State Rail Authority of New South Wales v WorkCover Authority of New South Wales

Occupational Health and Safety - Appeal against severity of sentence - Proceedings by way of prosecution for breach of statutory duty - Plea of guilty - Whether sentence manifestly excessive - Nature of appeal - Principles to apply on appeal - Appeal upheld - Sentence reduced - Costs. Criminal Appeal Act 1912 s 5AA LEGISLATION CITED : Industrial Relations Act 1996 s 196 Pt 7 Ch 4 Occupational Health and Safety Act 1983 s 15(1) s 16 s 17 s 51A Alcatel Australia Ltd v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (1999) 91 IR 66 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 NSW Sugar Milling Co-operative Ltd v Environment Protection Authority (1992) 59 A Crim R 6 R v Howland (1999) 104 A Crim R 273 CASES CITED : R v Radich [1954] NZLR 86 R v Rushby [1977] 1 NSWLR 594 R v Thomson, R v Houlton [2000] NSWCCA 309 Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 Winchester (1992) 58 A Crim R 345 WorkCover Authority of New South Wales (Inspector Chadwick) v BHP Steel (AIS) Pty Ltd (2000) 98 IR 122 WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Pty Co Ltd (1999) 96 IR 32 WorkCover Authority of New South Wales (Inspector Milligan) v State Rail Authority of New South Wales (unreported, Kavanagh J, IRC 97/7032 to 7036, 13 October 1999) WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (unreported, Bauer J, CT94/1037, 13 April 1995) HEARING DATES: 05/05/2000; 09/15/2000 DATE OF JUDGMENT: 12/15/2000

APPELLANT Mr J V Agius SC and Mr A J Tudehope of counsel Solicitor: Mr D Newey Gillis Delaney Brown LEGAL REPRESENTATIVES: RESPONDENT Ms P E McDonald of counsel Solicitor: Mr G McCann WorkCover Authority of New South Wales

JUDGMENT:

• 35 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: WRIGHT J, President WALTON J, Vice President HUNGERFORD J Friday, 15 December 2000 Matter No IRC 6321 of 1999 STATE RAIL AUTHORITY OF NEW SOUTH WALES v WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR RODNEY DUBOIS) Appeal by the State Rail Authority of New South Wales against a decision of Mr Justice Maidment given on 27 October 1999 in Matter No IRC 2697 of 1998. JUDGMENT OF THE COURT [2000] NSWIRComm 261 1 This is an appeal by the State Rail Authority of New South Wales against a decision of Maidment J given on 27 October 1999 in which his Honour fined the appellant an amount of $420,000 for a breach of s 15(1) of the Occupational Health and Safety Act 1983. The appeal is against the severity of the penalty imposed. The proceedings before his Honour were initiated by Rodney Dubois, as an inspector of the WorkCover Authority of New South Wales, and concerned an alleged failure by the appellant on 1 June 1996 to ensure the health, safety and welfare at work of two of its employees, Albert Franklin and Jurgen Graf, in that it "failed to provide and maintain systems of access to railway areas to undertake painting maintenance work that was safe and without risk to health"; as a result of the said failure, it was alleged Mr Franklin suffered injuries and Mr Graf was placed at risk of injury. The appellant pleaded guilty to the charge. 2 By the operation of s 196 of the Industrial Relations Act 1996, the appeal was brought as of right pursuant to s 5AA of the Criminal Appeal Act 1912. That latter Act applies, and the other provisions in Pt 7 - Appeals and References to Commission in Ch 4 of the Industrial Relations Act do not apply, to appeals in respect of criminal proceedings before a judicial member of the Commission: see s 196(1) of the Industrial Relations Act and s 5AA(1) of the Criminal Appeal Act . The relevant legislative provisions and the consequent approach to be adopted on such an appeal were authoritatively reviewed by a Full Bench ( Wright J, President, Walton J, Vice-President and Kavanagh J) of the Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 at pp 37-39 and it is unnecessary to be further examined here. 3 Suffice it to emphasise for present purposes, by way of summary, that the appeal shall be by way of rehearing on the evidence given at first instance: s 5AA(3); the issue on appeal is not whether the trial judge fell into error but rather whether the appellate court is independently of the same opinion: NSW Sugar Milling Co-operative Ltd v Environment Protection Authority (1992) 59 A Crim R 6 at p 11 per Enderby J, with whom Hunt CJ at CL and Allen J agreed; the appeal is not a hearing de novo and new evidence may be adduced only with leave of the court: s 5AA(3A); the appeal court must consider afresh the ultimate issue to be determined: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at p 692; nevertheless, that does not mean the appeal bench will of necessity come to a conclusion in relation to penalty different from the sentencing judge but only that it must exercise the sentencing discretion: Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 at p 338; and, in independently determining an appropriate sentence, the appeal court nevertheless has regard to the way in which the matter was approached at first instance as a useful analytic device: Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at p 81. In short, and as the Full Bench observed in Capral Aluminium (99 IR at p 37) - "The approach to be adopted in an appeal under those provisions (s 196 and s 5AA) is now settled". We agree. 4 An early question arose in the hearing of the appeal as Mr J V Agius SC, who appeared with Mr A J Tudehope of counsel for the appellant, proceeded to develop his submissions. That question was whether the maximum penalty provided for a breach of s 15 was $500,000 or $750,000 in the case of a corporation by reason of s 51A of the Occupational Health and Safety Act as it was amended by the WorkCover Legislation Amendment Act 1995 which commenced on 1 February 1996. Mr Agius submitted that Maidment J erred in applying the increased penalty of $750,000 and that the correct amount was $500,000; on the other hand, the respondent, represented by Ms P E McDonald of counsel, submitted that the amount was properly $750,000. The issue here was whether s 51A, where a defendant had previously been convicted of an offence against the Occupational Health and Safety Act , made the maximum penalty $750,000 or $500,000 with a discretion in the sentencing judge to increase it by $250,000 depending upon the circumstances. Maidment J approached the assessment of penalty on the basis that the maximum was $750,000 because his Honour reached "the view that the nature of this offence and the recent antecedents of [the appellant] are such that the provisions of s 51A should be activated, assuming I have a discretion in the matter". Mr Agius submitted that the discretion in this case should be exercised in the appellant's favour to make the maximum penalty $500,000. 5 However, and very properly if we may say so, Mr Agius accepted that a Full Bench of the Court in Capral Aluminium had reserved this very question as to the operation of s 51A and, as he said, "if the Full Court decides in Capral that [our] approach to 51A is wrong and there is no discretion, then it will not be necessary for this Court … to have regard to what we say about the way in which his Honour Justice Maidment exercised his discretion". As it happened, and after judgment was reserved in this matter, the Full Bench gave judgment in Capral Aluminium on 21 July 2000 and, after extensively considering the position (99 IR at pp 40-51), concluded that in such cases the maximum penalty was $750,000 with no separate discretion as to the additional penalty provided under s 51A. We propose to follow the approach so recently decided in Capral Aluminium , an approach in any event with which we agree, so that the maximum penalty for present purposes is $750,000. 6 In challenging the severity of the sentence imposed by Maidment J and in seeking a reduction thereof, the grounds of appeal relied upon were : (1) The penalty was harsh and manifestly excessive.

