Workcover Authority of New South Wales (Insp Robert Stobo) v State Rail Authority of New South Wales

PROSECUTOR: Mr M Shume of counsel SOLICITOR: Mr G McCann Legal Services Branch WorkCover Authority of NSW LEGAL REPRESENTATIVES:

DEFENDANT: Mr J V Agius SC SOLICITOR: Mr J Fox Minter Ellison

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

WorkCover (Insp Robert Stobo) v State Rail Authority of New South Wales. Prosecution under Section 15(1) of the Occupational Health & Safety Act 1983. JUDGMENT

1 This matter concerns a prosecution brought by Inspector Robert Stobo of the WorkCover Authority of New South Wales, against the State Rail Authority of New South Wales ("the defendant"), under s15(1) of the Occupational Health & Safety Act 1983 ("the Act").

2 Section 15 of the Act is in the following terms: 15. Employers to ensure health, safety and welfare of their employees

(1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees. (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health, (b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances, (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees, (d) as regards any place of work under the employer's control: (i) to maintain it in a condition that is safe and without risks to health, or (ii) to provide or maintain means of access to and egress from it that are safe and without any such risks, (e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or (f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. (3) For the purposes of this section, any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person's employer. (4) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 16, the court may convict the person of an offence against that section.

3 The prosecution arose following an investigation conducted by the prosecutor in response to a collision that occurred between two of the defendant's track laying vehicles at Stokers Siding on the Byron Bay - Murwillumbah section of the defendant's rail line on 22 February 1996.

4 Upon the hearing of the matter, leave was granted (with the consent of the defendant) to amend the initiating summons. The prosecutor tendered a bundle of documents entitled "Agreed facts and supporting material". That bundle of documents contained an amended summons, an agreed statement of facts, a number of reports generated by various investigators and engineers following the investigation and a record of the defendant's prior convictions.

5 The following description of the circumstances surrounding the accident has been drawn from the statement of agreed facts and the supporting material.

6 On the day of the accident, the defendant was engaged in rail line maintenance operations on the rail line extending between Murwillumbah and Byron Bay. Those maintenance activities involved the use of two track laying machines [the track laying vehicles - TJ 083 and BX 030] working in the vicinity of one another. Normally these vehicles maintain lines of communication by two way radio.

7 BX 030 (which was referred to in these proceedings as "Machine 2") was a Ballast Regulator. It was fitted with a broom, a conveyor and a storage bin for ballast to be discharged or retrieved. TJ 083 (which was referred to in these proceedings as "Machine 1") was a Beaver 79-800W (Serial No 264). Its function was to adjust the position of rails for the correct track geometry.

8 Machine 1 was manufactured by Plasser Australia Pty Ltd in 1983. The defendant leased the machine from that company but was responsible for its repair, maintenance and operation. It was approximately 16 metres in length and weighed approximately 36 tonnes. The machine had a cab at each end, the smaller being at the front. The larger cab at the back served as a driving station and the control station for the 'work' mode. Travelling controls were duplicated in each cab. The machine could be driven from either cab, in either direction, at any speed up to a maximum of 50km/hr. Machine 1 had two modes of travel; the first was known as 'indexing' (the 'work mode'), whereby the machine moved automatically at a slow speed (moving a distance of about 0.6m at a time to advance from sleeper to sleeper and adjusting the position of the rail at each of these positions), and a 'travel mode', whereby the machine is taken to and from the site. The maximum speed during 'travel mode' was stated to be 80km/hr on the main identification plate and 50km/hr on a metal tag inside each cabin. 9 The collision occurred on a blind curve about 1 kilometre from Stokes Siding station between Byron Bay and Murwillumbah. Machine 2 was travelling backwards away from the station at a walking pace uphill on a slight incline. Machine 1 was travelling backwards in the opposite direction, that is, downhill towards the station at a considerably higher speed. 10 The parties were agreed that as the vehicles approached the point of impact, visibility from Machine 1 was estimated to be approximately 70 metres. 11 The collision resulted in the derailment of Machine 1. This machine came to a halt approximately at the point of collision. Machine 2 remained on the rail track in its normal travelling position but the force of the impact sent Machine 2 some 40m down the track from the point of collision. It was agreed that its wheels must have "skidded" on the rails as once the vehicle had come to a halt following the accident it continued to drive back along the rail track towards the point of impact.

12 The charge contained within the aforementioned amended summons was in the following terms: Between 7 February and 22 February 1996 near Stokers Siding, New South Wales, the defendant, being an employer, DID FAIL to ensure the health safety and welfare at work of all its employees contrary to section 15(1) of the Occupational Health and Safety Act 1983, in that it did fail to provide such training to Stephen Myers as may be necessary to enable him to work on the braking system of Track Tamping Machine TJ 083.

The Particulars of the charge are: (i) The defendant owned and supplied a 36 tonne track tamping machine TJ 083 for the use of its employees. (ii) The brake units on one axle of the track tamping machine were inoperable. (iii) The track tamping machines ability to stop was reduced by 50%. (iv) The defendant through one of its employees, Stephen Myers, had adjusted the brakes so that they were inoperable on one axle. (v) Stephen Myers did not have the knowledge or expertise to effectively diagnose and correct brake malfunctions on TJ 083. (vi) As a result of the said failures, employees of the defendant were placed at risk of injury.

13 The agreed statement of facts contained in the bundle of material tendered by the prosecutor was in the following terms: 1. At all material times, the Prosecutor was an Inspector duly appointed and empowered by Section 48 of the Occupational Health & Safety Act 1983 to institute proceedings in the within matter.

2. At all material times, the defendant, State Rail Authority of New South Wales ('SRA') was a statutory authority constituted pursuant to section 4 of the Transport Administration Act 1988 (New South Wales), with its head office at Level 3 Central Station, Eddy Avenue, Haymarket N.S.W.

3. At all material times until 30 June 1996 the SRA had the function of repairing and maintaining railway infrastructure, including railway lines and the supporting ballast. This function was carried out by a business unit of the SRA Railway Services Group. 4. At all material times until 30 June 1996 the SRA hired a 36 tonne tamping machine no. TJ 083 Plasser Australia Pty Limited ('TJ 083'). The SRA was responsible for the repair, maintenance and operation of TJ 083 which was used for the purposes of repairing and maintaining railway infrastructure to the north of Sydney, including the Byron Bay, Murwillumbah section of railway track. 5. At all material times until 30 June 1996, the SRA employed: a) A Plant Mechanic, Stephen John Myers, whose responsibilities included the repair and maintenance of TJ 083; b) An Area Supervisor, Geoffrey John Beveridge, who directly supervised Mr Myer; c) A Track Machine Operator, Shane Peter Kenney, to operate TJ 083; and d) A Ganger, Richard John Paxton, to work on railway infrastructure in conjunction with TJ 083.

