Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Cook v State of New South Wales (NSW Police Force) [2013] NSWIRComm 114
• Hearing dates: 28 October 2013
• Decision date: 20 December 2013
• Jurisdiction: Industrial Court of NSW
• Before: Boland J, President

Decision

The Court makes the following orders:

Matter No IRC 261 of 2011

(1) The defendant is found guilty of the amended charge and convicted accordingly.

(2) The defendant is fined an amount of $189,000 with a moiety thereof to the prosecutor.

(3) The defendant shall pay the prosecutor's costs as agreed or assessed.

Matter No IRC 262 of 2011

(1) The defendant is found guilty of the amended charge and convicted accordingly.

(2) The defendant is fined an amount of $161,000 with a moiety thereof to the prosecutor.

(3) The defendant shall pay the prosecutor's costs as agreed or assessed.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Prosecutions under s 8(1) of the Occupational Health and Safety Act 2000 - Guilty plea - Sentencing - NSW Police Force - Police officers exposed to hazardous substances whilst undertaking drug audit - Sentencing principles - Penalties imposed
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Drug Misuse and Trafficking Act 1985; Occupational Health and Safety Act 1983; Occupational Health and Safety Act 2000
• Cases Cited: Cahill v State of NSW (NSW Police) (No 2) [2005] NSWIRComm 400; Capral Aluminium Ltd v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610; Department of Mineral Resources (NSW) (Chief Inspector McKensey) v Kembla Coal and Coke Pty Ltd [1999] NSWIRComm 353; (1999) 92 IR 8; Fletcher Construction Australia Ltd v Workcover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66; FV v Regina [2006] NSWCCA 237 Independent Cargo and Wool Services Pty Ltd v Inspector Mingare (Full Court, 10 March 1994, unreported); Inspector Ankucic v State of New South Wales (NSW Police Force) [2012] NSWIRComm 135; Inspector Christensen v MVM Rail Pty Ltd [2013] NSWIRComm 89; Inspector Covi v The Crown in the Right of the State of New South Wales No 2 [2004] NSWIRComm 400; Inspector Dall v Ullrich [2012] NSWIRComm 87; Inspector Hannah v Wonar Pty Ltd (Full Court, 30 June 1992, unreported); Inspector Jennifer Short v The Crown in the Right of the State of New South Wales (NSW Police) [2007] NSWIRComm 138; Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143; Inspector Legge v Intercast & Forge Pty Ltd [2006] NSWIRComm 182; Inspector Short v The Crown in the Right of the State of NSW (NSW Police) [2007] NSWIRComm 138; Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348; Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (1999) 90 IR 464; LG v R [2012] NSWCCA 249; Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364; Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117; Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120; PWB v R [2011] NSWCCA 84; Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; R v Bakewell (NSWCCA, unreported, BC9602796, 27 June 1996); R v Brown [1999] NSWCCA 323; R v Dib [2003] NSWCCA 117; R v Dodd (1991) 57 A Crim R 349; R v Harris (2007) 171 A Crim R 267; R v Harrison (1997) 93 A Crim R 314; R v Mungomery (2004) 151 A Crim R 376; R v Robert Borkowski [2009] NSWCCA 102; R v Slack [2004] NSWCCA 128; R v Whyte (2002) 55 NSWLR 252; Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor [2000] NSWIRComm 277; (2000) 95 IR 383; Workcover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 3) [2002] NSWIRComm 1; (2002) 112 IR 141; Workcover Authority of New South Wales (Inspector Petar Ankucic) v The Crown in the Right of the State of New South Wales (Police Service of New South Wales) [2002] NSWIRComm 335; Workcover New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163
• Category: Principal judgment
• Parties: Inspector Cook (Prosecutor); State of New South Wales Police Force (Defendant)
• Representation: Mr W G Roser SC with Mr A C Casselden of counsel (Prosecutor); Mr B Hodgkinson SC with Mr M J Gollan of counsel (Defendant); WorkCover NSW (Prosecutor); Sparke Helmore (Defendant)
• File Number(s): IRC 261 and 262 of 2011

Judgment

1 On 18 March 2009, three police officers were conducting an audit of drug exhibits in a drug vault at the Sydney Police Centre, Goulburn Street, Surry Hills. In the course of the audit the officers were exposed to safrole and methylamphetamine and suffered irritation and burning sensation to their eyes, nose and throat.

2 As the drug audit continued on 22 April 2009 at the same location, two police officers were exposed to cocaine. They suffered irritation and burning sensation to their eyes, nose and throat.

3 As a consequence of these two incidents, the State of New South Wales (NSW Police Force) was twice prosecuted for contraventions of s 8(1) of the Occupational Health and Safety Act 2000. Section 8(1) provided:

8 Duties of employers

(1) Employees

An employer must, so far as is reasonably practicable, ensure the health, safety and welfare at work of all the employees of the employer.

That duty extends (without limitation) to the following, so far as is reasonably practicable,:

(a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,

(b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,

(c) ensuring that systems of work and the working environment of the employees are safe and without risks to health,

(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work,

(e) providing adequate facilities for the welfare of the employees at work.

4 On 30 October 2013, the defendant entered pleas of guilty to charges set out in amended applications for order. This judgment deals with sentence.

The amended charges

5 The charge in Matter No IRC 261 of 2011 was that the defendant, on 18 March 2009, in the manner particularised in the charge failed to "ensure the health, safety and welfare at work of its employees Andrew James McGrath, Nader Kyrollos Hanna and Stephen De la Croix, contrary to section 8(1) of the Occupational Health and Safety Act 2000." The particulars of the amended charge were as follows:

a) The risk was the risk of exposure to safrole and methylamphetamine whilst undertaking an audit in the drug exhibit room at the premises;

b) The defendant failed:

i) to ensure that Andrew James McGrath, Nader Kyrollos Hanna and Stephen de Ia Croix were provided with and used appropriate personal protective equipment being goggles, gloves and P2 face masks whilst undertaking an audit in the drug exhibit room at the premises.

ii) to properly supervise Andrew James McGrath, Nader Kyrollos Hanna and Stephen de la Croix, who were performing an audit in the drug exhibit room at the premises, in that there was no supervision that ensured that those employees were wearing the appropriate personal protective equipment named above when they were performing work on the drug audit project.

iii) to undertake an adequate risk assessment in that it did not identify that the appropriate personal protective equipment named above should be used by Andrew James McGrath, Nader Kyrollos Hanna and Stephen de la Croix whenever they were working in the drug vaults.

c) In circumstances where the defendant had committed the failures set out in b) i), ii) and iii) above, the defendant should have, as a consequence of all of those failures, identified that Exhibit 358\D309677 contained safrole and methylamphetamine, but failed to do so.

d) As a result of the defendant's acts or omissions Andrew James McGrath, Nader Kyrollos Hanna and Stephen de Ia Croix were exposed to the risk and the consequent injury of irritation and burning sensation to their eyes, nose and throat.

6 The charge in Matter No IRC 262 of 2011 was that the defendant, on 22 April 2009, in the manner particularised in the charge failed to "ensure the health, safety and welfare at work of its employees Nader Kyrollos Hanna and Marcus Varlin, contrary to section 8(1) of the Occupational Health and Safety Act 2000". The particulars of the amended charge were as follows:

a) The risk was the risk of exposure to cocaine whilst undertaking an audit in the drug exhibit room at the premises;

b) The defendant failed:

i) to ensure that Nader Kyrollos Hanna and Marcus Varlin properly used appropriate personal protective equipment being goggles, P2 face masks and gloves, whilst undertaking an audit in the drug exhibit room at the premises.

ii) to properly supervise Nader Kyrollos Hanna and Marcus Varlin, who were performing an audit in the drug exhibit room at the premises, in that there was no supervision that ensured that these employees were properly wearing the appropriate personal protective equipment named above whilst performing work on the drug audit project.

iii) to undertake an adequate risk assessment in that it did not identify that the appropriate personal protective equipment named above should be used by Nader Kyrollos Hanna and Marcus Varlin whenever they were working in the drug vaults.

c) In circumstances where the defendant had committed the failures set out in b) i), ii) and iii) above, the defendant should have, as a consequence of all of those failures, identified that Exhibit B195689 contained cocaine, but failed to do so.

d) As a result of the defendant's acts or omissions Nader Kyrollos Hanna and Marcus Varlin were exposed to the risk and the consequent injury of irritation and burning sensation to their eyes, nose and throat.

Agreed Statement of Facts

7 The prosecutor tendered an Agreed Statement of Facts of 16 pages, which is Annexure A to this judgment. However, it is useful in the body of the judgment to identify the main elements of what has been agreed:

On 16 February 2009, approximately 12 police officers were seconded to the Sydney Police Centre ("SPC"), as members of the "Audit & Destruction Project 2009 (Ordinary & Drug Exhibits)." The purpose of this Project was to conduct an audit of all ordinary and drug exhibits held within the Exhibits Section at the SPC ("SHEC") to identify and destroy exhibits which no longer need to be stored in accordance with legislative requirements.

Drug exhibits seized in the field are the responsibility of the arresting officer ("OIC"). The seized drug exhibit is conveyed to an exhibit storage centre, in this case SHEC where it is sealed in an approved storage bag, given a unique identifier and stored in an exhibit safe or vault. At a later stage the exhibit is conveyed to the Division of Analytical Laboratories DAL (now known as the Forensic and Analytical Science Service Centre (FASS)) for analysis.

Analysts at DAL record the weight and retain a small quantity of the exhibit prescribed by legislation for analysis. The remainder of the drug exhibit is heat sealed into an outer plastic bag and returned to the SHEC where the 'Exhibit Book' entry is updated and the exhibit is again secured in one of the two drug vaults at the SHEC.

