Lewis v The Crown in the Right of the State of New South Wales (Department of Juvenile Justice) [2006] NSWIRComm 8 (30 March 2006)

Last Updated: 30 March 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Lewis v The Crown in the Right of the State of New South Wales (Department of Juvenile Justice) [2006] NSWIRComm 8

FILE NUMBER(S): IRC 6154 & 6155

HEARING DATE(S): 01/12/2005

02/12/2005

DECISION DATE: 02/02/2006

PARTIES:

PROSECUTOR

Inspector Lewis

DEFENDANT

The Crown in the Right of the State of New South Wales (Department of Juvenile Justice)

JUDGMENT OF: Boland J

LEGAL REPRESENTATIVES

PROSECUTOR

Ms P E McDonald of counsel

Solicitor: Ms H Cameron

WorkCover Authority of New South Wales

DEFENDANT

Mr B D Hodgkinson, SC

Solicitor: Mr S Puxty

Hunt & Hunt

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

99 IR 29

Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384

Inspector Yeung v Howie Herring & Forsyth Limited & Anor [2005] NSWIRComm 266

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

Markarian v R (2005) 215 ALR 213

Morrison v Power Coal Pty Limited (No. 3) [2005] NSWIRComm 61

Rodney Morrison v Powercoal Pty Limited (2003) 130 IR 364

WorkCover (Inspector Stewart) v The Crown in Right of the State of New South Wales (Department of Education and Training, Department of Juvenile Justice and the Technical and Further Education Commission) (2002)118 IR 207

WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New (2004) 137 IR 33

WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89

LEGISLATION CITED: Children (Detention Centres) Act 1987

Crimes (Sentencing Procedure) Act 1999

Occupational Health and Safety Act 2000

JUDGMENT:

INDUSTRIAL COURT OF NSW

CORAM: Boland J

Thursday 2 February 2006

Matter No IRC 6154 of 2004

INSPECTOR MARILYN LEWIS v THE CROWN IN RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF JUVENILE JUSTICE)

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

Matter No IRC 6155 of 2004

INSPECTOR MARILYN LEWIS v THE CROWN IN RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF JUVENILE JUSTICE)

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

JUDGMENT

[2006] NSWIRComm 8

1 The Department of Juvenile Justice ("the defendant") operated the Kariong Juvenile Justice Centre ("Kariong") at Kariong in the State. Kariong provided educational services, including educational services to juvenile detainees who were in custody, charged with, or convicted of criminal offences.

2 In 2002 the defendant employed Richard Dare, Glen Menser, Sheryl Schmitzer, Michael Ellen and Peter Hawthorne at Kariong as youth officers. The defendant also employed Neville Squire as an assistant team leader to supervise a team of youth officers. Detainees, to be referred to as MM, TS, MQ, KEM, MH, MOS and MAS, were in custody at Kariong.

3 On 20 October 2002 an incident occurred that led to the first charge being laid against the defendant under s 8(1) of the Occupational Health and Safety Act 2000. The incident was described in an agreed statement of facts tendered in the proceedings as follows:

On 20 October 2002 at approximately 6.15 pm, Richard Dare ("Dare"), Glen Menser ("Menser"), Peter Hawthorne ("Hawthorne") and Neville Squire ("Squire") were supervising detainees in Wattagan Unit. Detainees TS and MQ were using a mop and broom to clean their rooms in that Unit. Dare, Menser, Hawthorne and Squire were then threatened by detainees MM, TS and MQ whilst in the Unit. TS and MQ broke the handles of the mop and broom and used them to threaten the youth officers, ordering them to leave the unit. MM then removed Menser's two way radio from the pouch in his belt and threatened the youth officers with a long bladed wood chisel to leave the unit. Menser ordered all youth officers to leave the unit and Dare, Menser and Squire exited the unit through 'Gate 3', which is the access gate into the Wattagan Unit. Hawthorne remained in the unit for a further fifty minutes before being released and the detainees then relinquished the weapons used.

A Centre Incident Report detailing the events of the evening was completed by Dare, Menser, Hawthorne and Squire after the incident and the police were notified. Following the incident detainees TS and MM were transferred to an adult correctional institution and MQ remained at Kariong.

Menser and Hawthorne stated in interviews conducted by Inspector Lewis that they sustained psychological injuries as a result of the incident. Following the incident, Hawthorne was requested by the Regional Director to have one day off work.

Following the incident searches of the Wattagan Unit were performed but no other tools that could be used as weapons were found.

4 On 15 November 2002 a further incident occurred leading to a second charge under s 8(1) of the Act:

On 15 November 2002 at approximately 7:10 pm Michael Ellen ("Ellen") and Richard Dare ("Dare") were assaulted by detainees KEM, MOS and MAS in the Lawson Unit of Kariong. Youth officer Sheryl Schmitzer ("Schmitzer") was on duty in the Lawson Unit with Ellen and Dare, but was not present at the time of the incident as detainee MAS had requested Schmitzer to get cold water from the staff room.