6. TJ 083 has two modes of operation; the first is known as indexing (which is work mode) and the second is known as travelling (which is non-work mode). On or about 1 February 1996, Mr Beveridge diagnosed that one of the indexing breaking valves on TJ 083 was not working. 7. Mr Beveridge ordered a replacement valve from the SRA stores in Sydney. Mr Beveridge received a replacement valve on or about 6 February 1996 but it was the incorrect valve for TJ 083. Mr Beveridge informed Mr Myers of this on or about 6 February 1996. Mr Myers cleaned up the original faulty valve on TJ 083 but the valve remained faulty. Mr Myers ordered a second replacement valve from a local hydraulic shop in Murwillumbah. 8. On 7 or 8 February 1996 Mr Myers noticed that the brakes on one axle on TJ 083 were locked on. He released the brakes and backed the brake blocks away from the wheels. This action effectively reduced the braking capacity of TJ 083 by 50%. 9. On or about 13 February, Mr Myers collected the second replacement valve from the Murwillumbah hydraulic shop. Mr Myers fitted the valve on 20 February. TJ 083 was not required for use between 13 and 20 February 1996. 10. The second replacement valve from the Murwillumbah hydraulic shop failed when the machine was transferred into indexing mode. Mr Myers left the brakes 'backed off' and sought a third replacement valve from Lismore. 11. Mr Myers advised Mr Kenney and Mr Paxton on 20 February 1996 that the rear brakes had been 'backed off'. It was Mr Kenney's responsibility to decide whether TJ 083 was safe to operate. Mr Beveridge was unaware that a third replacement valve had been ordered, having assumed the indexing valve had been received and fitted from the Murwillumbah hydraulic shop. 12. Mr Myers then fitted the third valve to TJ 083 on 20 February 1996 but failed to re-adjust the brake blocks, despite being aware from prior use of the TJ 083 manual that such readjustment was necessary. 13. The correct procedure when fitting a new indexing valve to TJ 083 is to reset the entire braking system and to assess the working and travelling modes. 14. The SRA's Safe Working Unit 940 states: 'All track vehicles travelling and operating on running lines must be in a safe mechanical condition'

15. Mr Myers had not received adequate training to equip him to deal with the braking system on TJ 083. Each time he put a new indexing valve on, he should have reset the whole braking system to assess working and travelling modes. He did not do this and he assumed that because the brake indexing system was not working that the travelling system would also not be working. 16. The track tamping position number TJ 083 was used by the defendant on 22 February 1996. The machine was operated by Shane Kenney, Richard Paxton, Mr Marker and Mr Lee. Paxton was the resurfacing Ganger and had the overall authority of the crew. Kenney was the driver of the machine. Marker and Lee were skilled labourers. The crew of that machine utilised the machine as a part of their work on 22 February 1996. 17. It is alleged that the defendant has breached section 15(1) of the Occupational Health and Safety Act 1983 in that it: a) Failed to provide such training to Stephen Myers as may be necessary to enable him to work on the braking system to Track Tamping Machine TJ 083. b) As a result of the said failures employees of the defendant were placed at risk of injury.

14 Each of the engineering reports within the prosecutor's bundle related to the condition of the specific machines and the circumstances surrounding the accident. The reports also contained estimated braking distances for the faulty braking system that existed at the time of the accident. As will appear later in this judgment, the precise details of the accident itself are not relevant for the purposes of the assessment of penalty in this matter. Suffice it to say that the tables of estimated braking distances within the engineering reports indicated that the faulty braking system would result in a significantly increased distance being required to stop the track maintenance vehicle TJ 083 regardless of speed.

15 The final part of the agreed bundle of material requiring mention was an extract from the 'WorkCover Authority Prior Convictions Database', disclosing a number of convictions having been entered against the defendant. That record of prior convictions was in the following terms:

DATE ACT SECTION COURT PENALTY CRT FILE No. 07/05/1986 OH&S Act 1983 15(1) CIM 556A 85/1778 14/08/1987 OH&S Act 1983 15(1) GOSFORD 500 86/784 07/10/1987 OH&S Act 1983 15(1) CIM 2000 86/1460 04/10/1988 OH&S Act 1983 15(1) KATOOMBA 2500 87/608 23/10/1989 Construction Safety Act Section unknown CIM 556A 88/1162 23/10/1989 OH&S Act 1983 15(1) CIM 1250 88/1163

12/12/1989 OH&S Act 1983 15(1) PORT KEMBLA 2750 88/1175 03/04/1991 OH&S Act 1983 15(1) NEWCASTLE 2500 90/1354 02/07/1991 OH&S Act 1983 15(1) NEWCASTLE 2000 91/485 25/03/1992 OH&S Act 1983 15(1) CIM 5000 90/1361 27/01/1993 OH&S Act 1983 15 CIM 3000 UNKNOWN 13/07/1993 OH&S Act 1983 15(1) CIM 2000 85/1709 20/08/1993 OH&S Act 1983 15(1) CIM 3000 93/171 04/07/1994 OH&S Act 1983 15(1) CIM 3000 93/985 16/12/1994 OH&S Act 1983 15(1) INDUSTRIAL COURT 40,000 92/1115 16/07/1996 OH&S Act 1983 16(1) INDUSTRIAL COURT 25,000 95/1268 12/09/1996 OH&S Act 1983 16(1) IRC 35,000 (Confirmed on appeal in IRC 96/5550) 96/1022 23/10/1996 OH&S Act 1983 16(1) CIM 6000 96/627 27/03/1997 OH&S Act 1983 15(1) INDUSTRIAL COURT 125,000 96/1151 29/07/1997 OH&S Act 1983 16(1) CIM 3500 97/194 22/10/1998 OH&S Act 1983 16(1) IRC 40,000 UNKNOWN 10/05/1999 OH&S Act 1983 16(1) CIM 6000 98/539 13/10/1999 OH&S Act 1983 15(1) IRC 30,000 97/7032 13/10/1999 OH&S Act 1983 15(1) IRC 110,000 97/7033 13/10/1999 OH&S Act 1983 15(1) IRC 20,000 97/7034 13/10/1999 OH&S Act 1983 15(1) IRC 20,000 97/7035 13/10/1999 OH&S Act 1983 15(1) IRC 20,000 97/7036 06/10/2000 OH&S Act 1983 16(1) IRC 200, 000 99/3369 08/11/2000 OH&S Act 1983 16(1) IRC 80,000 99/4624 15/12/2000 OH&S Act 1983 15(1) IRC 300,000 (Appeal from conviction on 27/10/99) 99/6321

