd [2006] NSWIRComm 388 (12 December 2006)

Last Updated: 18 April 2007

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Drewson v Confederation of Australian Motor Sport Ltd [2006] NSWIRComm 388



FILE NUMBER(S): IRC 823

HEARING DATE(S): 01/12/06

DECISION DATE: 12/12/2006
PARTIES:
PROSECUTOR:
Inspector Larry Drewsen
(WorkCover Authority of NSW)

DEFENDANT:
Confederation of Australian Motor Sport Limited
[ACN 069 045 665]


JUDGMENT OF: Schmidt J


LEGAL REPRESENTATIVES

PROSECUTOR:
Mr BG Docking of counsel
SOLICITORS:
Shaw McDonald Pty Ltd

DEFENDANT:
Mr PM Strickland SC
SOLICITORS:
Phillips Fox


CASES CITED: Inspector Drewsen v Vee 8 Supercars Australia Pty Limited [2006] NSWIRComm 331
Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271
Inspector David Waterhouse v Innovative Property Developments Pty Ltd and Others [2006] NSWIRComm 97
R v Mansour (1999) 29 MVR 409

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Occupational Health and Safety Act 2000



JUDGMENT:

- 18 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Schmidt J

12 December 2006

Matter No IRC 823 of 2006

INSPECTOR LARRY DREWSEN V CONFEDERATION OF AUSTRALIAN MOTOR SPORT LTD
Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

JUDGMENT

[2006] NSWIRComm 388

1 On 21 February 2004, two fire extinguishers exploded at the Wakefield Park Raceway, while they were being tested and recharged. One person, Mr Trevor Francis Lansdown, was injured in the first explosion and two others, Mr Brian Phillip Eggleston and Mr Glenn Robert Simmons, were injured in the second. The defendant was charged with an offence under s 8(2) of the Occupational Health and Safety Act 2000 ('the Act'), to which it entered a plea of guilty, after the charge was amended. This judgment deals with the question of penalty.

2 The offence to which the plea was entered was:

On 21 February 2004 at the Wakefield Park Raceway, Goulburn, in the State of New South Wales, being an employer, the defendant failed to ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work, in that the defendant failed to ensure that systems of work were safe and without risks to health to Trevor Francis Lansdown, Ralf Rupprecht, Steven Davy Brow, Brian Phillip Eggleston, Glenn Robert Simmons, James Clarence Gardiner, Kerry Frederick Butchers and Jeremy Patrick Bird contrary to section 8(2) of the Occupational Health and Safety Act 2000

The further particulars of the charge are:

a) There was an actual risk of injury to people (other than the employees of the person) from a vehicular fire extinguisher cylinder releasing pressure, rupturing or exploding.

b) The defendant’s undertaking included:

i) Developing and maintaining systems for safety, technical, judicial, accreditation, training and compliance for the management of certain motor sport activities at the Wakefield Park Raceway.

ii) Having a role in the safe practices to be applied in the garage areas.

iii) Providing volunteers such as the Stewards of Meeting.

iv) Having employees present at the place of work including its National Manager Safety and Medical Services Mr Bruce Malcolm Keys.

c) Aspects of the defendant’s unsafe systems of work were any of the following:

i) The defendant failed to prevent or minimise Mr Lansdown servicing, charging and re-pressurising vehicular fire extinguisher cylinders in or about the tented garages of Ralf Rupprecht’s racing team and in an area of work not away from other people (“the first incident”).

ii) After there had been an earlier rupturing or explosion of a fire extinguisher cylinder and Mr Lansdown was injured, the defendant failed to prevent to minimise Mr Lansdown servicing, charging and re-pressuring vehicular fire extinguisher cylinders in or about the tented garage of the Brian Phillip Eggleston racing team and in an area of work not away from other people (“the second incident”).

iii) The defendant failed to ensure that there was an adequate risk assessment undertaken before Mr Lansdown performed his undertaking, in relation to both the first and second incidents.

d) The injuries to Mr Lansdown, Mr Eggleston and Mr Simmons were a manifestation of the risk.

