Inspector Stephen Cooper v Rail Infrastructure Corporation [2008] NSWIRComm 92 | Case summary

Inspector Stephen Cooper v Rail Infrastructure Corporation [2008] NSWIRComm 92 | Case summary | Zoe

[18]

The risk to safety and foreseeability of the risk 10 The risk to safety of Messrs Boland and Shaw was characterised by the prosecutor in oral submissions as the risk that the crane might come into contact with the overhead power lines. The evidence confirms that RIC was aware of this risk prior to the accident. In the pre-work briefing document dated 26 February 2003 a handwritten notation appears in the columns headed "Hazard" and "Control" respectively which identifies high voltage wires as a hazard and the words "stay clear" as the suggested control. Mr Klaser in his affidavit, which was read during the sentence proceedings, referred to a change in the scope of works which prompted a review of the project by himself and Mr Xuereb to identify any additional hazards or issues that ought to be included in the pre-work briefings. According to Mr Klaser, one "potential hazard" identified was the presence of the overhead power lines coupled with the need for some crane work to be undertaken in the vicinity of those power lines. He recalled looking at the overhead power lines with Mr Xuereb and making an estimate of their height from ground level. He took into account in his estimate the contours of the ground level, the opening in the fence at the construction site, and the possibility of undertaking the crane work beneath the power lines while maintaining a distance of at least three metres from the power lines. After he identified the power lines as a hazard he said he had a conversation with Mr Koletsios during which he said to Mr Koletsios words to the following effect: "The work with the crane is going to be done under the power lines. We need to be careful about that. The Pre Work Briefing forms will need to be amended to add the presence of high voltage power lines and that machinery operators need to stay clear of them." 11 Mr Koletsios also identified the overhead power lines at the site as a hazard. In his affidavit, read during the sentence proceedings, he recalled: "After the scope of the work was expanded to include construction of a third lane, this meant that the work to complete the changed scope would require the use of cranes under the high voltage wires. I formed the view that it was necessary to include the risk of the high voltage wires in the Pre Work Briefings. I may have come to that view in consultation with Mr John Klaser of RIC but I can't remember that now. In about early February 2003 I directed Mr. Behan to add the hand written words " High Voltage Wires" "Stay Clear" to the identified Hazards on a bundle of the standard form Pre Work Briefing documents. I did this because it was an extra hazard that had been identified that was not contained in the Pre Work Briefing documents and would be discussed each day over the rest of the job. I remember during the pre work briefing I conducted on 26 February 2003, I went through each of the hazards identified in Doc 1083 and I specifically recall saying words to the following effect: "We are working with the crane under the wires today. We all must be careful to stay clear of the overhead wires. The crane must stay at least '3 Metres' away from the wires.' "

[22]