It should be noted that the column headed "Date" refers to the date on which judgment was delivered and conviction entered. It should also be noted that the reference to the judgment delivered 15 December 2000 was an appeal against the severity of penalty imposed at first instance by Maidment J on 27 October 1999. 16 The defendant tendered two affidavits; one of Mr Julian May, the Principal Brake Engineer for the defendant, and one of Mr Owen Henry, the Acting Executive Director, Safety Division of the defendant. Neither deponent was required for cross-examination.

17 In his affidavit, Mr May indicated that he was a qualified engineer with both a Bachelor and Masters degree in engineering from the University of Sydney. He had been employed with the defendant since February 1985 in various capacities. At the time of these proceedings, he was the Principal Brake Engineer (Professional Engineer Class 5, Quality and Technical Support, Passenger Fleet Maintenance) for the defendant and had held this position since 1992. Mr May's evidence went primarily to two matters. Firstly, he gave evidence as to the structural changes the defendant corporation went through in 1996. Secondly, he gave evidence as to the systems currently in place for the maintenance of vehicles and the training of staff associated with the maintenance of the defendant's passenger train operations.

18 He stated that the defendant, in its current form, was established on 1 July 1996, as a result of a reform program adopted by the New South Wales Government. Following the implementation of this reform program, many of the SRA's former functions were divided between three other corporate entities:

a) Railway Services Authority ("RSA"); b) Freight Corporation ("Freight Corp"); and c) Railway Access Corporation ("RAC").

19 The RSA and the RAC were subsequently amalgamated to form the Rail Infrastructure Corporation (the "RIC") by the Transport Administration (Amendment) Act 2001.

20 These reforms resulted in the defendant being removed of any requirement to undertake, or responsibility for, rail track maintenance activities since 1 July 1996. These activities were initially taken over by the RAC who, in turn, contracted the work to the RSA and private contractors until the RSA and RAC were recently recombined into the RIC. The RIC now bears the responsibility for track maintenance activities, including the training of track maintenance staff and the maintenance of the machines used for such undertakings as the tamping machine TJ 083 was engaged on the day of the accident.

21 Mr May also gave evidence of his responsibilities prior to the reforms. He then had responsibility for 'City Rail' rolling stock only and, as such, his position did not relate to the types of vehicles involved in the accident in the present case. In the result, Mr May was not able to comment on the training and safety procedures in place with respect to the track maintenance vehicles involved in the accident.

22 However, Mr May was able to give extensive evidence of the inspection systems for brakes and other potential mechanical faults currently in place relating to passenger trains, including the defendant's 'Incident Information Management System'.

23 For the purposes of this judgment, a broad description of this system will suffice. The system may be described as a two tiered inspection system. The first tier of that system involved a daily inspection carried out as a part of the preparation for the use of a train, a weekly inspection that related specifically to braking systems (or slightly longer periods depending upon the age of the particular type of passenger train) and a comprehensive 'general inspection' carried out every 90 to 120 days. The daily inspections are carried out by train drivers, whilst the other levels of inspection are carried out by qualified fitters and/or electrical mechanics.

24 The second tier of the inspection system, as I have referred to it, is a 'quality audit inspection'. These inspections are carried out on an announced and unannounced basis by 'extensively experienced' qualified fitters and electrical mechanics who have been certified as a 'quality technician' by the 'Australian Organisation of Quality'. Mr May gave evidence that these audits are designed to provide an 'independent quality assurance' mechanism to ensure the first tier of the inspection system is being complied with.

25 As for the training provided to fitters and electrical mechanics, Mr May stated that such employees were required to have completed a TAFE apprenticeship training course and would receive in-house training at their respective maintenance centre to the "satisfaction of their supervising foreman". He stated that the defendant was in the process of developing a standardised training system and that this should be in operation some time in 2002.

26 In his affidavit, Mr Henry stated that he had been employed in the rail industry since 1969. He is currently employed as the Acting Executive Director, Safety Division with the defendant. He stated that, in that position, he was "responsible for rail safety and occupational safety systems including safety standards, safety audit and investigation". He described his key accountabilities as including the establishment, oversight and compliance framework of the defendant, and ensuring that the defendant had an effective System Safety Management Process and Occupational Health and Safety Management Process. Prior to his current position as the Acting Executive Director of the defendant's Safety Division, he was the General Manager of Operations and the General Manager of Safety for the RAC. In his present position, he reports to the Acting Chief Executive, who, in turn, reports to the Minister for Transport. He gave evidence of the reform process that was undertaken by the government in 1996 and the subsequent division of the operational requirements of the defendant into various statutory corporations. He stated that the defendant, at the time of the offence, employed approximately 30,000 employees, 7,000 of which were employed in track maintenance. Following the reforms, the defendant employed approximately 10,000 people, none of which were employed in the maintenance of the rail lines. The defendant now contracts with the RIC for access to its rail network and it is the RIC that is responsible for the maintenance of rail tracks.

27 Mr Henry's evidence went primarily to three matters: the specific actions taken by the defendant in response to the accident; the restructure of the defendant's operations in 1996; and, the defendant's re-evaluation of its health and safety procedures following an inquiry into the rail industry by Justice McInerney.

28 At the time of the accident, the defendant had in place an Occupational Health and Safety Policy developed in 1995. Each workplace had a copy of this policy 'accessible to all employees' (it was available in lunch rooms or at sign-on locations). That policy was re-evaluated in 1999/2000 and a new policy was to be produced. As to what the defendant did immediately following the accident, Mr Henry stated that it sent out a memo to all relevant employees detailing the procedure to be followed if a track maintenance machine did not have the full use of its braking capabilities. It also conducted a series of training sessions with track maintenance employees to familiarise plant mechanics and supervisors with the operation of the various braking systems used on track maintenance machines and it implemented a process whereby track maintenance machines would have a safety inspection every 3 months in addition to their annual inspection. It should be noted, Mr Henry's evidence relating to changed practices of the defendant, with respect to inspections on track maintenance vehicles following the accident, was the only evidence put before the Court as to any inspection systems the defendant had in place for track maintenance vehicles. There was no evidence as to the specific inspection systems in place at the time of the accident for track maintenance vehicles.