3 An agreed statement of facts was tendered. It provided:

1 At all material times the Confederation of Australian Motor Sport (also known as CAMS) was a company duly incorporated with its registered office located at 851 Dandenong Road, Malvern East, Victoria. CAMS is recognised as the authorised organisation appointed by the Federation Internationale L’Automobile (FIA) in Australia in relation to motor sport. CAMS is recognised as the peak body for the conduct and control of four wheeled motor sport in Australia. CAMS is the national Australian body responsible for ensuring that FIA conditions and rules are adhered to.

2 CAMS’ charter is to ensure that the sport is conducted in a way which is safe, fair and socially responsible. CAMS develop and maintain systems for safety, technical, judicial, accreditation and compliance. CAMS issue an annual Manual for Motor Sports on 1 January of each calendar year. In 2004, CAMS issued such a manual (Attachment 1 pages vi, vii and 6 - 17). By a deed of acknowledgment between CAMS, Australian Vee Eight Supercar Company Pty Ltd (AVESCO), Touring Car Entrance Group Australia Pty Ltd (TEGA) and others, CAMS assigned to AVESCO the sole and exclusive responsibility to carry out various sporting, technical, judicial and safety functions as allocated to AVESCO in the Deed.

3 TEGA was responsible for procuring the supply of Vee Eight Supercars, teams and drivers in relation to motor sports events organised by AVESCO. TEGA is the majority shareholder of AVESCO.

4 At an event at Wakefield Park Raceway, Goulburn, in New South Wales (the Raceway) on 21 February 2004, TEGA provided the technical category director, Mr Paul Gregory Taylor (Taylor) and an assistant Stephen Davy Brow (Brow). Although Taylor and Brow were employed by TEGA, they were present at the event under the direction of and subject to the control of AVESCO and Wakefield Park. The event, however, was governed by the rules and regulations of motor sport set out by AVESCO and CAMS.

5 Wakefield Park Management Pty Ltd (“Wakefield”) owned and operated the Raceway and provided the physical and associated facilities and personnel including security. Wakefield organised and promoted various motor sports events at the raceway including the Konica Minolta Vee Eight Supercar Series held at the raceway on 20, 21 and 22 February 2004. That event was conducted under the auspices of CAMS, AVESCO and TEGA. CAMS issued a permit for the event to Wakefield Park. The Clerk of the Course, appointed by the organiser of the event and approved by CAMS, was responsible for the application of CAMS regulations for the event for the scrutineering of vehicles and reporting procedures. CAMS appointed stewards at the event primarily for determination of judicial issues but these were also direct representatives of CAMS at CAMS authorised motor sport events.

6 The incidents that are the subject of the charge against the defendant occurred:

6.1 on 21 February 2004 at the Raceway; and

6.2 at the first Round of the 2004 Konica Development Series (the Wakefield Park Event).

7 On 20 February 2004, at the Raceway, scrutineers examined the vehicles participating in the Wakefield Park Event. The scrutineering revealed that some of the vehicles had on board fire extinguishers that did not comply with relevant new fire extinguisher rules, namely, the extinguishers had not been serviced and re-certified by the manufacturer or agent for more than 2 years. These new fire extinguisher rules came into effect on 1 January 2004 when CAMS issued the annual Manual for Motor Sports. The vehicles containing the non-compliant fire extinguishers included the vehicles belonging to the motor sport teams headed by Brian Phillip Eggleston (Eggleston) and Ralf Ruprecht (Ruprecht).

8 A meeting was held between managers of the racing teams and two employees of TEGA, namely, Taylor and Brow. Following this meeting, arrangements were made for Trevor Francis Lansdown (Lansdown) to service the fire extinguishers at the Raceway.

9 Lansdown was, at all material times, self employed and operating a business trading under the name Pyro-tection. Pyro-tection is one of only two businesses in Australia that is authorised by the overseas manufacturer of the extinguishers to service and maintain the type of on board fire extinguisher used in the V8 supercars.

10 On 21 February 2004, Lansdown attended the track and undertook the work for the racing teams who required their fire extinguishers to be tested and recharged, in their onsite garages. These were not permanent structures, but tents erected near the race track. Lansdown was to be paid by the teams who used his services on the day.

11 Lansdown entered the Raceway at about 9am on 21 February 2004. To access the Raceway, Lansdown was issued with a hard access pass issued by AVESCO/TEGA. The hard pass meant that Landsdown could enter restricted areas for officials and motor sport participant team members. Lansdown proceeded to the teams’ garage area of the Raceway and began servicing the fire extinguishers belonging to the racing team headed by Rupprecht. Lansdown arrived at the garage area in the pit lane with an AVESCO official, probably, Brow.

