25 These factors, both singularly and in combination, attest to the objective seriousness of the offences. To some extent however, Whyco had in place a number of safety measures which were designed to minimise risks to safety in the workplace. Whyco for example had, prior to the offences, its own occupational health and safety policy. According to Mr Whyte he had ultimate responsibility for the implementation of all safety systems set out in the policy. Whyco employed Paul Churchill as a technical supervisor in about May 2002. His responsibilities included attendance at work sites and the preparation of risk assessments. Jobs were arranged by an allocator who would request a site inspection, which according to Mr Whyte, were usually undertaken by either himself or Mr Churchill. Before a work crew was sent to a particular site they were required, according to Mr Whyte, to conduct a pre-job site inspection and complete the form that was contained on the job docket.
26 None of these measures were properly implemented at the Wilson Parade site on 26 February, 2003. No site inspection was undertaken, no risk assessment was done. The pre-job site inspection forms that were completed by Whyco employees prior to 26 February were not, according to Mr Whyte usually read until one or two days later. On 25 February 2003 the day before the accident, Mr Shaw as the designated plant operator was required to fill in the form. He failed to complete it. When Mr Whyte was questioned about this in his interview he said:
"[we] have numerous problems with leading hands refused (sic) to sign these documents for whatever reasons but it doesn't undermine in my view the importance of the inspection. But this has happened on many rail jobs and it is an on going problem that we are investigating and trying to resolve."
27 These matters suggest that Whyco's efforts to implement its safety systems were not overly successful, particularly on 26 February, 2003.
28 Both defendants in their affidavits have sought to emphasis their genuine commitment to matters of safety in the workplace. Mr Whyte in his affidavit regarded it as essential that his employees and others, could operate in a safe working environment. Mr Coveney in his affidavit said he has always considered safety the most important priority, and that he and Mr Whyte both treated safety matters seriously.
29 It is clear that the defendants did have a reasonably comprehensive system in place prior to the 26 February, 2003 which sought to reflect matters of occupational health and safety. Although the system was not adhered to on the day of the accident, other documentation tendered during the proceedings reveals that the system was followed for the majority of the time. The existence of the system and its implementation up to the time of the offences shows that the defendants, for the most part, took their occupational health and safety obligations seriously. These matters are deserving of some mitigation of the otherwise objective seriousness of those offences.
Subjective factors
30 The defendants have pleaded guilty to the offences. The prosecutor contends that as a result of the pleas, the defendants are entitled to some reduction of penalties for the utilitarian value of the pleas but that it would be an error to allow a "full discount" because the pleas, in effect, were entered at a late stage in the proceedings. According to the prosecutor the matters were originally set down for a three week hearing which has saved some Court time and dispensed with the need for the calling of witnesses. Nevertheless it was open to the defendants to plead guilty at any time after the charges were filed. In addition, and in relation to the aspect of contrition, the pleas were entered in the face of strong prosecution cases and likely convictions.
31 The defendants contended in written submissions that they entered pleas of guilty immediately after the prosecutor filed amended applications for order in Court, and that this entitled them to a discount of 25 per cent for the utilitarian value of the pleas. In oral submissions this contention was qualified by the concession that the pleas of guilty, entered on 5 October 2007, were to charges, which were, "in material form the same which existed prior to date with the exception of two particulars from each of the charges being withdrawn. That's the highest I could really put it." The defendants also conceded in oral submissions that the prosecution cases were strong and, based on the material in the brief, convictions would have been inevitable.
32 In my view the pleas of guilty were entered at a late stage, the amended charges being in substantially similar terms to the original charges. The defendants are, however still entitled to a reduction of the penalties for the utilitarian value of their pleas. The pleas of guilty have saved time and expenses otherwise associated with the running of a three week hearing. I consider an appropriate discount for the utilitarian value of the pleas is 10 per cent. The defendants are also entitled to leniency in recognition of the remorse shown by their pleas of guilty although determination of the appropriate penalties will be considered in the context of what can only be described as strong prosecution cases.
33 I also take into account in the defendants' favour the absence of prior convictions, their good citizenship, their cooperation with the WorkCover authorities during the investigation into the offences, their sincere expressions of regret for the tragic events that occurred on 26 February 2003, and the assistance rendered to Mr Boland's family. In relation to this latter aspect I note that during Mr Whyte's cross-examination he explained that Whyco paid for funeral expenses and later made claim for those expenses with Mr Boland's insurer, but that the claim was not pursued.