(2) His Honour Mr Justice Maidment, when determining the penalty, failed to give sufficient weight to the evidence and in particular to the following: (i) that the Appellant pleaded guilty at an early stage; (ii) that the Appellant co-operated with the WorkCover Authority of New South Wales; (iii) the Appellant carried out it's ( sic ) own investigation of the accident; (iv) the Appellant's commitment to a safe working environment; (v) the improvements implemented by the appellant; (vi) the size and nature of the appellant's workforce and its numerous work sites; (vii) the inherent risks involved in the occupation carried on by the appellant; (viii) the Appellant's commitment to maintaining and improving workplace safety.

(3) His Honour Mr Justice Maidment erred when he determined that the Appellant retains responsibilities to employees of Rail Services of Australia who now perform the painting function as a consequence of ss 16 and 17 of the Occupational Health & Safety Act 1983 as:- (i) such a determination was not available on the evidence before the Court. (ii) the finding was ultra vires.

(4) His Honour Mr Justice Maidment erred when he determined that the Joint Investigation Report had concluded that management was not responsible for the deficiencies in the warning system that was in place.

(5) His Honour Mr Justice Maidment erred in failing to give sufficient weight to his finding that the statement of the train driver concerning the signal made by Mr Franklin ought to be accepted in preference to the statement of Mr Franklin.

(6) His Honour Mr Justice Maidment erred in failing to give sufficient weight to evidence including evidence of paint stains on the side and not the front of the train carriage which indicated that Mr Franklin had moved from a safe position to an unsafe position as the train passed him.

(7) His Honour Mr Justice Maidment erred in applying the increased penalty provided for in s 51A of the Occupational Health and Safety Act, 1983. 7 The challenged judgment set out in detail a statement of agreed facts, together with further agreed facts, and it is convenient to repeat them for present purposes, as follows : 1. At all material times the Informant was an Inspector duly appointed and empowered by Section 48 of the Occupational Health and Safety Act 1983 to institute proceedings in the within matter. 2. At all material times the defendant, STATE RAIL AUTHORITY OF NEW SOUTH WALES, was a statutory body corporate pursuant to the provisions of the Transport Administration Act, 1988, with its head office situated at 11-31 York Street, Sydney, in the State of New South Wales.

At all material times, the defendant was responsible for the provision and maintenance of the rail transport service in New South Wales.

At all material times, the defendant employed Jurgen Graf and Albert Franklin as painters. Albert Franklin had been employed with the State Rail Authority for 39 years and 8 months as a painter.

On the Saturday, the 1st of June 1996, at about 8.25am, Albert Franklin was walking along railway tracks undertaking sign painting duties when he was struck by a train under the bridge near Erskineville Station. Albert suffered a fractured pelvis, fractured leg and internal injuries.

An inspection of the scene of this accident was undertaken on the 18 June 1996. An inspection report was prepared and photographs taken. The investigation revealed that a road bridge extended over the railway lines near Erskineville Station.

The investigation revealed that Franklin was working with another person, Jurgen Graf painting the kilometre and half kilometre signs. On arrival to Erskineville station they were looking for the signs. They walked to the northern end of the station where there were stairs onto the tracks.

As this point, a warning light is positioned adjacent to the railway line, facing in the opposite direction of their travel, which when illuminated, indicates that no train is approaching and they can walk under the bridge. After walking past the light, it is unable to see if the light is still illuminated. 9. Franklin stated that the light was on and therefore it was clear to walk onto the track. They walked onto the track and had to pass under a bridge which is approximately 30 metres in length. As they reached the end of the bridge a train came around the bend. Franklin placed his body face to wall and Graf was approximately three metres behind him.

10. Graf phoned for an ambulance and to have the trains stopped from the next signal phone.

11. The State Rail Authority of NSW has conducted a Joint Investigation report which reveals several points. a) the warning system was found to be inadequate b) poor positioning of the warning lights c) the variation of the time spans for the warning lights d) the limited space between the wall of the bridge and the oncoming trains 12. The time to walk unhurried from one side of the bridge to the other is stated to be about 30 seconds by Mr J Rasborske, (Signal Service Engineer), he also states that the average warning time of 30 seconds is only adequate to pass under the bridge. The warning times when tests were conducted on 14 June 1996 varied from 26.4 seconds to well over 30 seconds. The warning times vary depending upon the speed of the approaching train. 13. New signs warning people of the restricted clearance were erected under the bridge.

14. On the day of the accident, Franklin and Graf received their work instructions from Civil Track Inspector, Geoff Brown. The men were directed to paint all kilometre pegs between 10.5 kms and 2.5 kms on the up and down Illawarra Lines, East Hills lines and Bankstown lines under the control of Geoff Brown.

15. The two men commenced work on the city end of Sydenham and had to walk approximately 5 km along the railway lines painting the kilometre signs.

16. Following the accident, warning signs were erected under the railway bridge warning of restricted space when trains are passing, and the warning light was found to not give sufficient warning. Circuit alterations were made, as well as the installation of an additional warning light.

