1 In July 2007, the Court found the Rail Infrastructure Corporation ("RIC") guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 (see Inspector Victor Page v Rail Infrastructure Corporation [2007] NSWIRComm 180). An appeal against that decision was dismissed by a Full Bench of the Industrial Court in September 2008 (see Rail Infrastructure Corporation v Inspector Victor Page [2008] NSWIRComm 169). This judgment deals with the evidence and submissions regarding sentence and should be read in the context of the two earlier judgments.
2 Having regard to the detail contained in both judgments concerning the breach alleged against RIC and the complexity of the system of work dealt with in those judgments, the oral submissions on penalty from both parties were concise and shortly stated although assisted by written submissions filed by each party. In short, the prosecutor's position was that the heart of the offence was a failure to protect against electrocution in the performance of pole maintenance work and that the RIC had a considerable record of previous convictions. The penalty needed to reflect both general and specific deterrence, notwithstanding the altered status of the defendant at the time of sentencing. The defendant had failed to maintain a safe system of work in relation to the operation of pole top overhaul by failing to provide adequate information and instruction about the existence of a live cable on Pole 49 and had failed to provide adequate supervision for its employees whilst carrying out pole top overhaul as well as failing to ensure its employees received an adequate pre-work safety briefing and a failure to de-energise the cable on Pole 49 prior to the commencement of the work on that pole. As a result an employee, Mr Pedersen, received an electric shock, fell from a height of approximately 7.5 metres and was rendered a paraplegic. The risk was obvious and foreseeable and appropriate measures were not taken to ensure the safety of the employees engaged in the task of pole top overhaul. It was readily foreseeable that if the pole was not isolated then an employee required to undertake work on it could be electrocuted. There were simple and straightforward remedial steps available that could have been taken by RIC to avoid the risks to safety, namely, isolating the feeder cable and placing identifying or warning plates on Pole 49 drawing attention to the presence of the live feeder. In all the circumstances this was a serious breach of the Act. It was accepted that, since the accident, the defendant had attached identification and warning plates to Pole 49 drawing attention to the presence of the live feeder. It was also accepted that there had been co-operation by the defendant with the WorkCover investigation.
3 While the defendant accepted that the offence was objectively serious, it was submitted that primary attention needed to be given to the nature and circumstances of the actual offence and that the result of the offence was of limited relevance. On a proper analysis of the findings of the Full Bench of the Industrial Court, this was a system that failed in a particular conjunction of circumstances. The evidence showed that the employees were very experienced and trained linesmen and that there was an absence of any suggestion that any other materially similar incident had occurred, notwithstanding that pole top maintenance was a regular task. When these matters were properly considered the defendant's offence could not be placed in the worst possible case category.
4 The defendant rejected the prosecutor's submission that the material risk that should have been foreseen was the risk of electrocution as such. In the defendant's submission the risk was that experienced and trained employees would misunderstand or neglect instructions unless they were provided with specific information as to the presence of the live line on Pole 49. An assessment of the foreseeability of this risk was informed by the fact that evidentially it had never occurred before or since. The prosecutor had correctly identified the steps taken after the incident to address the risks and had noted the defendant's co-operation with the WorkCover investigation. Mr Pedersen had undergone rehabilitation and remained in employment in the rail industry performing office duties as an employer of RailCorp.
5 While the defendant accepted that the penalty must include a component for general deterrence, it was submitted that there was no appreciable role for specific deterrence in the circumstances of this case. On this aspect the defendant relied upon the affidavit evidence of Ms Catherine Newton-John, the corporate counsel/company secretary for the RIC. Ms Newton-John noted in her affidavit that the defendant was established on 1 January 2001 as a State-owned corporation by the Transport Administration (Rail Management) Act 2000 and on that date it became responsible for the ownership, management, maintenance and repair of land improvements and infrastructure of the rail network in New South Wales. From 1 January 2004, however, a substantial change had occurred in the defendant's obligations in that the network was sectionalised into three parts, being the metropolitan rail network, the main interstate and Hunter Valley freight lines and the country regional network. On 1 January 2004, the obligations of the RIC in respect of the metropolitan rail network were transferred to a new State-owned corporation, RailCorp New South Wales ("RailCorp"). The RIC remained responsible for the leased network comprising the main interstate and Hunter Valley freight lines and also the country regional network, subject to the following new arrangements: RIC was no longer the owner of the metropolitan rail network and that network was now owned by RailCorp. Since 1 January 2004, RailCorp owned both the land and infrastructure of the metropolitan rail network, was exclusively responsible for all risks arising from or connected with the metropolitan rail network and was obliged to comply with all laws that affected or related to the metropolitan rail network and associated infrastructure. From that date RailCorp operated and maintained the metropolitan rail network and assumed the obligations of the RIC in relation to that network having regard to all aspects of preparation for and performance of electrical maintenance prescribed by the Transport Administration Act 1998. RailCorp was the sole entity in charge of maintenance and in particular electrical maintenance work on the metropolitan rail network, including the work with which the present proceedings were concerned. In addition, RailCorp employed and engaged the people undertaking that work including, (by the time the present proceedings were heard) all employees who gave evidence in the proceedings.