The sample is analysed by DAL to determine the identity of the prohibited illicit portion of the substance and an 'Analyst's Certificate' is produced in accordance with section 43 of the Drug Misuse and Trafficking Act 1985. The DAL Analyst's Certificate is provided to the OIC for production in court proceedings. A copy of the Analyst's Certificate is not provided to SHEC.

Room 1803 at SHEC is medium security 'drug exhibit vault and Room 1804 is a high security 'drug exhibit vault'. Rooms 1803 and 1804 were designed and purpose built to store drug exhibits. Generally, drug exhibits of less than trafficable quantities are stored in room 1803. Drug exhibits exceeding trafficable quantities are generally stored in room 1804.

The general day-to-day operations of SHEC are managed by four permanent employees. SHEC is responsible and accountable for the storage and security of both ordinary and drug exhibits.

Drug exhibits include 'prohibited drugs' such as heroin, cocaine, cannabis and methylamphetamines; 'prohibited plants' such as cannabis; 'prescribed restricted substances'; and 'precursors' such as 'safrole'. As at 30 September 2008 SHEC had on hand 5554 Drug Exhibit Entries comprising in excess of 200,000 individual items.

An annual audit of drug exhibits is required. The audit process checks the integrity of the exhibit for signs of tampering and facilitates the destruction process by identifying exhibits no longer required to be kept. Prior to 2009 SHEC had been audited two times over the preceding 10 years (in 2001 and 2004).

The NSW Police does not destroy a drug exhibit until its associated court matter is finalised and sentencing completed in case the matter is appealed and the exhibit is required in court or for re-analysis. For this reason some drug exhibits at the SPC in 2009 were over 10 years old.

In 2008, all LACs were directed to significantly reduce the number of exhibits stored at each LAC effective immediately.

In August 2008 the Surry Hills Audit and Destruction Project 2009 (Ordinary and Drug Exhibits) ("the Project") was established. A project Plan was developed. The Project Plan outlined the aim, objectives, risks, timings and deliverables associated with the project. The head of the Project, Inspector Birley, was responsible for the identification, assessment, control and management of OHS risks associated with the proposed audit.

Police officers were seconded to the Project. A total of 33 officers were seconded to the Project at SHEC to commence the audit project in February 2009 and completion in December 2009. The officers were required to work 38 hours per week, over four shifts.

Incident on 18 March 2009

On 18 March 2009, Sergeant Nader Hanna, Detective Senior Constable Stephen De La Croix and Senior Constable Andrew McGrath were working at SHEC on auditing drug exhibits inside room 1803, the medium security drug vault.

At approximately 4pm, officer McGrath opened a cardboard box lifted out an exhibit bag containing a beige powder and placed it on his leg. Officer McGrath immediately noticed a very strong chemical odour.

Officer De La Croix was called into room 1803 and described the event as follows:

"I went in. On the floor was a cardboard box. In the box were a number of bags, drug bags. Sergeant Hanna was standing next to the next to the box. I think Andrew said to me "Can you get a smell coming out of this?" I then squatted down near the box, put my face over the box and then with my left hand I waved the air over it to see if I could get a smell out of the box, to check if anything was coming out. I didn't get any smell at first. I then moved the bags out of the box one by one. Sergeant Hanna was, I think he had the Drug Exhibit Book with him and was cross-checking and ticking off the numbers on the drug bags. And then suddenly, I got a whiff of strong odour come out of one of the bags. I think I said, as soon as I got the whiff, I was taken back "This stuff stinks, it smells like boot polish". Those are the words I said to Sergeant Hanna and Andrew, who were standing next to me." Officer De La Croix was called into the room and officer McGrath removed another drug exhibit bag from the box. Officer De La Croix also detected the strong odour and said 'this stuff stinks, it smells like boot polish'.

Officer De La Croix further said:

"I then located the bag from which the odour was coming out. The seal on the exhibit bag had come undone. To double check that it was the seal on the drug bag - there are two bags - there's the bag in which the drug is sitting in and then that bag is put into the drug bag. The seal on the drug bag had come undone and to double check, I then put my finger in the gap of the seal to confirm the seal had come undone. Some of the sticky substance went on my finger, whatever was in that bag. The fumes from whatever chemicals were in those bags went up my nose and mouth. The exhibit bag seal was detected as being open. To confirm this Officer De La Croix put his finger in the gap, which was subsequently contaminated by the oily yellow substance. Officers McGrath's hands were also contaminated by the unknown substance.

At this time all three officers left the room as a result of the vapours emanating from the exhibit and experienced an immediate burning sensation to their eyes, nose (sinus) and throat.

The officers were not provided with any personal protective equipment at the time of the incident, nor were they supervised in relation to its use, as the risk assessment process had not identified that personal protective equipment was to be used whenever they were working in the drug vaults.

Officer De La Croix put the exhibit back into the box. The officers washed their eyes, face and hands with running water from a sink located in the adjacent office and from a hand basin located in the men's bathroom outside the exhibit section.

The officers reported the incident to Sergeant Neil Cooper who was, on the day, in charge of 'general day-to-day operations' of SHEC.

Sergeant Cooper sealed the vault and the officers were instructed to go home.

Officers De La Croix and McGrath described the immediate burning sensation to persist for a period of less than half an hour. Officer Hanna says it lasted up to a few hours.

Officer McGrath states that his asthma became worse after the incident.

Post Incident Actions, following 18 March 2009 incident

Following the incident on 18 March 2009, drug vault (room 1803) was closed.

The drug exhibit (358/D309677 (2006)) involved in the incident was identified as containing approximately 5 Kilograms of a compressed beige substance containing the precursor 'safrole'. It also contained approximately 3 Kilograms of methylamphetamine otherwise known as 'speed' and approximately 2 Kilograms of methylenedioxymethamphetamine otherwise known as 'MDMA' or 'ecstasy'.

Sergeant Maguire received by facsimile, various Analyst's Certificates from DAL and a copy of the Material Safety Data Sheet (MSDS) for safrole, which he provided to Officers Hanna, McGrath and De La Croix. Safrole is a hazardous substance according to the National Occupational Health and Safety Commission (NOHSC).

The drug exhibit was placed into a HAZMAT recovery bin and sealed. Three HAZMAT personnel who entered the vault wore spillage suits and SCBA breathing apparatus. Approximately 5 kilograms of items were placed into a HAZMAT recovery bin and sealed. Atmospheric monitoring was conducted in the drug vault during the operation with 'no reading recorded'. The storage shelf was wiped with bleach where the exhibit in question was located and the area deemed safe by the HAZMAT team.

Officers Hanna, McGrath and De La Croix were then instructed by Inspector Birley to immediately seek medical attention and undergo blood and urine analysis. They left work early to undertake this instruction.

The tests results for all officers were negative and revealed no abnormality.

After medical review Officer McGrath, a person who suffered from asthma prior to being seconded, obtained an 'unfit for work' medical certificate which concluded his secondment duties at SHEC.

After medical review, Officer De La Croix continued in full time auditing duties at SHEC. He lodged a Hurt of Duty claim, which was accepted, but he did not have any days off work as a consequence of the events of 18 March 2009. His secondment concluded on 28 March 2009.

After medical review, Officer Hanna returned to full time auditing duties at SHEC on 19 March 2009. Thereafter he attended a medical practitioner for blood and urine tests in accordance with instruction given by Inspector Birley and the following day he continued full time auditing duties at SHEC. His secondment concluded on 9 May 2009.

System of work prior to 18 March 2009 incident

Inspector Birley as the 'Project Manager' was responsible for identifying, assessing and controlling risks associated with all aspects of the project. This included OHS risks as stated in the document titled 'Project Plan'. OHS risks were considered under the guidance of, and in accordance with policies, of the Safety Command within NSW Police.

Inspector Birley relied on a document titled 'SPC Exhibits - July 2008', an audit of the Surry Hills Exhibit Section said to have been completed by NSW Police OHS Coordinators.

On 18 March 2009 Officers McGrath, Hanna and De La Croix worked inside Room 1803 without PPE.

The document titled 'SPC Exhibits - July 2008' identified inadequate systems around the identification, labelling and storage of substances and recommended the implementation of a chemical safety management system, however there was no associated record of how this was to be achieved and by whom.

The document did not consider the impact that prolonged temperatures ranging in the mid to high 30's (degrees Celsius) may have had on the chemical composition of the drug exhibits or on the integrity of the drug bags that contained them.

Post Incident on 18 March 2009 Actions

On 23 March 2009, Phill Cantrell, Senior Project Officer, WorkCover Chemicals Team attended SHEC to inspect room 1803. Mr Cantrell provided a 2-page report. Mr Cantrell also made a statement setting out his investigations, dated 21 February 2011:

Investigation into the analysis of the exposure exhibit containing safrole;

Atmospheric monitoring as the HAZMAT test may not be reliable;

Purchase combination dust and solvent respirators to accommodate the 'volatile organic compounds' found in precursors such as safrole;

Destruction of amphetamine based exhibits as precursors are likely to oxidise when left for extended periods;

Degeneration of cannabis exhibits are subject to bacteria, fungi and moulds. Breathing the cannabis dust that contains THC should be avoided with PPE.

After the initial incident, a risk assessment was completed that identified a number of actions to minimise the risk of reoccurrence. According to Inspector Birley's incident report the following actions had occurred as at 30 March 2009:

all staff were briefed following the initial incident on the safe handling of exhibits;

the induction package was updated and all staff were required to sign it. It was to be included within their individual 'Personnel' file

ventilation to rooms 1801, 1803 and 1804 were independently examined

carbon badges ordered and to be worn by staff

an eyewash station installed

additional PPE provided

review of current risk assessments and standard operating procedures

Exhibit Entry 358/D309677 conveyed to NMI Laboratories for further testing

Clinical Hygienist is required to conduct carbon tube analysis of the air quality.

