Workcover Authority of New South Wales (Inspector Farrell) v David Carl Schrader - [2002] NSWIRComm 25 - NSWIRComm 2002 case summary — Zoe

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

[2002] NSWIRComm 25

Industrial Relations Commission (NSW)|2002-07-01|Before: Walton J

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Court

Industrial Relations Commission (NSW)

Decision date

2002-07-01

Before

Walton J

Source

Original judgment source is linked above.

Judgment (134 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Workcover Authority of New South Wales (Inspector Farrell) v David Carl Schrader [2002] NSWIRComm 25 PROSECUTOR: Workcover Authority of New South Wales (Inspector Farrell) PARTIES : DEFENDANT: David Carl Schrader FILE NUMBER: IRC 1659 of 2000 CORAM: Walton J Vice-President CATCHWORDS : Occupational health and safety - Alleged failure to ensure the persons not in the defendant's employment not exposed to risks to health and safety - Child drowned in partially constructed swimming pool at domestic construction site - Defendant self-employed building and construction manager - Pool had been substantially completed and partly filled with water - Pool contractor had installed mesh to cover the pool - Mesh later removed by defendant - Pool contractor visited site and observed that mesh had been removed - No steps taken to replace the mesh or ensure that fencing was installed by either defendant or pool contractor - Obvious risk to safety as a result of pool not being covered - Risk arose from the defendant's undertaking - Defendant not entitled to rely on pool contractor to re-cover the pool - Risk clearly foreseeable - Risk common on building sites where numerous contractors engaged in various capacities - General deterrence - Powerful subjective features - Defendant pleaded guilty - Elements of the offence made out - Plea properly entered - Principles applicable to assessing discount for plea of guilty - Financial means of defendant - Consideration of application of s10 of Crimes (Sentencing Procedure) Act 1999 - s10 applied only in highly exceptional circumstances - Not appropriate to be applied in present circumstances - Penalty imposed - Costs sought by prosecutor - Costs reserved Crimes (Sentencing Procedures) Act 1999 LEGISLATION CITED : Occupational Health and Safety Act 1983 Supreme Court (Summary Jurisdiction) Act 1967 Swimming Pools Act 1992 Alcatel Australia Ltd v WorkCover Authority of New South Wales (1996) 70 IR 99 Cameron v The Queen [2002] HCA 6 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 Corinthinian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46 Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan (2001) 105 IR 181 Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Anor (2001) 105 IR 348 Department of Mineral Resources of NSW v A M Hoipo & Sons Pty Ltd (1999) 99 IR 137 Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 Inspector Richard Clarke v W. L. Meinhardt and Partners Pty Ltd (unreported, Matter Nos. 1212 & 1213 of 1990, 30 June 1992) Inspector William Hopkins v Michael Wheritt trading as M J Wherritt Concrete Pumping Services [2002] NSWIRComm16 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 92 IR 84 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 Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 R v Rushby [1977] 1 NSWLR 594 CASES CITED : R v Thomson, R v Houlton (2000) 49 NSWLR 383 R. v Radich [1954] NZLR 86 Riley v Australian Grader Hire (2000) 103 IR 143 Siganto v The Queen (1998) 194 CLR 656 State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218 Wong v The Queen, Leung v The Queen (2001) 76 ALJR 79 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd & Ors [2001] NSWIRComm 244 WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Farrell) v Ross Colin Morrison (No.1) [2001] NSWIRComm 325 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64

[12]

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:

[113]

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.

[114]

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.

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

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