6 The main interstate and Hunter Valley freight lines were referred to as the leased network and while the RIC remained the owner of that leased network, the leased network was subject to a lease let on 4 June 2004 by the RIC to Australian Rail Track Corporation ("ARTC") being a Commonwealth owned corporation. The lease is to operate for a term of 60 years in respect of both land and infrastructure and permits ARTC to construct its own infrastructure on the land subject to the lease. Australian Rail Track Corporation was obliged to maintain the leased network to a standard specified and that required ARTC to personally undertake, as necessary, repairs, replacement and maintenance of the infrastructure. Australian Rail Track Corporation is responsible for all risks arising from or connected with the leased network and ARTC was obliged to comply with all laws relating to the lease or occupation of the leased network and associated infrastructure. The Australian Rail Track Corporation indemnified the RIC against risks associated with the infrastructure and ARTC was to operate and generally maintain the leased network. The ARTC had assumed the obligations formerly held by the RIC in relation to aspects of performance and electrical maintenance prescribed by the Transport Administration Act 1998. The terms of the lease result in the ARTC being the operator of the leased network for the purposes of the Rail Safety Act 2002 such that the RIC is not required to be accredited for the leased network as the operator during the period that the leased network is leased to the ARTC.
7 In relation to the country regional network, the RIC remained the owner of that network comprising the core network (carrying freight and some passenger traffic), grain lines (carrying grain freight under reduced speed and weight restrictions) and, disused lines (being non-operational). Under the country regional network agreement executed on 4 June 2004, the RIC outsourced the management, operation and the obligations with respect to the maintenance of the country regional network to ARTC. Pursuant to that agreement, since 4 June 2004, ARTC has undertaken services such as network control, infrastructure maintenance and work services, management of access, advisory services and property services, including all aspects of preparation for and performance of electrical maintenance. As the owner of the country regional network, the RIC contracted to competent accredited contractors for the management of the network but the RIC itself did not carry out any of this work. Under the agreement, the ARTC had day-to-day management and operational responsibility for the country regional network with the role of the RIC being solely that of infrastructure owner.
8 Ms Newton-John then dealt with the current operations of the RIC noting that, following the change in its operational role, the RIC was to supervise the country regional network agreement and management of the lease. That role required administrative oversight to be exercised by RIC and in its capacity as owner requires dealing with funding issues in respect of the country regional network, together with career transitional services for displaced RIC staff and workers compensation and injury management in respect of injured RIC staff. The RIC no longer directly undertakes any work other than administrative work. Ms Newton-John described the primary alteration affecting the RIC was that it no longer, itself, undertook, controlled or supervised the undertaking of work associated with the upkeep, repair and/or maintenance of any part of the rail network in New South Wales and the numbers of its employees had significantly reduced. At the time of swearing her affidavit the RIC employed 81 persons for the purposes referred to above or associated purposes but had no other employees.
9 Under the labour agreement, a number of employees of the RIC were seconded to the ARTC to undertake work in respect of the country regional network and the leased network. The secondees were subject to the direction and control of ARTC on a day-to-day basis including their management, discipline, work performance, training and development. The labour agreement obliged ARTC to comply with and ensure that the RIC complied with all legal obligations in relation to secondees including compliance with the Occupational Health and Safety Act 2000. In relation to rail safety, as contemplated by the Rail Safety Act, a secondee was taken to be an employee of ARTC rather than the RIC. In those circumstances ARTC was directly responsible for the training, health and fitness of secondees as contemplated by the Rail Safety Act. The labour agreement came to an end on 30 June 2008.