12 The first practise session of the day at the Raceway was scheduled for 10am on 21 February. About ten minutes before that first practise session commenced, Lansdown began to work on the fire extinguishers. Rupprecht said to Lansdown that he should be working in a concealed room by himself rather than with a lot of people around him. Lansdown said to Rupprecht “I know what I’m doing. If you want your fire extinguisher checked, leave me to my job.” Rupprecht then told his people who were close to the area to move away (Attachment 2 Interview with Rupprecht dated 24.11.2005 Q’s 38, 42). There were approximately 10-12 people in the vicinity of the Rupprecht team garage (tent) at the time the fire extinguisher was being serviced. There were a number of team representatives lined up waiting to have their fire extinguishers tested and recharged.

13 Lansdown began recharging and re-pressurising a fire extinguisher. Shortly afterwards whilst it was being serviced by Lansdown, one of the fire extinguishers exploded during the servicing process and Lansdown sustained injuries to his arms and legs. Landsdown went to hospital.

14 At about 4pm on 21 February 2004, Lansdown returned to the Raceway. Lansdown spoke to Brow and then proceeded to the garage area.

15 Due to the injuries sustained by Lansdown earlier in the day, he was unable to undertake the testing and recharging of the fire extinguishers himself. Lansdown instructed two members of the Eggleston racing team (Eggleston and Glen Robert Simmons (Simmons)) to carry out the task under Lansdown's instructions. Also present were Lindy Eggleston, Beth Eggleston, Jeremy Bird and two scrutineers, namely, Kerry Butcher and Jim Gardiner. Whilst Eggleston and Simmons were carrying out the servicing of the fire extinguisher under Lansdown’s instructions, the extinguisher exploded (Attachment 3 is the description of Eggleston of what occurred in an interview dated 25.11.2004 pages 6 – 8). Eggleston suffered a crushed hand with restriction of use of the right hand, a broken jaw and an immobilised shoulder with permanent movement restriction. Simmons suffered a fractured wrist requiring the insertion of plates and screws, a damaged radial nerve of the right hand, hearing loss and post traumatic stress syndrome.

16 Subsequent expert testing of the fire extinguishers which exploded suggested that the most probable cause of the explosions was over pressurising and that this resulted from either inadequate equipment, operator error or a combination of both (Attachment 4 is a copy of the report of Anthony Martin dated 31 January 206).

17 Mr Bruce Keys (Keys) was employed by CAMS as the Manager - Medical and Safety Services. Keys was responsible for the administration of CAMS' safety and medical requirements in relation to motor racing events conducted under the auspices of CAMS. At some stage during the evening of 20 February 2004, Keys offered assistance in sponsoring a mid weekend rule change to allow those with non complying fire extinguishers to race – this was not permitted by AVESCO as its representatives “were very fixed in their attitude”. He was present at the Raceway on 21 February 2004 to gain an overall impression as to how motor racing at that venue was conducted. He had no specific role in connection with the event. Keys was accredited by Wakefield as an official of the event. As a staff member of CAMS, he held an accreditation which allowed him access to all areas of the event.

18 Keys was not aware of Lansdown’s presence on site to recharge fire extinguishers before the first incident. After the first incident and being made aware of it sometime after the incident had occurred, Keys proceeded to the incident site with the Wakefield general manager. At the time they arrived, all traces of the incident had been removed. Keys was advised that a party was injured and taken to hospital and the motor race meeting was continuing. Keys was made aware of the second incident after he had left the Raceway and received a telephone call suggesting he return to the Raceway. Keys returned. Subsequent to the two incidents, 35 photographs were taken and Mr Keys has provided a description of the photographs (Attachment 5 photographs and descriptions).

19 The servicing of fire extinguishers at the Raceway was not a usual activity as such servicing is usually conducted in a controlled environment. No risk assessment or safe work method was requested or undertaken in relation to the task.

20 The defendant fully cooperated with WorkCover's investigation of the incidents.

21 The defendant has no prior convictions for breaches of the Occupational Health and Safety Act 2000 (NSW).

4 Other documents were tendered, including a victim impact statement provided by Mr Glenn Simmons and statements provided by Mr Brian Eggleston and Mrs Lindy Eggleston. In the defendant's case, evidence was called from its President and Chairman, Mr Colin Osborne. He was not required for cross examination.