Shaw: 'No there is plenty of clearance.' " 15 Accepting for the purposes of the defendant's submission that Mr Shaw was an experienced crane driver, there is no suggestion in the evidence that Mr Shaw was an experienced crane operator in the vicinity of power lines with particular qualifications or expertise in the area of occupational health and safety. What the evidence does suggest, in my view, is a flaw in the defendant's system of safety, an issue which will be discussed in more detail shortly. 16 The defendant also placed reliance on the decision of the House of Lords in R v Associated Octel Co Ltd [1996] 4 All ER 846 which it said outlined an analogous approach, which could be found in the reasons of Lord Hothman. The passage upon which reliance was placed (at 1549) contains a number of observations of Lord Hothman on the decision of RMC Roadstone Products Ltd v Jester [1994] 4 All ER 1037 which his Lordship described as, "a difficult borderline case". Octel concerned an appeal against Octel's conviction for an offence of failing to discharge the duty imposed on it by s 3(1) of the Health and Safety at Work Act 1974. The appeal was dismissed. The short facts were that Octel, following a shutdown of its chemical plant for maintenance works engaged a firm of specialist contractors (RGP) to repair the lining of a tank. Mr Cuthbert, an employee of RGP, was working in the tank applying acetone with a brush when a light bulb broke and caused a flash fire in which Mr Cuthbert was badly burned. An issue at first instance was the conduct of Octel's undertaking on the site, and whether the activity which caused the risk to safety formed part of the conduct of that undertaking. It was in that context that the observations concerning RMC Roadstone were made by Lord Hothman. 17 In RMC Roadstone, an employer had intended to purchase new asbestos sheets but acceded to the contractor's offer to remove some asbestos from an adjacent disused factory. During the process of removal one of the contractors fell through a skylight and was killed. The issue was whether the activity of removing the asbestos from the disused factory fell within the employer's undertaking. At first instance it was held that it did, but the Divisional Court set aside the conviction. Lord Hothman commented in passing that he did not accept the reasoning of the Divisional Court in setting aside the conviction, and expressed the view that, "although the case was very much on the borderline" there was evidence to support the finding at first instance that the removal of the asbestos sheets from the disused factory formed part of the employer's undertaking. 18 Returning to RIC's contention, neither judgment, in my view, bears any analogy to the present circumstances. RIC has admitted by its plea that the relevant risk to safety fell within the conduct of its undertaking. The work performed by Mr Shaw was part of that undertaking, and it was foreseeable that the crane, given its dimensions and its location when working underneath the power lines, might accidentally come into contact with those lines. 19 Both the statement of facts and the prosecutor's tender bundle contain material relevant to the safety of persons working in proximity to live electricity. This same material was set out in a statement of facts tendered in other sentence proceedings against different defendants but which concerned the same events as the present proceedings: Inspector Stephen Cooper v Franklin Alden Coveney and Another [2008] NSWIRComm 80. I adopt my findings in relation to that material in these sentencing reasons. For convenience, the relevant passage is extracted below: [10] The dangers of working near live power lines are obvious. Many cases have come before this jurisdiction following accidents involving exposure to live power conductors, including overhead power lines and electrical apparatus, often with fatal consequences. There is a wealth of information in the public domain aimed principally at the safety of persons working in proximity to live electricity. The statement of facts tendered in these proceedings refers to some of that information. A document entitled "Interim Guide for Operating Cranes & Plant in Proximity to Overhead Power Lines," which reproduces approach distances to live overhead electrical apparatus, as applied by former regulation 133A of the repealed Construction Safety Regulations 1950, details safe working distances for cranes working near overhead power lines. For voltage not exceeding 132,000, the minimum approach distance is three metres. A WorkCover publication, "Safety Guide - Moving Plant on Construction Sites" (published April 2000) suggests an examination of precautions necessary to prevent persons, appliances or loads coming within a certain nominated distance to overhead power lines. That publication also nominates three metres as the minimum approach distance to overhead power lines with a voltage not exceeding 132,000. Two Australian Standards, AS 2550.1 - 2202 "Cranes, Hoists and Winches - Safe Use Part 1: General Requirements" and AS 2550 - 2002 "Cranes, Hoists and Winches - Safe Use Part 5 Mobile Cranes (and cranes generally)" (commenced 24 June 2002) also set out approximate separation distances to be maintained while working in proximity to live power conductors. A number of regulations in the Occupational Health and Safety Regulation 2001 set out various requirements, methods of risk control, and identification of hazards when working with or near live electricity. Regulation 41(4) provides that a controller of premises must ensure that persons working in or undertaking maintenance on the premises (apart from those persons undertaking electrical work) are prevented from coming within an "unsafe distance" from any overhead electrical power lines and live electrical installations unless a risk assessment determines otherwise. Regulation 64(1) requires that an employer must ensure that risks of injuries arising from electricity at a place of work are eliminated, or controlled where elimination is not reasonably practicable. Regulation 64(2)(e) requires that persons at work and their equipment etc do not come into close proximity with overhead electrical power lines, except if the work is done in accordance with a written risk assessment and safe system of work and the requirements of the relevant electricity supply authority.

[23]