17. It is alleged that the defendant has breached Section 15(1) of the Occupational Health and Safety Act, on the 1 June 1996, at railway tracks at Erskineville Railway bridge, Erskineville, in the State of New South Wales, being an employer, did fail to ensure the health, safety and welfare at work of all its employees, in particular Albert Franklin and Jurgen Graf, in failing to provide and maintain systems of work, to wit, systems in undertaking maintenance work, that was safe and without risk to health, in that: a) At all material times, the defendant employed Albert Franklin and Jurgen Graf.

b) The defendant failed to provide and maintain systems of access to railway areas to undertake painting maintenance work that was safe and without risk to health.

c) As a result of the said failure, Albert Franklin suffered a fractured pelvis and leg and internal injuries, and Jurgen Graf was placed at risk of injury. Additionally it is agreed that SRA entered an early plea, co-operated fully with WCA and, at the time of the accident, employed more than 22,000 persons at over 1,000 separate work sites many of whom worked in inherently dangerous occupations involving proximity to moving trains.

The accident occurred on 1 June 1996 and, from 1 July of that year, SRA was divested of certain of its functions which are now performed by employees taken up by Rail Services Australia, Freight Corporation and Rail Access Corporation. The works upon which Messrs Franklin and Graf were engaged upon now fall within the activities of Rail Services Australia.

Since the restructuring the number of employees of SRA has fallen from 22,000 to about 8,500 and an Organisational Development Division, which employs 12 full time persons in the Safety Improvement Division, has been instituted by SRA. A further 16 persons are employed in the Safety Standards and Compliance Division. The two Divisions have responsibility for health and safety within SRA. A statement by John Harper, Manager of the Safety Improvement Division, which was tendered, evidences a significant SRA commitment to the maintenance and improvement of workplace safety. 8 The appellant's record of prior convictions for breaches of the Occupational Health and Safety Act were agreed between the parties and were specified as follows in his Honour's judgment : Date of Conviction Section Penalty 07/05/86 15(1) 556A 14/08/87 15(1) $500 07/10/87 15(1) $2,000 04/10/88 15(1) $2,500 23/10/89 15(1) $1,250 12/12/89 15(1) $2,750 03/04/91 15(1) $2,500 02/07/91 15(1) $2,000 25/03/92 15(1) $5,000 27/01/93 15(1) $3,000 13/07/93 15(1) $2,000 20/08/93 15(1) $3,000 04/07/94 15(1) $3,000 * 16/12/94 15(1) $40,000 * 16/07/96 16(1) $25,000 * 12/09/96 16(1) $35,000 23/10/96 16(1) $6,000 * 27/03/97 15(1) $125,000 29/07/97 16(1) $3,500 * 22/10/98 16(1) $40,000 10/05/99 16(1) $6,000 * denotes a conviction in this Court or a predecessor. 9 Following the accident, the appellant established a Board of Inquiry (comprised of four representatives from management, signal engineering, civil engineering and occupational health and safety areas) to enquire into the circumstances concerning Mr Franklin being struck by the train and injured. Maidment J developed his reasoning on the gravity of the offence by reference to the Board's views as to the evidence it obtained; those views were set out in the Board's report as follows : The Boards (sic) considers from the evidence presented that Mr Franklin and Mr Graf along with the inadequate warning light system were responsible for the incident occurring at Erskineville on Saturday 1 June 1996.

The Board refutes the statement given by Mr Franklin that the warning light was still on when he was struck by run 3B-D as all visual tests carried out on the day by staff proved that the warning light extinguished prior to the arrival of trains.

The warning light system was checked by Signal Engineering staff, hand tracing all relevant circuit wiring with no irregularities being evident.

The signal Engineer placed monitoring equipment on the warning light for a 24 hour period which also included all train running over the period in question of a Saturday morning and no irregularities were in evidence.

The driver of run 3B-D has stated that the employee gave his train an all clear hand signal indicating to the driver he was clear of the running line when he was not.

The Board investigated the warning light at length and found that a track was missing from the circuit. This would have had an effect on the operation of the warning light for trains under 4 carriages but had no effect in this instance. This circuit has now been modified to include the missing track.

The Board has conducted tests on walking time for this area and has found that the warning times are only just adequate for a staff member to walk from one side to the other and to be clear for the passage of a train.

The Board also considers from the evidence presented that the warning light is poorly positioned for staff to be able to monitor its operation when walking under the bridge as staff are required to continually look back thus taking their attention away from approaching trains. 10 His Honour then cited the conclusions reached by the Board in relation to each of its terms of reference; those conclusions were : 1. Examine and report on how the incident occurred

The Board finds that Albert Franklin and Jurgen Graf, while relying on an ( sic ) warning system found to be indequate ( sic ) by the Board placed themselves in a position with restricted train sighting and limited safe refuge but failed to keep a clear lookout for approaching trains.

2. Establish who or what was responsible for the incident and identify any irregularities

The Board finds that Mr. A Franklin and Mr J. Graf were responsible for the incident along with the inadequacy of the warning light's positioning.

3. Examine and report on the adequacy of the warning light/s

The Board finds the warning light inadequate due to the poor positioning of the light and also the duration of the warning by the light of an approaching train.

4. Examine and report on any shortcomings or failure in the management process that contributed to, or failed, to prevent the incident

The Board finds no shortcomings or failure of Management process that contributed to this incident. 5. Review and make recommendations on management responsibility and accountabilities, including lines of communication, authority, delegation etc.

The Board finds that the Management is responsible to improve the warning system in this area.

6. Examine and report on the extent of Compliance the System Safety Plan applicable to the cause determined by the Board

The Board has identified Hazard D 32 - 109 Strike by Train/Coach as the appropriate safety plan. The Board has found no evidence of failure to comply with the System Safety Plan as both staff have been trained in PW 11 and Mr. Franklin has been trained in PW31 worksite duties.

7. Make any recommendation/s (If Required) to prevent a similar occurrence

1. The Board recommends the repositioning of the warning light or positioning of additional warning light/s for staff walking or working under the bridge and if repositioning occurs that all relevant disciplines be requested for comments on the proposed location.

2. The Board recommends that the approach time from the Down Illawarra Relief line be increased to a minimum of 35 seconds.