The parties' cases

5 The parties were agreed that this was the defendant's first offence and that accordingly, the maximum penalty was $550,000. They also largely agreed on the applicable sentencing principles, including in relation to the question of parity.

6 The defendant particularly accepted that its systems did not ensure the safety of various activities undertaken at events by race teams. Its focus had wrongly been directed to competition and ought also to have been directed to work undertaken at, or in the vicinity of the track, including ensuring that contractors were adequately supervised when engaged to undertake work at a raceway.

Consideration

7 Consistently with the Crimes (Sentencing Procedure) Act 1999, a determination of the penalty here to be imposed, must be approached from a consideration of the nature and seriousness of the offence in question, together with aggravating and mitigating factors. In this case, I am satisfied that the evidence demonstrated, to the requisite degree, that the offence charged was proven.

8 What arises for consideration are two separate explosions, occurring on the same day, in circumstances where the defendant has however only been charged with one offence, unlike Inspector Drewsen v Vee 8 Supercars Australia Pty Limited [2006] NSWIRComm 331, where the same two explosions led to two separate charges. Most regrettably, both explosions resulted in serious injury.

9 Like the defendant in Vee 8 Supercars, this defendant also accepted that it had failed to meet the obligations imposed upon it by the Act in the circumstances in which the explosions occurred. On the evidence, that acceptance was proper, as was the entry of the plea.

10 The evidence showed that the event being conducted at the Wakefield Park Raceway was conducted under the rules of the Federation Internationale L'Automobile ('FIA'). The defendant is the authorised body in Australia responsible for ensuring that FIA conditions and rules are adhered to during such events. Its charter is to ensure that motor sport is conducted in a safe, fair and socially responsible way. It issues a permit for such events. Its systems and rules govern matters such as judicial systems; event conduct; technical regulations for vehicles and equipment; rules for the conduct of and management of competitions; licensing of venues and participants; training and accreditation of officials and safety standards.

11 On this occasion the event was also governed by rules agreed with Australian VEE Eight Supercar Company Pty Ltd ('AVESCO'). Another entity, Touring Car Entrance Group Australia ('TEGA') and AVESCO provided various officials, who assisted in conducting the event. The defendant appointed stewards for the event, who determined judicial issues and who acted as its direct representatives at the event.

12 On 20 February 2004, scrutineers identified that certain vehicles did not have on board fire extinguishers which complied with new safety rules, introduced by the defendant, which came into effect on 1 January 2004. Unbeknownst to the defendant, arrangements were made for Mr Lansdown to attend the raceway to service the fire extinguishers. The work was undertaken at the trackside garage area, in a tent. An explosion occurred and Mr Lansdown was taken to hospital. After he was discharged, he returned to the track and attempted to service another fire extinguisher, which also exploded, injuring Mr Simmons and Mr Eggleston.

13 The defendant's Manager - Medical and Safety Services, Mr Brice Keys, was present that day. He had responsibility for administration of the defendant's safety and medical requirements for the event. Mr Keys was aware of the problem which had arisen with the fire extinguishers, but not of Mr Lansdown's presence on site. He attended the site of the first explosion, once he became aware of it, but all traces of the explosion had been removed and Mr Lansdown had been taken to hospital. Mr Keys only learned of the second explosion, after he had left the track. He thereupon returned to the event.

14 It was Mr Osborne's evidence that the incident revealed a gap in the defendant's approach to the safety of race events. Its focus had been on the conduct of the events themselves and not on peripheral activities related to the event. After the incident the defendant's Board reviewed that focus to extend generally to encompass activities previously regarded as peripheral to the conduct of race competitions. That was an understandable measure, given what had been revealed about the impact which safety rules for the conduct of a race, could have on pre-race preparations at the track.

15 Mr Osborne explained how the defendant is a sporting regulatory authority, which has 50 paid staff nationally and that it relies on the services of volunteers, to administer motor sport throughout Australia. The defendant is a not for profit organisation, made up of constituent car clubs. Its annual expenditure budget is less than the annual budget of a single leading team in the V8 Supercar Championship.