After the incident on 18 March 2009, an eye wash station was installed on the wall between rooms 1803 and 1804.

Disposable P2 respirators were provided to the seconded officers but were not made mandatory.

Instruction was provided on what to do in the event of a chemical spill. The instruction was to leave and isolate the area immediately and notify a senior officer. No information was provided to the officers on how to use the chemical spill kits.

The MSDS for safrole was added to the pre-existing drug MSDS available in rooms 1803 and 1804.

Incident on 22 April 2009

On 22 April 2009, Officers Hanna and Varlin received an instruction from Senior Sergeant Maguire to commence for the first time the auditing of room 1804, the high security drug vault. Inspector Birley at this time had taken a leave of absence and had appointed Senior Sergeant Maguire as the 'Project Manager' for that period.

Prior to entering 1804, Senior Sergeant Maguire provided each officer with a disposable respirator to wear. Senior Sergeant Maguire instructed Hanna and Varlin to wear gloves and a face mask.

However, the officers were not supervised in relation to using the respirator, as the risk assessment process had not identified that personal protective equipment was to be used whenever they were working in the drug vaults.

Officer Hanna stated to Inspector Cook when interviewed on 2 December 2010 that the mask did not fit over his nose and face properly, thus he could still smell the drug exhibits. Shortly after commencing work he removed the mask, placed it on his head and continued working.

On this day officer Varlin's role was to physically remove the drug exhibits from the shelves inside room 1804, identify each drug exhibit number, inspect each exhibit bag for damage, particularly to the seal and communicate the information to Officer Hanna who was also inside room 1804. Officer Hanna's role was to record the information for each drug exhibit communicated to him by officer Varlin into an 'Exhibit Book'.

Officer Varlin removed a large box containing exhibit number 274/C896127 (2004), which was made up of approximately 25 bags of white powder weighing around 36 kilograms in total.

Officer Varlin then opened the box and removed a bag, to inspect its integrity. It weighed approximately 1 kilogram. Officers Hanna and Varlin detected an odour coming from the bag. The officers experienced a burning sensation to their nose (sinus) and throat.

The seal on the exhibit bag was detected as being open. The bag was immediately returned to the box and the officers left room 1804 to report the incident to Senior Sergeant Maguire.

Exhibit number '274/C896127 (2004)' was identified to contain 'cocaine'.

The NSW Fire Brigade HAZMAT team were contacted and attended SHEC. Approximately 38 kilograms of cocaine from exhibit number '274/C896127 (2004) was placed into a HAZMAT recovery bin and sealed. Officers Hanna and Varlin concluded duties at the Exhibit Section and sought medical attention. Blood and urine analysis tests were performed with their GPs for cocaine exposure. The tests were negative.

On 23 April 2009, Officers Hanna and Varlin returned to full time auditing duties at SHEC. Both completed a report of the incident for Inspector Birley.

Post Incident Actions

On 30 April 2009, Senior Sergeant Maguire completed the NSW Police Force 'Risk Management Tool 2003' dealing with the incident on 22 April 2009.

Following the incident on 22 April 2009, Senior Sergeant Maguire issued all officers with reusable 'carbon filtered silicon respirators'. Officer Hanna noticed that once he was provided with this type of respirator, he felt he could breathe properly when auditing exhibits in the drug vaults.

The wearing of respirators, goggles and gloves when auditing was made mandatory.

On 1 May 2009 Inspector Ankucic advised that the testing would commence after 11.00 am. Further, that on the information he had received, it appears that:

"The PPE provided to your staff involved in the auditing process, is more than adequate to minimise the risks associated with that type of work."

Testing of SHEC was carried out by Mr M Faiz, Occupational Hygienist, Chemicals Team, WorkCover New South Wales, who produced a report dated 2 June 2009 in which he stated:

"The air monitoring results from the Drug Exhibit Section are satisfactory, indicating that the officers undertaking the drug audit are not unduly exposed to dust or organic vapours emanating from the drug exhibits. While auditing, the officers used the full range of personal protective equipment and they were protected from any fugitive emissions. Under the condition, a significant health hazard does not exist to the auditors."

Prosecutor's other evidence

8 The prosecutor's other evidence included a tender bundle incorporated documents under 26 tabs. The identity of the documents is set out in Annexure B to this judgment. Also tendered was a record of the defendant's previous convictions under the Occupational Health and Safety Act 2000 and that Act's predecessor the Occupational Health and Safety Act 1983. The exhibit identified eight prior convictions since 2002.

Defendant's evidence

9 The defendant's evidence comprised the following:

(1) a letter dated 30 October 2013 from the Office of the General Counsel, NSW Police Force, to Mr W Steenson, WorkCover Authority of NSW, providing an undertaking that the defendant would approach FASS by 30 November 2013 and request that:

(a) they mark each drug exhibit which contains a traffickable (sic) quantity of prohibited drugs with the presumptive identity of that drug, as determined by FASS. NSWPF will provide confirmation of their contact with FASS as soon as reasonably practicable.

(b) The NSWPF cannot warrant that FASS will mark each exhibit with the presumptive identity of the drug.

(2) an affidavit of Matthew Appleton, Superintendent of Police and Commander of Workplace Safety;

(3) an affidavit of Anthony Crandell, Superintendent orf Police and Local Area Commander of Surry Hills Local Area Command;

(4) a tax invoice for $2684 issued by the National Measurement Institute to the defendant for service provided in relation to analysis fees and dated 7 April 2009;

(5) a tax invoice for $1408 issued by the National Measurement Institute to the defendant for service provided in relation to analysis fees and dated 18 June 2009;

(6) a certificate of analysis dated 2 April 2009 issued under the Drug Misuse and Trafficking Act 1985 by the National Measurement Institute in respect of a sample of partially compressed beige powder provided by the defendant on 30 March 2009. The sample was found to contain safrole;

(7) an analyst's certificate dated 14 November 2002 issued under the Drug Misuse and Trafficking Act 1985 by the Institute of Clinical Pathology and Medical Research in respect of 25 packages of compressed substances provided by the defendant in August 2002. The packages were found to contain the prohibited drug cocaine.

Superintendent Appleton's evidence

10 Superintendent Appleton was not required for cross-examination. In his affidavit Superintendent Appleton explained his work history and experience as a police officer of 33 years. He explained that:

Toward the end of 2009 the Police Force self-imposed significant internal restructures which, amongst other things, resulted in safety being identified as most appropriately brought under the Human Resources umbrella. As a result, throughout 2010, particular added attention was paid to workplace safety, both in an operational sense and within each and every other aspect of the work environment.

The previously existing Safety Command was superseded by a new Command identified as Workforce Safety. In October 2010 I was appointed the Commander of Workforce Safety and commenced in that role in January 2011.

11 Superintendent Appleton further explained that Workforce Safety is broken up into four areas. Those areas are:

a. Work Health Safety and Safety Strategy;

b. Injury Management;

c. Health and Wellbeing;

d. Employee claims in Case Management under the Management and Business Structure of a Workers Compensation and Disability Self Insurer.

12 Superintendent Appleton said he reviewed the previous practices and procedures of the Safety Command and as a result it was determined to formulate a Safety Management System consisting of five key elements. They are:

a. Leadership and commitment.

b. Safe People.

c. Safe Workplaces.

d. Safe Operations.

e. Review and Improvement.

13 A Safety Management System Implementation Plan was drawn up and implemented in September 2012. The System was widely publicised throughout the Police Force. Publication was followed up by presentations conducted by staff of the Workforce Safety Command along with the assistance of external providers including those legally qualified, to Commissioner's Executive Team, Commanders, Duty Officers and others, who were then obliged to cause further presentations to their contemporaries and subordinates.

14 Superintendent Appleton stated:

The work done by the Workforce Safety Command has culminated in the Safety Management System organising and formalising the way that Health Safety and Injury Management is managed across the entire organisation. It has provided a coherent and integrated policy and procedural framework, as well as governance and regimes encompassing quality assurance, continuous improvement and corporate reporting.

Post the early presentations, there has been a process undertaken to provide specialist education to the Senior Commanders, police officers encompassing the objects and features of the Safety Management System, including, but not limited to:

a. assigning responsibility and authority to individuals tasked with the accomplishment of safety action;

b. providing clear instruction to all workers;

establishing interfaces between individuals and organisations to facilitate safety action;

c. establishing safe processes and systems, including procedures, for controlling and managing safety related documents and data;

d. establishing organisation controls to ensure systems output accomplishes intended objectives;

e. providing continued consultation between the operational field and management; and

also providing them with the skills and a clear message to communicate to those within the Command, under their direction, control and management.

15 Superintendent Appleton further explained that:

At a more individualised level, each police officer, when moving Stations, Local Area Commands, Duties, or Specialisations, is inducted into the position and that induction includes recognition and instruction on local risk assessment and the reinforcement of matters that may be regarded as applying to all environments. The induction packages and procedures are continually being revised and in September 2012, with the launch of the Safety Management System, a series of checklists and documents formulated the Induction Packages. Since the launch of that Package in September 2012, the continual review has resulted in a further Induction Package being launched, as recently as October 2013. Exhibited to this affidavit and marked with the letter "D" is a copy of the Work Health and Safety Induction Checklist of September 2012 and a copy of the recently launched Organisational Induction Package October 2013.

...

Finally, by reason of the regularity of the audit style process under the Command Management Framework, the Safety Management System has improved prospects of becoming embedded in the culture of the NSWPF.

