Workcover Authority of New South Wales (Inspector Farrell) v David Carl Schrader

WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (unreported, CT94/1037, 13 April 1995) WorkCover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No.2) (2001) 99 IR 163 WorkCover Authority of NSW (Inspector Ankucic) v. Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison (No. 2) [2002] NSWIRComm 27 HEARING DATES: 07/09/2001; 07/10/2001; 07/11/2001; 02/05/2002 DATE OF JUDGMENT: 03/22/2002

PROSECUTOR: Mr P Skinner of counsel SOLICITOR: Mr N A Correy LEGAL REPRESENTATIVES: Moray & Agnew Solicitors

DEFENDANT: Mr David Carl Schrader (Self-represented)

JUDGMENT: - 43 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WALTON J, Vice-President 22 March 2002

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR FARRELL) v DAVID CARL SCHRADER. PROSECUTION UNDER SECTION 16(2) OF THE OCCUPATIONAL HEALTH AND SAFETY ACT 1983. Judgment [2002] NSWIRComm 25 Introduction 1 This matter concerns a prosecution by Inspector Anthony Farrell of the WorkCover Authority of New South Wales ("the prosecutor") of Mr David Carl Schrader ("the defendant") alleging a breach of s16(2) of the Occupational Health and Safety Act 1983 ("the Act"). Section 16(2) of the Act imposes the obligation on a self-employed person to "ensure that persons not in the person's employment are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work."

2 At the relevant time, the defendant carried on a business as a licensed building contractor. The prosecution arose out of the tragic death of a three year old boy who drowned in a partially completed swimming pool at a site in Port Macquarie on which the defendant was constructing a dwelling house. 3 The charge, contained in the summons for prosecution, was in the following terms: On 23 May 1998 at a construction site at 62-64 Commodore Crescent, Port Macquarie in the State of New South Wales the defendant, being a self-employed person, did fail to ensure that persons not in his employment, more particularly Jack Liam Gaul, were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking while those persons not in his employment were at the defendant's aforesaid place of work contrary to section 16(2) of the Occupational Health and Safety Act 1983.

1. The defendant was at all material times a self-employed person being the proprietor of a business known as David Schrader Homes ("the building contractor").

2. On or about 23 May 1998 the building contractor was engaged in the construction of a dwelling house at 62-64 Commodore Crescent, Port Macquarie in the State of New South Wales ("the site") pursuant to a contract with Mr and Mrs J.E. Hollingworth ("the owners") dated 15 May 1997.

3. At all material times the Hastings Council ("the Council") was the local council responsible for the authorising of all building works being conducted in the area of Port Macquarie. 4. The Council on 22 September 1997 approved an application for the construction of a swimming pool at the site. 5. On 24 October 1997 the Council approved an application from the owners to construct a new dwelling at the site. 6. The Council granted approval in respect of the swimming pool construction at the site subject to a number of conditions including the following: (i) The pool is to be separately enclosed in accordance with the requirements of the Swimming Pools Act, 1992 with a safety fence of a design approved by council in accordance with AS 1926-1986. (ii) The pool is not to be filled with water until such time as the fence is erected or other measures taken to prevent entry.

7. On 2 November 1997 the owners contracted with Ross Colin Morrison of Jamaryl Pty Limited ("the pool contractor") to construct a swimming pool on the site. 8. Between 8 December 1997 and 20 December 1997 the pool contractor completed construction of the pool on the site to the extent that it could be practically completed at that time given the state of other building works on the site but did not complete installation and connection of any filtration system at that time. 9. Following partial completion of the pool contract work on or around 20 December 1997 the pool contractor filled the pool with water to a level of 1.2 metres in the deep end and to approximately 600 millimetres in the shallow end. 10. The pool contractor left the site for an extended period from about 20 December 1997 pending other works being carried out at the site by the building contractor. 11. Prior to leaving the site the pool contractor covered the swimming pool with F62 reinforcing steel mesh which was tied together to form one complete square and also supported by several lengths of timber to prevent it falling into the pool. 12. On 22 February 1998 the pool contractor observed the mesh covering the pool to be still in place. 13. On a date unknown between 22 February 1998 and 20 April 1998 the mesh covering the pool was removed by the building contractor in order to enable completion of concreting around the pool area prior to tiling work. 14. On or about 20 April 1998 Sean O'Brien, the building inspector employed by the Council attended the site to make a wet area inspection and advised Bruce Myers, the carpenter engaged by the building contractor to have the building contractor cover the pool or contact him. 15. On 22 April 1998 the pool contractor went to the site and observed the pool to be uncovered and saw the mesh had been removed and left lying next to the boatshed. 16. On or about 22 April 1998 the pool contractor removed the mesh from the site. 17. In or about the middle of May 1998 the pool contractor returned to the site and carried out the installation of the pool filtration system and observed that the pool remained uncovered at this time. 18. On dates unknown between 22 April 1998 and 25 May 1998 one of the owners, Jack Hollingsworth, visited the site and observed that the pool was uncovered. 19. On 4 May 1998 the council building officer, Sean O'Brien, visited the site again and observed that the pool was uncovered. 20. In or about early May 1998 Raymond John Gaul and Barry Pharo ("the tilers") were engaged by the building contractor to carry out tiling work at the site. 21. The tilers commenced work at the site on 23 May 1998 at about 7.30am. 22. At about 8.45am the wife of one of the tilers, Wendy, dropped off their three year old son, Jack Liam Gaul ("the deceased"), at the site into the care of Raymond John Gaul. 23. Between 9am and 9.20am the tilers, along with the deceased, went for morning tea at a McDonalds Restaurant returning to the site around 9.20am. 24. Shortly after returning to the site Raymond Gaul had a conversation with the owners out at the front of the site in relation to the layout of the front patio at which time the deceased was present and playing around the yard in view of the owners and Raymond Gaul. 25. After the owners left the site and Raymond Gaul resumed grouting in the front foyer. He shortly afterwards realised he could not hear the deceased playing and making noises. He then walked into the lounge room and could see the deceased floating face-down in the swimming pool. 26. Raymond jumped into the swimming pool and lifted the deceased out the water and called for help. 27. Barry Pharo, the other tiler, assisted and an ambulance was called. 28. An attempt at resuscitation of the deceased was made by neighbours and shortly afterwards by ambulance officers. 29. The deceased was taken to hospital by ambulance but was not able to be resuscitated and pronounced dead shortly after 11am on 23 May 1998. 30. At all material times the site constituted a place of work. 31. The building contractor's undertaking at the site encompassed the whole site area including that part in which the swimming pool was situated. 32. The defendant failed to ensure that persons not in his employment, more particularly the deceased, were not exposed to risks to their health and safety arising out of the conduct of his undertaking whilst they were at his place of work in that:

a) The swimming pool, while substantially filled with water, was not covered or fenced in any way. b) At all material times the site was not properly fenced. c) At all material times the subcontractors of the building contractor did not adhere to prudent site safety practices d) At all material times the defendant failed to comply with the Council directive to cover the swimming pool. e) The defendant failed to comply with Australian Standard 1926-1986 in relation to the safety of swimming pools.

5 Summonses were initially entered against the defendant alleging breaches under both s16(2) and s17(1)(a) of the Act (Matter Nos. IRC1659 and 1660 of 2000 respectively). These proceedings were heard together with proceedings relating to summonses issued against Mr Ross Colin Morrison, the pool contractor, charging offences under s16(2). A plea of not guilty was entered on behalf of both defendants at the outset of the hearing. However, at the commencement of the third day of hearing, Mr A Quinlivan of counsel, who appeared for the defendant, entered a plea of guilty in relation to the offence charged under s16(2) of the Act (Matter No. IRC1659 of 2000). By consent, the prosecutor discontinued the prosecution under s17(1)(a) of the Act (Matter No. IRC1660 of 2000) on condition that no further proceedings be brought in relation to the matter. The remaining proceedings against the defendant were stood over to a date to be fixed for hearing regarding sentence.