29 Mr Henry expressed deep regret, on behalf of the defendant, that Mr Myers was not properly trained, but emphasised that the proper training of employees was, and will continue to be, of 'major importance' to the defendant. To this end, all managers have been trained in occupational health and safety matters through Australian Rail Training ("ART") (a business unit of the defendant). As to the training provided to employees, Mr Henry stated that, since the incident, the defendant had introduced and maintained a system whereby each employee had their responsibilities clearly identified to them and was then trained by a qualified trainer. This training included a system of certification to a level appropriate for the particular position. The level of training received was recorded on a database maintained by ART. Employees were required to undergo regular re-certification. In the year 2000, a system was introduced whereby employees involved in 'safe working train' operations were required to attend training every 16 weeks. Mr Henry stated this was at a considerable cost to the defendant and that it further demonstrated its commitment to matters of occupational health and safety.

30 The defendant had in place, at each of its workplaces, an occupational health and safety committee and a top level committee who meet with union representatives each month. The members of these committees had completed an appropriate WorkCover training course. The role of these committees included the carrying out of local inspections, discussing and dealing with safety matters raised by employees, reviewing incidents and trends and making recommendations to management in relation to preventative measures. Minutes of committee meetings were taken and were made available to employees.

31 As to the structural reform in 1996, Mr Henry's evidence went further than that of Mr May. He described, in some considerable detail, the process the defendant had undertaken in managing the formation of the RIC. This process involved entirely re-evaluating the defendant's approach to matters of occupational health and safety.

32 As earlier mentioned, the RAC and the RSA were amalgamated on 1 March 2001 by the Transport Administration (Amendment) Act 2001, to form a single body know as the Rail Infrastructure Corporation (the "RIC"). This was done in response to a reform program of the government (the 'One State Rail' reforms) developed following an inquiry into the rail industry. Mr Henry stated that a part of the recommendation of the inquiry was for the establishment of a safety validation process to oversee the orderly transition of management issues and, in particular, matters pertaining to health and safety in the restructuring process under the One State Rail reforms. In the result, there was established a 3 member specialist board referred to as the 'Safety Validation Board'. In order to satisfy this independent review board that matters of health and safety would be adequately dealt with during the transitional period, the defendant prepared a 'change' management document entitled the 'Change Transition Proposal "One State Rail"'.

33 A copy of this document was annexed to Mr Henry's affidavit. It provided extensive and detailed evidence of the revised policies and procedures currently in place within the defendant's organisation pertaining to matters of health and safety, the details of which need not be set out for the purposes of this judgment. Suffice it to say the defendant now has in place, what it refers to as, a "Safety Management System" and that this has been taken into account in the sentencing of the defendant. The system consisted of "all the documentation, processes, systems, safety training, performance indicators and tasks that combine to ensure the health, safety and welfare of all employees, contractors, visitors and passengers of the defendant". It identified 15 specific elements each of which focuses on an area identified by the defendant as requiring particular attention in relation to matters of health and safety. The elements of this system included matters ranging from the defendant's objectives in establishing its safety system to the selection, training and required competencies of employees. It also included emergency measures, hazard identification, incident reporting and investigation, inspections, audits and other safety procedures. These 15 elements were described as "the road map for the development, management and monitoring of the environment, health and safety of the SRA".

34 Mr Henry stated that, in an effort to further promote the provision of a safe rail service, the defendant was in the process of developing additional 'safety standards', 'operating division safety procedures' and 'safe operating procedures' so that each employee would have available, in writing, information about their work, identifying safe work procedures, risks and control measures associated with each task. Some 22 of these standards had been developed. Employees also now had a handbook which contained the defendant's safety policy, a discussion of the legislative requirements and information as to the availability of training and incident reporting systems.

35 Mr Henry emphasised that safety was now the "number one" organisational objective of the defendant.

36 Mr M Shume of counsel, who appeared for the prosecutor, submitted that the principles for sentencing in this jurisdiction are well settled in that the true measure of penalty lies in the nature and quality of the offence and not merely the consequences of the breach. In the present matter, it was the potential risk flowing from the breach charged and the foreseeability of that risk that should determine the gravity of the offence and the consequent penalty.

37 Noting the provisions of s51A of the Act and the defendant's prior record, the maximum penalty applicable in this matter was $750,000. The defendant, at the time of the accident, was responsible for the rail maintenance activities, including the training of staff and the servicing of the rail tamping machines.

38 As to deterrence, Mr Shume submitted that both general and specific deterrence should feature in the assessment of penalty: Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 at [73] - [77]. Whilst it was conceded that the defendant no longer had any role in the maintenance of rail track nor any responsibility in relation to the maintenance staff or machines, the subject of these proceedings, specific deterrence was still a matter relevant to this defendant. This defendant continued to operate six vehicle maintenance stations for servicing passenger trains and, in particular, this included the servicing of the braking mechanisms for passenger trains. The prosecutor conceded that the actual braking systems on the rail maintenance machines were not similar to those on the passenger trains, however, it was submitted that the defendant still engaged persons in similar maintenance operations and, therefore, specific deterrence should feature in the assessment of penalty in this matter.

39 Mr Shume submitted that the defendant had co-operated with the prosecutor and had pleaded guilty at the earliest available opportunity. It was submitted an assessment of the objective seriousness of this offence and taking into account the various matters in mitigation ought result in the penalty imposed being somewhere in the 'mid-range' of penalties that have been imposed by the Court.

40 Mr J V Agius SC, who appeared for the defendant, submitted, in concurrence with the prosecutor, that the accident was only relevant to these proceedings to the extent that it was the triggering event for an investigation which brought the offence (being the failure to adequately provide training) to the prosecutor's attention.