After Schmitzer exited the unit through 'Gate 3', the access gate into the Lawson Unit, detainees tied the gate closed with a wash bag to prevent other youth officers entering the unit. Detainee KEM was in possession of a screw driver and lunged at Dare threatening to kill him. Dare was struck in the right hand as he deflected the screwdriver. Dare was then struck with a broom by detainee MAS across the back of the head, the left shoulder and lower back and ordered to leave the unit. The broom had been obtained by MH to clean his room for prayer. Detainee KEM then grabbed Ellen by the arm and held a spade drill bit to Ellens' throat and threatened to kill him. Both Dare and Ellen pressed their duress alarms and Schmitzer yelled for help to alert other staff. The detainees then pushed Dare and Ellen to Gate 3 and ordered them to leave the unit. Dare and Ellen then exited the unit with assistance from other staff to open the gate, which had been tied by detainees.

An incident report detailing the events of the evening was completed and the police were notified. The detainees were put in isolation following the incident and transferred to an adult correctional institution.

As a result of the incident Dare suffered lacerations to his right hand, bruising and stiffness in the left shoulder, ongoing headaches, flashbacks and difficulties sleeping. Dare has undertaken counselling and received treatment for post-traumatic stress.

Dare was still absent from work in February 2003 and was unable to give an indication of when he would be able to return to work.

As a result of the incident, youth officer Ellen was absent from work for 7 days and received counselling.

5 The charge relating to the incident that occurred on 20 October 2002 alleged that the defendant failed to:

Ensure the health, safety and welfare at work of all its employees, and in particular, Richard Dare, Glen Menser, Peter Hawthorne and Neville Squire, contrary to section 8(1) of the Occupational Health and Safety Act 2000.

The particulars of the charge are:

(a) At all material times the defendant was an employer.

(b) At all material times the defendant employed Richard Dare, Glen Menser, Peter Hawthorne and Neville Squire.

(c) The defendant failed to provide a safe system of work for its employees undertaking the care and control of detainees at the Kariong Juvenile Justice Centre (“Kariong”) in that:

(i) The defendant failed to ensure that tools capable of being used as weapons (“tools”) by detainees were securely stored in the Vocational Area at Kariong.

(ii) The defendant failed to ensure that tools were not removed by detainees from the Vocational Area at Kariong.

(iii) The defendant failed to ensure that an adequate system of work was used to account for tools used in the Vocational Area at Kariong.

(iv) The defendant failed to ensure that adequate searches of detainees were performed after detainees had accessed tools in the Vocational Area at Kariong.

(v) The defendant failed to ensure that adequate searches of the residential areas at Kariong were performed to locate tools and other implements capable of being used as weapons by detainees.

(d) As a result of the above mentioned failures, Richard Dare, Glen Menser, Peter Hawthorne and Neville Squire were placed at risk of injury.

6 As to the second charge relating to the incident that occurred on 15 November 2002, it was alleged the defendant failed to:

Ensure the health, safety and welfare at work of all its employees, and in particular, Richard Dare and Michael Ellen, contrary to section 8(1) of the Occupational Health and Safety Act 2000 (“the Act”).

The particulars of the charge are:

(a) At all material times the defendant was an employer.

(b) At all material times the defendant employed Richard Dare and Michael Ellen.

(c) The defendant failed to provide a safe system of work for its employees undertaking the care and control of detainees at the Kariong Juvenile Justice Centre (“Kariong”) in that:

(i) The defendant failed to ensure that tools capable of being used as weapons (“tools”) by detainees were securely stored in the Vocational Area at Kariong.

(ii) The defendant failed to ensure that tools were not removed by detainees from the Vocational Area at Kariong.

(iii) The defendant failed to ensure that an adequate system of work was used to account for tools used in the Vocational Area at Kariong.

(iv) The defendant failed to ensure that adequate searches of detainees were performed after detainees had accessed tools in the Vocational Area at Kariong.

(v) The defendant failed to ensure that adequate searches of the residential areas at Kariong were performed to locate tools and other implements capable of being used as weapons by detainees.

(d) As a result of the above mentioned failures, Richard Dare and Michael Ellen were placed at risk of injury.

7 The defendant pleaded guilty to both charges.

Agreed facts

8 In addition to describing the circumstances of the two incidents, the agreed statement of facts also described the system of work that operated prior to 20 October 2002:

Prior to the incident on 20 October 2002 searches of the units and cabins of detainees at Kariong were performed on a random basis by youth officers. The Operations Procedures Manual provided that unit or area searches may be conducted on a random basis. Metal detectors were not regularly used when searches were conducted of these areas.

The Vocational Area which consisted of the woodwork and metal workshops was staffed by one senior youth officer with a designated vocational instructor for each workshop. The youth officer would assist with supervising detainees in both of the workshops.

A comprehensive list of tools located in the Woodwork Vocational Area was not maintained. The Woodwork Vocational Area consisted of a workshop and office. The tools in the workshop were stored on a shadow board. There were also tools located in the office, however, the office was normally locked whilst detainees attended woodwork class. Detainees were able to obtain access under supervision to tools kept in a storeroom adjacent to the Woodwork Vocational Area during woodwork classes and an inventory of the tools in the storeroom was not maintained to identify any tools that were missing.

After attending the Woodwork Vocational Area, detainees were searched using a pat down search and a visual check of the shadow boards in the workshop was done to determine whether any tools were missing. Contrary to the Operations Procedures Manual, staff did not always use metal detectors when searching detainees as they left the Woodwork Vocational Area.

Youth officers were not provided with adequate training on the security of tools within the Woodwork Vocational Areas.