In a further effort to remind Police Officers in their day to day activities of the importance of safety, the NSWPF has introduced the Commissioner's Annual Safety Award; this year being the sixth annual Award. They are intended to recognise individual contributions and efforts in the area of safety. Awards and Certificates of Merit are issued in a number of categories and the recipients honoured at an annual reception.

16 Superintendent Appleton identified the welfare services that come under his command and these include Psychological Services and a WellCheck Program. He also explained the operation of the Employee Assistance Program.

17 Superintendent Appleton deposed that the defendant had cooperated at all times with the WorkCover Authority of New South Wales during its investigations into the incidents in March and April 2009. This included NSWPF following up on recommendations made by WorkCover and considering further improvements independently of those recommendations.

18 In relation to remorse and contrition it was stated:

On behalf of NSWPF, I sincerely regret that the use of appropriate protective equipment was not enforced in 2009 and that, as a result, officers were exposed to substances that caused them irritation to their eyes, nose and throat.

NSWPF, and I personally, have dedicated over 2 years to improving processes associated with drug exhibit handling and making sure that all necessary steps are taken to best manage risks associated with drug exhibits.

All involved in this process have had the full support of the organisation and its executive.

Superintendent Crandell's evidence

19 Superintendent Crandell is the Local Area Commander of Surry Hills Local Area Command, a position he has held since 2011. He was required for cross-examination.

20 As Commander for the Surry Hills LAC, Superintendent Crandell is directly responsible for approximately 200 staff. He described, in general terms, the work health and safety processes in place within the Police Force and the Force's commitment to health and safety, noting "Some police activities are inherently dangerous. They involve responding to third parties who engage in criminal and illegal activity and result in officers being exposed to significant risk."

21 Superintendent Crandell stated that in 2011, NSWPF devised the Strategic Drug Exhibit Project to further address the risks and hazards associated with drug exhibits. He identified products and procedures introduced to further address the risks and hazards associated with drug exhibits throughout New South Wales. These include:

(1) Mandatory use of an Exhibit Centre Safety Induction Package - with minimum core elements developed to maintain a high level of safety awareness including mandatory procedures surrounding PPE requirements; identification of eye wash station/procedures, spill kit and safety data material.

(2) Drug Exhibit Destruction Operational Orders- designed to ensure consistency of disposal operations and uniform appreciation of safety risks across NSWPF. At present, NSWPF is destroying illicit substances in powder or tablet form contained in PAB18 plastic drug exhibit bags at the Sterihealth incineration facility. Any exhibit bag material is also required to be destroyed during disposal operations so that any risk of substance exposure is mitigated by officers not having to open otherwise sealed bags.

(3) Extensive signage for mandatory and prominent display in all areas where drug exhibits are handled including: Eye Wash Station; Spill Kit; Safety Data Sheet; Deteriorated / Dangerous Drug Instruction Sheet; Generic Aide Memoir; Procedures for Drug Destruction Operations Aide Memoire; Safety Poster - Aide Memoir; HazChem Poster; Safety Poster - Drug Exhibit Station Room.

(4) A drug exhibit triage poster - which provides guidance to receiving officers regarding increased risks to safety depending upon the conditions of seizure, size and local storage capacity/conditions. The triage system has formalised and mandated an otherwise subconscious process of critical decision making by exhibit officers.

(5) Further specific risk assessments have been developed and are in use throughout NSWPF including the following risk assessments:

Transporting Drug Exhibits' Risk Assessment- to determine conditions of travel associated with escorting drug exhibits for analysis and their return to exhibit storage facilities including disposal operations.

Generic Exhibit Centre Risk Assessment - for facilities that are used to store illicit substances.

(6) The Drug Exhibit Field Check - a product developed to guide officers on correct procedures and safety requirements when seizing substances that are unknown and potentially dangerous prior to storage.

(7) Changes to the Police Operation Risk Management Plan and User Guide - designed for investigators expecting major drug seizures to contemplate storage and handling requirements prior to the operational phase so that preparations can be made to mitigate safety risks associated with bulk exhibit management.

(8) Nitrile gloves have been mandated for introduction to all exhibit handling areas to provide officers with greater protection than the latex variety including a stronger barrier against needle stick injuries.

(9) Air scrubber technology - this will allow NSWPF to address cannabis and other chemical odours emanating from drug exhibit safes and other repositories. Inquiries have progressed with NSWPF Strategic Procurement Services to purchase air scrubber devices that will be installed in drug exhibit safes across NSW to purify air upon activation thereby creating work environments absent of irritating smells. Installations have already occurred at some police stations across the State. Formal roll-out is expected in early 2014.

(10) Dual seal transportation boxes - these will address odours from cannabis, in particular odours emanating through a police vehicle during transportation of drugs from remote centres to Sydney for analysis and return. Whilst some police stations are already using this style of container, mandatory use will be rolled out across NSWPF in early 2014.

(11) The NSWPF Handbook has been re-written to reflect the lifecycle of drug exhibits and to update material impacting upon current procedures including safety imperatives.

(12) Liaison with the NSW State Coroner resulting in procedural change to allow NSWPF to dispose of Coronial exhibits in a timely and efficient fashion thereby reducing storage times and exposure risks. Coroners in NSW will now make a determination regarding retention or disposal of drug exhibits upon the first mention date. If the exhibit touches upon evidence of death, the Coroner will ask for analysis to be undertaken beyond which the NSW Police Force can immediately destroy the substance rather than retaining it until completion of an inquest.

(13) A strategy brokered by NSWPF with the Chief Magistrate resulting in presumptive testing by Forensic and Analytical Science Service (FASS) in all cases where proof of drug is in issue. In all other cases the exhibits may be destroyed at the earliest opportunity thereby reducing storage times and exposure risks.

(14) More broadly the NSWPF has made representations to the Minister for Police for legislative change that will allow the timely destruction of prohibited drug bulk material without unnecessary transportation, storage and auditing procedures. The suggestion is to import portions of the Customs Act into the Drug Misuse and Trafficking Act to enable a system akin to that of the Commonwealth where bulk drug exhibits are destroyed without reliance upon court orders. These changes have support from the Director of FASS.

(15) To cement safety changes progressively, a number of drug exhibits management workshops have been conducted by the Strategic Drug Exhibit Project with exhibit practitioners and supervisory personnel from across NSW. The inaugural conference was convened on 10 May 2012 with a further two day forum conducted on the 29 and 30 August 2013. Annual conferences are planned under the direction and organisation of the Forensic Services Group as the area now housing a corporate sponsor for Exhibits Management.

(16) A Business Case (and costing) has been formulated to enable COPS notification of The Exhibits Forensic Information and Miscellaneous Property System (EFIMS) when court matters are complete thereby allowing exhibit officers to dispose of exhibits without input from officers in charge of matters.

(17) The Forensic Services Group have adopted and will continue development of the Drug Exhibit Website, which will contain specific data from the NSWPF Handbook and contain an Exhibit Safety Management System comprising safety and procedural facts and amendments to educate all officers across the NSW Police Force.

(18) An Exhibit Manager's Course has been created, with a Principle Tutor in place, to ensure continued operation of a safety culture when handling and managing exhibits. The course will address all aspects of exhibit handling and safety requirements including early signs of drug deterioration. Completion of the course will allow accreditation as an Exhibits Manager for appointment by LACs to elevate the importance of the exhibit management function and increase expertise within this specialised area of operation. This accreditation process is consistent with that of Brief Managers and Custody Managers already in place across NSWPF.

(19) An iLearn exhibits management package is also being developed under Mandatory Continuing Education (MCPE) guidelines for broad application and education of all police officers.

Superintendent Crandell outlined the actions taken by the defendant after the March and April 2009 incidents. These included:

(1) A comprehensive investigation and review process was undertaken by NSWPF and as a result, changes were made to systems and procedures. These changes were made bearing in mind issues raised through the consultation with representatives from WorkCover at the time of the incidents.

(2) NSWPF accepted and acted on the agreed recommendations provided in the report of Mr M. Faiz, Occupational Hygienist, Chemicals Team, WorkCover.

(3) Mr Crandell was appointed chairperson of the Strategic Drug Exhibit Project. In August of 2011 he received the brief and immediately commenced developing the project plan. This project plan involved both safety and legislative considerations.

(4) The safety objectives involved:

(a) The development of standard operating procedures as a baseline for exhibit operations.

(b) The development of a standard risk assessment with respect to the transport, storage, handling and disposal of hazardous substances suspected of being a drug or related to drug manufacture.

(c) The revision of the NSWPF handbook.

(d) The development and implementation of training material in support of standard practices with respect to hazardous substances suspected of being a drug or related to drug manufacture.

(5) The legislative objective involved the preparation of a submission with respect to the application of the Drug Misuse and Trafficking Act together with suggested changes to legislation and as informed by project outcomes.

(6) NSWPF has made submissions, with respect to the application of the Drug Misuse and Trafficking Act, asking that NSW legislation be brought into line with Commonwealth legislation. If these submissions are accepted, seized drugs will be weighed and 2 samples will be taken by officers attached to Forensic Services Group (FSG) within NSWPF. One sample will be provided to FASS for analysis. The other sample will be retained by NSWPF, together with the bulk of the drug. Once a certificate of analysis is provided by FASS, the bulk of the drug will be destroyed, without court orders. The sample will remain in storage until the conclusion of any final appeal period in case the accused wishes to challenge the FASS analysis.

(7) NSWPF believes that the benefits derived should such legislation be enacted, include:

(a) the volume of drug exhibits would be significantly reduced;

(b) the capacity for the drug vaults to operate in an orderly and organised fashion would be maintained and bolstered, even if a significant number of matters remained active within the justice system;

(c) the risk of exposure to large quantities of drugs, drug making precursors and other unidentified substances would be significantly reduced;

(d) the period over which the more significant volumes would be stored would be during the earliest period of the exhibits' time in the drug vault, thereby reducing the risk of the substance breaking down or otherwise corrupting the seals on storage packaging.