41 It was submitted that it was relevant, in assessing the nature and seriousness of the offence, to look at the circumstances on the day of the accident. In that regard, it was submitted the Court should be cognizant of the fact that the accident occurred at approximately 4pm in the afternoon at the conclusion of the days work. The track maintenance machines had been in use all day. There was no evidence to suggest that the deficiency in the braking mechanism 'became noticeable or otherwise interfered with the safety' of the track maintenance operations. Mr Aguis submitted that this gave rise to an inference in favour of the defendant that the condition of the brakes did not have an adverse effect on the operation of the machine. The risk to safety, so it was submitted, was quite minimal. It was not disputed that the risk simpliciter was that inoperative brakes, arising as the result of an improperly trained mechanic, may result in injury. However, there was no evidence that the reduced braking system reflected itself in the accident in a causal way and this fact is relevant to an assessment of the 'gravamen of the risk'.

42 As to deterrence, Mr Agius, having accepted that general deterrence ought feature in an assessment of penalty, relied upon what was stated by the Full Bench in Capral Aluminium (at [77]) for the submission that there should be little, if any, element of any penalty to represent specific deterrence. This submission was put on two bases. Firstly, following the accident the defendant took significant remedial steps. It had recently undertaken a comprehensive reassessment and reorganisation of matters associated with occupational health and safety. This reprioritising process had resulted in matters pertaining to health and safety being now of primary importance within the defendant's organisation. Secondly, the defendant no longer had any responsibility for the maintenance of rail lines, track maintenance machines or the training of track maintenance staff. Whilst it was conceded that the defendant still operated maintenance centres and undertook maintenance on the brakes of passenger trains, there had been put in place very detailed policies and procedures associated with the maintenance of these braking systems and the training required of persons working on them. Further, the systems currently in place had been subject to ongoing auditing processes and so were not merely left as paper systems. They were regularly monitored.

43 Mr Agius submitted that the criminal history of the defendant should not result in the imposition of a penalty that is disproportionate to the objective seriousness of the offence: Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 477. Whilst the prior record of the defendant was 'rather daunting', when one closely examined the record of the defendant, the offence, the subject of the present charge, occurred earlier in time than many of those reflected in the defendant's criminal history. Further, in that regard, Mr Aguis, having recognised the difficulty of comparing factual scenarios in these matters, sought to draw some distinctions from the circumstances giving rise to the penalties imposed by this Court on the defendant in recent decisions: see State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218, WorkCover Authority of New South Wales (Inspector Richey) v State Rail Authority of New South Wales [2000] NSWIRComm 205, WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales [2000] NSWIRComm 179 and WorkCover Authority of New South Wales (Inspector Milligan) v State Rail Authority of New South Wales (unreported, Matter No's IRC 7032 - 7036 of 1997, Kavanagh J, 13 October 1999).

44 It was submitted, in particular, that when one looks to the judgment of Wright J, President, in WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales and compares the risk that gave rise to the prosecution in that matter to the facts in the present matter, the seriousness of the offence disclosed in the present matter is somewhat less grievous in nature. This should be reflected in the penalty imposed in these proceedings, noting that the penalty imposed in the aforementioned matter was $200,000 after a discount for subjective features in mitigation of penalty. Further, one aggravating feature of that prosecution was the fact that the offence occurred following the break-up of the defendant in 1996.This was not a feature of the matter presently under consideration and this should be taken into account in the assessment of penalty.

45 It was submitted, in mitigation of penalty, that the defendant had expressed contrition following the accident and pleaded guilty at the earliest available opportunity. The utilitarian considerations associated with the plea of guilty should feature heavily in the determination of penalty in this matter as any contested trial would have extended for some considerable length of time. A discount of one third for these features would be appropriate in the circumstances surrounding this case: R v Thomas; R v Houlton (2000) 49 NSWLR 383.

46 I have set out the principles to be applied in relation to the sentencing of an offender under the Act in Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Style Wise Interiors [2002] NSWIRComm 64. I adopt those principles for the purposes of this judgment.

Consideration 47 In accordance with the principles for sentencing, I shall firstly consider the objective seriousness of the offence.

48 The maximum penalty for the offence charged is $750,000 noting the date of the incident, the operation of s51A of the Act and what may be only described as an extensive list of previous convictions of the defendant: Capral Aluminium.

49 I agree with the submission put by Mr Agius, that the sentence imposed upon the defendant should be determined by specific reference to the limited offence charged; that is, a 'training charge': see WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 at 340. The risk to safety occasioned by the defendant in this matter was confined to a failure to train Mr Myers. The resulting failure in the braking system represented a 'latent defect' in the sense that it did not manifest itself in the accident which triggered the prosecution in this matter. I note that there was no demur by the defendant in this respect. These are all matters which go to the objective seriousness of the offence.

50 Thus, the offence charged in this case relates to the failure to adequately train a mechanic employed by the defendant who was required to work on the track maintenance vehicles' braking mechanism.

51 I also agree with the submission of Mr Aguis that the occurrence of the accident does not, in this matter, shed any light on the seriousness of the offence. It is for all intents and purposes an historical fact giving rise to the investigation by the prosecutor. However, the risk to safety in this matter was the potential failure of the braking mechanism of the TJ 083 rail tamping machine resulting from that mechanism having been worked on by an inadequately trained employee. In the operations of the defendant, as Mr Aguis put it, "common sense" would indicate that the braking mechanisms of its vehicles are of the utmost importance.

52 It has been frequently stated in judgments of this Court that the severity or otherwise of the consequences flowing from a breach of the Act are not of themselves determinative of the appropriate penalty: Lawrenson Diecasting at 476 and Capral Aluminium at [94]. It is the objective assessment of the nature and seriousness of the offence that is the primary factor to be considered in the determination of penalty. There was every prospect of serious consequences arising from the risk to safety.

53 Mr Aguis submitted that the faulty braking systems of the rail maintenance vehicle in the present matter should be looked at in the context in which those operations are carried out. There is some merit in this submission, however, there are also some limitations in the present matter in fully conducting such an analysis. There was no evidence from either the prosecutor nor the defendant in these proceedings as to what was the system of work adopted by the defendant generally when performing track maintenance activities at the time of the incident. There was no precise evidence as to actual systems of work applying on the day of the incident. Further, the actual circumstances of the accident and its causes have not featured in this sentencing process. What the Court has received is an abundance of evidence as to the systems now operated by the defendant (and reforms to its operations); all of which are powerful subjective factors in favour of the defendant (although the Court will deal separately with the issue of specific deterrence).

54 I turn now to the issues raised by the defendant as to deterrence. It was submitted on behalf of the defendant, relying on the decision of the Full Bench in Capral Aluminium, that due to the extensive review and reform of its operations, the extensive health and safety policies that have now been developed and the fact that matters of health and safety are now given top priority in the defendant's operations, specific deterrence should represent only a nominal feature of any penalty imposed by the Court in this matter.