On 9 September 2002 a memorandum was issued by Bernadette O'Connor ("O'Connor"), the manager of Kariong, to the management team, team leaders and unit managers at Kariong, which attached a copy of the search procedures contained in the Operation Procedures Manual. The document provided that a 'wand search' and a 'clothed body search' were to be performed when a detainee leaves an area where they may have had access to dangerous objects including leaving vocational and program areas. The memorandum directed the recipients to read the document and email comments on the document to O'Connor by 17 September 2002.

9 It was also an agreed fact that between the incidents on 20 October and 15 November 2002 there were no changes made by the defendant to the systems of work used for the identification of any missing tools or items in the Woodwork Vocational Area. However, this must be seen in context:

On 21 October 2002 Andrew Soady ("Soady"), a vocational instructor employed by the defendant, issued a memorandum to the Manager at Kariong advising that the wood chisel used by detainee MM in the incident on 20 October 2002 was of the same type as the chisels stored in the timber storeroom of the Woodwork Vocational Area. Soady advised that it was likely that MM had obtained the chisel from the timber storeroom during a woodwork class.

On 23 October 2002, O'Connor forwarded an e-mail to all team leaders, including Squire, requiring stringent supervision of residents' use of mops and brooms.

On 23 October 2002, O'Connor issued a further memorandum to all staff. A copy of this memorandum was placed in the personal file of all staff members. The memorandum noted that detainee MM had obtained a chisel from the timber storeroom in the Woodwork Vocational Area as a result of MM or another detainee being allowed access to the storeroom. As a result of this incident, the memorandum provided that:

· Every resident was to be properly searched every time they left the Vocational Area.

· The searches were to include a proper pat down and proper wand search.

· Team leaders were to supervise youth officers to ensure that proper searching was undertaken.

· The common areas of the units were to be searched for weapons three times a day at lockdown and also every morning prior to residents leaving their cabins for breakfast.

Youth Officers Ellen and Dare state that they did not see or read this memorandum until 26 September 2003 when it was provided to them by Inspector Lewis.

A team meeting on 28 October 2002, attended by Ellen discussed issues relating to basic routines, routines for cleaning cabins by residents and random searches of cabins.

A team meeting on 29 October 2002 chaired by Squire and attended by a number of staff, including Hawthorne and Menser, confirmed the need to adhere to operating procedures and the guidelines relating to cabin and general searches.

During a managers' meeting on 1 November 2002 chaired by Greg Jones, assistant manager at Kariong, the need for strict adherence to routines and procedures was reinforced and there was a discussion of the incident on 20 October 2002 and risk prevention strategies discussed.

On 6 November 2002, Sue Ellen Lembke, Regional Director for the Department, issued a Memorandum to all Kariong staff advising that as a result of the incident on 20 October 2002, the Department would undertake a review of the systems of safety, security and detainee management at Kariong commencing on 11 November 2002.

10 It was agreed that the defendant undertook an investigation into the incident on 15 November 2002 and completed a comprehensive incident report on 20 January 2003. The report concluded that tools in the Woodwork Vocational Area had not been properly accounted for and that supervision of detainees in the area was at times less than satisfactory. The report also concluded that search procedures as set out in the memorandum issued on 23 October 2002 had not been complied with.

11 The report stated that the actions taken as a result of the incidents were as follows:

· Memo dated 22 November 2002 issued relating to detainee searches to re-establish search procedures for detainees returning from school and vocational areas prior to returning to units. The memo provided that all detainees who attend school, TAFE and Vocational Areas are to be 'wanded and patted down' before returning to their respective units.

· Reissue of search procedures.

· Reinforcement of the necessity to follow the set procedures to Youth Officers.

· Complete search of residential units in an attempt to discover the remaining 12mm drill bit which was notified as missing.

· Complete overhaul and clear out of unnecessary and broken equipment and tools in the woodwork and metal workshops.

· Full inventory taken of all tools and equipment in the woodwork area.

· Closure of the woodwork room until a full risk assessment/upgrading of safety issues and security of equipment can be completed.

· Unit Managers and Unit Co-ordinators dedicated to each of the residential units.

· Centre Training Officer and Training and Equity Coordinator requested to organise specific training in searches for all Youth Officers.

· the Woodwork Vocational Area was closed permanently following the incident on 15 November 2002.

12 Following the issue of improvement notices by the prosecutor the defendant implemented new systems and undertook further training of its employees. The statement of agreed facts described the changes as follows:

A new system for the identification of missing tools was adopted by the defendant. The number of tools on the shadow board was reduced to that they were easily identified and any additional tools were to be kept in the Vocational office. The vocational instructor issued any additional tools and kept a record of any tools issued. A daily log was maintained to identify tools issued and tools broken or destroyed. A full inventory of all the tools was maintained.

Two locks were installed on the woodwork storeroom doors and the level of supervision of detainees was strengthened. Detainees were no longer permitted to work in the hallway near the storeroom. In every program the vocational instructor or program provider had a youth officer with them at all times to assist with the supervision of detainees.

The Defendant implemented a system of work in the event that a tool or dangerous item was found to be missing from the Metalwork Vocational Area. Detainees were not permitted to leave the area until such time as the tool was found and if the tool was not found each detainee was individually strip-searched in accordance with departmental procedure.

A new tools as weapons program was developed by the defendant and all staff required to undertake the training. The Department of Education and TAFE employees who utilised the Metalwork Vocational Area were also provided with training in the tools as weapons program.

Metal detectors are now used when performing searches of the residential cabins.

The Metalwork Vocational Area was closed permanently following an incident on 20 November 2003.