(8) In 2011 a further audit of all exhibits was undertaken. The audit commenced in or about August/September 2011 and went for approximately nine months.

(9) Superintendent Crandell resolved that it would be more beneficial to have higher numbers of secondees conduct the audit in 2011and rotate them out of SHEC fortnightly. The benefits he saw in this were as follows:

(a) when seconded, the secondees did not see the task, that might be otherwise thought to be laborious, to be never-ending;

(b) it was easier to maintain an enthusiasm amongst the secondees when acquired for shorter periods;

(c) the secondees responded to the short period of secondment with greater diligence and more efficiency and accuracy;

(d) LACs were more likely to send a higher quality of officers, safe in the knowledge that their best officers were not being taken away for long periods of time.

(10) From the commencement of the 2011 audit it was mandatory to wear personal protective equipment in the nature of goggles, P2 carbon masks and gloves.

(11) There was no incident, including any involving the exposure to drugs or other unknown substances, during the 2011 audit.

(12) In 2012 a request was made by the Commissioner of Police to the Audit Office of NSW for the inclusion of drug exhibits management within an upcoming annual audit agenda.

(13) The Audit Office of NSW agreed to conduct an external audit of 'high profile goods' including drug exhibits managed by NSWPF.

(14) The Audit Office of NSW came to the conclusion that "NSW Police manages the recording, storage and tracking of drug exhibits and other high profile goods well. These items are kept securely in NSW Police storage facilities, are routinely audited and there are few recorded instances where they have gone missing or been damaged". The Audit office of NSW also advised that there is room for improvement, mainly in regard to the effective disposal of drug exhibits and other goods, and improving efficiency by reducing the need to transport drug exhibits for testing."

(15) The Exhibits Forensic Information and Miscellaneous Property System (EFIMS) was implemented in 2011, when the technology became available to NSWPF. This system and the sharing of responsibilities for general exhibits, as referred to in the paragraphs above, has allowed NSWPF to do the following:

(a) carry out drug audits annually,

(b) record and track all exhibits electronically,

(c) identify the location and status of all drug exhibits received,

(d) quantify the number and type of drugs in storage identified for destruction.

(16) With the introduction of EFIMS all exhibits are now barcoded. This has allowed auditing to be successfully completed in approximately 2 weeks by 4 to 6 full time SHEC staff. Those staff are properly trained and experienced in drug exhibit storage, handling and auditing.

(17) The auditing is done by an electronic hand held auditing tool which alerts the auditing officers to any misplaced or missing drug exhibit. The system also indicates how long the exhibit has been there and if it has been earmarked for destruction.

(18) Drug exhibit auditing is conducted by trained full time SHEC staff only, all of whom are fully inducted, using a revised safety induction package. They have daily experience in the handling of drug exhibits.

(19) Nitrile gloves, full face respirators or a P2 carbon mask and goggles are mandatory items of personal protective equipment for use at all times when officers are performing duties in the drug vaults. Officers are trained, instructed and provided with information necessary to carry out their tasks, including the appropriate use of that personal protective equipment. Supervision is also enforced to make sure procedures are being adhered to.

(20) There have been no exposure incidents during drug exhibit audits at SHEC since those the subject of these proceedings.

22 Mr Crandell outlined the care and welfare arrangements within the Police Force, particularly the assistance provided by Police Legacy. He stated that the Police Force had at all times cooperated with WorkCover. In relation to remorse and contrition Superintendent Crandell stated:

On behalf of NSWPF, I sincerely regret that the use of appropriate protective equipment was not enforced in 2009 and that, as a result, officers were exposed to substances that caused them irritation to their eyes, nose and throat.

NSWPF, and I personally, have dedicated over 2 years to improving processes associated with drug exhibit handling and making sure that all necessary steps are taken to best manage risks associated with drug exhibits.

All involved in this process have had the full support of the organisation and its executive.

Consideration

Sentencing principles

23 Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSP Act") sets out the purposes of imposing a sentence on an offender. The relevant purposes in this case are to ensure that the offender is adequately punished for the offence, to prevent crime by deterring the offender and others from committing similar offences, to promote the rehabilitation of the offender, to make the offender accountable for its actions, and to denounce the conduct of the offender.

24 A sentence imposed by the Court for an offence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-486, 490-491, 496; Hoare v The Queen (1989) 167 CLR 348 at 354; R v Dodd (1991) 57 A Crim R 349 at 354 and R v Whyte (2002) 55 NSWLR 252 at [156]-[158] Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (1999) 90 IR 464 at 474.

25 The proper approach to sentencing is the instinctive synthesis method whereby the objective circumstances of the offence are to be weighed with the subjective circumstances of the defendant (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [26]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [72]). However, the objective circumstances of an offence are of primary importance in determining an appropriate penalty. Subjective matters such as a plea of guilty, previous good individual citizenship, cooperation with the investigation and subsequent measures to improve safety, "rank in importance well behind the two primary aspects of the matter, namely, the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce": Workcover New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [23]. See also Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117 at [13]; Fletcher Construction Australia Ltd v Workcover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 78; and Lawrenson at 475.

Aggravating and mitigating factors

26 In determining the appropriate penalty for an offence the Court is required to have regard to relevant aggravating and mitigating factors in s 21A of the CSP Act, any plea of guilty (s 22) and any assistance provided to law enforcement authorities (s 23). The relevant aggravating factors in this case are:

...

cb) the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,

d) the offender has a record of previous convictions,

...

(m) the offence involved multiple victims or a series of criminal acts,

...

27 The relevant mitigating factors are:

a) the injury, emotional harm, loss or damage caused by the offence was not substantial,

(b) the offence was not part of a planned or organised criminal activity,

...

(f) the offender was a person of good character,

...

(h) the offender has good prospects of rehabilitation,

i) the remorse shown by the offender for the offence,

...

k) a plea of guilty by the offender,

...

28 I have had regard to both the aggravating and mitigating factors identified above in fixing penalties in these proceedings.

Objective circumstances of the offence

29 As it has been observed, the primary factor the Court must consider when determining an appropriate sentence is the objective gravity of the offence. In determining the objective gravity or seriousness of the offence, the circumstances of the offence that the Court may have regard to include:

(1) the nature and quality of the offence Morrison v Powercoal (No 3) at [13]; Lawrenson at 474; Independent Cargo and Wool Services Pty Ltd v Inspector Mingare (Full Court, 10 March 1994, unreported) at 4 and Inspector Hannah v Wonar Pty Ltd (Full Court, 30 June 1992, unreported) at 9;

(2) the foreseeability of the risk to health and safety: see Department of Mineral Resources (NSW) (Chief Inspector McKensey) v Kembla Coal and Coke Pty Ltd [1999] NSWIRComm 353; (1999) 92 IR 8 and the cases referred to therein at 27;

(3) the gravity of the consequences of an offence: Capral Aluminium Ltd v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [94]-[95]; Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416 at [32]; Inspector Short v The Crown in the Right of the State of NSW (NSW Police) [2007] NSWIRComm 138 at [21];

(4) whether simple and straightforward remedial steps were available: Inspector Hannah v Wonar at 9; Lawrenson Diecasting at 476; Rodney Morrison v Powercoal (2003) at [33];

(5) the maximum penalty for the offence: Morrison v Powercoal (2005) at [16] and [17]; Markarian v The Queen at [30] and [31]; Inspector Legge v Intercast & Forge Pty Ltd [2006] NSWIRComm 182 at [26]; Inspector Short v The Crown in the Right of the State of NSW (NSW Police) at [21]; Cahill v State of NSW (NSW Police) (No 2) [2005] NSWIRComm 400 at [33];

(6) general and specific deterrence: Capral at [71-[80].

Nature and quality of the offence

30 In pleading guilty to the amended charge in relation to what occurred on 18 March 2009, the defendant accepted that the health and safety of three police officers was put at risk of exposure to safrole and methylamphetamine whilst undertaking an audit in the drug exhibit room at the premises. The risk arose because the defendant failed to: ensure the officers were provided with and used appropriate personal protective equipment; properly supervise the officers by ensuring the officers were wearing the appropriate personal protective equipment; and failed to undertake an adequate risk assessment in that it did not identify that the appropriate personal protective equipment to be used. The defendant also accepted that it should have, as a consequence of the foregoing failures, identified that Exhibit 358\D309677 contained safrole and methylamphetamine, but failed to do so and that as a result of the defendant's acts or omissions the three named officers were exposed to the risk and the consequent injury of irritation and burning sensation to their eyes, nose and throat.

31 In pleading guilty to the amended charge in relation to what occurred on 22 April 2009, the defendant accepted that the health and safety of two police officers was put at risk of exposure to cocaine whilst undertaking an audit in the drug exhibit room at the premises. The risk arose because the defendant failed to: ensure the officers properly used appropriate personal protective equipment; properly supervise the officers by ensuring the officers were wearing the appropriate personal protective equipment; and failed to undertake an adequate risk assessment in that it did not identify that the appropriate personal protective equipment to be used. The defendant also accepted that it should have, as a consequence of the foregoing failures, identified that Exhibit B195689 contained cocaine, but failed to do so and that as a result of the defendant's acts or omissions, the two named officers were exposed to the risk and the consequent injury of irritation and burning sensation to their eyes, nose and throat.