16 Prior to the incident, the defendant had developed a multitude of rules and regulations to assure safety at race events. These policies and rules were communicated to those who have day to day control of motor sport activities, who include promoters and event organisers; racing circuit and track owners; occupiers and operators; competitors; racing teams and pit crews; race officials and volunteers. While the defendant issues permits for events, it does not itself organise or conduct them. Those who do, undertake to abide by the defendant's rules and regulations. The defendant appoints stewards for each event, who are independent of the organisers and whose role is to monitor compliance with the rules.

17 This evidence explained how it came to be that the defendant's representative at the race, Mr Keys, was not directly involved in the steps taken by the race crews, in order to ensure that the defendant's new rules in relation to fire extinguishers, were complied with. While Mr Lansdown was engaged to come to the track to service non-compliant fire extinguishers, the crews also took steps to purchase compliant ones.

18 Mr Keys' presence explains why the defendant was informed, once the safety of those involved in the event had been compromised when the servicing of the fire extinguishers was first attempted. Most regrettably, the advice the defendant received after the first explosion, did not lead it to take steps available to it to ensure that a repetition of the approach which had led to that explosion was not attempted. So it was that despite Mr Keys having attended to inspect what had occurred after the first explosion, Mr Lansdown was later able to return to the track and to continue the servicing operation, which resulted in the second explosion.

19 The evidence showed that considerable new measures were implemented by the defendant after the incident, to ensure that the series of events which unfolded on this day, could not be repeated. They included obtaining advice from an external risk management consultant; reviewing its safety policies to extend them to the safety of steps taken in connection with racing, as well as racing itself; updating its manuals and competition handbooks and distributing them to staff, all affiliated clubs, track operators and race meeting organisers; delivering educational awareness of these initiatives through workshops and newsletters; establishing a risk management steering committee to meet each month; employing a full-time risk management project officer; introducing a compliance checker official at race meetings, so that responsibility for safety compliance at events would not rest alone on the shoulders of volunteers, stewards, race organisers, clerks of course and event secretaries; a series of risk assessment documents were developed and all motor sport organisers encouraged to implement new targeted risk assessment procedures. In 2006, the defendant's National Competition Rules were also amended to require a compliance checker as an essential official at all events and briefings on the new office were provided to the motor sport industry.

20 These were very considerable initiatives. Given the hierarchy of management of this industry, with the defendant establishing the rules under which motor racing is to be conducted and issuing permits for events, but not itself organising or conducting the events, the implementation and enforcement of its rules, of necessity involves others - both participants and volunteers, as well as those operating in the industry for profit and employment. Nevertheless, with the amendment of its safety rules and the innovation of the compliance checker position particularly, very significant steps were taken to address a problem with the defendant's earlier approach to pre-race safety, which this incident had highlighted.

21 Understandably, the defendant was always concerned to ensure the safety of races themselves. Motor racing is, after all, a very dangerous sport. Nevertheless, risks to safety can arise in other ways including in connection with preparation for a race, as this incident graphically showed. The necessity of ensuring safety at the pre-race stage of events, has been recognised and sought to be addressed by the defendant, through the initiatives Mr Osborne described in his evidence.

22 I make these observations at this point, because the evidence suggested that this was not one of those cases where it could readily be seen that simple steps available to be taken by this defendant, would have ensured that its obligations to ensure safety would have been met on this occasion. This defendant did not give Mr Lansdown access to the race track. That was not within its control. Access was given by others. It had imposed the rules as to the necessity to regularly service fire extinguishers, but it did not control the steps taken by the affected race teams in order to comply with the rule. It was the race teams who arranged for Mr Lansdown to attend to undertake the servicing required, instead of waiting until new fire extinguishers had arrived at the track. Others upon whom safety obligations fell were aware of, and facilitated that course. The defendant was not. It also did not control the place where the servicing was permitted to be undertaken.

23 The defendant did not become aware of Mr Lansdown's presence, or of the attempt to service the fire extinguishers at the trackside, until after each explosion had occurred that day. The evidence did not show that all of the steps which have been taken by the defendant since the incident, if taken beforehand, would have precluded this risk to safety from materialising. Even the new policies and the introduction of the compliance checker at each event, cannot have assured that outcome. Steps available to others upon who safety obligations also fell, such as not permitting Mr Lansdown access to the track, or waiting for new fire extinguishers, instead of attempting to service the non compliant fire extinguishers at the trackside, clearly could have precluded this risk from eventuating. The evidence does not show that those matters were within this defendant's control.