The operation of Kariong has now been transferred to the Department of Corrective Services.

Affidavit of Peter James Muir

13 The affidavit of Peter James Muir was read. Mr Muir is the Assistant Director General (Operations) for the New South Wales Department of Juvenile Justice. He has extensive experience in the area of child protection, working with young offenders and young people who exhibit anti-social or criminal behaviour. Mr Muir is responsible for all community based and custodial services in New South Wales. He is responsible for the oversight of the five regions that manage these services on a day-to-day basis. He is also responsible for the department's psychological and specialist programs, and the department's transport operations.

14 Mr Muir explained that the defendant's clients include those who are referred and accepted for youth justice conferencing; those who are sentenced or remanded to a juvenile justice centre pending appearance at Court; and those sentenced by Court to community based supervision. He also explained that Kariong was opened in September 1993 to accommodate juveniles found guilty of serious offences and those whose behaviour was seriously disruptive in other centres. The control of Kariong was transferred to the Department of Corrective Services on 11 November 2004.

15 Mr Muir identified a number of statutes that the defendant is responsible for administering. In particular, reference was made to the Children (Detention Centres) Act 1987. The objects of this Act are to ensure that:

(a) persons on remand or subject to control take their places in the community as soon as possible as persons who will observe the law;

(b) in the administration of this Act, sufficient resources are available to enable the object referred to in paragraph (a) to be achieved; and

(c) satisfactory relationships are preserved or developed between persons on remand or subject to control and their families.

16 Mr Muir explained that in the administration of this Act:

(a) the welfare and interests of persons on remand or subject to control shall be given paramount consideration; and

(b) it shall be recognised that the punishment for an offence imposed by a Court is the only punishment for that offence.

17 Further, that in relation to the administration of its custodial responsibilities under s 4(2)(a) of the Children (Detention Centres) Act, the defendant must ensure that:

the welfare and interests of persons on remand or subject to control shall be given paramount consideration.

18 Section 4 of the Children (Detention Centres) Act provides that:

The Director General shall ensure that adequate arrangements exist:

(a) to maintain the physical, psychological and emotional well-being of detainees;

(b) to promote the social, cultural and educational development of detainees;

(c) to maintain discipline and good order among detainees, and

(d) to facilitate the proper control and management of detention centres.

19 Mr Muir also referred to the Children (Detention Centres) Regulation 2000, which relevantly provides in reg 16 that:

The Director General may provide the following programs in detention centres:

(a) vocational and education programs;

(b) psychological and social programs;

(c) recreational programs;

(d) alcohol and other drug rehabilitation programs, and

(e) cultural specific programs.

20 Mr Muir deposed that one of the pivotal points in the defendant's evolution was the Inquiry into Juvenile Detention Centres published by the New South Wales Ombudsman in December 1996. He stated that this Inquiry "thoroughly investigated all operational aspects of juvenile detention centres, and was provided as a special report to parliament under s 31 of the New South Wales Ombudsman's Act." In relation to the report Mr Muir stated:

The report noted in Chapter 18, paragraph 10, stated:

that recent research suggests that if young people in institutional care are to break the cycle of failure, lack of employment and detention, then strategies must be developed to increase their chances of employment and education, especially literacy.

It went on to say (18.11):

Recognising the impact of low self-esteem and self-worth is particularly important when dealing with the Juvenile Justice centre population. Often 'young offenders have little or no sense of self'. A number of submissions received by the inquiry stressed the importance of education on the rehabilitation of young offenders.

The inquiry (18.30) found that:

Centre schools are for the most part a productive and positive influence in the Juvenile Justice detention centres. Particular note was taken by the inquiry of the often striking distance in attitudes of culture within the centre schools to that prevailing in the centres proper.

The inquiry went on to recommend (18.2) that:

The Department of Juvenile Justice address the issue of provision of accredited and articulated vocational training for detainees as a matter of urgency. Consideration needs to be given to seek additional funding to ensure that TAFE New South Wales is an active partner in the delivery and development of appropriate accredited courses for detainees.

21 In his affidavit Mr Muir described the operational environment which includes the fact that:

The Department of Juvenile Justice deals with some of the most vulnerable groups within the youth population. Young offenders are probably one of the most difficult client groups of any NSW Government agency; often severely disturbed young people with histories of sexual and emotional abuse, behaviour problems and substance use.

22 Mr Muir also described the steps taken by the defendant in relation to security maintenance which is a continuously evolving process, the defendant's case management policy, Kariong occupational health and safety programs and management system, training and development of Department staff, quality review process, provision of vocational programs for detainees and the Juvenile Justice Centres Procedures Manual, which contains procedures relating to:

(a) searching detainees;

(b) searching units and other areas;

(c) contraband and detection;

(d) dangerous items;

(e) supervision of detainees;

(f) routines for staff and detainees.

23 Mr Muir referred to the Occupational Health & Safety and Injury Management Unit's ("OHS&IM") three year Strategic Plan commencing on 1 July 2002. He stated that as at 30 June 2005, the key achievements arising from the implementation of this plan included:

(a) the complete implementation of the OHS Management System by December 2004;

(b) a revised OHS Incident Reporting and Investigation Procedure was implemented throughout the Department by March 2003;

(c) the Hazard Profile Project was completed and used to prioritise the implementation of OHS programs;

(d) the availability of all relevant OHS&IM policies and procedures became available to all staff via the department's intranet;

(e) enhancement of consultation between the OHS&IM Unit and centre OHS Committees;

(f) a reduction in the number of workers compensation claims from 296 in 2002/3 to 272 in 2004/5 and a reduction in the net incurred cost of claims from $2,328,000.00 to $1,897,00.00 during the same period.