32 The circumstances of the offence that occurred on 18 March 2009 makes it objectively serious. Three officers were sent into a drug exhibit room for the purpose of conducting an audit of drug exhibits, which required officers to handle the packages containing the exhibits without being provided with personal protective equipment and without even a risk assessment being carried out to determine what personal protective equipment was required. This was in circumstances where:

(1) safrole and methylamphetamine are classed as hazardous substances. The defendant knew that the drug vaults contained hazardous substances;

(2) some of these hazardous substances had been in the drug vaults for numerous years;

(3) it was not known by the defendant whether or to what extent seals on bags had broken and hazardous substances had leaked out;

(4) the hazardous substances had not been audited for their safety since 2004;

(5) no risk assessment was conducted to identify the appropriate protective equipment to be used despite a document of the defendant, SPC Exhibits - July 2008, identifying inadequate systems around the identification, labelling and storage of substances and recommended the implementation of a chemical safety management system. This did not occur;

(6) in carrying out the drug audit the officers were required to handle the packages, which included safrole and methylamphetamine, to check the seals and whether, inter alia, the exhibit had been tampered with;

(7) in handling a hazardous exhibits on 18 March 2009 the officers were exposed to a then unknown hazardous substance which caused injury to them. The supervisor of the officers also did not know what the hazardous substance was;

(8) in relation to officer McGrath, because of his pre-condition disability of asthma, his asthma became worse from being exposed to the unknown hazardous substance. Because of the injuries suffered officer McGrath obtained an "unfit for work" medical certificate.

33 I note that officers taking part in the audit were provided with an "induction package". It was stated in the package that an occupational health and safety risk assessment had been conducted, although it is clear no assessment was made as to what personal protective equipment was required to be worn because the induction package did not make mention of such equipment. Nor did it indicate the results of the risk assessment.

34 If it were known that the substances in the drug exhibit room were hazardous (as was the case), but the identity of the substances was not known (as was the case), even the most basic risk assessment would have deduced that in handling the packages containing exhibits, many of which had been in the drug room for years, the officers risked coming into contact with the substances as they checked the seals; the very purpose of the checking was to discover whether the seals had been broken. It would surely have followed, as a matter of common sense let alone a statutory duty to ensure safety, that the wearing of personal protective equipment was required. To ensure safety in the face of unknown hazardous substances and their effect on humans, such equipment would have at least comprised of a respirator, gloves, overalls and appropriate footwear. Instead, the officers were sent into the room with no protection.

35 The Material Safety Data Sheet in relation to safrole was only added to the pre-existing drug MSDS available in rooms 1803 and 1804 after the incident on 18 March. The MSDS makes it clear safrole is a hazardous substance:

(a) Under the heading "Hazards Identification" - "Special Indication of hazards to humans and the environment", it is stated that safrole:

"May cause cancer. Also harmful if swallowed. Also possible risks of irreversible effects".

(b) Under the heading "First Aid Measures" it states:

AFTER INHALATION

If inhaled, remove to fresh air. If not breathing give artificial respiration. If breathing is difficult, give oxygen.

AFTER SKIN CONTACT

In case of skin contact, flush with copious amounts of water for at least 15 minutes. Remove contaminated clothing and shoes. Call a physician.

AFTER EYE CONTACT

In case of contact with eyes, flush with copious amounts of water for at least 15 minutes. Assure adequate flushing by separating the eyelids with fingers. Call a physician.

AFTER INGESTION"

If swallowed, wash out mouth with water provided person is conscious. Call a physician immediately.

(c) Under the heading "Accidental Release Measures" "PERSONAL PRECAUTION PROCEDURES TO BE FOLLOWED IN CASE OF LEAK OR SPILL EVACUATE AREA", the MSDS states:

Procedure(s) of personal precaution(s) - Wear self-contained breathing apparatus, rubber boots, and heavy rubber gloves. Wear disposable coveralls and discard them after use.

(d) Under the heading "HANDLING", it states:

Directions for safe handling: Do not breathe vapour. Do not get in eyes, on skin, on clothing. Avoid prolonged or repeated exposure.

(e) Under the heading "STORAGE", it states

Conditions of storage: Keep tightly closed.

(f) Under the heading "Exposure Controls / Personal Protection", it states:

Engineering Controls - Use only in a chemical fume hood. Safety shower and eye bath.

General Hygiene Measures - Wash contaminated clothing before reuse. Wash thoroughly after handling.

Personal Protective Equipment - Respiratory Protection: Use respirators and components tested and approved under appropriate government standards. ... If the respirator is the sole means of protection, use a full face supplied air respirator. Hand Protection: Compatible chemical-resistant gloves. Eye Protection: Chemical safety goggles.

(g) Under the heading "ROUTE OF EXPOSURE", it states:

Skin Contact: May cause skin irritation.

Skin Absorption: May be harmful if absorbed through the skin.

Eye Contact: May cause eye irritation.

Inhalation: Material may be irritating to mucous membranes and upper respiratory tract. May be harmful if inhaled.

Ingestion: Harmful if swallowed.

Chronic Exposure: Carcinogen.

Result: This product is or contains a component that has been reported to be probably carcinogenic.

36 In relation to the offence that occurred on 22 April 2009, I consider it was less serious because having become aware of the problem the defendant did not ignore the problem but sought to take appropriate steps - albeit inadequate - to deal with it and those steps are identified in the Agreed Statement of Facts. However, the risk assessment that was undertaken post the 18 March incident did not identify that personal protective equipment was to be used whenever the officers were working in the drug vaults and no supervision was provided to ensure that the employees were properly wearing the appropriate protective equipment. This was a significant failure given that about one month earlier officers had suffered injury as a consequence of being exposed to hazardous substances and what was required was a high level of vigilance by the defendant to ensure that there was no repeat of that incident. As a consequence, the two officers were exposed to cocaine and suffered injury.

37 Cocaine is a hazardous substance. The Material Safety Data Sheet in relation to cocaine states in relation to this substance that:

Toxic if swallowed.

May cause sensitisation by skin contact.

May impair fertility.

Skin contact may produce health damage.

Inhalation may produce serious health damage.

Cumulative effects may result following exposure.

May produce discomfort of the eyes, respiratory tract and skin.

38 In relation to safety, the Material Safety Data Sheet in relation to cocaine states that:

Keep locked up.

In case of insufficient ventilation, wear suitable respiratory equipment.

Use only in well ventilated areas.

Keep container in a well-ventilated place.

Avoid exposure - obtain special instructions before use.

To clean floor and all objects contaminated by this material use water.

39 The hazardous substances that the officers were exposed to were not identified to them prior to the incidents occurring. It was only subsequent to each of the incidents that the hazardous substances were identified to the officers. The prosecutor submitted that because of this neither the officers nor the medical practitioners, who were called upon to assess their health and safety, had any knowledge of what hazardous substance they had been exposed to and what treatment would have been appropriate to treat them.

40 Because of the system adopted for the seizure, storing and testing of drug exhibits it was not possible to know the nature of the substance in each drug exhibit stored in the drug vaults. Steps are being taken to overcome that problem in the future. Whilst it was not known on 18 March what the substances were, the identity of the substances was known on 19 March. That does point to a problem with storage system that existed in 2009. If, in the absence of appropriate personal protective equipment, there had been a case of exposure causing serious injury to an officer requiring urgent medical treatment, the nature of the substance causing the injury would not have been immediately known.

Foreseeability

41 As Walton J, Vice-President observed in Inspector Dall v Ullrich [2012] NSWIRComm 87 at [50]:

An offence will be serious when it involves a risk to safety which was reasonably foreseeable (see, for example, McDonalds at [450]; Capral at [82]; and Kembla Coal at [27]). Where the risk to safety was not only foreseeable but known and left unabated with remedial action being available, the seriousness of the offence will increase (see, for example, Inspector Gregory Maddaford v Graham Gerald Coleman & Anor [2004] NSWIRComm 317; (2004) 138 IR 21 at [89] - [91]; WorkCover Authority of NSW (Insp Lyons) v Warman International Ltd [2001] NSWIRComm 62; (2001) 105 IR 236; Morrison v Powercoal; Morrison v Powercoal (No 3); and McDonalds at [452]).

See also Cahill v State of NSW (NSW Police) No 2 [2005] NSWIRComm 400 at [28].

42 The NSW Police Force is required to seize, handle, store and dispose of exhibits, including drug exhibits in accordance with legislative requirements. SHEC is responsible and accountable for the storage and security of both ordinary and drug exhibits. Drug exhibits include 'prohibited drugs' such as heroin, cocaine, cannabis and methylamphetamines; 'prohibited plants' such as cannabis; 'prescribed restricted substances'; and 'precursors' such as 'safrole' as listed in Schedule 1-4, Drug Misuse and Trafficking Regulation 2009. As at 30 September 2008, SHEC had on hand 5554 Drug Exhibit Entries comprising in excess of 200,000 individual items.

43 In those circumstances it was foreseeable that amongst the thousands of drugs kept in the drug vaults were safrole, methylamphetamine and cocaine. It was foreseeable that by directing officers to undertake an audit of the drugs without taking the necessary safety precautions there would be a risk of the officers being exposed to the hazardous substances of safrole, methylamphetamine and cocaine.

44 The defendant did not know there would be a risk of exposure to the specific substances of safrole, methylamphetamine and cocaine because it did not know the identity of the substances in each of the drug exhibits. One cannot, therefore, conclude the risks charged were known thereby increasing the seriousness with which the offences are to be viewed. However, the very fact the defendant placed officers at risk not knowing the identity of the hazardous substances to which the officers were exposed or the toxic effect the substances might have on humans and, in those circumstances, not taking the necessary measures to ensure the safety of the officers is, in my opinion, a serious aggravating factor.

45 In relation to the incident on 22 April, having been through the experience of officers being exposed to hazardous substances on 18 March, including cocaine, the degree of foreseeability of more officers being exposed unless the necessary precautions were taken and enforced, increased significantly.