24 It is in that context that the seriousness of this offence must be considered. Both the prosecutor and the defendant submitted that it should be concluded that this offence was less serious than the offences with which AVESCO was charged. On the evidence I accept those submissions. AVESCO was much more directly involved in the events which led to both explosions. In its case I found at [19], [21], [23] and [24] that:

... from the outset it ought to have given proper consideration as to whether servicing and recharging of the extinguishers could be safely undertaken at the track, given that such work was ordinarily performed at an offsite workshop, where quite different conditions prevailed to those prevailing in the tents where the work was undertaken that day. That the work had not been safely undertaken became apparent with the first explosion, in which Mr Lansdown suffered a broken arm, but still the defendant did not recognise and act upon its safety obligations.

... being aware of the circumstances of the first explosion and still permitting the safety of Mr Eggleston and Mr Simmons to be put at risk, when Mr Lansdown was allowed to return to the track and to instruct them in how to perform the recharging work, he being too injured to do so himself, undoubtedly made this defendant's second offence more serious than the first, as the defendant properly accepted in the submissions advanced.

... it was the defendant who provided Mr Lansdown a hard access pass, so that he could get onto the track to undertake the work the teams required, so that they could participate in the race. It did not take steps to preclude further access, despite what the first explosion had revealed about the apparent lack of safety of the operation undertaken in the team's trackside garage

That there were simple measures available to be taken which would have avoided the risk materialising, was also apparent. On the evidence, arrangements had also been made to purchase new certified fire extinguishers, which were being brought to the track. At the time of the second explosion, they were only a short distance away. New fire extinguishers could have been used instead of attempts being made to recharge the other fire extinguishers at the trackside

25 The evidence did not suggest that these were matters of which this defendant was directly aware, or involved in. Its contribution to the materialisation of this serious risk to safety was the insufficient attention it had paid to the rules under which the event was being conducted, in relation to the safety requirements imposed on those participating in the events, in so far as non racing activities were concerned. That the rules should have attended to this aspect of safety was properly accepted by entry of the plea and the steps taken to rectify the deficiency in the rules. The introduction of the compliance checker position at race events was a further practical way in which this defendant has sought to ensure compliance with its rules, as has the training, education and information about the rules, which has been provided to those involved in the industry.

26 All of these factors point however, to a conclusion that while this was undoubtedly a relatively serious first offence, it was not as serious as the offences dealt with in Vee 8 Supercars. I accept the parties' submissions that the question of relative culpability is a matter to which consideration must be given in determining the penalty to be imposed on this defendant.

27 I am also satisfied that both general and specific deterrence have a role to play in the penalty to be imposed. This was a first offence, in circumstances where it was common ground that the defendant has conducted its operations in Australia since it was established in 1953, without an offence of any kind. That is a very impressive safety record, given the role it plays in the conduct of motor sports in Australia. I take the view that the very significant steps taken by the defendant after the incident were such that the role for specific deterrence in this penalty was thereby significantly reduced. Given the explosions which resulted from the unsafe approach adopted to the recharging of the fire extinguishers which here exploded and their use throughout industry, the need for general deterrence is however apparent.

28 Subjective matters relevant to be taken into account by way of mitigation, include this defendant's operations and its record since it commenced operation. That record must be considered in a context where the defendant has approximately 49,000 members in Australia, with over 300 affiliated car clubs and 10,000 accredited officials. It regulates some 1,600 motor sport events each year, from club level to international events. The only motor sport event in which it is involved in the actual organisation of, is the Australian Grand Prix.

29 Given the industry in which it operates and the role it plays in the dangerous sport of motor racing, this was undeniably a good safety record. The record was achieved in circumstances where the defendant employed some 50 staff at the time of these incidents and otherwise relied on the services of volunteers, to promote and implement the rules it establishes for motor car racing.

30 The evidence also showed activities which makes it appropriate to conclude that this defendant was a 'good corporate citizen', as the concept has been described in the authorities.

31 I accept that this plea was entered early and that the evidence demonstrated that while this incident highlighted a significant gap in its rules and procedures, that this was not a defendant which had otherwise paid no attention to its safety obligations.