Mr Muir also described the "key strategies" for the 2005-2008 OHS&IM Unit Strategic Plan.

24 In relation to the Tools as Weapons Program and other procedures, it was Mr Muir's evidence that:

The incidents of 20 October 2002 and 15 November 2002 caused the prioritisation of implementation of the Tools as Weapons program, which became a key risk management tool in the operation of vocational workshops within the various centres operated by the department.

This program was developed by the OHS&IM Unit in consultation with the various vocational units and OHS Committees within the various centres. Annexed hereto ... is a copy of the program.

The implementation of this program commenced in March 2003. All centre managers and other key management staff at centres were trained in the new procedures relating to the program.

Some of the key elements of the program included improvements to the systems of tool accountability and inventory, enhanced security of adjacent storage areas and reinforcement of existing search procedures.

At Kariong, as the metalwork room was closed following the 15 November 2002 incident, the implementation of this policy was limited to the metalwork workshop prior to its closure in November 2003.

In late 2004, the Tools as Weapons program was incorporated as a core element of the department's Dangerous Items Procedure which is part of the Juvenile Justice Centres Procedures Manual. Annexed hereto ... is a copy of the Dangerous Items Procedure.

25 Mr Muir indicated in his affidavit the defendant has established an OHS Steering Committee in order to enhance existing consultative mechanisms and ensure that there is sufficient knowledge sharing between centres and appropriate OHS initiatives, training and other measures can be more effectively coordinated and implemented.

26 In relation to the investigation of the incidents on 20 October and 15 November 2002 Mr Muir deposed that:

Following the incident on 20 October 2002, the OHS&IM Unit commenced a review of the systems of safety, security and detainee management at Kariong that commenced on 11 November 2002. The subsequent incident on 15 November 2002 highlighted the need for more urgent attention to these matters, which was confirmed by the findings of the first phase of the Hazard Profile Project completed in December 2002.

The department's internal investigation into both incidents was completed on 20 January 2003 the results of which are annexed ...

In addition, the OHS&IM Unit worked with the operational staff at Kariong to ensure compliance with the Improvement Notices issued on 5 February 2003.

The woodwork vocational area was closed permanently on 4 December 2002. The metalwork vocational area was closed on 21 November 2003.

Following the incidents all detainees involved were managed in accordance with departmental procedure. TS and MM (as referenced in the agreed statement of facts) were transferred to gaol following the incident on 20 October 2002. KEM, MOS and MAS (as referenced in the agreed statement of facts) were transferred to gaol following the incident on 15 November 2002.

27 In relation to the management of Kariong employees following the October and November 2002 incidents, it was Mr Muir's evidence that:

[A]ll staff were offered support and counselling through the department's Employee Assistance Program.

Following the October 2002 incident, Peter Hawthorne was directed by the Regional Director to have a day off work, but returned to normal duties thereafter and did not suffer any diagnosable psychological illness. Glen Menser and Neville Squire returned to normal duties without suffering any diagnosable psychological illness.

Following the November 2002 incident, Cheryl Schmitzer did not require any time off work, did not suffer from any diagnosable psychological illness and returned to full duties. Michael Ellen required seven days off work before returning to full duties.

Following the November 2002 incident, Richard Dare attempted to return to work on a number of occasions without success. Mr Dare is presently unable to return to work, however the question of the permanency and extent of any psychological problem is presently the subject of a dispute between the department's workers compensation insurer and Mr Dare.

28 Mr Muir submitted in his affidavit:

While the department takes into account the volatility of the detention centre system by implementing and monitoring safety and security measures, the risks inherent in relating to young people in such an unnatural environment are real and ever-present. The only risk-free method of managing such young people in detention is to totally eliminate any human interaction between staff and detainees. This in itself would inevitably create risks to the community in releasing young people from custody who have been brutalised and dehumanised.

As stated in the department's draft Violence Prevention Strategy:

The workplaces in the department are unique. They bring together young people who are already troubled into often highly controlled environments. Under the pressure of involuntary supervision – which may involve being in custody – young people may react in unpredictable and aggressive ways. Understanding that many young offenders under supervision have not achieved mature control of their impulses is critical to preventing or reducing the incidence of violence in our workplaces.

...

The competing and complex pressures on the operations of the department can, fortunately very rarely, result in extremely regrettable outcomes, such as those that culminated in the incidents of 20 October and 15 November 2002.

The constantly evolving operational requirements with respect to appropriate management of detainees create continuing challenges for the department and its employees.

It is well recognised that for these reasons, the operations of the department must also remain dynamic and responsive to these challenges.

Although the department has implemented a number of significant measures in its management of workplace safety for its employees since the incidents of 20 October and 15 November 2002, the department acknowledges it still has some way to go before it reaches an optimal system that can accommodate the inherent conflicts and constraints outlined above.

The department remains committed to a process of continuous improvement principally driven by the OHS&IM Unit with the support of the senior management of the department.

The department also appreciates the need to facilitate employee ownership of the process to achieve workplace safety. There is now an improved level of consultation with and training of employees to achieve this outcome.