6 The proceedings then continued to judgment on culpability only in relation to the charge brought against Mr Morrison. Judgment was delivered in that matter on 19 December 2001: WorkCover Authority of New South Wales (Inspector Farrell) v Ross Colin Morrison (No.1) [2001] NSWIRComm 325. Mr Morrison was found guilty of an offence under s16(2) of the Act. That matter was then stood over to a date to be fixed for the purpose of hearing the parties in relation to penalty.

7 Both matters, that is these proceedings against the defendant (Matter No. IRC1659 of 2000) and the prosecution against Mr Morrison (Matter No. IRC1666 of 2000) were listed for a hearing regarding sentence on 5 February 2002. The sentencing hearings proceeded separately. Both the defendant and Mr Morrison were self-represented. Upon the hearing of the matters on that day judgment on penalty was reserved.

8 The parties proceeded on the basis that the facts, as found in the related judgment on culpability against Mr Morrison, were not contested and that it was appropriate to approach the determination of an appropriate sentence in the light of the facts as found in that judgment. The defendant also tendered, upon the hearing of penalty, a small folder containing a statement to the Court comprising both matters of evidence and submission. This material will be addressed later in this judgment. Findings of facts in morrison (no. 1) and findings otherwise arising from evidence for sentence

9 The prosecution arose out of a project undertaken by the defendant to construct a dwelling house, assisted by a number of sub-contractors, in Port Macquarie. In conjunction with the construction of the house, a pool was being constructed at the property.

10 The defendant signed a contract with the owners of the property (Mr and Mrs Hollingworth) to construct the house in May of 1997. Construction of the pool commenced on 8 December 1997 and was substantially completed on or around 19 December 1997. Upon completion, the pool was partly filled with water. This was necessary as a result of the type of pool which had been installed. The pool contractor gave evidence that it was not possible to complete all work on the pool, particularly the installation of the filter system, as considerable work was still to be completed on the house. He also conceded that the contract required him to complete certain cleaning and service work once the pool was ready for use.

11 When the construction of the pool was substantially complete, the pool contractor partly filled the pool with water and placed and tied reinforcing mesh over the top of the pool supported by timber beams taken from elsewhere on the site whilst the work continued on the house. All witnesses who had worked at the site during this period agreed that the pool had been covered until some time in early April 1998. Some time before the date of the accident, the mesh was removed by the defendant and Mr Bruce Myers (a sub-contracted carpenter) in order to complete some concreting work around the pool. The mesh was not subsequently replaced.

12 On Saturday, 23 May 1998, two sub-contracted tilers were working at the site, namely, Mr Barry Pharo and Mr Raymond Gaul. The two sub-contractors commenced work early in the day tiling sections of the interior of the house. At approximately 9am, Mr Gaul's wife brought their three year old son, Jack, to the site to be cared for by Mr Gaul whilst he continued working. Mr Gaul and Mr Pharo subsequently left the site, together with the child, to obtain food from a nearby McDonald's restaurant. Upon returning, they consumed the food and Mr Gaul and Mr Pharo recommenced work whilst the child played around the house.

13 At approximately 10.30am, Mr Gaul noticed that he could no longer hear the child playing. He went to the rear of the house where the pool was situated and found the child floating face down in the pool. Mr Gaul jumped in the pool and removed the child from it. He called for help and Mr Pharo ran out onto the street to obtain assistance. The site was attended by neighbours who attempted to resuscitate the child. An ambulance later arrived and further attempts were made to resuscitate the child. Tragically, the child did not regain consciousness and was pronounced dead at hospital shortly afterwards.

14 In Morrison (No.1), the Court, although not strictly necessary for the purposes of establishing culpability in that decision, found that the child had obtained access to the pool area through the inside of the house via sliding doors at the rear of the premises.

15 The main factual controversies that were determined in Morrison (No.1) related to the uncovering of the pool and what arrangements, if any, were made to ensure that the pool was re-covered after the requisite work in the immediate vicinity was complete.

16 Both Mr Myers and the defendant conceded that the mesh was removed without consulting the pool contractor. Nor had they notified him at the time that the mesh covering had been removed from the pool (although the defendant gave evidence that he subsequently advised Mr Morrison of a communication from a council inspector regarding the covering of the pool). Both men gave evidence of it always having been their intention to replace the covering over the pool, but that the pool contractor had removed the steel mesh from the site before they could do so.

17 The pool contractor did become aware that the mesh had been removed from the pool when he visited the site on 22 April 1998. The pool contractor's evidence was that he was contacted by the defendant, at or about 19 February, in relation to some piping which needed to be moved to allow the concreting to be completed.

18 In his evidence in chief, the pool contractor stated: On Sunday 22 February 1998, I moved the pipes and I was there from 7.30 to 9am. Jack Hollingworth was in attendance while I was there. I at no time went back to the site or indeed was called to the site by any person until Wednesday 22 April and the reason for going there at that time was I had concluded a service call at a property a number of doors up at number 88 Commodore Crescent and as I had not heard from anybody in regards to the completion of the house and indeed the cleaning up of the pool, I just called in to see where things were up to. At that time I noticed the mesh covering on the pool had been removed. It was down on the public thoroughfare next to the canal, waters edge.

I inquired with Mr Bruce Myers, who seemed to be the only person on site at that time, however, there may have been people inside which I didn't see at the time. Mr Myers said to me - so I inquired of Mr Myers what he was doing in relation to having the mesh down on the canal. In other words, to my consideration it had been discarded, the mesh was off the pool at that stage. He said they had matters in hand in regards to the covering of the pool or making the pool safe. I said to him "Do you need this mesh at all?" He replied, no.

I considered where it was at that stage dangerous in relation to where it was positioned so I removed it from the site upon the knowledge that they had - Mr Myers had taken other steps to provide some sort of covering for the pool or indeed fencing. However, at that time the house was at a situation where it was at lock-up stage. It had the roof on it, all the doors and windows were in place. I noticed that the doors had sliding screen doors like amplimesh type thing safety screens on them at that stage and my knowledge of the code as regards to swimming pool fencing on the canal and having been involved in the swimming pool industry for over 18 years, I considered that the pool was in compliance at that stage with the Swimming Pools Act and indeed Hastings Council's regulations.

19 The pool contractor indicated under cross-examination that he considered at this time that the builders had assumed responsibility for the safety of the pool. Under cross-examination, the pool contractor stated: Q. … what I am suggesting to you is whatever conversation did or did not take place with Mr Myers you are saying to this court, are you not, that the topic of recovering the pool arose with Mr Myers, you are saying that, aren't you. A. Yes.

Q. And therefore it clearly was something that you considered at the time that you visited the site, 22 April 1998, that is the necessity to recover the pool? A. That is correct.

... Q. And indeed really that is how you see your defence, is it not, that it was not your responsibility, it was the builder's in relation to that site and that pool being uncovered? A. At that particular time I did. When I originally installed the pool I took those steps and those steps were sufficient to prevent entry, which is stated in number 2 of the application.