32 I also note the evidence of the steps taken by the defendant after the incident, to rectify the deficiencies highlighted. I accept that this defendant demonstrated real contrition and remorse for its failures, through the actions it took in response to this incident, including the assistance it provided to those injured.

33 I have already earlier outlined some of the evidence as to the measures implemented. The evidence also showed that the defendant continues its endeavours to enhance safety at motor sport events. In particular, it has sought to improve communications at all of the events it sanctions, to prevent the type of communication breakdown, which appears to have led all those with safety obligations, not to act on their obligations at this event. It continues to monitor the operation of the new compliance checker system at events and to review and improve its systems, in order to ensure that high safety standards are maintained. In the time since this incident, it has dedicated over $100,000 per annum to risk management initiatives. This outlay continues.

34 I also accept that the defendant co-operated with the WorkCover Authority in its investigations. All of these matters must be taken into account in fixing penalty.

Victim Impact Statement

35 A victim impact statement made by Mr Simmons was tendered by the prosecutor without objection by the defendant. Statements made by Mr Eggleston and his wife, Mrs Lindy Eggleston were also tendered without objection. Mr Simmons and Mr and Mrs Eggleston were all present in Court when the matter was heard.

36 These tenders were made in accordance with ss 27 and 28 of the Crimes (Sentencing Procedure) Act 1999, this being a case where the offences resulted in actual physical bodily harm.

37 I was satisfied that to receive the statements, was appropriate in the circumstances of the case. The statements outlined the serious physical and psychological injuries Mr Simmons and Mr Eggleston suffered. The various medical reports attached to Mr Simmons' statement put into context the personal harm he has suffered as a direct result of the offences here in question. Both Mr Simmons and Mr Eggleston continue to suffer from the consequences of their injuries. Their injuries have also had serious consequences for their families.

38 Spigelman CJ explained in R v Mansour (1999) 29 MVR 409, when dealing with a victim impact statement which had led the trial judge to comment on the 'immeasurable grief' of the family of the deceased victim that:

It is entirely appropriate that trial judges acknowledge the impact of crime on victims and their families in this public way. The purposes of the criminal justice system are well served by such public recognition of the grief imposed on families of victims.

39 In this case, there was no issue between the parties that the risk to which Mr Simmons and Mr Eggleston were exposed, was the risk of serious injury, which most regrettably materialised for each of them. Mr Lansdown was also injured. Given the evidence, it was apparent that the injuries which they each suffered could have been even more serious than they were.

40 In the circumstances, I took the view that a just exercise of the discretion given by s 28 of the Crimes (Sentencing Procedure) Act 1999 involved the receipt of all of these statements. I have accordingly considered the statements consistently with the legislative scheme. It has the effect that the receipt of the statements, no matter the very serious injuries which have most regrettably been suffered by Mr Simmons and Mr Eggleston, cannot lead to the imposition of a higher penalty than would have been imposed in the absence of such evidence. Their receipt, nevertheless, is a proper recognition by the Court, in a public way, of the explanations given by Mr Simmons, and Mr and Mrs Eggleston, of what has had to be endured, as the direct consequence of this offence. As the Chief Justice explained, in this way the Court publicly acknowledges the awful impact which the offence has had on Mr Simmons and Mr Eggleston.

Penalties

41 Having weighed all of the matters I have mentioned, I concluded that the appropriate penalty was $80,000. In coming to that figure, I note that I adopted the approach discussed in Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 at [29] to [31] and Inspector David Waterhouse v Innovative Property Developments Pty Ltd and Others [2006] NSWIRComm 97 at [64] to [67]. I here concluded that a discount of 25% for utilitarian savings achieved by the acknowledged entry of an early plea, at the earliest opportunity, after the charges were amended by the prosecutor, was an appropriate discount on the penalties which I had otherwise determined were appropriate in all the circumstances of each case.

Orders

42 For the reasons given, I find the defendant guilty of the charge to which the plea was entered. The Confederation of Australian Motor Sport Limited is ordered to pay a penalty of $80,000 in Matter Number IRC 823 of 2006, with a moiety to the prosecutor.

43 I also order the defendant to pay the prosecutor's costs as agreed, or in the absence of agreement, the matter may be referred to the Registrar for assessment. The parties have liberty to approach in that respect.

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LAST UPDATED: 12/12/2006