Other evidence

29 Other evidence tendered in the proceedings included a factual inspection report prepared by Inspector Lewis on 17 January 2003, a bundle of 24 colour photographs relevant to the prosecution, a record of prior convictions showing the defendant had one such conviction and a victim impact statement of Mr Dare.

Approach to sentencing

30 Ms P E McDonald of counsel for the prosecutor submitted that there are two primary factors in the assessment of penalty, these being:

(i) The nature and quality of the offence, that is the objective seriousness of the offence charged; and

(ii) Subjective factors.

31 Ms McDonald submitted that in determining penalty the Court must take into account all relevant considerations in sentencing and make a judgment as to the appropriate sentence in the circumstances. The objective and subjective factors to be considered include those set out in ss21A, 22 and 23 of the Crimes (Sentencing Procedure) Act: Inspector Yeung v Howie Herring & Forsyth Limited & Anor [2005] NSWIRComm 266 at [39] & [40]. The process, counsel submitted, involved a balancing of the objective and subjective factors: Lawrenson Diecasting (1999) 90 IR 464 at 474-475.

32 Ms McDonald referred to Morrison v Power Coal Pty Limited (No. 3) [2005] NSWIRComm 61 where the Full Bench endorsed the statement by Hungerford J in Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 386 in which his Honour, when discussing the duty of the Court in imposing penalties for offences under the Act and its predecessor, said it was:

To ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty in so far as a defendant is concerned not to impose such a penalty as would be oppressively high.

33 Mr B E Hodgkinson SC for the defendant contested the prosecutor's submission as to the correct approach to sentencing. Mr Hodgkinson submitted that in light of the High Court's decision in Markarian v R [2005] HCA 25 given on 18 May 2005, Lawrenson Diecasting must now be regarded as having been wrongly decided. Senior counsel noted that in Howie Herring I had considered the implications of Markarian for the approach required by Lawrenson Diecasting and had decided I should not depart from that approach. Mr Hodgkinson also noted, however, the implications of Markarian were not fully debated before me and to that extent the question of the correctness of Lawrenson Diecasting remained an open one. This is undoubtedly so given there has been no authoritative pronouncement, although I note that a number of first instance decisions have followed Howie Herring.

34 Nevertheless, nothing that was put by Mr Hodgkinson has convinced me I should take a different approach to that outlined in Howie Herring. Accordingly, I consider the approach to sentencing that Ms McDonald contended for, is the correct one.

Objective seriousness

35 Given the nature of the institution and the fact that it housed juvenile detainees who were in custody, charged with, or convicted of criminal offences and who "may react in unpredictable and aggressive ways ", it is glaringly obvious that in order to avoid any risk to the health and safety of employees who came into contact with the detainees, there needed to be a system in place to ensure that outside the Vocational Area detainees did not gain access to tools that might be used as weapons to threaten and/or assault employees.

36 The particulars of the charges in respect of which the defendant pleaded guilty, indicate gross failures on the part of the defendant to meet its obligations to protect staff:

(i) The defendant failed to ensure that tools capable of being used as weapons (“tools”) by detainees were securely stored in the Vocational Area at Kariong.

(ii) The defendant failed to ensure that tools were not removed by detainees from the Vocational Area at Kariong.

(iii) The defendant failed to ensure that an adequate system of work was used to account for tools used in the Vocational Area at Kariong.

(iv) The defendant failed to ensure that adequate searches of detainees were performed after detainees had accessed tools in the Vocational Area at Kariong.

(v) The defendant failed to ensure that adequate searches of the residential areas at Kariong were performed to locate tools and other implements capable of being used as weapons by detainees.

37 As the prosecutor correctly submitted, the risk to health and safety:

[W]as reasonably foreseeable, it was known to the defendant and foreseen by the defendant. There was a system in place to attempt to control the risk but it was a deficient system and it was not enforced by the defendant.

In respect of the storage of the tools no inventory or comprehensive list of the tools was maintained. The checking of whether tools were missing consisted of a visual check of the shadow board.

It would appear that part of the Operations Procedures Manual in place at the time of the two offences was not followed as detainees were not searched using a metal detector when leaving the vocational area.

Although random searches of the units and cabins were undertaken, metal detectors were not regularly used when conducting these searches.

38 Mr Hodgkinson submitted that in considering the objective seriousness of the offences the Court must have regard to mitigating factors. He submitted this was not a defendant that had no system in place to ensure health and safety; it was very conscious of the risks of detainees obtaining tools that could be used as weapons and had sought to operate a system that avoided the risks. Secondly, the defendant had an obligation to educate the detainees and where possible provide them with useful vocational skills. Inevitably, that involved the use of tools by the detainees. It was not a realistic option to deny access to tools; to do so would have been to deny detainees access to important vocational training. Thirdly, it was submitted the defendant operated in a complex environment at Kariong, having to balance the welfare of individual detainees against the need to ensure the safety of staff.

39 To the extent they are relevant I have taken into account the factors mitigating the seriousness of the offences. But assessing the objective seriousness of the offences in this case is not a terribly complicated matter, in my opinion. The defendant did operate in a difficult environment that required an acute sense of that environment including, in particular, the very real risk of a detainee obtaining a tool from the Vocational Area so that it might be used as a weapon. The defendant was well aware of this risk. Where the defendant failed, however, in its responsibility for the health and safety of its staff, was that despite knowing of the risk it did not ensure that an adequate system of work was used to account for tools used in the vocational area at Kariong.