10 Ms Newton-John also provided details in relation to the defendant's labour force. In the financial year 2003-2004 the RIC employed more than 5,600 employees but as a consequence of the changes earlier referred to that employment situation was significantly altered so that in the 2004-2005 financial year nearly 3,000 employees were vested or transferred to RailCorp, 909 were seconded to the ARTC pursuant to a labour services agreement and 872 were displaced and managed through the defendant's Career Transition Centre. As at 30 June 2007 the RIC had 883 employees and of those, 714 remained seconded to the ARTC and 109 employees remain classified as displaced employees and were in the Career Transition programme. As at 30 June 2008 the labour agreement ended with the consequence that all the RIC staff who were seconded to the ARTC, totalling 714, were "de-seconded". Of these 142 joined ARTC, 522 accepted voluntary redundancy, 12 left the service for other reasons with the remainder retaining transitional employment with the RIC pending deployment or the acceptance of redundancy. The RIC currently retained 81 employees of whom 22 were employed in various administrative capacities at the RIC's head office in Newcastle, 12 were employed to work in the Career Transition Group Centre assisting displaced employees to locate alternative work and the remaining 47 were medical cases being medically unfit for work or displaced employees still in transition.
11 It was against this factual basis that the defendant submitted that there was no appreciable "role for specific deterrence in the circumstances of this case". It was submitted that, before 30 June 2008, this wholesale removal of the RIC as a railway operator left the RIC in a materially different position from that considered by Backman J in Cooper v Rail Infrastructure Corporation [2008] NSWIRComm 92.
12 In that case, the prosecutor submitted to Backman J that the RIC continued to employ persons in the industry and seconded them to the ARTC under a lease arrangement. Her Honour also had an affidavit from Ms Newton-John about the arrangements within the rail network and how those parts that were formerly the responsibility of the RIC had been sectionalised into three parts with the RIC retaining the responsibility for the country regional network. Her Honour noted that, while the ARTC had taken a lease on that network and thus the RIC had outsourced the management, operation and its obligations with regard to the maintenance of the country network, nevertheless, the RIC remained responsible for the performance of all relevant obligations with regard to third parties who retained legal responsibility, maintenance, management and upgrading of the country rail network and had the capacity to grant access to the country rail network as well as network control and rail safety. While a large number of employees had been seconded to the ARTC with the RIC retaining 60 employees in various administrative capacities, it was noted that it was anticipated that the seconded employees would become employees of the ARTC. Her Honour formed the view that those matters indicated that the RIC retained 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, the RIC remained the owner of the country rail network and its continuing role in the industry meant that its statutory obligations and its obligations under the Occupational Health and Safety legislation subsisted both as to its employees and other persons in the network or in the vicinity of the network. In certain circumstances the RIC could resume full management of the network after which the land and infrastructure would be returned to the RIC. In those circumstances her Honour formed the view that specific deterrence had application to the defendant particularly in its capacity as owner of the country rail network.
DELIBERATION
13 In the judgment at first instance, the Court held that the breaches alleged in the following particulars had been made out:
(m) RIC failed to ensure that its employees were not exposed to risks to their health, safety and welfare in relation to the undertaking at the site, and in particular as to the work activity known as Pole Top Maintenance and/or overhaul of the feeders;
(n) RIC failed to provide and maintain a system of work that was safe and without risk to health in relation to the undertaking of the site, and in particular as the work activity known as Pole Top Maintenance and/or overhaul of the feeders, in that:
(i) RIC failed to ensure adequate information and instruction was provided to its employees in relation to the documents used in the isolation procedure so that employees knew how to perform the undertaking safely on the day of the incident;
(ii) RIC failed to provide adequate supervision of its employees at the site, in that supervisors were unable to and/or failed to identify the presence of an energised feeder present on Pole 49;
(iii) RIC failed to provide adequate supervision of its employees at the site in that it directed and/or allowed an employee, Mr Pedersen, to ascend Pole 49 and engage in the undertaking or ascend Pole 49 at all, whilst there was present an energised feeder;
...