20 Mr Myers' recollection of the conversation with the pool contractor concerning the removal of the mesh from the pool differed considerably. He also stated that it was his intention to replace the mesh, but that the mesh had been removed from the site by the pool contractor. He stated that the pool contractor had offered that Mr Myers could use the mesh in the concreting, but that he had refused. He denied indicating to the pool contractor that he would cover the pool. When cross-examined by the pool contractor, Mr Myers stated: Q. When I came that day to remove the mesh down by the boat shed where I saw it, there were two pieces down there and one piece possibly somewhere else because there were three pieces there altogether. I spoke to you, not at length, but I spoke to you in regards to what was the reason for the mesh being down there. Do you recall that? A. I don't recall you mentioning the reason for the mesh being down at the bottom. The only area I remember the mesh being is between the pool and the boat shed on that same level.

Q. So you do not recall the content of the conversation being in regards to the covering of the pool? A. No, sorry.

Q. So you do not believe that I would have said something in relation to the mesh if I didn't want the pool re-covered? A. I don't recall anything like that. I mean the only thing I can recall was that you asked if we wanted to use the mesh on the concrete. That was my understanding of the conversation and obviously, no, we didn't want to use the mesh.

Q. You do not recall me saying that you could have the mesh to re-cover the pool or to take other steps to cover the pool if you didn't need the mesh? A. No, I can't remember that.

21 In Morrison (No.1) the Court made a finding that a conversation had taken place between the pool contractor and Mr Myers concerning the mesh. Further, the Court accepted the evidence of the pool contractor as to him having had the impression from that conversation that the builders had given consideration to the need to re-cover the pool.

22 However, the Court considered that "the most important aspect of this evidence" was that it established that the pool contractor was aware, on 22 April 1998, that the mesh had been removed from the pool. The pool contractor neither sought nor obtained any specific undertaking from Mr Myers as to the manner or timing of the covering of the pool or the taking of other steps so as to avoid access to the pool (which was at the time partially filled with water) at any time from 22 April 1998 to the date of the accident. The pool contractor could not suggest that he was given any undertaking that the mesh would be replaced on the pool because, by his own admission, he removed the mesh from the site on that day. It was also evident that the pool contractor took no further steps to ensure that the pool was re-covered or that any other suitable material was available for that purpose.

23 The Court found that the pool site continued to be a 'place of work' for the pool contractor, as required by the Act, in that he had not completed his contract with the owners - there remained work to be done by him prior to the 'handing over' of the completed pool. Further, the pool contractor was not able to make out a defence under s53 of the Act. The consideration of the s53 defence mounted in Morrison (No.1) appeared in the judgment in the following terms (at [64] - [67]): As has been discussed, a significant submission advanced by the defendant was that the builders, Mr Schrader and Mr Myers, had assumed responsibility for the safety of the pool. That submission was advanced on two bases. Firstly, that the builders had assumed responsibility for the pool because they had removed the mesh in the first place. Secondly, that following the discussion with Mr Myers on 22 April 1998, the defendant was given at least an implicit assurance that the builders would take steps to ensure that the pool was safe. The defendant submitted that he was entitled to rely upon the builders. Further, the defendant submitted that it was not practicable for the defendant to make provision against the removal of the mesh. The defendant, it was contended, did not have control of the site or control of persons working at the site. It was also contended by the defendant that, given the nature of the site, it would not have been practical for him to have "policed" the site to ensure that the mesh was not removed.

Even accepting the defendant's version of events, which I have substantially done earlier in this judgment, I do not consider that this submission established that it was not reasonably practicable for the defendant to comply with the Act or that the risk was due to causes over which the defendant had no control and against the happening of which it was impracticable for the defendant to make provision. In the defendant's account of events, his conversation with Mr Myers was only brief and the defendant accepted that the effect of the conversation might not have been clear between himself and Mr Myers. The conversation was not such as to constitute an express undertaking to ensure that the pool would be covered and certainly did not involve any undertaking being sought or given as to the manner in which any replacement covering would be installed or the timing of such installation. Neither can the defendant suggest that he was given any undertaking that the mesh would be replaced because, on his own account, he removed the mesh from the site on the day. In my view, this conversation was not sufficient to discharge the reasonable obligations of the defendant to ensure that the construction of the pool did not create risks.

It was not reasonable for the defendant to take no further steps after 22 April 1998 to ensure that the mesh was replaced or some other cover or fencing installed on the pool. There were a number of measures available which were not only reasonably practicable, but which, in my view, constituted the minimum steps that should have been taken once the defendant became aware that the mesh had been removed. The defendant could have approached Mr Schrader, who was in control of the site, to clarify what steps were to be taken and to seek some kind of undertaking that the pool would be covered where possible. The defendant could have returned to the site soon afterwards to check that the builders had taken appropriate measures to cover or fence the pool. Furthermore, the defendant could have (whether in liaison with Mr Schrader or otherwise) himself replaced the mesh at the earliest possible time.

The defendant correctly pointed out that he had limited control over the site and persons working on the site. There were certainly limits to the measures that it would have been reasonable for the defendant to adopt so as to ensure that the pool remained covered and otherwise did not present risks to the health and safety of persons at the site. The defendant had completed the majority of his work at the site and could not reasonably be expected to be constantly present at the site to ensure that risks did not arise. However, this does not remove or diminish the fact that the defendant failed to take any steps to ensure that the pool remained covered, even after he became aware that the mesh had been removed. As has been discussed, there were a number of steps which were reasonably open to the defendant to take. The fact that the defendant could not remove all risks associated with the pool does not obviate his failure to take steps which were reasonably available.

24 Another question arose from the evidence concerning the inspection of the site by Inspector O'Brien of Hastings Council. However, the Court accepted that an inspection had taken place and that a conversation had taken place between Mr Myers and Inspector O'Brien to the effect that the pool covering needed to be replaced and that this message had been passed to the defendant by Mr Myers.

25 As earlier mentioned, a further dispute arose in the evidence as to whether the defendant had conveyed the Inspector's request to the pool contractor. The defendant gave evidence that he 'ran into' the pool contractor on the streets of Port Macquarie a couple of days after his conversation with Mr Myers and conveyed the message from Inspector O'Brien that the pool should be re-covered. In evidence in chief, the defendant stated: Q. Now did you have a conversation with Ross Morrison after that conversation with Mr Bruce Myers where you mentioned that Mr Bruce Myers had said to you in that regard? A. Yes.

Q. What did you say to Mr Morrison, as best you can recall? A. "Sean O'Brien has been on the site and he has required the mesh to be returned and put on to the pool."

Q. And is it your recollection that the time frame as to this which came from Mr Myers, in essentially around about mid April, is correct? A. Yes, approximately.

Q. I mean I have wrapped a few things up there but was it about mid-April that Myers spoke to you? A. Yes, it would have been.

Q. About how long after that did you have a conversation with Mr Morrison that you have just related? A. It would have been between one and three days.

26 Mr Myers gave evidence that the defendant had informed him of the conversation with the pool contractor. The pool contractor denied that this conversation took place. The Court did not find it necessary, for the purposes of finding culpability on behalf of the pool contractor, to make any finding as to whether this conversation occurred. Due to the circumstances of the case otherwise, and the fact the defendant has pleaded guilty, I do not consider that it is necessary to make a finding as to the occurrence and content of this conversation for the purposes of determining penalty in this matter. It appears to the Court that the critical facts in this matter going to the nature and quality of the offence lay apart from the alleged conversation. It is clear that the mesh was initially placed over the pool by the pool contractor and that it was subsequently removed by the defendant and Mr Myers. I accept that the defendant had an intention of replacing the mesh covering the pool but that he did not meet that objective.