40 The defendant also failed in properly appreciating the risk of tools being taken from the Vocational Area. To guard against this possibility it was necessary that a second layer of detection operated whereby adequate searches of detainees were performed after they had accessed tools in the vocational area at Kariong. Further, it was necessary that adequate searches of the residential areas at Kariong were performed to locate tools and other implements capable of being used as weapons by detainees.

41 These protection and detection arrangements were in place but they were clearly not adequate.

42 The prosecutor submitted the second offence was more serious, as the defendant with knowledge of the incident that occurred on 20 October, did not take appropriate steps to control the risk. In this respect, Ms McDonald submitted:

On 21 October 2002, Andrew Soady, a vocational instructor employed by the defendant issued a memorandum to management that the chisel used in the assault on 20 October was of the same type stored in the storeroom of the vocational area and that it was likely that the detainee MM had obtained the chisel from the storeroom during a woodwork class.

The defendant did not change the system of work for the identification of any missing tools in the woodwork vocational area.

In respect of searching of detainees, a memorandum was issued by the manager of Kariong, Bernadette O’Connor reinforcing the procedure for proper searches of detainees when they left the vocational area consisting of a proper pat down search and a proper wand search. Employees Ellen and Dare did not see this memorandum until shown by Inspector Lewis in 2003.

Team meetings were held on 28 and 29 October which confirmed the need for proper searches.

An investigation conducted after the second incident found that the search procedures as set out in the memorandum dated 23 October 2002 had not been complied with.

43 Accepting Mr Hodgkinson's submission that it was not reasonably open to the defendant to simply close down the Vocational Area immediately because of the impact of this on the vocational training programs operated by Kariong, it is evident that more was required than notice of intention to undertake a review, team meetings and simply writing a memo to staff reinforcing the procedure for proper searches of detainees when they left the vocational area. The incident on 20 October represented a serious risk to the health and safety of staff. The attitude of the defendant should have been one of the deepest concern. It should have led to searching out all of the reasonably practicable ways that would prevent a re-occurrence and implementing, as quickly as possible, appropriate strategies. This should have included ensuring that an adequate system of work was used to account for tools used in the vocational area as well as physical inspections to ensure all staff were, in fact, using proper search procedures.

44 Because of the defendant's failure to adequately address the deficiencies brought to light by the incident on 20 October, a risk that may otherwise have been avoided or reduced continued to represent a threat to the health and safety of staff. Because the defendant was aware of the particular risk after what happened on 20 October and failed to take adequate remedial steps to prevent a re-occurrence, its culpability in relation to the offence that occurred on 15 November must be considered to be greater than that in relation to the offence on 20 October.

45 The gravity of an injury resulting from a breach of the Act does not of itself dictate the amount of penalty. However, the occurrence of death or serious injury may manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Rodney Morrison v Powercoal Pty Limited (2003) 130 IR 364 at [32].

46 Section 21A of the Crimes (Sentencing Procedure) Act 1999 provides that an aggravating factor that may be taken into account in determining the appropriate sentence for an offence is:

...

(g) The injury, emotional harm, loss or damage caused by the offence was substantial.

...

47 In respect of the offence committed on 20 October the agreed facts were relevantly:

Menser and Hawthorne stated in interviews conducted by Inspector Lewis that they sustained psychological injuries as a result of the incident. Following the incident, Hawthorne was requested by the Regional Director to have one day off work.

48 In respect of the offence committed on 15 November it was agreed that:

As a result of the incident Dare suffered lacerations to his right hand, bruising and stiffness in the left shoulder, ongoing headaches, flashbacks and difficulties sleeping. Dare has undertaken counselling and received treatment for post-traumatic stress.

Dare was still absent from work in February 2003 and was unable to give an indication of when he would be able to return to work.

As a result of the incident, youth officer Ellen was absent from work for 7 days and received counselling.

49 The defendant insisted that there were no easy solutions to the security and health and safety issues thrown up by the incidents on 20 October and 15 November. I accept it may not have been an appropriate response to immediately close down the Vocational Area, although following a review this, in fact, occurred in relation to metal working. However, there were relatively simple steps available to the defendant to reduce the likelihood of a risk that detainees would obtain access to tools and use them to threaten and/or assault employees. These steps were identified in the agreed statement of facts:

A new system for the identification of missing tools was adopted by the defendant. The number of tools on the shadow board was reduced to that they were easily identified and any additional tools were to be kept in the Vocational office. The vocational instructor issued any additional tools and kept a record of any tools issued. A daily log was maintained to identify tools issued and tools broken or destroyed. A full inventory of all the tools was maintained.

Two locks were installed on the woodwork storeroom doors and the level of supervision of detainees was strengthened. Detainees were no longer permitted to work in the hallway near the storeroom. In every program the vocational instructor or program provider had a youth officer with them at all times to assist with the supervision of detainees.

The Defendant implemented a system of work in the event that a tool or dangerous item was found to be missing from the Metalwork Vocational Area. Detainees were not permitted to leave the area until such time as the tool was found and if the tool was not found each detainee was individually strip-searched in accordance with departmental procedure.

A new tools as weapons program was developed by the defendant and all staff required to undertake the training. The Department of Education and TAFE employees who utilised the Metalwork Vocational Area were also provided with training in the tools as weapons program.

Metal detectors are now used when performing searches of the residential cabins.