20 The defendants conceded in oral submissions that the principle of general deterrence must be given weight in the present circumstances. The prosecutor points to the need for a significant component of the penalty to reflect the importance of conveying the message to other employers, of the risks to the safety of workers when cranes do not remain at safe working distances from overhead power lines. 21 In my view the principle is of critical importance. A number of cases have come before this jurisdiction following accidents involving exposure to live electrical currents. I adopt my reasons on the importance of its application in Inspector Stepehn Cooper v Franklin Alden Coveney and Another [2008] NSWIRComm 80 at [22]: [22] The foregoing observations highlight the necessity to invoke the principle of general deterrence in the context of the dangers associated with working in the proximity of live overhead power lines. The circumstances of this tragic accident reveal the need to implement adequate controls in order to ensure that persons undertaking work in the vicinity of power lines can perform the work safely and without incident. The wealth of public information emphasising the obvious hazards, and setting out detailed systems of risk assessment and management, attest to industry recognition of these obvious hazards. Despite this information, workers continue to be exposed to risks to their safety, and accidents associated with live electrical apparatus continue to occur. Specific deterrence 22 The prosecutor submitted that the principle of specific deterrence was relevant to the circumstances of the offence. According to the prosecutor, RIC continues to employ persons in the industry and seconds them to the Australian Rail Track Corporation (ARTC) under a lease arrangement. RIC contended that the principle should be disregarded, or in the alternative, be given little significance, because its operational role as a consequence of the lease agreement between it and ARTC is now limited to supervision. RIC also sought to support its contention by placing emphasis on its occupational policies and procedures which it described as comprehensive, and promulgated in the workplace, at the time of the offence. 23 The issue is dealt with in the affidavit of Katherine Newton-John which was read into evidence during the sentence proceedings on behalf of RIC. According to Ms Newton-John, in 2004 the New South Wales rail network, formerly the responsibility of RIC, was sectionalised into three parts with RIC retaining responsibility for the country regional network (CRN). On 4 June 2004, RIC leased CRN to ARTC, which is a Commonwealth owned corporation. Under the terms of the lease RIC outsourced the management, operation and its obligations with regard to the maintenance of the CRN, to ARTC. RIC however, remains responsible for the performance of all relevant obligations with regard to third parties and retains legal responsibility, maintenance, management and upgrading of the CRN. It has the capacity to grant access to the CRN; as well as network control of the CRN; and, rail safety. 24 As at 30 June, 2007, 714 employees had been seconded to ARTC, pursuant to a labour services agreement. RIC, as at 30 June 2008, will retain 60 employees, employed in various administrative capacities. It is anticipated that as at that date the seconded employees will become employees of ARTC. With regard to safety issues, RIC retains an overseeing or auditing responsibility in respect of the CRN. Under the labour services agreement ARTC is obliged to ensure that RIC complies with all its legal obligations in relation to the secondees, including compliance with the OHS Act 2000. Since the introduction of the labour services agreement, RIC has had in place a range of assurance processes to monitor the occupational health and safety of its staff seconded to ARTC and to any other organisation. 25 These matters, clearly enough, indicate that RIC retains a number of responsibilities for seconded employees as well as its remaining 60 employees, including responsibilities in the area of occupational health and safety. Significantly, RIC remains the owner of the CRN. RIC's continuing role in the industry means that its statutory obligations under the occupational health and safety legislation subsist, both as to its employees and other persons at work, or in the vicinity of the workplace, of the CRN. In addition, under Clause 9.5 of the lease, the lessor (collectively RIC and the State Rail Authority of NSW) will be entitled, in the event that ARTC fails to adhere to certain obligations with regard to passenger priority (a term which encompasses matters of timetabling and train programming for passenger services etc), to resume full management of the CRN, after which the land and infrastructure is returned to RIC under Clause 21 of the lease. 26 Specific deterrence therefore has application to the defendant, particularly in its capacity as owner of the CRN. The application of specific deterrence is not confined to employers under the occupational health and safety legislation. It applies to a wider class of offenders (see generally for discussion of the principle and its application to occupational health and safety legislation: WorkCover Authority of NSW (Inspector Jones) v Challita (2006) 153 IR 409 at [32] to [35]).

[24]

Systems in place prior to the offence 27 In mitigation of the objective seriousness of the offence RIC had in place a number of policies and procedures designed to ensure the safety of persons, prior to the commission of the offence. The statement of facts refers to RIC's safety systems in place on 26 February 2003. It was a requirement, for example, that RIC's project manager ensure that the pre-work briefings were held daily. In this regard the evidence was that such a briefing was held on the day of the offence. A number of RIC employees, namely Mr Xuereb, Mr Klaser and Mr Koletsios identified the overhead power lines at the Wilson Parade site as a "potential hazard". The pre-work briefing document was amended to incorporate reference to the hazard of working in the vicinity of the power lines, apparently at the instigation of Mr Klaser. The hazard was expressly drawn to the attention of the workers that day, including Messrs Boland and Shaw, at the briefing. RIC also had in place a Safety Manual which was designed to give clear guidelines on what may be said to constitute acceptable standards for the management of all aspects of safety. The manual included a number of procedures relevant to safety planning which included the requirement to undertake the daily pre-work briefings as well as an induction, job safety analysis when required, site safety rules and various plans such as a project safety management plan which required the project manager to keep a register of work management plans. 28 The defendant submitted that its system of work required its employees to make a judgment on 26 February, 2003 as to whether the crane operated by Mr Shaw might come within the safe approach distance (being three metres) of the overhead power lines. In making that judgment, the employees deferred to Mr Shaw, as a qualified specialist crane operator. The source of the requirement (to make a judgment) was said to be found in a section of RIC's Safety Manual which states:

[25]

2.4.2 Control of the Work Process Prior to the work commencing and whilst the work is being carried out, the person in charge of the work party must ensure that: · The work process is adequately controlled so that persons do not come within the prescribed electrical safe working distances of exposed electrical equipment. · Persons carrying out the work are warned not to allow any part of their body, clothes, tools or material they may be using or carrying to come within the safe working distances of exposed electrical equipment. · Persons carrying out the work understand the work process controls that have been put in place and that they must not pass over of under any work area markers, access makers, safety fences or other barriers placed on connection with the work. 29 According to the defendant, in making the judgment, RIC's employees deferred to Mr Shaw as a qualified and experienced crane operator; and, that in adopting this course, the objective seriousness of the offence is rendered less serious. I do not agree. First, as I earlier observed there was no evidence to sustain an inference that Mr Shaw was qualified and experienced in operating cranes under live power lines as regards the aspects of safety in relation to that undertaking. Secondly, RIC's system of work contemplated giving safety instructions and information to Messrs Boland and Shaw prior to work being commenced, so that the work could be performed safely without fear of injury. Insofar as the system contemplated its employees exercising their own judgment and deferring to the views of the crane operator (as to what might constitute a safe approach distance to the power lines), the system was deficient. RIC's employees were aware of the risk posed by operating the crane underneath the live power lines. Despite this, no adequate measures were implemented to control this risk. This set of circumstances is not dissimilar in some respects to the circumstances in Cullen v State Rail Authority (NSW) (1989) 31 IR 207. In that decision a maintenance crew was engaged in a particular activity lopping and trimming trees which were growing in the vicinity of high voltage electric transmission wires. The system of work included regular inspections and reports by a patrolman who could recommend a power-out for a particular task. The recognised procedure for cutting back tree branches located near power lines was that if the linesman in charge considered the task dangerous he could defer the work until a power-out was obtained. Members of the crew were regularly advised to, "be careful" while carrying out the work. The senior linesman, was electrocuted when a branch he was cutting came into contact with power lines. Cahill VP and Sweeney J found that the system in place at the time of the offence was unsafe (at 219): In our view where this system fails to satisfy the stringent provisions of s 15 is that it basically leaves to the discretion of the linesman in charge the decision whether a tree-branch should be cut or whether the job should be deferred until a power-out has been implemented. By incorporating provisions allowing the linesman in charge to call for a power-out it recognises the dangers inherent in lopping trees growing in close proximity to high-voltage power lines but it fails to lay down stringent rules as to when such a power-out should be requested. Rather, it relies on the linesman's judgment, based on his training, qualifications and experience, of whether a branch can be cut with safety. Nor does it assist the defendant to place reliance on the conduct of Mr Shaw, who mistakenly believed he was using the jib of the crane when in fact he was raising the boom of the crane. RIC's failure to implement adequate measures to control the risk placed both Mr Shaw and Mr Boland at risk to their safety. 30 The system in operation on 26 February 2003 was defective in a number of other respects. According to the statement of facts, RIC failed to arrange for a person acting as a "spotter", to be present at the site to ensure that the crane remained at a safe working distance from the overhead power lines. No safe work method statement was obtained from the crane crew, prior to allowing the crane to operate at the site, contrary to the requirement in RIC's safety management plan. Although the job safety analysis (JSA) had identified the overhead wires as a hazard, it assessed the probability of contact with the overhead power lines as, "very unlikely". The suggested controls to reach an acceptable risk level were, "[p]ower outage. Permit Holder to walk through worksite. Maintain safe clearances at all times." 31 In relation to a power outage, the statement of facts records that initially it was intended that the work at the Wilson Parade site in the vicinity of the power lines could be undertaken under isolated conditions. Apparently, there were certain difficulties in obtaining power outages during weekdays and applications for power outages could take up to six months before being approved. Nevertheless, it is significant that following the accident, RIC put in place a number of additional measures at the site, including a procedure for isolating the electrical power when operating machinery in or near electrical power services. Another measure implemented following the accident was the utilisation of an additional crane crew member to carry out observations duties while the crane was in operation. These measures, although laudable, highlight the deficiencies in the defendant's system prior to the offence and, demonstrate the extent of available remedies which should have been in place to protect the workers at the site on 26 February, 2003.