46 The prosecutor sought to rely on material that suggested an officer at Gosford had been exposed to an unlabelled hazardous substance in November 2007 causing injury. It was submitted this incident placed the defendant on notice of the risk. I have read the material and I am of the view it would not sustain a conclusion that the defendant had been forewarned.

Gravity of the consequences of the offences

47 Although the damage or injury caused by a contravention of the Act does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: See Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral Aluminium Ltd v WorkCover Authority of New South Wales at [94] and [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor [2000] NSWIRComm 277; (2000) 95 IR 383 at 428; and Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [32].

48 On the face of it, the injuries suffered by the police officers were relatively minor: irritation and burning sensation to their eyes, nose and throat. There was no other evidence presented to the Court of more serious injury to the officers as a consequence of their exposure. However, one should consider whether there was a prospect of more serious consequences as a result of the exposures.

49 In relation to safrole, the MSDS indicates it is toxic, that it may cause irritation to the skin and eyes and is harmful if swallowed, although the nature of the harm is not described. The MSDS also indicated safrole may cause cancer, but there is no indication as to whether this may result from chronic exposure or a one-off exposure. I note that after a medical review Officer McGrath, a person who suffered from asthma prior to being seconded, obtained an 'unfit for work' medical certificate which concluded his secondment duties at SHEC.

50 The evidence available to me would not suggest that the degree to which the officers were exposed to safrole would have serious or long-term consequences for their health. Officer McGrath seems to have been the most affected and given his exposure caused him to be rendered unfit for work that is a relevant factor to be taken into account in assessing the seriousness of the risk. There was no evidence of the long-term effect on Officer McGrath or how seriously the exposure affected him other than it caused him to be unfit for work.

51 In relation to cocaine I note it is toxic if swallowed, may cause sensitisation by skin contact, may impair fertility, skin contact may produce health damage, inhalation may produce serious health damage and it may produce discomfort of the eyes, respiratory tract and skin. Obviously, even inhaling the substance may have consequences that could be serious. I would conclude that the consequence of the exposure to cocaine manifests a relatively high degree of seriousness of the risk arising out of the incident on 22 April 2009.

52 However, I am not able to find for the purposes of the CSP Act that the injuries to officers were substantial. I repeat, however, the extent of injury does not dictate the seriousness of the offence or the amount of penalty. It is the seriousness of the risk of exposure to the hazardous substances identified in the amended charges that must be the focus.

Whether simple and straightforward remedial steps were available

53 There were straightforward measures, easily implemented, available to avoid or ameliorate the risk of exposure, they being to:

(1) undertake an adequate risk assessment to identity the appropriate personal protective equipment that should be worn by the directed officers in performing their directed duty.

(2) provide the officers with appropriate protective equipment so that they could use this equipment when they were performing the directed duties.

(3) supervise the officers that they were using the protective equipment correctly.

54 Taken in combination with the foreseeability of the risk to safety, the fact that such simple measures were available and could have been implemented prior to the offences occurring, increases the gravity of the offences.

Maximum penalty for the offence

55 A fundamental consideration in determining penalty is the maximum penalty for an offence. In this case, as the defendant has previous convictions under the Act, the maximum penalty is $825,000 for each offence, that is, potentially a maximum amount of fines of $1,650,000.

General and specific deterrence

56 Both specific and general deterrence are relevant. Penalties under the criminal law may include an element for deterrence the purpose of which is to deter not only the offender, but also others who might consider breaking the law. General deterrence is seen as operating "as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed": R v Harrison (1997) 93 A Crim R 314 at 320 per Hunt CJ at CL.

57 The objective of specific deterrence is to deter the particular offender from repeating the offence. Thus, the propensity to re-offend must be considered when determining the weight, if any, to be attached to specific deterrence.

58 It may be there are no other organisations in New South Wales charged with the responsibility of seizing, handling, storing and dispose of prohibited drugs. That is not a reason to decline to have regard to the need for general deterrence. The issue is about safety in the handling of hazardous substances, a common undertaking throughout industry. It is most appropriate, indeed a duty, for the Court to fix a penalty that will deter others who may be involved in handling hazardous substances from contravening the Act.

59 In so far as specific deterrence is concerned, I note the defendant has an unenviable record of contravening the Act. It has eight convictions in the space of 11 years, the last conviction being recorded on 30 November 2012 in relation to an offence committed on 11 November 2006.

60 I accept the NSW Police Force is a large organisation and its members operate in a dangerous, indeed often life-threatening, environment. The hazards of being a police officer are many and it is no easy task devising policies and procedures designed to ensure the safety of officers against every contingent risk. Nevertheless, when one considers the circumstances of the six convictions in the Industrial Court (two were in the Chief Industrial Magistrate's Court):

(1) three of them involved pleas of guilty to contravening s 8(1) (or the predecessor provision - s 15(1) of the Occupational Health and Safety Act 1983) for failing, inter alia, to provide information and/or training and/or education: Workcover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 3) [2002] NSWIRComm 1; (2002) 112 IR 141; Workcover Authority of New South Wales (Inspector Petar Ankucic) v The Crown in the Right of the State of New South Wales (Police Service of New South Wales) [2002] NSWIRComm 335; Cahill v State of New South Wales (NSW Police) (No 2) [2005] NSWIRComm 400;

(2) one of them involved a plea of guilty to a failure to provide personal protective equipment and a failure to provide adequate training, information and supervision: Inspector Jennifer Short v The Crown in the Right of the State of New South Wales (NSW Police) [2007] NSWIRComm 138; and

(3) two of them involved police officers being struck by motor vehicles (one fatally) whilst carrying out speed enforcement duties in circumstances where the Court found the risk in the second incident was not materially different to the risk in the first incident and that the second incident was a "repeat offence": Inspector Covi v The Crown in the Right of the State of New South Wales No 2 [2004] NSWIRComm 400; Inspector Ankucic v State of New South Wales (NSW Police Force) [2012] NSWIRComm 135.

61 I acknowledge the evidence of Mr Crandell, and I will take it into account, that the Police Force has taken significant measures to ensure that what occurred on 18 March and 22 April 2009 will not recur. However, I note that in Inspector Covi v The Crown in the Right of the State of New South Wales No 2 the Court stated:

[34] In relation to specific deterrence, having regard to the foregoing considerations I intend to include in the penalty an element for specific deterrence because whilst I accept that the defendant has taken seriously the need to avoid another incident such as that which occurred on 18 May 2000 and has taken steps in that respect, it is appropriate that I emphasise the need to ensure the risk does not arise again.

Yet it did happen again: Inspector Ankucic v State of New South Wales (NSW Police Force) [2012] NSWIRComm 135.

62 Moreover, it appears from the other cases that the defendant did take steps to avoid a repeat of the specific risk that arose in each of those cases, but not sufficient attention has, in the past, been paid to putting in place policies and procedures that would ensure that adequate training and information was provided not only, for example, to prevent serious damage to a person's hearing by sounding a siren close to the person's ear (see Cahill v State of New South Wales (NSW Police) (No 2), but also adequate training and information affecting all spheres of the defendant's operations.

63 The siren incident occurred in 2001. The defendant was later charged in relation to another incident in 2004 for, inter alia, failing "to provide sufficient instruction, information and training to its employees [riot squad] in the use of and the proper operation of personal protective equipment so as to ensure their health, safety and welfare whilst at work." It is clear from the judgment in that matter (Inspector Jennifer Short v The Crown in the Right of the State of New South Wales (NSW Police)) the defendant took steps to address the failure. However, it seems to me that where the defendant has a duty to ensure safety of all employees, an ad hoc approach of addressing specific failures relating only to an incident and not on a wider basis, is not adequate.

64 As many organisations do following an incident involving a contravention of the Act, an across the board review is undertaken of occupational health and safety policies and procedures. Thus, if the defendant had undertaken a comprehensive, organisation-wide review of its policies and procedures regarding the provision of personal protective equipment and the provision of instruction, etc, in use of and the proper operation of that equipment following the 2004 incident involving the riot squad, it may have avoided these latest prosecutions.

65 I note Superintendent Appleton's evidence, which is important. The Police Force has now undertaken a wholesale review of its occupational health and safety policies and procedures. I note particularly what the Superintendent said in his affidavit about the review:

Implicit in that exercise and of some significant focus, was the application and understanding of the procedures and protocol by police officers expected to utilise and comply with each of them daily. It was emphasised by me that our safety objectives need to be considered in the context of each and every aspect of a police officer's working life - not just in circumstances where, because of operational requirements, he or she may be at risk of harm to their health as a consequence of a criminal act.

66 If it had not been for this evidence, which I accept, I would have been inclined to include in the penalties a very significant element for specific deterrence.

67 I note the prosecutor sought to place some reliance on a police officer being exposed to a hazardous substance in 2011 and that this undermined the effectiveness of the improvements the defendant had made to its system of handling drug exhibits. I have considered that evidence, but I do not consider it is appropriate to take it into account for the reasons submitted by the defendant.

68 In determining the extent to which specific deterrence should play a role in the penalties I need to weigh in the balance the defendant's record indicating a propensity to re-offend, the commendable organisation-wide measures to improve its health and safety systems and the commendable changes aimed at avoiding a repeat of the incidents that occurred on 18 March and 22 April 2009. Despite the changes that have been made I conclude the penalties should include a sufficient element for specific deterrence to encourage the defendant to have regard to the need for a sufficient level of diligence in the future: Capral at [77].

Subjective factors

Guilty pleas

69 As I have already mentioned, the guilty pleas entered by the defendant are to be taken into account as mitigating factors and I do so.

70 The prosecutor submitted any discount for the guilty pleas should be small because of the late entry of the pleas. The defendant submitted there should be a significant discount because the pleas were entered immediately following the amendments to the charges, such amendments having been significant.

