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District Court 2 May 2023

SafeWork NSW v Crown in the Right of New South Wales in respect of the Ambulance Service of NSW

[2023] NSWDC 134

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: SafeWork NSW v Crown in the Right of New South Wales in respect of the Ambulance Service of NSW [2023] NSWDC 134
Court: District Court of New South Wales
Date: 2 May 2023
Judge: Strathdee DCJ

Background

The Ambulance Service of New South Wales (ASNSW), as a person conducting a business or undertaking under the Work Health and Safety Act 2011 (NSW), was prosecuted by SafeWork NSW following the discovery that a paramedic employed in the Hunter Zone had been systematically stealing and misusing restricted medications. Over a period between April 2017 and April 2018, the paramedic had been removing Fentanyl from vials stored at multiple ambulance stations, replacing the drug with saline solution, and self-administering it as a sleeping aid. When Fentanyl stocks were depleted, he resorted to taking Morphine instead.

The tampering was discovered on 9 April 2018 when station officers at Belmont Station noticed that Fentanyl vials had been opened and resealed with tape. Subsequent audits across the Hunter New England Zone identified 44 tampered vials with a total of 10.1mg of Fentanyl missing. When confronted, the paramedic disclosed the full extent of his conduct. Colleagues later told investigators they had observed him appearing to fall asleep at work and driving ambulances erratically, including pulling out in front of oncoming vehicles and swerving between lanes.

ASNSW pleaded guilty to one offence under s 33 of the WHS Act for failing to comply with its primary duty under s 19(1) to ensure, so far as is reasonably practicable, the health and safety of workers while at work. The maximum penalty at the time of the offence was $500,000.

  • What was the appropriate level of objective seriousness for the offence, having regard to the nature of the safety duty breached and the foreseeable risk to workers and patients?
  • What weight should be given to mitigating factors, including ASNSW's cooperation, remediation steps, lack of prior convictions, and expressions of remorse?
  • What discount, if any, should apply to reflect the utilitarian value of the guilty plea?
  • What fine was appropriate in all the circumstances, including the need for general and specific deterrence?

Decision

Strathdee DCJ assessed the offence as being in the mid-range of objective seriousness. The risk of harm was significant: a paramedic impaired by Fentanyl dependence was driving ambulances and attending emergencies while colleagues and patients received diluted medication. ASNSW had been aware as early as 2017 that the paramedic ranked as the second-highest administrator of Fentanyl within the organisation, yet no adequate systems were in place to detect or prevent the misuse. The court found that ASNSW had the capacity to implement more effective controls over restricted medication storage and access.

In mitigation, the court accepted that ASNSW had no prior criminal history, was a body of prior good character, and had cooperated fully with SafeWork NSW's investigation. Extensive remediation measures had been undertaken following the offence, which the court found demonstrated genuine prospects of rehabilitation. Evidence of remorse was also accepted.

On deterrence, the court found that general deterrence carried significant weight given the scale and nature of health services operated by ASNSW and the ongoing risk that similar conduct could arise. Specific deterrence was considered to be of reduced importance in light of the remediation steps and the absence of prior offending, though the court held it still warranted some weight.

The court set the appropriate fine at $250,000 before applying a 25% discount for the utilitarian value of the early guilty plea, consistent with the principles in R v Thomson & Houlton (2000) 49 NSWLR 383. The resulting fine imposed was $187,500.

Orders Made

  • ASNSW was convicted of the offence under s 33 of the Work Health and Safety Act 2011 (NSW).
  • A fine of $187,500 was imposed (being $250,000 reduced by 25% for the early guilty plea).
  • Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor (SafeWork NSW).
  • The defendant is to pay the prosecutor's costs, as agreed or assessed, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).

Key Takeaways

  • The District Court found the offence fell in the mid-range of objective seriousness where an employer in a safety-critical health service had failed to implement adequate controls to detect and prevent misuse of restricted medications by its own workers.
  • A maximum 25% discount for the utilitarian value of a guilty plea was available where the plea was entered early and ASNSW facilitated the course of justice, consistent with R v Thomson & Houlton.
  • General deterrence carries heightened significance in WHS prosecutions involving large public health service providers, given the breadth of their operations and the potential for harm to both workers and members of the public.
  • Prior awareness of an elevated risk (here, ASNSW's own 2017 audit data identifying the paramedic's unusually high Fentanyl administration rates) is a relevant factor in assessing whether an employer took all reasonably practicable steps to address a foreseeable hazard.
  • Extensive post-offence remediation, cooperation with the regulator, absence of prior convictions, and demonstrated remorse are all relevant mitigating factors under the Crimes (Sentencing Procedure) Act 1999 (NSW), and collectively reduced the need for specific deterrence in this case.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 5, 19(1), 33, 230(1)(a)
- Work Health and Safety Regulation 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)
- Health Services Act 1997 (NSW)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 8
- Poisons and Therapeutic Goods Proclamation 2016 (NSW)
- Drug (Misuse and Trafficking) Act 1985 (NSW)

Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Cameron v The Queen (2002) 209 CLR 339
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- Veen v R (No 2) (1988) 164 CLR 465
- The Queen v De Simoni (1981) 147 CLR 383
- Kirk v Industrial Commission of New South Wales [2010] HCA 1
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632