[31]

37 It becomes necessary at this point to revisit the evidence of Mr Taylor-Jones on the issue. Mr Taylor-Jones annexed to his affidavit correspondence between the parties and other documentation which dealt with negotiations leading up to the plea of guilty to the amended charge. Particular 16 appeared in paragraph [20] of an earlier version of the statement of facts. A letter dated 21 September 2006, sent on behalf of the defendant to the prosecutor, advised that the defendant would not enter a plea of guilty, "to any aspect of " the s 8(1) charge but that it would, "give serious consideration" to entering a plea of guilty to the s 8(2) if the prosecutor agreed to a number of proposed amendments to that charge, including the deletion of particular 16. There follows in the letter a schedule setting out proposed amendments to the charge and to the draft statement of facts. A letter in response dated 12 October 2006 from the prosecutor pointed to the ambiguity of language in the 21 September letter, with regard to the expression, "give serious consideration", and highlighted the associated difficulties in negotiating a plea of guilty and reaching agreement. Notwithstanding these professed difficulties, the letter indicated that the prosecutor did not propose to withdraw the s 8(1) charge. In relation to the s 8(2) charge, the letter attached a schedule which addressed the defendant's proposed amendments to that charge. There was no agreement to delete particular 16. 38 On 16 October 2006, the defendant sent a further letter in which it reiterated its position in relation to the s 8(1) charge and suggested, "continuing discussions" in relation to the s 8(2) charge. The prosecutor sent a letter in reply on 18 October 2006 requesting reasons for the proposed amendments to the s 8(2) charge so that the matter could be properly considered. The letter also advised that both charges would be filed in the Industrial Court registry unless "further submissions" were received about the proposed amendments. On 6 September 2007, the defendant responded, maintaining its position in respect of the s 8(1) charge, namely, that it would not plead guilty, "to any aspect," of that charge. In relation to the s 8(2) charge, the defendant again offered to give "serious consideration" to entering a plea of guilty on condition that the same amendments proposed in its earlier correspondence were made (including the deletion of particular 16). 39 There followed an undated letter from the prosecutor seeking clarification as to whether "your offer to plead guilty to the charge under s 8(2) Occupational Health and Safety Act is conditional upon withdrawing the charge pursuant to s 8(1). If it is, please explain why." The final letter from the defendant stated, "our client has put its position and does not intend to provide any explanation."

[35]

[52] The mandatory language of s 22 of the Crimes (Sentencing Procedure) Act must be followed whether or not by doing so the Court can be seen to "discriminate", in the sense that word was used in the joint judgment in Cameron , against those who put the Crown to proof. The Court must take the plea into account even if there is no subjective intention to facilitate the administration of justice. However, viewed objectively, there will always be actual, as distinct from intended, facilitation of the administration of justice by reason of "the fact" of the plea. The use of the word "must" and the reference to "the fact" of the plea, strongly suggest that the Parliament was not concerned only with subjective elements. The actual facilitation of the administration of justice was to be regarded as relevant by sentencing judges. 43 None of these matters would preclude a finding that a plea, although entered late in the proceedings, was entered, nevertheless, at the first reasonable opportunity, or at the earliest opportunity. But a finding to that effect does not automatically or necessarily warrant a discount of 25 per cent for the utilitarian value of the plea. WorkCover Authority of New South Wales v South Eastern Sydney and Illawarra Area Health Service, for example, concerned a late plea of guilty which was held to attract a discount of 25 per cent based on the utilitarian value of the plea. This was because the charge which was pleaded to was in substantially different terms from the original charge. It contained a new particular which had not been alleged in the original charge (at [29]). 44 A number of decisions of the Court of Criminal Appeal, New South Wales have considered the utilitarian value of a plea of guilty in the context of a charge, to which the plea of guilty has been entered, being a less serious charge than the original charge. It may be helpful at this point to refer to some of those decisions. 45 In Regina v Dib [2003] NSWCCA 117 Hodgson JA observed:

[36]

[3] In my opinion, the amount of any discount to be allowed by reason of the utilitarian benefit of a plea of guilty should not be reduced on the ground that the plea was offered in association with the abandonment by the Crown of a greater charge; and if in such a case the plea is offered as soon as the Crown indicates willingness to accept a plea to the lesser charge, it should be regarded as being made at the earliest opportunity. To hold otherwise would be inconsistent with the presumption of innocence of the greater charge, which in those circumstances must stand unaffected. [4] However, the utilitarian discount is a recognition of advantages to the administration of justice that actually flow from a plea of guilty. By reason of statutory provisions applying in New South Wales, in this State it is not given merely on the basis that the offender's culpability is mitigated by demonstration of willingness to facilitate the course of justice: R v. Sharma (2002) 54 NSWLR 300, distinguishing Cameron v. The Queen (2002) 76 ALJR 382. [5] 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. [6] 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. 46 In Bassam Turkmani (2002) 133 A Crim R 328 Buddin J (with whom Smart J agreed) awarded a discount approaching the top of the range for a plea of guilty to a charge which was "significantly less serious" than the original charge. In finding that the plea of guilty had been entered at the earliest reasonable opportunity his Honour said: [31] More importantly it is submitted that the plea was entered at the earliest reasonable opportunity available to the applicant because that was the first occasion on which the applicant was afforded the chance to plead guilty to the significantly less serious offence of taking part in a manufacture simpliciter. In those circumstances the applicant calls in aid the decision of the High Court in Cameron (2002) 209 CLR 339. The applicant made a similar submission in relation to the Brookvale matter notwithstanding the fact that the plea was entered well into the course of that trial. The applicant contended that the Crown was only prepared to offer the plea to the less serious offence when it had been demonstrated that there were profound difficulties with its case so far as the proof of the quantity of the drug was concerned.

[38]

47 In R v Stambolis (2006) 160 A Crim R 510 the Court of Criminal Appeal considered pleas of guilty to a number of charges with an additional charge being placed on a Form 1 following negotiations between the parties. At first instance the sentencing judge had found that the plea of guilty had been entered at the first reasonable opportunity. Howie J disagreed with the finding, commenting (at [11] and [13]): [11] Frankly I do not understand how on the established principles it could be determined that the pleas of guilty for the offences for which the respondent was sentenced were early pleas and that they justified a discount of 25 per cent. There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved the result he wanted, I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely, if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge, I do understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity. … [13] In the present case there was no attention paid by the Judge to the real utilitarian value of the pleas of guilty or to the established authority of R v Dib [2003] NSWCCA 117 and numerous other cases holding that there is no entitlement to any particular discount even if the plea of guilty is at the first reasonable opportunity. I cannot understand why the Crown's representative would concede that which was not true, a concession that is often made apparently as part of an agreement with the defence. Even approaching the matter on the rationale preferred by the majority in Cameron v The Queen (2002) 209 CLR 339, by treating the discount as reflecting a willingness to assist the administration of justice, there was no such willingness evident in this case until May 2005. 48 In Ahmad v Regina [2006] NSWCCA 177 the accused pleaded guilty to manslaughter on an indictment for murder some 18 months following the committal for trial. During the sentence proceedings at first instance the Crown made a concession that the full discount should be awarded for the plea of guilty. The Court of Criminal Appeal agreed with the sentencing judge's approach in rejecting the Crown's submission. Its reasons for doing so included the following matters:

[41]

[19] In the present case it was submitted that the applicant could not have offered a plea to a charge of manslaughter in circumstances where the Crown was seeking to maintain the murder charge. It was said to be of no utility because the applicant knew it would not be accepted. It was also submitted that, in some way the offer of a plea to manslaughter would have compromised the applicant's capacity to defend the murder charge. [20] This submission must be rejected. If a plea had been offered and rejected the matter would have passed without comment and the trial would have been conducted without the jury being aware of the applicant's preparedness to plead to a lesser charge. Such an offer is made on a "without prejudice" basis: (see Chapter 20, Prosecution Guidelines of Director of Public Prosecutions (NSW) ) . However, if it had been offered, the Crown would have had an early opportunity to avoid the necessity to apply significant resources to the preparation of the trial. If offered, but not accepted, the applicant would nevertheless be able to point to an offer which entitled him to the full benefit of the available discount: R v Dib [2003] NSWCCA 117; R v Nguyen [2005] NSWSC 600 at [52]. 49 In D'Amico v Regina [2006] NSWCCA 316 the accused pleaded guilty to a number of less serious charges. It was common ground between the parties that the plea of guilty was entered at the earliest opportunity. Grove J, with whom Kirby and Hislop JJ agreed, applied a discount of 20 per cent to reflect the utilitarian value of the plea of guilty, which his Honour found was entered at the, "earliest reasonable opportunity" (at [22]). 50 The effect of the foregoing authorities is that first, they illustrate the obvious point, namely that each case must be determined by reference to its own individual circumstances. Secondly, the utilitarian value of the plea of guilty focuses solely on objective considerations. The sentencing judge is not concerned with subjective considerations with regard to the aspects of the plea, such as remorse or contrition, or, the intended, as opposed to, the actual facilitation of the course of justice. Thirdly, an assessment as to whether a plea of guilty has been entered at the first reasonable opportunity, or at the earliest opportunity, where the plea is a late plea, may be relevant to the utilitarian value of the plea. In recognising this, however, it is important to emphasise that where a plea of guilty has been entered at the first reasonable opportunity, it does not confer an entitlement to a discount of 25 per cent for the utilitarian value of the plea. A rationale for this is that the delay between the time an offence is first charged, and when the plea of guilty is entered to an amended, less serious, or different charge is less advantageous to the administration of justice. 51 Returning to the present circumstances, the original charges under s 8(1) and s 8(2) were filed on 1 November 2006. Prior to that event, WorkCover, in accordance with the prevailing government policy on litigation conducted by government authorities, proposed a conference with the defendant to discuss the pending prosecutions. 52 The correspondence annexed to the affidavit of Mr Taylor-Jones demonstrates that there was never an offer to plead guilty to the s 8(1) charge. In relation to the s 8(2) charge, the proposed amendments were not said to be conditional upon an offer to plead guilty. All that was on offer was an indication that, if the amendments were agreed, the defendant would, "give serious consideration to entering a plea of guilty". This state of affairs continued throughout the course of the correspondence, ending with the defendant's final letter of 18 September 2007 which set out its refusal to provide any clarification to the prosecutor as to whether its offer, "to give serious consideration", to pleading guilty to the s 8(2) charge, as amended, was conditional upon the prosecutor withdrawing the s 8(1) charge, and if so, why. The outcome of these protracted negotiations therefore, did not result at that time in the entry of a plea of guilty to either charge. Ultimately, a plea of guilty was entered to the s 8(2) charge in an amended form, although not all the amendments that the defendant had proposed were made, including the proposal to delete particular 16, which remained in the charge in its final amended form. 53 These circumstances demonstrate, in my view, that the plea of guilty was not entered at the first reasonable opportunity. It was a belated plea which was not entered until after the commencement date of the hearing, which was 2 October 2007. There was nothing to suggest on the evidence or in the material before the Court that the plea of guilty to the amended s 8(2) charge could not have been entered at an earlier stage. 54 Given these circumstances, I assess an appropriate discount of penalty for the utilitarian value of the plea at 10 per cent. 55 I also take into account in the defendant's favour on mitigation of penalty, its cooperation with WorkCover during the investigation of the circumstances surrounding the accident. In addition, I take into account the fact that following the accident, the defendant put in place a number of safety-related measures at the site. These measures have been referred to earlier in this judgment. They include measures to ensure the isolation of electrical power when operating machinery in or near the vicinity of electrical power sources, and the utilisation of an additional crane member to carry out observation duties while the crane is in operation. 56 As a separate consideration from the utilitarian value of the plea, the defendant is also entitled to leniency in recognition of the remorse shown by the plea of guilty, although this must be tempered somewhat by what can only be described as a strong prosecution case.

Inspector Stephen Cooper v Rail Infrastructure Corporation

At a glance

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Judgment (46 paragraphs)

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Cases Cited (20)

Cited By (7)