27 One of the matters which loomed large in the defence brought by the pool contractor in Morrison (No.1) was his reliance upon the defendant to ensure the pool was covered as he had 'control' of the site on an ongoing basis.

28 As to the question of who controlled the site, the defendant gave evidence essentially demonstrating that, in his view, he was the building contractor and as such was not responsible for the pool in any way whatsoever. He described the alleged passing on of the message from Mr O'Brien to the pool contractor as 'doing a favour' for the inspector. Even if I accepted that the alleged meeting between the defendant and the pool contractor on the street in Port Macquarie occurred, and that the defendant did indeed pass on the message from Inspector O'Brien as to the requirement for the pool to be re-covered, the defendant conceded that he took no further step to ensure that this was done by way of following up the matter with the pool contractor or covering the pool himself. Nor did the defendant taken any such steps prior to that time. The defendant gave the following evidence when cross-examined by the pool contractor: Q. Why then do we have this hypothetical meeting on the corner of William and Horton Streets that I have no record of, you have no record of and nothing came of this meeting? The actions you put to me at that meeting were not put into place were they? A. No. Q. So you had no compunction to follow that up at all? A. I didn't believe it was my responsibility to follow that up. You took the mesh away. Q. Who did you believe to be in control of the site? A. The building site or the pool?

Q. The building site? A. I had control of the building of the home.

Q. By having control of the building of the home you were there for most of the time, is that right? A. A large degree of the time, that's right.

Q. So you would have been aware of most of the other areas of building that was going on at that period of time? A. In one way or another yes.

Q. The fact that you had control over the site, you control over this building area, you still did not believe you had control over the swimming pool? A. I had never received any council conditions of approval, any directions concerning the swimming pool. I didn't have any contractual agreements or any paperwork whatsoever with anyone concerning the swimming pool.

29 As to the re-covering of the pool and the removal from the site of the mesh by the pool contractor, the defendant gave the following evidence: Q. You had no concerns about the fact, you being in control of the site, that you may have been responsible for that? A. I believed that you, being the principal contractor for the swimming pool, you would have much more authority than I would, knowing I had no authority or responsibility in regards to the construction of the swimming pool. I felt that it wasn't my place to challenge anybody. Q. You just felt it was not your responsibility and that was the end of that, anything could have happened? A. Well, in light of the fact that I believed you would not have thought what I was doing on the house was [any] of your business, I saw it in the reverse.

30 A final issue arose concerning the absence of any barriers that would have prevented access to the pool area down the side of the house. Although there was no evidence before the Court as to exactly when and how the mesh was installed at the side of the house, the Court accepted the evidence that there were no barriers in place at the time of the accident to prevent access to the pool area at the rear of the house.

31 As indicated above, I do not consider it necessary to make a finding as to the occurrence or otherwise of the meeting on the street in Port Macquarie between the defendant and the pool contractor. Accepting for one moment that this meeting occurred, the following facts remain: the mesh was removed from the pool sometime prior to 22 April 1998; it was removed by the defendant and Mr Myers; the defendant was aware that the local council inspector had required the meshing to be replaced in accordance with the conditions of the building approval in relation to the pool (although noting that this was a separate approval to the house); the defendant had a continuing contractual obligation in relation to the development of the house at the time of he accident; the defendant was aware the pool was uncovered, at the very least, for several weeks prior to the tragic drowning of the child on 23 May 1998; and the defendant took no steps personally to re-cover the pool and did nothing directly to ensure that the pool was re-covered in some other way - at the time the defendant simply did not consider that it was his responsibility to do so.

32 As noted above, the defendant tendered to the Court an unsworn statement dated 3 February 2002 containing matters of evidence and submission.

33 The statement identified the defendant as having been active in church groups and other community organisations, particularly with young people for a number of years and annexed numerous character references.

34 The defendant gave evidence of him having been in the building and construction industry for some 17 years following his completion of studies and that in that time he had practiced without a single injury or prosecution for breach of safety regulations.

35 I shall set out the most pertinent features of the statement: After the drowning tragedy involving Jack Gaul I decided to leave the building industry feeling particularly saddened, shaken, disillusioned and vulnerable, sacrificing a successful business and a secure income.

I believe my full intention to recover the swimming pool was blatantly obstructed and prevented by the removal of the covering off site, and I certainly did not ever speak to anyone about "other arrangements" (quite the contrary when I told the pool builder the mesh was required back on the pool) which is why I cannot feel that I deserve a severe punishment, I believed the circumstances were out of my control.

I believe my failings in this case an overall lack of assertiveness toward the pool builder, and despite it having no bearing on the tragedy, not maintaining the side barriers. The obvious lack of concern by all those parties and authorities directly involved with the pool (the local council, the owner and the pool builder) was also of significant influence.

36 The defendant gave evidence of severely limited financial means, including a mounting debt as a result of expenses related to the course of study which he is currently undertaking.

37 The prosecutor did not seek to challenge any of the material contained within the statement, particularly that in relation to the significant financial hardship. I accept that evidence for the purposes of sentencing.

Submissions Submissions of the Prosecutor

38 Mr Skinner of counsel, who appeared for the prosecutor, submitted that it was appropriate to approach the sentencing hearing in this matter in the light of the facts as found by the Court in Morrison (No.1).

39 The principles for sentencing are well established. They require the Court to determine penalty on the basis of an objective assessment of the nature, seriousness and gravity of the breach charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464.

40 Mr Skinner submitted that the risk posed by the uncovered pool was not limited to children, who may be on the site, falling into the pool and drowning. There was also a danger that persons working on the site may fall and injure themselves, albeit that the danger of drowning may have been less severe. This risk was heightened by the fact that persons, children or otherwise, could gain access to the site from the street via the sides of the house and from the canal. This risk was the direct result of the failure of the defendant to ensure that the pool, when filled with water, remained covered or fenced off. It was submitted that this risk was readily foreseeable and that as such, the offence was to be considered more serious.

41 It was submitted that, in the circumstances of this matter, it would be appropriate for the Court to consider the sentencing of the defendant as though there had been an application made pursuant to s10 of the Crimes (Sentencing Procedures) Act 1999. However, the prosecutor resisted such a course. Mr Skinner, in his submissions, emphasised the role that general deterrence ought play in the determination of sentence in these proceedings. It was submitted that modern building practices involving contractors and sub-contractors in varying capacities were a common feature on construction sites in this State and that it was common on sites such as this for responsibilities under the Act to remain unattended or ill-defined. He submitted the sentence imposed in these proceedings ought be of value so as to reinforce to people in this very common situation their responsibilities under the Act.

42 Mr Skinner submitted that the application of s10 of the Crimes (Sentencing Procedure) Act ought be limited in proceedings brought under the Act to "extraordinary and highly exceptional" situations: WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64. Despite the limited means of the defendant, this was not an appropriate case for the application of that section.

43 The prosecutor did not seek to be heard in relation to parity. It was submitted that, in its view, the respective culpabilities of the defendants flowed not so much from the manner in which the pool initially became uncovered, but rather from the responsibility to remove the risk created once they had become aware of it. It was submitted that both defendants had various roles to play in relation to the work carried out on the premises. However, the fact remained that both defendants were aware the pool was uncovered for some length of time prior to the accident and took no steps to render the pool safe.

44 Mr Skinner acknowledged that the defendant, having been responsible for removing the mesh covering the pool in the first place, was aware that the pool was uncovered some time earlier than Mr Morrison, however, he submitted that such a distinction, on the facts of this case, ought not weigh heavily in the assessment of culpability for the defendant and the pool contractor.