50 The defendant submitted that the Court would not give any weight to the need for general deterrence. Mr Hodgkinson submitted:

As to general deterrence, it won't play a role. We are dealing with a juvenile justice system. We are dealing with a system that is outside the general expectation.

51 In a sense, Mr Hodgkinson was contending the juvenile justice system was sui generis and no purpose would be served by including in any penalty an amount that is designed to deter others from committing similar offences. The offences in this case, however, were not that the defendant failed to prevent detainees in a juvenile detention centre from obtaining tools to be used as weapons to threaten and/or assault employees. The offences were in relation to breaches of s 8(1) of the Act. That is, the defendant twice failed to ensure the health, safety and welfare at work of its employees. The purpose of including in any penalty an element for general deterrence is to deter others from committing that offence. In particular, it is important part of the Court's role to deter offences being committed where the health and safety of employees might be put at risk by the violent acts of others.

52 In accordance with the Full Bench decision in Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [71]-[80] it is appropriate that I draw attention to the need for employers to ensure that workers are not exposed to risks to their health and safety. I have, therefore, included an element in the penalty for general deterrence.

53 As to specific deterrence, in light of the measures taken by the defendant following the incident on 15 November, its obvious commitment to occupational health and safety, and the fact that Kariong no longer operates, I do not consider this is a case that calls for the imposition of some additional significant punishment aimed at deterring the defendant from further offending against the Act and/or for the purpose of compelling the defendant’s attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety.

54 Section 21A(d) of the Crimes (Sentencing Procedure) Act provides that an aggravating factor that may be taken into account in determining the appropriate sentence for an offence is the fact that the offender has a record of previous convictions. I am aware that the defendant (that is, the Crown) has numerous antecedents but in its emanation as the Department of Juvenile Justice the defendant has one prior conviction under s 15(1) of the 1983 Act. This offence involved the stabbing of a cooking teacher with a knife by a detainee of the Yasmar Juvenile Justice Detention centre during a cooking course held at the centre in July 1999. The cooking teacher died from his stab wounds. The detainee had a history of demonstrated aggression and/or violent behaviour: WorkCover (Inspector Stewart) v The Crown in Right of the State of New South Wales (Department of Education and Training, Department of Juvenile Justice and the Technical and Further Education Commission) (2002) 118 IR 207. The defendant, in its three emanations, was fined $294,000.

55 There is a some similarity between the factual circumstances of the offence in WorkCover (Inspector Stewart) v The Crown and the offences in the present proceedings, in that a detainee was able to obtain a utensil/tool in order to carry out an assault.

56 In WorkCover (Inspector Stewart) v The Crown the essential failure was the failure of the defendant to prevent a student-detainee from participating in a course that involved her having access to and the use of knives in circumstances where the student-detainee had an apparent fascination with knives and where in 1999 she had been charged with having custody of a knife in a public place, wounding with intent to murder, and attempted murder in relation to an attack upon her natural mother with a kitchen knife. Staunton J found that there was a component of serious violence within the student-detainee's make-up that was characterised particularly by her propensity for sharp objects and knives. Her Honour found the Department of Juvenile Justice knew this.

57 Whilst the circumstances are different, arguably the stabbing of the teacher in WorkCover (Inspector Stewart) v The Crown should have put the defendant on a high state of alert in relation to the risks associated with detainees gaining access to utensils/tools that could be used as weapons. The defendant's system at Kariong for preventing access to tools that might be used as a weapon was, however, quite lax. Nevertheless, I consider it would be drawing a long bow to hold that the defendant's failures in WorkCover (Inspector Stewart) v The Crown and in the two offences before this Court constitute a propensity to re-offend and thus deserving of condign punishment. What has to be taken into account in my opinion, are the measures taken by the defendant to prevent a re-occurrence of the incidents on 20 October and 15 November as well as the different circumstances that obtained in WorkCover (Inspector Stewart) v The Crown.

58 As to subjective factors the defendant entered early pleas of guilty. The defendant is entitled to a discount for the utilitarian value of these early pleas and it shall be 25 per cent in each case. I also consider the defendant is strongly committed to ensuring the health and safety of its employees.

59 Whilst I have some doubt as to whether the principle of totality applies here the prosecutor accepted that it did. Ms McDonald relied on WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 at 100 and WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247 at [66]. I have proceeded on the basis that I should apply the totality principle.

60 I have read the victim impact statement of Mr Dare. The statement described Mr Dare's physical injuries, which mainly consisted of bruising, contusions and lacerations, and indicated that he was suffering from "ongoing post traumatic disorder".

61 The maximum penalty in each case is $825,000. I impose a penalty of $140,000 for the offence committed on 20 October 2002 and $190,000 for the offence committed on 15 November 2002, giving a total penalty of $330,000. In applying the principle of totality and arriving at a penalty that I believe properly reflects the overall criminality of the defendant's conduct I assess a total penalty in respect of the two matters of $220,000. That figure is to be discounted by 25 per cent for the early pleas of guilty. Accordingly, there is a total penalty with respect to the two offences of $165,000. That figure is to be apportioned on the basis of $70,000 for the 20 October offence and $95,000 for the 15 November offence.

Orders

62 I make the following orders:

Matter No IRC 6154 of 2004

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

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

(3) The defendant is fined an amount of $70,000 with a moiety to the prosecutor.

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

Matter No IRC 6155 of 2004

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

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

(3) The defendant is fined an amount of $95,000 with a moiety to the prosecutor.

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

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LAST UPDATED: 07/02/2006