55 I consider it appropriate for the consideration of this matter to fully set out the relevant passage from Capral Aluminium (at [73] - [79]): 73 Although general deterrence and specific deterrence have differing purposes or aims, the varying aims of deterrence are particularly relevant in occupational health and safety prosecutions in light of the objects and terms of the Act. As Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388 said: "... the fundamental duty of the Court in this important area of public concern ... [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace." 74 We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm 39 at [40] - [43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 75 We now refer more particularly to the issue of personal or specific deterrence. For the reasons we have given, we do not accept that the appellant's submissions could have a substantial impact upon the weight to be attached to general deterrence in determining an appropriate penalty in the present case. Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable. 76 On the other hand, the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence: see Clayton C Ruby, Sentencing , 5th ed (1999) Butterworths, Toronto at 10. The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence. In R v Pickard [1998] VSCA 50, for example, Winneke P and Charles JA of the Victorian Court of Appeal stated (at 4): "An assessment by the judge of the risk of a prisoner re-offending is not a feat which requires any refinement of thought process. If the judge is satisfied that the accused constitutes such a risk that the penalty to be imposed should reflect an aspect of specific deterrence, it will be because he or she has no doubt that the accused poses such a risk. In our view, it is not a question of distinguishing between degrees of risk. It is simply because the judge perceives that the risk is such that the penalty should be one which will deter the accused from re-offending. The greater the judge perceives the risk to be, the more heavily specific deterrence will weigh in the instinctive decision as to the appropriate sentence." 77 In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. 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 (at 279): "... 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. ... 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 (Cth) v El Karhani (1990) 21 NSWLR 370 at 378. We conclude that in this case, although deterrence in both of its relevant respects is pertinent here, weight should also be given to the particular circumstances of the appellant.

56 It should be firstly recognised that the Court in Capral Aluminium (at [55] and [74]) rejected a contention by the then appellant that considerably less weight should have been given to deterrence due to its attempts, both before and after the incident, to ensure the safety of workers (including the provision of safety equipment) and the fact that the employer was a safety conscious employer. The Court found that both general and personal or specific deterrence were matters which should normally play a role in sentencing under the Act and that, although there are exceptional cases requiring a departure from that approach, they are rare (at [74]).

57 Further, the Court considered that it was unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. The primary feature that controlled the weight to be given to specific deterrence was the "propensity to re-offend", noting that the objective of specific deterrence is to deter the particular offender from repeating the offence (at [76] - [77]). The Court considered that for specific deterrence to be disregarded in the sentencing process, the offender would need to demonstrate the risk of re-offending was low or non-existent; be that because of demonstrated rehabilitation or because the offender would not have the opportunity to commit a similar offence in the future (at [77]).

58 Where the offender continued to be an employer, the risk to safety of its employees or contractors may exist or be possible. Thus, the Court came to the view that 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 by specific deterrence.

59 It follows, in my view, that notwithstanding the somewhat strident steps taken by the defendant to ensure the occupational health and safety of its employees (to which I will return in relation to the subjective features of this matter), the penalty in this matter should reflect the need for specific deterrence. I note, in this respect, that the defendant continues to operate and maintain rail vehicles, albeit of a different type to those operated prior to the restructuring of its operations. Further, the evidence of both Mr May and Mr Henry make it clear that, whilst the defendant has in place comprehensive inspection systems on its passenger trains and has in place substantial training regimes for its employees, the defendant continues to operate as an employer of a significant number of people within this State, some of which are engaged in maintenance work on rail vehicles. The Court is not satisfied that there is no potential for the defendant to re-offend: Capral Aluminium at [77], R v MacDonnell (unreported, Court of Criminal Appeal, 8 December 1995). The matter does not fall within the class of exceptional cases identified in Capral Aluminium where specific deterrence is inappropriate.

60 However, I consider, in accordance with the decision in Capral Aluminium (at [76]), any aspect of penalty providing for specific deterrence in this matter should feature less prominently than would otherwise have been the case, due to the significant re-evaluation of health and safety systems that have now been adopted by the defendant and, more broadly, the extensive restructuring of the defendant's operations. I am satisfied that the changes have resulted in a significantly lower risk of the defendant re-offending.

61 General deterrence will also feature in the sentence imposed in this matter.

62 As to the defendant's criminal record, it is well settled that the antecedent criminal history of a defendant may be relevant to the determination of an appropriate sentence, provided it does not result in a penalty that is otherwise disproportionate to the objective seriousness of the offence. The Full Bench of this Court in Lawrenson Diecasting stated in this respect (at 477): It is well established that a judicial officer considering the appropriate sentence to impose is entitled to have regard to the antecedent criminal history of the offender. The criminal history of an offender should not lead to the imposition of a penalty which is disproportionate to the seriousness of the offence, but may be relevant to show that the instant offence is not an uncharacteristic aberration or whether the offender in the commission of the instant offence has manifested a continuing attitude of disobedience of the law: see Veen v R (No.2) (1988) 164 CLR 477-478; Mears (1991) 41 A Crim R 141 at 145; Inspector Haynes v James Glass and Aluminium Pty Limited (unreported, Fisher CJ, CT91/772, 773, 774 and 775, 20 May 1994) at p6; R v Cassar (unreported, Court of Criminal Appeal, Barr J and McInerney AJ, 28 May 1999) at para [25]. In Camilleri's Stock Feeds Pty Limited v Environmental Protection Authority (1993) 32 NSWLR 683 at 700, Kirby P regarded evidence indicating that the offences were not uncharacteristic aberrations was a factor going toward the seriousness of those offences.

63 I agree with the observations of Wright J, President, in WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales at [46], that the "defendant's lengthy record of convictions … is a matter of great significance and of significant concern".

64 However, the defendant contended that in considering its record, the Court should be cognisant of the fact that a number of convictions for offences under the Act had been entered against the defendant following the period specified in the charge in these proceedings. It was submitted that, in considering the defendant's record in accordance with Lawrenson Diecasting, the Court should only have regard to the record that existed prior to the events giving rise to the charge presently under consideration.