3. The standard signage of Light out indicates train approaching be affixed adjacent to the warning light.

4. The Board recommends that a standard sign be developed informing all staff of limited clearances in tunnels on bridges etc where limited clearances exist and no refuges exist. 11 After commenting that those conclusions were not criticised by the parties during the proceedings, his Honour expressed disquiet as to three aspects thereof: first, that the two employees, Mr Franklin and Mr Graf, were responsible for the incident in that they failed to keep a clear lookout for approaching trains; second, that no shortcomings or failure of management process had contributed to the incident; and, third, that the Board was confined in its recommendations to the particular area where the incident occurred and did not identify similar deficiencies at other locations. Specifically in relation to each of those concerns, his Honour made the following respective comments : · The train came around a curve, and, as I understand the driver's statement, it was doing at least 25 kph and was only 30 metres from Mr Franklin when the driver saw him. The statement of Mr Rasborsek, Signal Services Engineer Illawarra, is that: "The sighting of approaching trains is severely limited by the curvature of the track and bridge structure. A reasonable sighting of the down Illawarra relief is only possible after the bridge is passed." The evidence is that, before they walked under the bridge, Messrs Franklin and Graf ensured that the warning light was illuminated which indicated that no train was approaching, Mr Franklin said "lets go", they set off and the train arrived before Mr Graf had reached the end of the bridge, Mr Franklin being a short distance in front of him. It is not suggested that they were tardy. Bearing in mind the fact that "the sighting of approaching trains is severely limited" it is difficult to understand the criticism of the two employees. · Management had the clear responsibility to ensure that the warning system was adequate. It failed in that responsibility. I fail to see, on the material contained in the report, any basis upon which the Board could conclude that management was innocent whilst, at the same time, it expressed the view that the inadequacy of the warning system contributed to the accident. It seems to me that those in management responsible for not having detected and remedied this deficiency should be identified and made aware of their failings, as should their superior officers. If management is cocooned from its responsibility for accidents which arise from systems deficiencies it is less likely that safety standards will be met and maintained. · If the warning system at Erskineville was deficient the cause of that deficiency should be investigated. The fact of the deficiency was identified, the circumstances which created it were not. Identification of those circumstances might indicate the presence of such deficiencies at other locations. No attention appears to have been afforded by the Board to such a possibility. 12 His Honour noted that the inquiry by the Board resulted in "a longer warning time is now provided at the location, additional warning lights have been installed and signs warning of the restricted space under the bridge have been posted". 13 His Honour then succinctly stated the essential nature of what occurred in the incident on 1 June 1996 in the following way : The fact is that two employees were required to walk along a rail track, underneath a bridge with limited clearance between the wall and the rail, in circumstances in which the warning system as to oncoming trains was inadequate. As was submitted by Mr Tudehope , the job was inherently dangerous, that being so it seems to me that SRA should have been especially vigilant to ensure the existence of an adequate warning system.

As Mr Franklin did not give evidence I am prepared to accept the statement by the train driver that he saw what he understood to be an all clear hand signal being given by the first of the two employees he saw at the site of the accident. I also accept that that person must have been Mr Franklin. Whatever the position Mr Franklin was in it turned out that he was not in a safe situation and, as is seen from the photographs of the scene, there was little space between the track and a retaining wall. Piping and ducting make the space narrower and loose stones underfoot would not have made it any easier for him. He received serious injuries. Mr Graf was luckier as, although he had not reached the end of the bridge, he was able to flatten himself against the wall and was uninjured. 14 Features of the offence subjective to the appellant in mitigation of penalty were taken into account by his Honour who, after describing the offence as "serious", referred to the appellant's co-operation with the investigating authorities, the early plea of guilty and the fact that it carried out its own investigation of the accident. Specific reference was made by his Honour to the appellant's commitment in maintaining and improving workplace safety and to the large size and nature of the appellant's undertaking as then involving some 22,000 employees at more than 1,000 sites with a requirement to work in proximity to railway lines throughout the network as relevant in considering the appellant's industrial safety record. 15 In relation to a submission put for the appellant at first instance, to the effect that it was inappropriate to include deterrence from similar conduct as a component of any penalty imposed because it had been divested of many functions and was no longer responsible for the type of duties performed by Mr Franklin and Mr Graf, his Honour found that the appellant retained responsibility for the safety of any such employees of Rail Services Australia which now performed the painting functions as a consequence of ss 16 and 17 of the Occupational Health and Safety Act . The appellant put also to his Honour that any convictions recorded against it as from 1 July 1996, the date the appellant was restructured and various functions divested to other authorities, had no relevance against the appellant in its current form unless it related to an activity retained by the appellant in its restructured form. His Honour did not accept that proposition but rather, as he said, "the antecedents of SRA must be considered against the perspective of its then scale of operations". 16 In the result, his Honour imposed the penalty of $420,000 by concluding in all the circumstances : This serious offence arises from a failure to ensure the safety of employees who were known to be subjected to an obvious hazard. The deficiency in the warning system should never have existed and, once it did exist, it should have been identified and remedied. The remedial steps were simple and straightforward. 17 We have been much assisted in our consideration of this matter by the comprehensive written submissions provided by counsel for the parties as supplemented orally by them at the hearing. We have reviewed those submissions in light of the evidence in the proceedings and have concluded that although his Honour made no perceptible error in reasoning he nevertheless fixed a penalty which, in our independent opinion, was manifestly excessive having in mind the nature and quality of the present offence; we reach that view after making due allowance for the features subjective to the appellant, particularly its early plea of guilty and its co-operation with the investigation conducted by the WorkCover Authority. We have approached our task in that respect in a manner consistent with the general principles in sentencing referred to by Kirby P, as his Honour then was, in Camilleri's Stock Feeds v Environment Protection Authority (32 NSWLR at pp 698-699) as follows : 1. While it is the function of the Court itself to assess the seriousness of the offence in question, the maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence: R v H (1980) 3 A Crim R 53 at 65. Here, the maximum penalty is $125,000. Such a large penalty indicates the gravity of the offence as perceived by the community: see also the comments of the Hon T J Moore in New South Wales Parliamentary Debates (Legislative Assembly), 20 November 1990, 10037 at 10038. The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum.