45 Mr Skinner sought costs of the proceedings and a moiety of the fine to the prosecutor.

46 As noted above, the defendant was self-represented at the sentencing proceedings. I have earlier dealt with the written statement that was tendered during the hearing of the matter and therefore shall briefly set out the important points of the defendant's submissions in mitigation.

47 The defendant expressed sincere contrition for the accident. He accepted that he was, in part, responsible for the accident and the death of the three year old child. He submitted that he had intended to replace the mesh cover over the pool and that he most certainly would have done so had it not been removed from the premises by the pool contractor. However, he did accept that his failures in that regard could not be excused by his ignorance of the strict requirements placed on him by the Act.

48 The defendant submitted that he had been "overwhelmed" by the accident to such a degree that he had removed himself from the building and construction industry, leaving behind a secure future and a profitable business.

49 In that latter respect, the defendant submitted that he was under extreme financial hardship and was accruing mounting debts. He was supporting his family on the limited income provided to full-time students through a government student assistance program and attempting to continue to repay a mortgage on the family home. He submitted that, at present, he simply did not have the capacity to pay a substantial fine or costs and requested the Court take this into consideration in the assessment of penalty.

Consideration 50 At the outset I should note that there was no application made by the defendant for the Court to invoke s10 of the Crimes (Sentencing Procedure) Act 1999. However, the prosecutor, noting the defendant's unrepresented status, properly, in my view, conceded that it would be appropriate for the Court to approach the determination of penalty on the basis that such an application had been made; although the prosecutor opposed such an application. I shall return to this feature of the matter after having considered the objective elements of the offence.

51 It is well settled that the primary determinant of penalty in proceedings under the Act is an objective assessment of the nature and seriousness of the offence: Lawrenson Diecasting Pty Ltd. I note the maximum penalty for the offence is $55,000. However, the starting point for such considerations must be to reiterate the observation that I made in Morrison (No.1): that is, that an uncovered and partly filled pool presented an inherent risk to persons on the site. The risk was amply demonstrated by the tragic accident that resulted in the death of a three year old child. The risk was not limited to the risk that children, who may be on the site, could fall into the pool and drown. There was also a danger presented to persons working at the site that they may fall and injure themselves, albeit that the danger of drowning may have been less severe. There was also the possibility of persons gaining access to the site from the street via the sides of the house and from the canal.

52 I agree with the prosecutor's submission that the risk so created was clearly 'reasonably foreseeable' and, as such, results, of itself, in the offence being more serious in nature: Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 (at [82]).

53 The defendant, whilst having entered a guilty plea, sought to submit that his culpability should in some way be lessened by the fact that he was the "building contractor" and that, as such, he had limited "authority" or "responsibility" in relation to the swimming pool.

54 In this regard, I would reiterate what was stated in WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 at [65]: I do not regard this submission as enabling the defendant to resist the charge. Not infrequently, a number of employers, contractors or individuals may be involved in working at a particular site. All these parties may have responsibilities in relation to the maintenance, cleaning, design or construction of equipment or structures in use on the site. Risks of injury may arise as a result of failings by a number of parties involved in an operation or of the difficulty in co-ordinating between the different operators : see, for example, WorkCover Authority of NSW (Inspector Ankucic) v McDonalds (Aust) Pty Ltd (1999) 95 IR 383 and Inspector Mansell v Anytime Industrial Services Pty Ltd [2001] NSWIRComm 237. However, where an operator continues to operate in circumstances that present an obvious and known risk to persons working at the site and which constitutes an offence under the Act, the culpability of the operator will not be removed by the fact that other persons may also have responsibilities in relation to the safety of the site generally, or related responsibilities as to a particular operation at that workplace. Such a matter may be relevant to the determination of sentence or, perhaps, to a defence under s53 of the Act. It does not, however, remove the existence of an offence.

55 In the context of such a place of work; that is, a place of work in which numerous people are engaged in varying capacities and where "risks of injury may arise as a result of failings by a number of parties involved in an operation" it is, in my view, of the utmost importance to reiterate the extent of the duty cast by the Act upon employers and those who are self-employed to ensure that their undertaking does not create a risk to the health and safety of persons, be they employees or otherwise, that may arise from that undertaking.

56 In short, the duty is to be proactive. This duty was, in my view, correctly and forcefully stated by Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (unreported, CT94/1037, 13 April 1995 at p18) (approved recently by Full Benches of this Court in Profab at [37] and Riley v Australian Grader Hire (2000) 103 IR 143 at [15]): … 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.

57 Equally forceful observations have been made, an example of which includes the judgment of Watson J in Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467, in which his Honour held (at 470): In their context and purpose, there would appear to be no reason to make any implication that the words "to ensure" are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain.

58 It is pertinent to observe also the comments of Hill J in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85: 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.

59 I would also concur with the observations of Wright J, President, in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 where, in the context of a s15 prosecution, his Honour observed that the Act imposed (at 209): ... an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.

60 Finally, reference should be made to the comments, in this regard, to be found in Capral Aluminium (at [77] - [78]) after a consideration of the relevant authorities (including those set out above): Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at 46.

78 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 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. 79 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 Limited 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.

61 In the present circumstances, the defendant's submission is untenable. The duty to be proactive falls equally upon each and every employer or self-employed person on a particular site, subject, of course, to a consideration of whether the risk emanated from the relevant 'undertaking' and 'place of work'. However, when determining an appropriate penalty in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is important to view the nature and seriousness of the defendant's offence by reference to the contribution of the defendant to the relevant risk: Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Anor (2001) 105 IR 348; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 (at 437) and WorkCover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No.2) (2001) 99 IR 163 at [31]; Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 and Alcatel Australia Ltd v WorkCover Authority of New South Wales (1996) 70 IR 99 .

62 Section 16(2) of the Act requires self-employed persons to ensure that persons not in their employ are not exposed to risks to their health or safety arising "from the conduct of the person's undertaking while they are at the person's place of work". In Morrison (No.1) I gave consideration as to the meaning to be given to the phrases "undertaking" and "place of work" (at [47] - [59]). I adopt that discussion for the purposes of sentencing in the present matter.

63 From that discussion it is plain that what is properly considered an employer's "place of work" for the purposes of the Act is a matter of fact determined by the circumstances of each case. Further, I would reiterate what was stated by the Full Court in Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 92 IR 84 (at [48]): 48 It is our view that the work carried out by the appellant so affected the ceiling and was in such proximity to it that the ceiling space, including the trafficable suspended ceiling, must be regarded as the defendant's place of work for the purposes of s16(1). To place an interpretation on "place of work" by, for example, limiting it strictly within the lines on an architect's drawing or to the construction of a wall but not the ceiling to which it is attached and the space above it, would relieve the appellant of any liability in respect of any area in the "immediate environs" that may be affected by the acts or omissions of the appellant. Such an approach would, we believe, defeat the objects of the statute. (emphasis added)

64 In accordance with the discussion in Morrison (No.1) and the authorities there set out, whilst there was no direct contractual obligation on the defendant with regards to the pool itself in the present case, I consider that the defendant's place of work ought be considered as "every area which may be affected by the work being done": see Inspector Richard Clarke v W. L. Meinhardt and Partners Pty Ltd (unreported, Matter Nos. 1212 & 1213 of 1990, 30 June 1992); that is, areas that are affected by or are in such proximity to what the defendant was contractually obliged to perform that they are properly to be considered the defendant's 'place of work'. In this case that would plainly include the swimming pool, both as a general proposition by virtue of its proximity to the work of the defendant (that is, the immediate surrounds of the pool and the house itself) and as a matter of fact, as, in the present case, the defendant and Mr Myers did remove the covering from the pool to allow them to complete their concreting work in its immediate surrounds.