71 In Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143 there is some discussion regarding the appropriate principles to be applied in relation to discount of a sentence for a plea of guilty. I adopt what was there said.

72 The Court made orders on 18 March 2011 requiring the defendant to appear and answer the charges. After 18 March 2011 the matters came before the Court on a number of occasions. On each of those occasions the defendant asserted, as it were entitled to do, that it was not guilty of the allegations that had been alleged against it.

73 Subsequently, the Court listed the matters for trial in February 2013. Shortly prior to the trial commencing, the defendant made applications for the trial to be vacated because one of its counsel would not be available to appear in the trial. The Court granted the applications and listed the matters for trial, over 20 days, commencing Monday 14 October 2013. At this time, and subsequently, the defendant maintained that it was not guilty of the allegations alleged.

74 On the matters being called on for trial on Monday 14 October 2013 the defendant moved on a Notice of Motion to have, inter alia, the allegations against it stayed. That Notice of Motion was before the Court for hearing and determination when on Friday 18 October 2013 the defendant indicated to the prosecutor, for the first time, that it "may" plead guilty to the allegations alleged against it.

75 Although the indication was that the defendant may plead guilty to the allegations, it was not until several days later, following negotiations with the prosecutor, that the defendant finally indicated that it would plead guilty to the allegations. Thereafter it was a number of days before the defendant agreed with a "statements of facts" to be tendered in the sentencing hearing. This occurred on Wednesday 30 October 2013.

76 On Wednesday 30 October 2013, the prosecutor filed in Court amended applications for order to which the defendant entered pleas of guilty to the two breaches of section 8(1) of the Act.

77 On the current state of the authorities there is no possibility of the defendant obtaining a sentence discount of 25 per cent. In R v Dib [2003] NSWCCA 117, Hodgson JA, with whom Barr J agreed, stated at [5]-[6]:

If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount.

This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.

78 I note also the principles identified in R v Robert Borkowski [2009] NSWCCA 102 at [32], which included the following:

8. Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280.

9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2008] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448.

79 The defendant sought to rely on changes to the charges. It was submitted that:

There are very, very significant changes. That is a very, very reduced charge from that that was originally pressed in this matter. The scope of it is so different as to warrant the exercise of the discretion in the way that I have suggested, that is to the maximum in favour of the defendant.

The discount proposed by the defendant was quite significant discount and that indeed your Honour is at liberty to consider giving the maximum discount.

80 The charges were amended, but I do not consider the changes to have been so significant that they represent allegations of a substantially less serious nature warranting "quite a significant discount" and certainly not a 25 per cent discount.

81 I have had regard to the fact that the trial threatened to be a lengthy one and to involve some complexity. The defendant should be given the benefit that flows from the utilitarian value of guilty pleas that saved a lengthy trial. But what cannot be avoided is that the pleas were entered very late.

82 I intend to discount the sentences by 10 per cent each.

Prior record

83 Prior record is relevant:

[T]o show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted": Veen v The Queen (No 2) (1988) 164 CLR 465.

84 As Gleeson CJ, McHugh, Gummow and Hayne JJ explained in Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [32]:

A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration.

85 In accordance with the foregoing principles I have had regard to the defendant's prior record, which I earlier referred to.

Remorse and contrition

86 I accept the remorse and contrition expressed by the defendant meets the requirements of the CSP Act.

Guilt and conviction

87 I find the defendant guilty of the amended charges in Matter Nos IRC 261 and 262 of 2011. The defendant is convicted of the amended charges.

Victim Impact Statements

88 The prosecutor sought to rely on the victim impact statements of Officers, McGrath, De La Crox, Hanna and Varlin. The defendant objected to the statements being read out on the grounds that the statements to a significant degree did not deal with the impact on the victim or, alternatively, the matters addressed in the statements are not the subject of the amended charges. The defendant relied on a number of authorities, including: R v Bakewell (NSWCCA, unreported, BC9602796, 27 June 1996) at 4 per Gleeson CJ and at 3 per Studdert J; FV v Regina [2006] NSWCCA 237 at [41] per Kirby J; PWB v R [2011] NSWCCA 84 at [53] per R S Hulme.

89 The prosecutor did not seek to have the Court receive the statements as sworn statements.

90 In PWB v R, R S Hulme J, stated:

[53] In R v Bakewell (unreported, NSWCCA, 27 June 1996) and other cases this Court has pointed out the difficulties that arise when a Victim Impact Statement asserts consequences to a victim arising from offending other than that the subject of a particular offence in respect of which a sentence is to be imposed. RB's statement purported to set out what was said to be the consequences of the totality of offending by the Applicant to its author. Given what RB asserted to be the extent of the Applicant's offending, that was perhaps inevitable and it not possible to separate out the impact of any particular occurrence. But be that as it may, it was only the impact of the offences charged that the judge was entitled to take into account. The remarks that I have quoted thus demonstrate error.

91 In R v Slack [2004] NSWCCA 128, Sperling J stated at [60]-[62]:

[60] Section 28(4) provides that the court must not consider a victim impact statement unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor, and must not consider a victim impact statement given by a family victim in connection with the determination of the punishment of the offender unless it considers that it is appropriate to do so. (A "family victim" is defined as meaning a member of the primary victim's immediate family where the primary victim has died as a direct result of the offence.) The implication is that a victim impact statement may, in the discretion of a court, be received and taken into account as evidence of harm caused by the offence and, in that way, as evidence relevant to the determination of punishment by sentence.

[61] Whilst a sentencing hearing is not subject to the rules of evidence unless an order to that effect is made and whilst s28 also, by implication, allows the court to take a victim impact statement into account in determining the appropriate punishment by sentence, the weight to be given to such a statement is for the court to determine. In RKB (NSW CCA, 30 June 1992, unreported) it was acknowledged that a sentencing court is required to take into account the impact of criminal behaviour on the victim or victims of such behaviour but, it was said, what is required is an objective assessment of the crime's effect.

[62] The court is required to be satisfied of the facts in question beyond reasonable doubt. In these circumstances, substantial weight cannot be given to an account of harm in an unsworn statement, not necessarily and almost certainly not in the victim's own words, untested by cross-examination and, in the nature of things, far from being an objective and impartial account of the effect of the offence on the victim.

92 I have read the Victim Impact Statements, which are unsworn. They all assert consequences to the victim arising from offending other than that the subject of the offence in respect of which a sentence is to be imposed. The Statements assert, inter alia, injury well beyond what is set out in the Agreed Statement of Facts. There would be a serious conflict between the evidence in the proceedings and what the officers assert were the injuries caused by their exposure if I were to consider the Victim Impact Statements.

93 In these circumstances, consideration cannot be given to the Officer's accounts of harm, untested by cross-examination. In the exercise of my discretion, I decline to consider the Victim Impact Statements.

Totality

94 In relation to totality, it was recently stated in Inspector Christensen v MVM Rail Pty Ltd [2013] NSWIRComm 89 at [46]:

The Court is required to apply the principle of totality in determining the appropriate penalty. The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate": Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63 citing DA Thomas, Principles of Sentencing (2nd ed, 1979) 56-57; cited with approval in Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 at [18]: see Inspector Dall v Ullrich Aluminium Pty Ltd [2011] NSWIRComm 156 at [78] and Inspector Christensen v Hebron Holdings Pty Limited (formerly known as Taylor Railtrack Pty Limited) at [63].

95 The prosecutor submitted that an important consideration in the application of the totality principle is that the sentences imposed should not lead to an erosion of public confidence in the integrity of the administration of justice and the law, and that the defendant should not be perceived to receive no punishment for an offence committed and sentenced upon, particularly the serious offences that the defendant is to be sentenced for (R v Brown [1999] NSWCCA 323; R v Mungomery (2004) 151 A Crim R 376 at 381; R v Harris (2007) 171 A Crim R 267 at [40]).

96 It was further submitted that the offences that the defendant is to be sentenced for were separate and distinct offences, one occurring on 18 March 2009 and the other occurring on 22 April 2009, and that the sentences to be imposed upon it should be accumulated, or partial accumulated, to reflect the total criminality of the defendant in the commission of these totally separate and distinct offences.

97 The defendant made no submission regarding the totality issue.

98 In my opinion the offences could not be described as a "single discrete episode of criminality" (LG v R [2012] NSWCCA 249). I agree with the prosecutor the offences were separate and distinct. The sentence, nevertheless, must reflect the totality of the criminality for the two acts of offending.

99 I have concluded that, having regard to the objective and subjective factors and to the discount for the guilty plea, the offence in Matter No IRC 261 of 2011 should attract a penalty of $200,000. The offence in Matter No IRC 262 of 2011 should attract a penalty of $173,000. Having regard to the totality principle, a penalty of $350,000 appropriately reflects the total criminality involved. The penalty of $350,000 should be split as $189,000 in respect of the Matter 261/11 and $161,000 in respect of Matter 262/11.

Orders

100 The Court makes the following orders:

Matter No IRC 261 of 2011

(1) The defendant is found guilty of the amended charge and convicted accordingly.

(2) The defendant is fined an amount of $189,000 with a moiety thereof to the prosecutor.

(3) The defendant shall pay the prosecutor's costs as agreed or assessed.

Matter No IRC 262 of 2011

(1) The defendant is found guilty of the amended charge and convicted accordingly.

(2) The defendant is fined an amount of $161,000 with a moiety thereof to the prosecutor.

(3) The defendant shall pay the prosecutor's costs as agreed or assessed.

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Amendments

19 March 2014 - Para 10 - First line, inserted word "not" after word "was"Para 19 - Second line, deleted word "not".
Amended paragraphs: 10 and 19

Decision last updated: 19 March 2014