2. A maximum penalty is to be imposed where the case falls within the worst category of cases for which the penalty is prescribed. This is to be determined on the facts of the case: Ibbs v The Queen (1987) 163 CLR 447 at 452. However, "that does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category": Veen v The Queen [No 2] (1988) 164 CLR 465 at 478.

3. The Court must keep in mind not only the facts which establish the seriousness of the offence but also those which tend to mitigate that seriousness or exculpate the offender. In this process, where a relevant fact is the subject of conflicting evidence, and where that evidence is of like probability, the Court should resolve the conflict of fact in favour of the offender: see R v O'Neill [1979] 2 NSWLR 582 at 588.

4. While the offender can only be sentenced for the offence for which it has been convicted, the court is "bound to take into consideration the circumstances surrounding the offence of which the prisoner has been convicted, so long as those circumstances are not inconsistent with the plea or verdict": R v De Simoni (1981) 147 CLR 383 at 396. Such an approach is consistent with the Court's proper evaluation of an offender's antecedent history where it does not lead to the imposition of a penalty disproportionate to the gravity of the particular offence(s) charged: see Veen v The Queen [No 2] (at 477). 18 In submitting that the penalty imposed by Maidment J was harsh and manifestly excessive, Mr Agius developed the grounds of appeal by focusing on three areas of alleged error by his Honour. The third of those areas concerned the s 51A point as to the level of the maximum penalty. We have dealt with that last-mentioned aspect already and confirm that the scale of penalty available in this case is from zero to $750,000 and within which range the relative seriousness of the subject offence is to be assessed. The first aspect referred to by Mr Agius concerned his Honour's approach to the report of the Board of Inquiry and his Honour's findings in relation thereto; and the second aspect was his Honour's finding that the appellant retained responsibility for employees of Rail Services Australia performing painting functions on the rail network after 1 July 1996. 19 The particular challenge to his Honour's approach to the Board of Inquiry's finding was contained within ground (4) of the notice of appeal and claimed his Honour "erred when he determined that [the Board] had concluded that management was not responsible for the deficiencies in the warning system that was in place". The written submission for the appellant put that : … his Honour was mistaken in his interpretation of the findings of the report. In the very next paragraph of the joint investigation report, there is a finding that, "the board finds that management is responsible to improve the warning system in this area". … Clearly management accepted responsibility for the accident. … there is a clear difference between a finding that there were no shortcomings in the management process and finding that management was responsible for the accident.

His Honour failed to recognise this difference and sought … to bring the matter to the attention of management by the imposition of a heavy penalty. In so doing, his Honour fell into appellable error.