65 It follows that the defendant failed to ensure that persons not in his employment, particularly Jack Gaul, were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking whilst they are at the defendant's place of work. The defendant is thereby guilty of an offence under s16(2) of the Act and I consider the plea was properly entered.

66 It is not necessary to arrive at a precise conclusion as to how the accident occurred. It is now axiomatic that the general duties created by the Act are directed at obviating risks to the health and safety of persons in the workplace rather than to the circumstances or causes of a particular accident: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158; Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 452 - 454 and Cleary Bros at [68]. Further, in assessing an appropriate penalty for the purposes of these proceedings, it should be firmly borne in mind that it is the objective nature and seriousness of the offence that should dictate the penalty as opposed to the actual consequences of the particular breach charged. Although, it must be stated that the circumstances of a particular case may be indicative of the potential seriousness of a breach of the Act.

67 In Morrison (No.1) I considered that the evidence supported the conclusion that the deceased child wandered to the area in the vicinity of the pool directly from the house. However, as noted above, the risk created by leaving the pool uncovered needs to be looked at beyond the mere prospect that a contractor may bring a child onto the premises. The pool was uncovered at a time when the work on the site was far from complete. Workmen were still onsite. Indeed, the very reason that the pool cover needed to be removed was to permit work to be performed in the immediate surrounds of the pool. Further, at the time of the accident there was nothing to prevent someone located on the street at the front of the property, obtaining access to the pool via the walkways at either side of the house. The uncovered pool put persons, particularly children, at risk of falling and injuring themselves no matter how they obtained access to the site. It is apparently against this risk that the council required the pool contractor to make certain provisions as a condition for granting the approval to construct the pool (although I note those conditions did not attach to the approval to construct the dwelling house). The defendant, for his part, failed to ensure that the pool was adequately covered.

68 The prosecution submitted that this was a case in which the notions of deterrence and particularly general deterrence ought loom large in the assessment of penalty. The principles associated with elements of deterrence were most recently discussed by a Full bench of this Court in Capral Aluminium (at [71] - [80]). I adopt that discussion for the purposes of determining sentence in this case.

69 The purpose of the Act is well known and often referred to in judgments of this Court. In my view, it is important, when considering notions of general deterrence, that the Court be cognisant of the fact that the Act is for the benefit of the public generally and particularly employees at work. The goal is the prevention, deterrence and punishment of breaches of health and safety requirements. The notion of general deterrence is well understood. However, in my view, and in accordance with what was stated by the Full Court in Capral Aluminium (at [72] - [74]), in cases such as this, it should be reiterated 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" (emphasis added): R v Rushby [1977] 1 NSWLR 594 at 597 per Street CJ citing R. v Radich [1954] NZLR 86 at 87 (adopted by this Court in Capral Aluminium at [72]).

70 Further, I would note that it has been described as "the fundamental duty of this Court" to ensure that any penalty imposed is severe enough to "compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace": Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388 adopted in Capral Aluminium (at [74]).

71 As for specific deterrence, I accept the defendant's evidence that he has 'left the building industry' and that he has no intention of returning to it. Noting what was stated by the Full Court in Capral Aluminium (at [77]), in the light of these circumstances, I am satisfied that this is an 'exceptional circumstance' where there would be little utility in any penalty being imposed on the defendant for the purposes of specific deterrence. However, I do not consider that the circumstances are so exceptional as to warrant no component of the fine taking account of specific deterrence; the defendant being a natural person as opposed to a corporation that is winding up, still has the capacity to bear responsibility under the Act in the future. 72 It is well established any consideration of subjective features of a particular defendant must be subordinate to the nature and seriousness of the offence. However, in my view, there are some strong subjective features in the circumstances of the present case that mitigate the penalty that I would otherwise impose for an offence of this nature.

73 It is clear, both from the evidence given by the defendant and from having observed the defendant giving that evidence, that he has suffered personal distress as a direct result of his failure, giving rise to these proceedings. It was the defendant's evidence that he has left the building industry, leaving behind a successful business and a secure income as the result of the stresses that he has borne following the accident. In his statement to the Court, he indicated that he was partly responsible for creating the risk which gave rise to the accident. I accept that the defendant is contrite. Contrition, repentance and remorse after an offence are mitigating factors which may lead to a reduction in the sentence otherwise to be imposed: Department of Mineral Resources of NSW v A M Hoipo & Sons Pty Ltd (1999) 99 IR 137 (at [64]). In this respect, I also have had regard to the judgment of the Full Bench in Corinthinian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46 (at [17]).

74 In the circumstances of this matter the defendant's plea of guilty requires some closer consideration. The fact that a person has pleaded guilty is a matter properly to be taken into account in mitigation of his sentence: Siganto v The Queen (1998) 194 CLR 656 at 663 - 664. Further, s22(1) of the Crimes (Sentencing Procedure) Act 1999 provides that in the sentencing process, a court may impose a lesser penalty than otherwise would have been the case if the defendant pleaded guilty but a relevant consideration is when such a plea was made.

75 In this matter, the plea came three days into the trial after the defendant had heard, by and large, the evidence that would be brought against him. In fact, the plea came at a stage in the proceedings where the prosecution had put before the Court the evidence of the WorkCover inspectors associated with the investigation of the accident (Inspector Farrell and Inspector West), the two contractors at the site on the day of the accident (Mr Pharo and Mr Gaul), one of the owners of the premises (Mr Hollingworth), Mr Wilson, another of the contractors who had worked on the site, one of the Police Service officers who attended the scene (Senior Constable Cherry) and the defendant's second-in-charge at the site (Mr Myers). Some documentary evidence that related to the contractual obligations of the parties to the development of the premises had also been put into evidence. Whilst the defendant was self-represented at the sentencing hearing, he was represented by counsel at the time of hearing regarding culpability.

76 The principal justification for the reduction in penalty that would otherwise be ordered due to a plea of guilty was considered by the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383. The Court there considered the relevant 'range' of 'discount' that ought be afforded a defendant for entering a guilty plea. The factor identified as being of particular importance to that consideration was the 'timing of the plea' and the utilitarian considerations such as improved 'efficiency and effectiveness of the criminal justice system' that may arise from an early plea.

77 That judgment has been adopted and applied by Full Benches of this Court on several occasions: State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218; Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan (2001) 105 IR 181 and Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435. I shall consider the defendant's plea of guilty in light of the Full Bench authorities of this Court, binding on me, set out above (although I note that the High Court of Australia has recently re-considered various aspects of guideline judgments in Wong v The Queen; Leung v The Queen (2001) 76 ALJR 79).

78 The High Court of Australia has recently considered the rationale for the rule that a plea of guilty may be taken into account in mitigation of sentence. In the joint judgment of Gaudron, Gummow and Callinan JJ in Cameron v The Queen [2002] HCA 6, their Honours stated (at [11] - [14]): It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v The Queen (1998) 194 CLR 656 at 663-664, it was said: "a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case."

It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.

Although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial ( Siganto v The Queen (1998) 194 CLR 656 at 663 [22] per Gleeson CJ, Gummow, Hayne and Callinan JJ. See also R v Gray [1977] VR 225 at 231). The distinction between allowing a reduction for a plea of guilty and not penalising a convicted person for not pleading guilty is not without its subtleties, but it is, nonetheless, a real distinction, albeit one the rationale for which may need some refinement in expression if the distinction is to be seen as non-discriminatory.