65 In R v Boney (unreported, NSW Court of Criminal Appeal, Mahoney JA, Grove and Newman JJ, 22 July 1991), the court was dealing with an appeal against the severity of sentence imposed upon the defendant after he entered a plea of guilty to charges of unlawful assembly and malicious damage. The hearing of that plea occurred on 16 April 1991. The charges arose out of a riot following the funeral of the defendant's cousin, Lloyd James Boney, on 15 August 1987. The defendant had been convicted of a number of offences between the date of that event and the hearing of the charges. That aspect of the decision at first instance was unsuccessfully challenged (although the appeal was allowed on other grounds). Grove J (with whom Mahoney and Newman JJ agreed) stated in that respect: His Honour observed that the applicant, who appeared for sentence in 1991, had been before Courts in the period since the offences which occurred in 1987. His Honour noted these (which I shall describe as interim) and observed that other persons with whom he had to deal for offences arising out of the Brewarrina incident were in similar situations and commented:

"What I have already said applies particularly to him as to his conduct since this event."

The approach to be taken to such interim conduct between an offence for which a person stands for punishment and its time of commission has been the subject of authoritative approach from long ago. In The King v Withers (1789) 3 TR 428 Kenyon LCJ said: "It is well settled that the conduct of a defendant subsequent to the time when he is found guilty, may be taken into consideration, either by way of aggravating or mitigating the punishment. In general it is done for his benefit, in order to extenuate the offence; but it is also done, if required, to aggravate. Though in such case the Court will always take care not to inflict a greater punishment than the principal offence itself will warrant."

The same approach was manifested in this Court in Reg v Hutchins (1957) 75 WN NSW page 75 where Street CJ said:

"I think it is clear that in sentencing the applicant in June 1957 for a crime committed in September 1954 his Honour was entitled to take into account as matters for his consideration the convictions which the applicant had incurred between those two dates and he was entitled to take them into account for the purpose of considering whether he should reduce what he would have otherwise regarded as the proper sentence because some leniency should be extended to the applicant in the light of his youth."

His Honour went on to describe the circumstances in which that claim to leniency may be forfeited by reason of interim offences. It is clear, however, as I understand the authorities, that the existence of such offences cannot be used in order to increase punishment for the principal offence. By reference back to his Honour's remarks to other offenders, I conclude that he took interim offences into account for the purpose of withholding leniency and in so doing perpetrated no error.

66 This issue has recently received some more recent consideration by the Court of Appeal in Charara v New South Wales Director of Public Prosecutions [2001] NSWCA 140. In that case, the Court of Appeal was dealing with an appeal from a decision by Latham DCJ to refuse to state a case to the Court of Criminal Appeal. The application for a stated case was to determine whether her Honour had erred when, in determining an appeal by way of rehearing from a conviction and sentence imposed by a magistrate, she had considered convictions entered between the date of offence and the date of hearing of the charge for the defendant in that case. It was contended that her Honour had taken those subsequent convictions into account in a way which not only refused leniency in sentence, but in a way which resulted in an increase in penalty - it was only open to have regard to those convictions so as to refuse leniency. Latham DCJ considered that the question raised in the stated case would have made no difference to the outcome of the appeal and refused the application.

67 The appeal from the refusal to state a case required the determination of whether the case stated was frivolous and baseless. That, in turn, required a consideration of the point of law there raised. Having recited the passage from Boney that I have earlier set out, the Court stated (at [38] - [46]): 38 It is obvious that, even if taken into account only for the purpose of withholding leniency, offences committed after the offence for which sentence is imposed can result in increased punishment in the sense that the punishment is greater than it would have been in the absence of the later offences. And to say that the 1998 offences were not used adversely to the claimant does not address whether those convictions and sentences were permissibly taken into account for the purpose of withholding leniency, or impermissibly taken into account in order to increase punishment for the offences for which the claimant was being sentenced. To say that the magistrate's sentences were only confirmed or were not increased, or that the extent of the exercise of the sentencing discretion was to determine that the magistrate's sentences were appropriate so that there was not an adverse result for the claimant, is consistent with impermissibly taking the 1998 offences into account. 39 Her Honour's reasoning as appearing from the transcript for 27 October 2000 seems to me to have been as follows. Because she neither increased nor decreased the sentences, but only confirmed them, she could not have erred in taking account of the 1998 offences. She had exercised an independent discretion in that, notwithstanding her view that the sentences imposed by the magistrate were lenient, she considered it appropriate herself to impose the same sentences. (Perhaps this was influenced by double jeopardy considerations of the kind underlying Parker v Director of Public Prosecutions (1992) 28 NSWLR 282). In the result the sentences were not increased, and the 1998 offences therefore were not used adversely to the claimant. There being no properly arguable question of law, the application for a case stated was frivolous. 40 In my opinion this reasoning missed the point. The claimant was submitting that, to the extent to which her Honour gave independent consideration to the sentencing, her Honour had taken into account the 1998 offences, and had done so in an impermissible way. What her Honour said did not meet that submission. She misunderstood the notion of use adversely to the offender, founded on R v Boney , on which the claimant relied. Although the sentences were not increased, there could be use adversely to the claimant if, in determining that it was appropriate to impose the same sentences as the magistrate had imposed, her Honour had taken the 1998 offences into account otherwise than for the purpose of withholding leniency. 41 Were the questions of law in the draft stated case nonetheless frivolous? If her Honour's reasoning on 27 October 2000 was deficient, it is necessary to go to what was said on 1 September 2000. I have already set out the material parts of the transcript and indicated their context of the record of the claimant's criminal history. 42 In my opinion, on a proper reading of the transcript in that context her Honour did impermissibly take into account the 1998 offences: at the least, she arguably did so. 43 Her Honour's consideration of sentencing began with the view that the claimant had been lucky not to have received a full-time custodial sentence at an earlier time. She can not have been entertaining the possibility of leniency. Further, even before being taken through the record her Honour picked out "a mid range PCA in 1998", and saw a pattern of driving while intoxicated and violence when pulled over. She said that "the PCAs [plural] seemed to be coupled with assaulting police officers and refusing to submit to breath analysis". 44 Her Honour's attention was then directed inter alia to the 1998 offences. 45 Her Honour then referred to a continuing disregard of the law in driving while under the influence of alcohol and ultimately violence, and said that she was "looking at these offences in terms of their totality". In the period from 9 September 1996 the only apparent driving-related offences were those committed on 15 December 1997 and the 1998 offences. The claimant had a truly appalling record, but there was only the one earlier offence of driving under the influence of alcohol, the PCA offence with which the claimant was charged on 9 September 1996. Her Honour had not been specifically directed to that offence. It is at least arguable that her Honour had in mind the 1998 offences when she referred to the totality of the offences, and took a more adverse view of the offences committed on 15 December 1997 than she would have done if the 1998 offences had been excluded from consideration; and that she did so not by declining to extend leniency to an offender who, but for the 1998 offences, would have been entitled to leniency. 46 In my view the second question in the draft stated case could not be categorised as frivolous so as to negate the prima facie obligation affirmed in Director of Public Prosecutions v Cassell . The first question was not appropriate, and should not have been submitted to the Court of Criminal Appeal, because Latham DCJ was clearly entitled to take the 1998 offences into account, albeit for a limited purpose. The second question, however, while suffering from ambiguity in "adversely to the appellant", was apt to raise for determination whether her Honour had taken the 1998 offences into account in a way established by R v Boney to be impermissible.

68 In his text "Sentencing Manual: Law, Principles and Practice in New South Wales" (Judicial Commission of New South Wales, Lawbook Co. 2001), Mr Ivan Potas, under the heading "Further offences before sentencing", stated (at 298): It is well settled that the conduct of a defendant subsequent to the time of being found guilty may be taken into consideration, whether by way of aggravating or mitigating the otherwise appropriate punishment. In general, this is done for the offender's benefit, in order to extenuate the offence; but it is also done, if required, to aggravate it. In the latter situation the Court will always take care not to inflict a greater punishment than the principal offence itself will warrant: Boney (unreported, NSW CCA, 22 July 1991), pp 3-4 Grove J, citing The King v Withers (1789) 3 TR 428 per Kenyon LCJ.

69 Whilst it may arguably be thought there exists some tension in the position stated in the authorities cited, as indeed the submissions here of Mr Agius may have suggested, it is strictly unnecessary for present purposes to definitely resolve the issue. If one has regard to the table of previous convictions set out at paragraph [15] of this judgment, it can be seen that the defendant had a not inconsiderable number of convictions for offences under s15 of the Act prior to the occurrence of the present offence. At least one of those would appear to have been a substantial offence warranting a fine of $40,000 which reflected a significant percentage of the maximum penalty for such an offence at the relevant time. In any case, the relevance in the sentencing process of convictions for offences committed after the subject offence must be seen as long settled: see Boney as citing The King v Withers (1789) 3 TR 428 and Reg v Hutchens (1957) 75 WN (NSW) 75. I consider no reason exists to depart from the approach so laid down for offences under the Act. In the result, all of the convictions against the defendant, as set out above (at [15]) may permissibly be taken into account in sentencing the defendant for the present offence by tempering the leniency or mitigation which the defendant might otherwise attract in subjective terms, but not so as to increase the appropriate penalty based on the objective seriousness of the instant offence.

70 In this mater, the defendant has a significant prior record which, on any approach, will need to be taken into account, although it will be imperative in doing so to take into account the whole of the circumstances of the operations of the defendant as a counterbalancing measure.

71 I agree with the observations of Wright J, President in WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales (at [47]), and the submission of the defendant in this matter, that the defendant's criminal record must be examined in the context of the whole of the circumstances in which it finds itself. This should include the fact that the defendant previously employed a significantly larger workforce on a considerably broader range of operations than is now the case: WorkCover Authority of New South Wales (Inspector Gordon) v State Rail Authority (unreported, Marks J, 27 March 1997, at 6 - 7).

72 This is not to suggest that the size of the organisation is in some way to be considered justification for a failure by a defendant to meet its obligations or for having a lengthy record of convictions under the Act. Such a notion is untenable given that the abject purpose of the Act is to provide a safe work environment for the workforce of this State: see WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25 and the cases cited therein. However, the Court will take into account the size and extent of the operations of the defendant when considering a prior record: WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales and WorkCover Authority of NSW (Insp Lyons) v Warman International Ltd (2001) 105 IR 236. The existence of a lengthy criminal history is an aggravating feature when considering the penalty to be imposed for a particular defendant. It is not that the nature and size of the organisation can permit the Court to disregard those prior convictions as aggravating features of an offence. In my view, the nature and size of the organisation ought reflect on the degree to which the defendant's criminal history can be considered an aggravating feature of an offence. The practical reality is that the larger and more diverse the workforce, the greater the opportunity for accidents.

73 In all these circumstances, and having regard to the nature of the offences charged, I consider the offence to be a significant one, but does not warrant a penalty at the high end of the range.

74 Turning to other relevant subjective features of the defendant, I am satisfied that the defendant has undertaken, and is continuing to undertake, a comprehensive reassessment and reorganisation of its approach to matters of health and safety in its operations. The evidence of Mr Henry makes it plain that safety has been placed atop of the list of organisational objectives for the defendant's operations. The changes brought about in the defendant's operations, policies and procedures (which I have earlier described) since the incident are significant subjective factors in favour of the defendant.

75 Noting the submissions of the parties, I am satisfied that the defendant has co-operated with the prosecutor and demonstrated contrition. I consider that the defendant's plea of guilty was entered at the earliest reasonable opportunity. I note the defendant's plea avoided complex and lengthy trial.

76 I have recently had the opportunity of considering the relevance of a plea of guilty in sentencing proceedings under the Act in Schrader (at [76] - [82]). I adopt that discussion for the purposes of this judgment.

77 I consider that a substantial reduction in the penalty should be afforded the defendant for the various subjective features that have been discussed above. I will provide a 'discount' of 30% for these considerations. I feel compelled, however, to emphasise that "subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence": Lawrenson Diecasting at 474. This prosecution relates to a failure to provide adequate training to an employee who was required to work on the braking mechanism of a track maintenance machine which was, at the relevant time, under the management and control of the defendant - the primary provider of passenger train services in this State.

78 The defendant has pleaded guilty. I consider that the plea was properly entered. For the foregoing reasons, I consider, after discount for subjective factors earlier identified, an appropriate penalty with regard to the offence as charged to be a fine of $90,000. The prosecutor should have a moiety of the fine. 79 I make the following orders:

1. The defendant is fined an amount of $90,000 with a moiety thereof to the prosecutor;

2. The defendant is to pay the prosecutor's costs in an amount as agreed between the parties or, failing agreement, as assessed by the Court. The parties are to file agreed short minutes setting out the appropriate order for the Court in relation to the quantum of costs in these proceedings within 21 days.

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