(vi) RIC failed to ensure its employees received any adequate pre-safety briefing prior to the undertaking and in particular in relation to Pole 49;
(vii) RIC failed to ensure the presence of the electrical feeder known as "NS21" was clearly marked on Pole 49 so as to identify its existence and to ensure that employees at the site were aware that Pole 49 supported an additional feeder that may have been energised;
(viii) RIC failed to de-energise the feeder "NS21" on Pole 49 prior to commencement of the undertaking on Pole 49.
14 The Full Bench of the Court on appeal dealt with the appellant's argument that at first instance the Court had proceeded on a wrong assumption that the relevant risk was that of electrocution as a result of the presence of feeder NS21 on Pole 49 that had not been isolated at the time of the accident, submitting that this risk was irrelevant because Mr Pedersen, an employee, received his injuries solely as a result of falling. In dismissing this argument the Full Bench stated:
[73] In the circumstances of this case the risk of electrocution was clearly present. The evidence suggested that Mr Pedersen, in the mistaken belief, shared by other members of the work team, that it was safe to work on Pole 49, proceeded to ascend it by the use of ladders in order to conduct pole top maintenance. Feeder NS21, however, which was a 2000-volt feeder on Pole 49, had not been isolated. Mr Pedersen was, therefore, at risk of being electrocuted at all times while he was on the pole. Moreover, medical records that formed part of the appeal books, and were before his Honour at first instance, confirmed that Mr Pedersen had suffered an electric shock as well as a spinal injury. Haylen J, in our view, properly identified the relevant risk to Mr Pedersen's safety as the risk of electrocution to which Mr Pedersen was exposed while he performed electrical work on Pole 49.
15 In dealing with the defences the Full Bench returned to the findings at first instance and at [151] stated as follows:
[ 151] By applying this analysis of s 28(b) to the present circumstances, it is reasonably clear to us that his Honour's approach to the defence provision does not disclose error. The gravamen of the offence under s 8(1) was the appellant's failure to ensure that its system of work, to be adhered to by the members of the work team on 29 June 2004 at Beecroft station, was safe. The system entailed the use of the work documents. His Honour found that that system broke down because of the appellant's failure to adequately enforce its instructions, in particular, with regard to the meaning and operation of the work documents. The cause of the commission of the offence was, therefore, the appellant's failure as identified. His Honour rejected the appellant's submission that the cause was the casual act, or acts, of negligence on the part of members of the work team. For the reasons we have earlier outlined, his Honour was essentially correct in so doing. For those same reasons, in the context of the defence provision, the resultant risk to safety did not arise because of any casual act of negligence by either Mr Rogers or Mr Pedersen, or anyone else. Instead, the members of the work team were under the mistaken belief that Pole 49 had been isolated and was safe to work on. This belief had its origins in the ambiguous and internally inconsistent information contained in the work documents and the misunderstanding that caused, particularly by Mr Buatava.
16 In sentencing the defendant, RIC, the Court has firmly in mind the particulars of the breach that were found to exist at first instance and not set aside on appeal and the above pertinent observations of the Full Bench on appeal. The prosecutor urged that it would be a serious offence where there was an obvious risk or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and foreseeable. It was submitted that it was readily foreseeable that, if Pole 49 was not isolated and that an employee was required to undertake work on it, the employee could be electrocuted. There is force in the defendant's submission that it had foreseen that risk and had taken steps so that work would not be performed on Pole 49 while it carried a live feeder. As stated by the Full Bench the system of work broke down because of the RIC's failure to adequately enforce its instructions and in particular with regard to the meaning and operation of the work documents. The Full Bench rejected the contention that the cause was casual acts of negligence on the part of members of the work team. As a result of its failure, Mr Pedersen was exposed to the risk of electrocution by working on Pole 49 when it was thought to be isolated and he was also at risk of falling from height when carrying out maintenance on the pole if electrocuted or coming into contact with live electric power lines while performing that task. Mr Pedersen, as a result of this accident, was rendered a paraplegic. Having regard to the nature of the work and the surrounding circumstances and the failures found to exist in the defendant's system, this breach constituted a most serious offence. Senior counsel for the defendant readily accepted that the offence was serious. It is certainly clear that simple steps were readily available addressing the risk including the isolation of Pole 49 and the placement of a clear warning plate advising of the presence of a live line on Pole 49.