It is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another's plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the pragmatic and objective ground that the plea has saved the community the expense of a trial. However, the same is not true if the plea is seen, subjectively, as the willingness of the offender to facilitate the course of justice.

Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.

79 Kirby J, in a separate judgment (although joining in the orders of the court) considered the foundation for the provision of a discount for a plea of guilty to be as follows ([65] - [66]): This Court has recognised that a plea of guilty is ordinarily a consideration to be taken into account in mitigation of punishment and reduction of the sentence that would otherwise have been imposed on a prisoner. By reference to established authority, it is possible to elaborate this principle so that it may be understood in context and more easily applied to varying circumstances: (1) In all States and Territories, and in respect of federal offences, legislation addresses in various ways the approach to be adopted, and procedures to be followed, where a person is to be sentenced who has pleaded guilty to a criminal charge. It is the first obligation of the sentencing judge to conform to such legislation. No rule of the common law, nor any judicial practice, may contradict valid legislative prescriptions. (2) To the extent that common law sentencing principles elaborate statutory provisions, they operate within a context that recognises the need for appellate courts to respect the discretion belonging to a sentencing judge. Sentencing is not a mathematical exercise, apt to be reduced to fixed formulas and equations. Unless specifically authorised by legislation, no principle or guideline could be adopted that obliged the application of a rigid approach or an unchanging discount for a plea of guilty. In each case, it is necessary for the sentencing judge to take such a plea into account but having regard to all the circumstances. It is not the law that a sentencing judge must exercise a discretion to provide a given reduction in sentence for a plea of guilty. If a reduction is properly available, the sentencing judge may provide for it in the course of performing the complex task of imposing criminal punishment. (3) The provision of a discount for a plea of guilty must not be, or appear to be, a judicial discouragement to an accused person against exercising rights to silence conferred by law or the right to put the prosecution to the proof of criminal accusations. An accused who insists upon such rights must not be penalised. An accused must not have the sentence increased to mark the sentencing judge's conclusion that the prisoner has wasted the court's time or the public's resources by insisting on a trial. Yet, necessarily, reliance on such rights will deprive the accused of any mitigation that might otherwise have resulted from a plea of guilty. Judges have acknowledged "a certain illogicality" in these distinctions. Nevertheless, such distinctions have been endorsed by this Court. Although they have been said to border on the "metaphysical", they reflect a difference between permissible and impermissible judicial approaches. They discourage inappropriate judicial involvement in plea bargaining that could dissuade a prisoner from exercising his or her legal rights. They alert judges to the susceptibility of prisoners generally (and some categories, such as Aboriginal prisoners, in particular) to pressure to induce them, even if innocent, to plead guilty. And they restrict excessive discounts for a plea of guilty that could indeed undermine the accusatorial feature of our criminal justice system. (4) The discount for a plea of guilty to the charge brought against the accused is to be distinguished from a discount for a spontaneous and immediate expression of remorse conducive to reform and for immediate cooperation with investigating police. The latter has always been treated as deserving of such recognition in the sentencing of an accused. In many cases such feelings of repentance will continue and manifest themselves in an early plea of guilty that is adhered to at the trial. Obviously, the timing of any plea of guilty has a large bearing on the credit that should be given to the prisoner. A plea of guilty at the last moment (as on the day set down for the trial) will ordinarily attract a smaller discount in sentence than one that is entered at the first reasonable opportunity. But even a belated plea will normally attract a discount. (5) In some of the older judicial authorities, the chief or the only basis advanced for a discount for a plea of guilty was that it evidenced contrition, repentance and remorse on the part of the prisoner. The basis for affording a discount in a sentence on this footing was the oft stated belief that such a response indicated the intention of the prisoner to reform and not to re-offend. To that extent, remorse could vindicate one of the basic purposes of the system of criminal justice. Cases do exist where, upon apprehension, a prisoner expresses genuine and believable regret. However, judges have lately expressed doubt as to the extent to which pleas of guilty really proceed from such motives. In a prisoner who has been caught red-handed, the plea of guilty may indicate regret at being caught and charged, rather than regret for involvement in the crime. In the present case, Pidgeon J correctly observed that it was difficult for the appellant to be treated as truly remorseful when a considered decision had been made by him to bring such a large quantity of drugs into Western Australia. No doubt some suppliers of prohibited drugs view themselves (as suppliers of non-prohibited but regulated drugs and formerly prohibited goods and services now do) as simply serving a market that is rendered illegal by outmoded laws. At least in this context, much of judicial writing about remorse is somewhat unrealistic. The true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount. Nevertheless, where genuine remorse is established to the satisfaction of the sentencing judge, it may be in the public interest to mitigate punishment further as a reinforcement for the prisoner's resolve to avoid repetition of such conduct in the future and as an example to others. However, "remorse" is not, as such, a precondition for the provision of a discount for a plea of guilty. There are other features of the public interest that need to be given weight. The consideration of the public interest The main features of the public interest, relevant to the discount for a plea of guilty, are "purely utilitarian". They include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconvenience caused, to any jurors summoned to perform jury service. Even a plea at a late stage, indeed even one offered on the day of trial or during a trial, may, to some extent, involve savings of all these kinds.

80 Justices Gaudron, Gummow and Callinan also considered the appropriate criteria and circumstances against which to assess the extent of any discount for a plea of guilty, having regard to how early a plea was entered. The majority stated ([16] - [23]): So far as sentencing is concerned, the practice with respect to a "fast-track" plea has developed in Western Australia, consistently with the Sentencing Act 1995 (WA) ("the Sentencing Act "), in parallel with the statutorily sanctioned procedure whereby, on a plea of guilty to an indictable offence, a person may be committed to a superior court for sentence without the presentation of evidence or the filing of statements. The Sentencing Act , which sets out sentencing principles applicable to all persons convicted of an offence, specifies, in s8 , mitigating factors to be taken into account on sentence. One such factor is that the offender pleaded guilty. By s8 (2) it is provided that "the earlier in proceedings that [the guilty plea] is made, or indication is given that it will be made, the greater the mitigation." Provision is also made in s7 with respect to aggravating factors. The fact that the offender pleaded not guilty is expressly excluded from those aggravating factors by s7 (2)(a) of the Sentencing Act . It was suggested for the respondent in this Court that the full reduction for a "fast-track" plea of guilty is only available where the person concerned has pleaded guilty in circumstances relieving the prosecuting authorities of the necessity to present evidence or file statements. There would be force in that suggestion if s8 (2) of the Sentencing Act were to be read in isolation from s7 (2)(a) which gives effect to the common law rule that a person should not be penalised for exercising the right to trial. So, too, there would be force in the suggestion if the rationale for allowing a plea to be taken into account in mitigation were, to any extent, based on the objective consideration that the plea has resulted in the saving of court and prosecution time. Once it is appreciated that s8 (2) of the Sentencing Act is to be reconciled with s7 (2)(a), which gives effect to the common law requirement that an offender not be penalised for pleading not guilty, s8 (2) must be read as allowing that a plea of guilty may be taken into account in mitigation for the reason that a guilty plea evidences a willingness to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice. That being so, the relevant question is not simply when the plea was entered but, as was accepted by the Court of Criminal Appeal in this matter, whether it was possible to enter a plea at an earlier time. The question whether it was possible for a person to plead at an earlier time is not one that is answered simply by looking at the charge sheet. As was acknowledged in Atholwood by Ipp J, in the Court of Criminal Appeal of Western Australia, the question is when it would first have been reasonable for a plea to be entered. In Atholwood , the person concerned had been charged with several counts. After a process of negotiation, the prosecution withdrew a number of the charges and the offender pleaded guilty to one of the remaining charges. Ipp J said this: "It is particularly important in such circumstances to establish the time when it could first be said that it was reasonably open to the offender to plead guilty to the offence of which he was convicted. Regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him. During the period that the prosecution maintains counts that are ultimately abandoned, there is a strong incentive for a person who recognises his guilt on other counts ... to persist in a not guilty plea to all counts. In such circumstances it should not be assumed, mechanically, that the offender has delayed pleading guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity." The remarks of Ipp J in Atholwood reflect what has earlier been said in relation to the rationale for the rule that a plea may be taken into account in mitigation, namely, that, leaving aside remorse and acceptance of responsibility, the operative consideration is willingness to facilitate the course of justice. And once that rationale is accepted, the respondent's suggestion that the extent to which a plea of guilty may be taken into account in mitigation may vary according to whether it was or was not a "fast-track" plea must be rejected. Rather, the issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. And a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity. First reasonable opportunity Although the original charge specified the elements of the offence charged, it was not reasonable to expect the appellant to plead to an offence which wrongly particularised the substance to which the charge related. And that is so even if the identity of the substance would not have affected sentence. In this regard, it should not be assumed that the appellant knew that the sentence would be the same regardless of the nature of the substance.