In his oral submissions, Mr Agius said : … his Honour fell into error in interpreting what the Board said about management's responsibility and role in this matter and in particular there was no finding by the Board that management was innocent. Quite to the contrary, the Board found that management has responsibility and the Board drew attention to management processes which were distinguished entirely from responsibility from the incident itself which the Board squarely placed at the foot of management. The extent to which his Honour took that into account again we suggest his Honour fell into error. 20 We see no error in his Honour's reasoning. Indeed, we find the disquiet expressed by his Honour as to certain of the Board's conclusions understandable and we share it. A finding, as made by the Board, that "no shortcomings or failure of Management process that contributed to this incident" is difficult to reconcile with its finding "that the Management is responsible to improve the warning system in this area". And, as referred to by his Honour, those findings are to be seen in light of the other finding by the Board that the two employees concerned "were responsible for the incident along with the inadequacy of the warning light's positioning". If there be any error, then, in our view, it related to the somewhat equivocal findings of the Board in what were perhaps imprecisely drawn terms of reference which it endeavoured to address. In any event, howsoever one views those findings the conclusion by his Honour, earlier expressed, to the effect that the two employees were required to be in an area with limited clearance in circumstances where the warning system as to oncoming trains was inadequate, was demonstrably well established; in fact, it was admitted by the appellant. 21 Mr Agius' submission in drawing a distinction between "management process" in not contributing to this incident and "management responsibility to improve the warning system" led to senior counsel's eventual submission that "the cause of this accident was not the lack of sufficient warning by the warning light, the cause of this accident was Mr Franklin moving from the position of safety in which he was in to a position which was not safe" contrary to "the rail safety awareness rules" put in place by the appellant. In other words, as senior counsel put, "all I am addressing is the real cause of this accident" which does not support the findings made by Maidment J. As senior counsel added, "we are guilty, we are culpable, but to a degree less than that which has been found against us … in terms of penalty". Senior counsel went so far as to submit that "Mr Franklin was in a position of safety … he moved to a position which was not a position of safety; he should never have been permitted to do that; he should have been warned; something should have told him not to move there, but it didn't and that is our culpability, but it is a lot less than the culpability that his Honour found against us". 22 It is timely, in view of Mr Agius' submission in qualitatively attempting to assess the appellant's real culpability, to emphasise by repeating the offence charged - it was, in terms, that the appellant "failed to provide and maintain systems of access to railway areas to undertake painting maintenance work that was safe and without risk to health". Maidment J certainly found that it was "difficult to understand the criticism of the two employees", but, his Honour's essential finding was the seriousness of the offence arising from, as he concluded, "a failure to ensure the safety of employees who were known to be subjected to an obvious hazard. The deficiency in the warning system should never have existed and, once it did exist, it should have been identified and remedied". There is nothing in that finding, in our understanding of it, which conflicted with the disquiet expressed by his Honour in light of the seeming inconsistencies in the Board's findings. It is to be borne in mind also that the statement of agreed facts disclosed the appellant accepted that "the warning system was found to be inadequate", "poor positioning of the warning lights", "the variation of the time spans for the warning lights" and "the limited space between the wall of the bridge and the oncoming trains". It may well be that his Honour assessed the objective seriousness of the offence in an excessive amount, as claimed by ground (1) in the notice of appeal, but, in our view, it cannot be said his Honour mis-stated or misunderstood the essential nature of the offence itself. Ground (4) must fail. 23 It is apt while considering the nature of the obligation cast on an employer to maintain a safe workplace to repeat the words of Hill J, with which we agree, in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at p 85, that is : This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. 24 It has been said repeatedly in this Court that the general approach to sentencing under the Occupational Health and Safety Act is now settled in that the primary factor to look at is the objective seriousness of the offence: see Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at p 475; Fletcher Construction (91 IR at pp 77-78); and Warman International (80 IR at p 339). However, it seems to us, in order for the Court to perform that task the offence charged needs to be accurately identified. Here, it may well be, and as Mr Agius submitted, that the real or direct cause of the accident was Mr Franklin moving to an unsafe position underneath the overhead bridge as a result of which he sustained injury. That is to be seen, however, and as Maidment J found, where there was "limited clearance between the wall and the rail, in circumstances in which the warning system as to oncoming trains was inadequate". One is reminded in such a situation of the relevant distinction for sentencing purposes between the immediate cause and the prior steps being the detriment to safety enabling the cause to operate and to which the charge is essentially directed. In WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Pty Co Ltd (1999) 96 IR 32 at pp 43-44, Hungerford J commented on the distinction as follows : I accept [senior counsel's] submission that the causa causans of the accident was the use of the industrial hammer to strike the legs of the structure. However, that was only the immediate cause of the collapse and which cause could not have become operative without the defendant's failure to assess the stability of the structure on the day it was to be demolished and to provide adequate supervision to ensure the planned system was followed. Put another way, although the causa causans may seem innocuous enough, and as not involving very much culpability on the part of the defendant itself, the real failure here by the defendant to provide or maintain a safe system of work was the causa sine qua non being the preceding link in the chain of causation in failing to assess the structure's stability by adequate supervision at the time it was to be demolished; the failure to ensure work was not performed on the structure prior to the arrival of the mobile crane was contrary to the proposed method as originally planned. 25 It is relevant also in the present case to repeat the proposition that inattention or mere inadvertence of an employee serves to show only the need for an employer to be astute in ensuring safety and in meeting all reasonable contingencies: see WorkCover Authority of New South Wales (Inspector Chadwick) v BHP Steel (AIS) Pty Ltd (2000) 98 IR 122 at p 135 per Hungerford J. Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (unreported, CT94/1037, 13 April 1995) correctly and forcefully emphasised (at p 18) that "the Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry". 26 Ground (3) of the appeal alleged Maidment J erred in finding that the appellant retained responsibilities for employees of Rail Services Australia who now performed the painting functions following the restructure of the appellant as from 1 July 1996. This point, as the argument went, involved the appellant's submission that his Honour overly allowed for the deterrence component of penalty whereas because of the actual loss of such a responsibility the defendant should not have incurred a higher penalty for specific deterrence from similar conduct in the future. In finding difficulty with that proposition, his Honour observed the appellant retained responsibilities for employees of Rail Services Australia performing painting functions as a consequence of ss 16 and 17 of the Occupational Health and Safety Act . However, a consideration of this ground must proceed in the context of the whole of his Honour's reasoning and, in particular, the appellant's submission at first instance that convictions of the appellant prior to being divested of many of its functions and responsibilities as from 1 July 1996 had no relevance against the appellant in its current form unless they related to an activity retained by it in its restructured form. His Honour rejected that proposition but nevertheless accepted that the appellant's antecedents were to be seen against the perspective of its then scale of operations. Mr Agius conceded the evidence before his Honour did not make it absolutely plain whether the two employees were no longer employed by the appellant or that their functions had passed to Rail Services Australia or that the appellant no longer had control of the track, signals and warning systems; even so, senior counsel submitted that without evidence of a continuing control in the appellant no adverse finding on this point could be made against it. 27 The place of deterrence in fixing an appropriate penalty was considered extensively by the Full Bench in Capral Aluminium (99 IR at pp 59-62). Their Honours found a useful starting point to be what was said by Street CJ in R v Rushby [1977] 1 NSWLR 594 at p 597 in which the Chief Justice adopted the decision of the Court of Appeal in New Zealand in R v Radich [1954] NZLR 86 at p 87 for the proposition that "one of the main purposes of punishment … is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment". Although recognising that general deterrence and specific deterrence have differing purposes or aims, of relevance here where the painting operations on the rail network were the responsibility of either the appellant or Rail Services Australia is the express endorsement by their Honours in Capral Aluminium (99 IR at p 60) of the following extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at p 388 as accurately stating the approach to be adopted in relation to the issue of deterrence, both general and personal or specific, when sentencing an offender for a serious breach of the legislation : … the fundamental duty of the Court in this important area of public concern … [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. 28 After reviewing the authorities on deterrence, their Honours in Capral Aluminium (99 IR at p 61) referred to the need to encourage a sufficient level of diligence by the offender in the future, particularly where it conducts a large enterprise involving inherent risks to safety, and then observed : We would have considered that this approach was appropriate even before the significant increase in levels of penalty were legislatively imposed effective from 1996. However, that legislative step is itself relevant to this question. As Spigelman CJ held (with the concurrence of Wood CJ at CL and McInerney J) in R v Howland (1999) 104 A Crim R 273 at pars 41 and 43: "41 … the community has indicated that it wishes to denounce this conduct in the strongest terms. … By the increases in the maximum sentences, the community, acting through the Parliament, has indicated that this is a crime which it wishes to denounce and deter. It is the duty of the judges to reflect this community concern.

43 Sentencing has always been based on the acceptance of the proposition that condign punishment of offenders will have deterrent effect on others." We conclude, in the light of the extract from the judgment in R v Howland that the significant increases in penalty which occurred from 1996 are of considerable significance in emphasising the importance of both particular and general deterrence in the sentencing process for offences against the Act and that the approach exemplified by the judgment of Hungerford J in Fisher v Samaras Industries Pty Ltd is decisively confirmed by that legislative intervention. It follows that we do not accept the appellant's submissions in relation to the question of deterrence, although the precise weight to be given to that issue is inevitably within the sentencing judge's discretion: Director of Public Prosecutions v El Karhani (1990) 21 NSWLR 370 at 378. We conclude that in this case, although deterrence in both of its relevant respects is pertinent here, weight should also be given to the particular circumstances of the appellant. 29 In the present case, of course, the State's rail network requires maintenance in the future, whether by the appellant or Rail Services Australia, and it does not seem to us having in mind the above comments in R v Howland (1999) 104 A Crim R 273 that the circumstances here are sufficient to remove or even minimise the personal or specific deterrence of the appellant in a consideration of penalty for the subject offence. The approach in terms of principle stated by the Full Bench in Capral Aluminium is, in our view, consistent with the approach adopted by Maidment J in this case and all the more so where his Honour expressly took into account on this aspect the then size and scale of the appellant's operations. Ground (3), therefore, has not been established. 30 Grounds (5) and (6) of the appeal concerned errors allegedly made by Maidment J as to insufficient weight given by his Honour to the location of Mr Franklin under the bridge in terms of its degree of safety and whether he thereby himself contributed to the accident by moving from a safe to an unsafe position. We have dealt earlier with this aspect in considering ground (4) and content ourselves by saying that there was no or no sufficiently relevant connection with the detriment to safety the subject of the charge. We reject the appellant's submission on this ground which was that the only conclusion open to his Honour was consistent with the Board's report that Mr Franklin had some responsibility for his injuries. The admitted fact remains, as found by his Honour, that the two employees were under a bridge with limited clearance between the wall and the rail tracks in a situation where the warning system was inadequate; in that circumstance, any conduct by Mr Franklin, as we have said, was understandable and we find a submission that he contributed to what occurred as simply untenable. Grounds (5) and (6) have not been made out. 31 Before turning to grounds (1) and (2) in the notice of appeal, which dealt with the proper assessment of the objective seriousness of the offence as reduced by the subjective features in mitigation, we should advert to the submissions put by Ms McDonald for the respondent. It is unnecessary, in light of our conclusions otherwise on the appellant's submissions, to repeat in detail what counsel put. However, we should say that the substance of our earlier comments on Mr Agius' submissions was conditioned by what Ms McDonald said. 32 Although we have found no error by his Honour in the terms of grounds (3), (4), (5), (6) and (7) in the notice of appeal, the primary function remains on appeal to individually assess in objective terms the nature and quality of the offence charged. This requires attention to grounds (1) and (2) with which we now deal. 33 Ms McDonald in her written submissions outlined the circumstances of the incident and then identified the following objective factors which were said to support the imposition of a substantial penalty : (i) There were obvious risks involved in the type of work in that it involved employees being required to walk along operating train lines to complete painting of signs.

(ii) The risks involved were foreseeable. The risk of employees not being able to clear the bridge was foreseeable. The appellant's breach of its statutory duty would lead to serious consequences for its employees.

(iii) The warning system for approaching trains was clearly inadequate. The warning light was poorly positioned so that once an employee passed the light he/she had to continually look back to check the light. This took the employee's attention away from looking for incoming trains.

(iv) The positioning of the warning lights became more hazardous as the sighting of trains was blocked because of the curving of the train tracks and the bridge structure.

(v) The warning time given to employees was dependent upon the speed of the approaching train. The speed of the trains varied. If a train exceeded the line speeds then the warning time was greatly reduced.

(vi) The warning time activated by the approaching trains was inadequate and varied according to the speed of train. It takes about 30 seconds to walk from the end of the platform no 4 at Erskineville to clear the bridge. However Mr Rasborsek Signal Services Engineer found that the length of the warning time for when a train approached the bridge was well over 30 seconds. Based on his observations on 15 June 1996 the fastest train measured on that day would have resulted in a warning time of 23.2 seconds.

(vii) The average warning time of 30 seconds was described as "only adequate" to pass under the bridge.

(viii) There was a lack of safe refuge under the bridge.

(ix) The appellant was able to implement after the accident simple and straight forward steps to remedy the defects in the system. These steps included the positioning of additional warning lights; an increase in the warning time for trains on the Down Illawarra relief line to ensure that employees can safely clear the bridge; warning signs were erected indicating the limited clearance in the tunnel. 34 We agree from our review of the agreed facts and the other evidence that all of those factors existed in this case. However, and even though we agree with Maidment J that this offence was serious and in which the deficiency of the warning system never should have occurred and was easily remedied, we do not accept Ms McDonald's consequent submission that the size of the penalty imposed by his Honour reflected those findings. 35 The key to the assessment by Maidment J in qualitative terms of the degree of seriousness of this offence emerges from the acceptance by his Honour that "the job was inherently dangerous" and the fact as found "that two employees were required to walk along a rail track, underneath a bridge with limited clearance between the wall and the rail, in circumstances in which the warning system as to oncoming trains was inadequate". His Honour then described the risk to safety as "a serious offence" and proceeded to quantify an appropriate penalty. In that respect, his Honour made direct reference to the decision of Kavanagh J in WorkCover Authority of New South Wales (Inspector Milligan) v State Rail Authority of New South Wales (unreported, IRC97/7032 to 7036, 13 October 1999) in which her Honour imposed a total penalty of $200,000 for five breaches of the Occupational Health and Safety Act by the appellant on 17 December 1995; at the time, the maximum penalty for each breach was $250,000. His Honour here remarked as to that decision - "The penalties amounting to $200,000 there imposed by her Honour, in which the principle of totality was applied, is indicative of the seriousness considered to have been disclosed by the circumstances, the maximum penalty as to an offence under s 15(1) having been $250,000 at the time at which those offences were committed". His Honour then fixed the penalty in the instant case at $420,000, and where the maximum was $750,000. Clearly, it seems to us, his Honour in attending to the objective seriousness of the offence placed considerable weight on the penalty imposed by Kavanagh J. In our view, that approach by his Honour in quantifying an appropriate penalty for this case was erroneous in that his Honour misunderstood the circumstances faced by Kavanagh J in that earlier case and so imposed an inflated penalty in this case. 36 Maidment J, from the approach disclosed in the decision, clearly seemed to have considered the penalty of $200,000 fixed by Kavanagh J by reference to the then maximum of $250,000. However, what in fact her Honour did in relation to the five offences was to fix a penalty for each offence ranging from $20,000 to $110,000 (a total or cumulative penalty of $200,000) where the cumulative maximum penalty for the five offences was $1.25 million. It follows, in our view, that the reliance by his Honour on the decision of Kavanagh J as being "indicative of the seriousness considered to have been disclosed by the circumstances" resulted in the present case in a penalty which was manifestly excessive. 37 Whilst we have no doubt the offence here was indeed of a most serious nature, we are unable in our own separate assessment to place it at the level fixed by his Honour. 38 We conclude that, in objective terms and in all the circumstances, the nature and quality of the subject offence should properly be placed at around the mid-point of the available range in relation to what could be expected in a worst case. That is, an amount to the order of $375,000. 39 In mitigation of what the penalty might otherwise be, Mr Agius identified five factors subjective to the appellant, namely, co-operation with the WorkCover Authority in investigating the accident, an early plea of guilty, the appellant's own investigation of the incident, its commitment to maintaining and improving workplace safety and the nature and size of the appellant's undertaking. Senior counsel submitted, however, "that although his Honour said that he had taken these matters into account, he either had not done so or, more likely, did not give them the weight which was due". Further, senior counsel put that "the fact of the plea alone, on principles ordinarily applicable in circumstances involving the infliction of a penalty, required a significant discount … where the plea both recognised contrition and avoided what would have been a long and protracted hearing". 40 Ms McDonald emphasised that Maidment J took these subjective factors into account when determining penalty to an appropriate degree and, so, his Honour's assessment should be affirmed. 41 Mr Agius summarised the appellant's position in this way : When one takes all of that into account and one takes account of the early plea of guilty, all of the matters which are set out in the additional agreed statement of facts, the real time that was saved by a plea of guilty in this case given the very complicated facts, the huge commitment to occupational health and safety which is demonstrated on the evidence by the SRA, the fact that there were two safety systems in operation on this day at this time - admittedly neither of them, as it turned out, proved to be adequate - but this is not a case where the problem has never been the case, when one takes into account all of those subjective features and puts them together with the submissions which we put, a penalty of $420,000 was manifestly excessive … 42 As to the role in the sentencing process of subjective factors, the Full Bench in Lawrenson Diecasting (90 IR at p 474) said that "it has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence". After citing with approval various authorities for that proposition, their Honours observed (90 IR at p 475) that "the presence of the subjective factors referred to should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence". We too are of the same view. 43 The submission of Mr Agius in seeking a significant discount solely for the early plea of guilty is to be approached in the context of other circumstances. For instance, in Winchester (1992) 58 A Crim R 345 at p 350 Hunt CJ at CL, with whom Smart J and Grove J agreed, said : A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will depend upon many different factors. The plea may in some cases be an indication of contrition, or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable: Shannon (1979) 21 SASR 442 at 452; Ellis (1986) 6 NSWLR 603 at 604. The plea of guilty may also be taken into account as a factor in its own right independently of such contrition, as mitigation for the co-operation in saving the time and cost involved in a trial.

This passage from Winchester was referred to with approval by the Full Bench in Alcatel Australia Ltd v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 at pp 102-103 as to prosecutions under the Occupational Health and Safety Act . 44 Having in mind the elements of the charge in this case, the report of the Board of Inquiry and the admitted facts, it is our opinion that Mr Agius overstated the degree of leniency which should be afforded to the subjective factors here, including the early plea of guilty. Much of the appellant's argument on appeal by reference to various pieces of evidence centered upon the assertion that the accident was caused by Mr Franklin and, subject to the appellant modifying its warning systems, management had no real responsibility for what occurred. Our earlier analysis on this aspect will make it clear we reject that approach. 45 In R v Thomson; R v Houlton [2000] NSWCCA 309, the Court of Criminal Appeal promulgated a guideline judgment with respect to the discount for a plea of guilty in relation to offences and referred to other matters of a subjective nature in mitigation of penalty. That guideline judgment has been applied since by this Court in prosecutions under the Occupational Health and Safety Act and the appellant submitted it should apply in this case. We agree and propose to do so. For completeness, the guideline adopted is as follows: (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.

(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate.

(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.

(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.

In the reasons in Thomson , Spigelman CJ (with whom Wood CJ at CL, Foster AJA, Grove and James JJ agreed) added (at para 162) : The discount range propounded for a guilty plea based on utilitarian considerations is not intended to result in any change in the level of sentences generally. Nothing in these reasons should be construed as indicating an opinion that trial judges have not in fact been giving appropriate consideration and weight to pleas in such a way as to distort the general level of sentences. The purpose of identifying a discount range is to improve the transparency of the process and to alter the widespread perception that there is no benefit from an early plea. Insofar as existing sentencing practice has been to allow discounts for pleas up to 35 percent, encompassing all relevant matters, such a practice remains appropriate. 46 Mr Agius submitted by applying the guideline judgment "that the Appellant is entitled to have the utilitarian value of its early plea assessed at the very highest end of the discount range proposed by the Court of Criminal Appeal and should receive the benefit of a further significant discount when the other factors noted by his Honour and recorded in our earlier submissions are taken into account". In support of that submission, senior counsel added that the appellant "had an arguable defence" and that "the early plea of guilty avoided the preparation and running of what would have been a long and complex prosecution … a high utilitarian value to be placed upon the early plea … at the highest level … [the appellant] is entitled to the benefit that flows from the contrition which the early plea indicated". As indicated above, we consider senior counsel placed the position far too highly in the circumstances. We expressly take into account the early plea of guilty, together with the other subjective features referred to. 47 We propose to allow, consistent with the guideline judgment, a discount of 20 per cent encompassing all relevant matters subjective to the appellant. In the result, we consider an appropriate penalty in this case to be $300,000 in lieu of $420,000 as imposed by Maidment J. As to costs, we propose to allow the appellant an appropriate amount relative to our consideration of the degree of success it had in relation to its grounds of appeal and with regard to the reduction in penalty found to be appropriate. 48 We make the following orders - 1. The appeal is allowed. 2. The penalty of $420,000 imposed by Maidment J is vacated and a penalty of $300,000 is substituted, with a moiety thereof to the respondent. 3. The stay order made on 30 November 1999 is lifted. 4. One-half of the appellant's costs of the appeal to be paid by the respondent in an amount as agreed or assessed. ________________

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