[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.