81 Kirby J concurred with that approach at [75]: The Court of Criminal Appeal ought to have applied the approach in Atholwood to the present appellant's application. Nothing in the applicable legislation providing for expedited hearings of cases where the defendant pleads guilty is inconsistent with that principle. Whilst the judicial practice of the "fast-track" system adopted in Western Australia would be better known to the judges of that State, because it lacks a statutory foundation I am unconvinced that it would warrant a different approach. The test is not the time when theoretically or physically a prisoner might have pleaded. The test is when it was reasonable, in all the circumstances and as a matter of practicality, to have expected a plea of guilty to be announced. That question is to be answered in a reasonable way, not mechanically or inflexibly.

82 In the present case and, having regard to the principles stated in Cameron, I do not consider that the plea was entered at the first reasonable opportunity. The defendant effectively allowed the trial to run for the greater part of the overall trial duration and until such time as he substantially knew of the prosecution case against him. Due to the amount of evidence that had been received prior to the plea being entered, the 'utilitarian considerations' that could be said to have flowed from the plea are little. Further, the defendant's approach indicated significantly less acceptance of responsibility and a willingness to facilitate the course of justice. However, the defendant has entered a plea of guilty and I accept he has done so in such a manner as to make it appropriate to take that matter into account in the determination of sentence. I consider that an appropriate reduction in penalty in the present circumstances would be at the bottom of the 'range' identified in R v Thomson.

83 The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons (at [50]): It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200 - 201.

84 This approach was subsequently adopted in Manpac Industries where the Full Bench of this Court stated (at [81] - [82]): ... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at p339); WorkCover Authority of New South Wales (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at p333; and Profab Industries (49 NSWLR at p714, 100 IR at p76).

However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at pp209 - 210, Wright J, President observed : ... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. ...

When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence. ... 85 I would reiterate what the Court stated in WorkCover Authority of NSW (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 (at 476): Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged and then reduce the fine to take into account the defendant's means and impecuniosity: see Rahme (1989) 43 A Crim R 81 at 86 (See also Inspector William Hopkins v Michael Wheritt trading as M J Wherritt Concrete Pumping Services [2002] NSWIRComm16 at [59] - [60]).

86 Having regard to the aforementioned authorities regarding the relevance of the financial means of a defendant, I shall significantly reduce the amount of fine which would have otherwise been ordered to be paid by the defendant due to the defendant's limited means and impecuniosity.

87 Further, I consider, on the evidence of the defendant and noting that there was no demur on behalf of the prosecutor, the defendant has otherwise operated as a good industrial citizen for a period of some 17 years without prosecution having been brought against him. I have also taken into account the character references in favour of the defendant.

88 As noted earlier, there are powerful subjective features in this case which, in my view, warrant a significant reduction in the penalty which would otherwise have been imposed. I have given serious consideration to the application of s10 of the Crimes (Sentencing Procedure) Act to the present circumstances. However, I decline to do so. I do not consider that this matter exhibits the extraordinary and highly exceptional circumstances as would warrant the exercise of the Court's discretion in this regard in favour of the defendant: Profab, Australian Grader Hire and Berrima Coal (at [166] - [202]. In particular, I consider that the objective features of this matter do not warrant the exercise of the Court's discretion in favour of the defendant under s10 of the Crimes (Sentencing Procedure) Act. Further, I would reiterate what was stated above as being the fundamental duty of this Court. I consider the observations of Street CJ in R v Rushby are apposite in the present circumstances (at 597): If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment.

89 I have applied the principle of parity in this matter in assessing the sentences applicable for the defendant and the pool contractor. I adopt my discussion of that issue in WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison (No. 2) [2002] NSWIRComm 27 for the purposes of this matter.

90 I consider that the plea of guilty was properly made and enter a verdict accordingly. For the foregoing reasons, I consider, after a discount for the subjective factors earlier identified and a reduction of the fine having regard to the defendant's financial means, an appropriate penalty for the offence as charged to be a fine of $9,000. The prosecutor should have a moiety of the fine.

91 The final matter that requires consideration is the prosecutor's application for costs.

92 A Full Bench of this Court has recently considered the question of costs in summary prosecution proceedings under the Act before the Commission in Court Session in WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd & Ors [2001] NSWIRComm 244. I adopt the exposition of principle in that judgment (at [48] - [50]). In accordance with the discussion in Plastachem, the Court as presently constituted, by virtue of s14(1)(a) of the Supreme Court (Summary Jurisdiction) Act 1967, has the power to award costs in favour of the prosecutor. In this regard the Court must exercise its discretion as to costs in accordance with what is in the Courts view 'just and reasonable'.

93 The prosecutor has made an application for costs in the proceedings and tendered a schedule of costs incurred separately for both these proceedings and the proceedings in Morrison (No.1) and (Morrison No.2) heard concurrently. The prosecutor sought an order for the sum of $24,150.13 in costs against the defendant.

94 At the conclusion of proceedings, I heard brief submissions from the prosecutor as to the question of costs (both as to whether costs should be awarded and as to the quantum of costs sought by the prosecutor).

95 As earlier mentioned, the defendant was self-represented. He broadly raised an issue as to the amount of costs. Having reviewed the transcript of these proceedings, I am not satisfied that the defendant has had sufficient opportunity to address the question of costs. This is particularly so as the matter raises for consideration whether costs should be awarded and, in any event, whether the costs claimed may be too substantial (and, possibly, approaching costs on an indemnity basis).

96 In the result, I propose to reserve the question of costs for 28 days from the date of this judgment to enable the prosecutor to further consider the question of costs and then to discuss that matter with the defendant (or, if applicable, with his legal representative).

97 The prosecutor should file, within that time period, a short submission as to the outcome of that process and as to any further matters it may wish to put as to the question of costs. That submission should be served upon the defendant. If the issue of costs is resolved, the Court will determine the question by orders in chambers. In the event that the issue of costs is not resolved, then the defendant shall have 28 days thereafter to file any further submission in reply, in writing, that he may desire to put as to that matter. 98 I make the following orders:

1. The defendant is fined an amount of $9,000 with a moiety thereof to the prosecutor; 2. Costs are reserved until the receipt of further submissions from the prosecutor and the defendant in accordance with this judgment as to that matter.

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