17 In relation to general deterrence the prosecutor submitted that, in setting an appropriate penalty, there needed to be a significant component for general deterrence in order to send a message to other employers of the risk to health and safety of workers when carrying out work in the vicinity of high voltage electrical apparatus. While accepting that proposition it might also be stated that as the evidence in the present matter discloses, there are other entities now undertaking the maintenance and operation of railways and there is a particular need for those entities to be alerted to the type of dangers that can arise from performing maintenance on the railway system.
18 In relation to specific deterrence the evidence of Ms Newton-John does show a significant alteration in the situation dealt with by Backman J. As the evidence presently stands, the defendant has a relatively small number of employees engaged in administrative tasks and is not directly involved in the operation and maintenance of railway networks. Unlike other cases where defendants are in a position to give an undertaking to the Court that they will not become involved in a certain class of work (or other matters are before the Court that demonstrates that position), here no such undertaking was feasible as the structure of the railway system is in the hands of the Government and as the legislative history demonstrates the ownership and operation of railway networks can frequently change. It is not inconceivable that in the future the RIC might again become involved in the operation and maintenance of a railway network but it is also conceivable that the RIC could be dissolved. In those circumstances the broad thrust of the defendant's submission as to specific deterrence is accepted and the Court shall proceed on the basis of what is known about the future of the defendant rather than impose a penalty based upon speculation as to its future. While acknowledging that reality there is another reality, namely, that the RIC continues to be an employer and an employer with a long history of breaches of occupational health and safety legislation occurring in a wide variety of circumstances. Specific deterrence will therefore play a role in the setting of an appropriate penalty but a much reduced role having regard to the fact that it has effectively been removed from the task of operating and maintaining a railway network. The maximum fine available is $825,000 and that maximum penalty follows from the fact the defendant has a prior record. That record shows 17 convictions between 1999 and 2008 ranging in fines from a low point of $6,000 imposed by the Chief Industrial Magistrate in 1999 to a high point of $300,000 imposed by the Court in 2004. As already noted, in 2008 Backman J imposed a fine of $275,000 on the defendant. That record needs to be understood in the context of the defendant operating in a heavy industry that might be regarded as inherently dangerous but also engaging a large number of persons either directly or indirectly in the operation and maintenance of railway networks.
19 The use to be made of prior convictions and the need to avoid sentencing an offender twice for offences already committed was considered by the Court in Inspector Nixon v George Weston Foods Ltd [2005] NSWIRComm 287 where the following observations were made:
[23] The use to be made of prior convictions has received considerable judicial attention. In Veen v The Queen [No 2] (1987-1988) 164 CLR 465 (at 477-8), the majority of the Court (Mason CJ, Brennan, Dawson and Toohey JJ) stated that the antecedent criminal history of an offender was a factor which may be taken into account in determining the sentence to be imposed but that it could not be given such weight as to lead to the imposition of a penalty that would be disproportionate to the gravity to the offence: to do so would be to impose a fresh penalty for past offences. The majority went on to state:
The antecedent criminal history is relevant, however, to 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. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and never has been the approach of the courts in this country and would be at odds with the community's understanding of what is relevant to the assessment of criminal penalty.
[24] In Weininger v The Queen (2003) 212 CLR 629 the High Court dealt with an appeal where, in imposing sentence on a first offender charged with drug offences, the sentencing Judge had stated that although the accused's prior good character (in that he had no prior convictions) must receive some recognition, given the evidence establishing his previous participation in cocaine importation he could not be treated as a first offender with the attendant leniency that that status usually attracted. In rejecting the appeal, the majority (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at [32]:
Secondly, there is no reason to doubt the conclusion of the Court of Criminal Appeal that the primary judge had not sentenced the appellant for crimes with which he was not charged. Of course it would have been wrong to do so. 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.
[25] More recently, the Court of Criminal Appeal has given consideration to whether it was impermissible to use the prior criminal record as an aggravating factor in the sentencing process. In Regina v Brett Raymond Walker [2005] NSWCCA 109 (31 March 2005), the appellant had been charged with two counts of supplying a prohibited drug and accepted that his criminal history was "absolutely appalling". In the course of sentencing, the District Court Judge spoke of taking into account those matters required to be taken into account under s 21A of the Crimes (Sentencing Procedure) Act and noted that aggravating factors included the fact that the appellant had a record of prior convictions.
[26] Speaking for the court, Johnson J stated: