WorkCover Authority of NSW (Insp Dubois) v Transfield Pty Ltd

Prosecutor: Mrs W.G. Thompson of counsel Solicitor: Mr Greg McCann WorkCover Authority of NSW LEGAL REPRESENTATIVES: Defendant: Mr B.D. Hodgkinson of counsel Solicitor: Mr Gerard Phillips Carroll & O'Dea

JUDGMENT:

• 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J

IRC6985 OF 1999 WORKCOVER AUTHORITY OF NSW (INSP DUBOIS) v TRANSFIELD PTY LIMITED Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT 1 This is a prosecution under s15 of the Occupational Health and Safety Act, 1983 ("the Act"). The prosecutor, represented by Mrs W.G. Thompson of counsel, submitted the maximum penalty for a breach under the Act at the time for this offence was $550,000 but as there were prior convictions, under the same section of the Act, the breach in consideration of s51A of the Act attracts a further penalty of up to $275,000, so the maximum penalty for a breach of s15 of the Act, by this defendant is up to $825,000 (see Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm71 (21 July 2000)). 2 Mr B.D. Hodgkinson of counsel represented the defendant and entered a plea of guilty to the charge. 3 The summons alleges the defendant breached s15(1) of the Act on 2 November 1998 at the North Side Storage Tunnel Project at Manly in the State of New South Wales, when it failed to ensure the health, safety and welfare at work of all its employees, in particular, James Nathan in undertaking tunnel excavation work, in that: (a) Failing to provide or maintain systems of work for maintenance work undertaken on or around the Tunnel Boring Machine. (b) Failing to provide or maintain an adequate tag and lock out procedure for work around the gripper section of the machine when the re-gripping procedure was required upon the Tunnel Boring Machine. 4 There is an agreed statement of facts which relevantly states: 3. At all material times, the Defendant was an integrated member of the Northside Storage Tunnel Alliance, an alliance between the Sydney Water Corporation, Transfield Pty Limited, Montgomery Watson Australia Pty Limited and Connell Wagner Pty Limited, and was undertaking the work of excavating a tunnel, 1.5 kilometres in length at the North Head Sewerage Treatment Plant at Bluefish Drive, Manly in the State of New South Wales. The four (4) participants above are contracted to the Sydney Water Corporation for the construction of the Northside Storage Tunnel Project. 4. At all material times the Defendant employed a number of personnel at the above work site including James Nathan ("Nathan"), twenty-eight (28) years of age as a maintenance fitter. Nathan had been employed since 22 September, 1998. 5. On 2 November, 1998 at about 9-9.15pm, Nathan suffered fatal injuries when he was crushed beneath the re-grip legs of the Tunnel Boring Machine in the tunnel being excavated at the above work site. 6. On 2 November, 1998 a Factual Inspection was conducted of the site. An Inspection Report was completed and photographs taken. 7. At all material times, the Defendant operated a Tunnel Boring Machine to excavate a tunnel as part of the above project. Annexed hereto and marked with the letter "A" is a true copy of a map of part of the tunnel project. The "X" signifies the location of Nathan's accident. 8. Investigations have revealed that the Defendant was in the process of excavating a tunnel 1.5km in length for the purpose of a waste material (tunnel spoil) transport to Little Manly Point, where the material would be barged away for disposal. The tunnel and barging of the waste material was to alleviate the number of trucks travelling through Manly during the construction of the tunnel. 9. The Tunnel Boring Machine used to excavate the tunnel, has a cutting stroke of 1.6m. Each cutting stroke takes approximately 15 to 20 minutes to complete. The Tunnel Boring Machine is approximately 3.8 metres in diameter and 65 metres long. The operators control cabin is located 17.5 metres back from the cutting head. 10. At the completion of each stroke, the Tunnel Boring Machine "re-grips" to enable it to move forward again. In the re-grip cycle, a paid of legs is lowered to support the machine and the eight (8) side wall grippers are retracted and moved forward approximately 1.6 metres, then reset against the wall of the tunnel, then the support legs are retracted and then the machine is ready to cut again. 11. Nathan was working under the Tunnel Boring Machine approximately 10 metres from the operator cabin toward the front of the Tunnel Boring Machine conducting maintenance on a 2-inch Diaphragm pump. The pump was 667mm in height. The pump was positioned near or beneath a re-grip leg. 12. It was revealed that Nathan had been conducting maintenance on the pump whilst the machine was finishing the cut. When the cut was complete, David Gleeson, the Tunnel Boring Machine operator, got out of the cabin, yelled out to Nathan that the cut was complete and that the machine was about to re-grip. Nathan replied back "Okay, you're right". He then got back into the cabin and put the machine through its re-grip procedure. This process takes approximately 4 minutes. 13. Before commencing the cut Dave Gleeson asked Ray Aldridge, a labourer, to check on Nathan. Aldridge went under the machine to find Nathan slumped over the pump near the re-gripping leg of the machine, and went to get the first aider. 14. In the process of getting the first aider he ran into the electrician and told him to shut the machine down. Two first aiders went under the machine and performed CPR on Nathan while Jason (the electrician) called 000, and notified the surface. CPR was performed until ambulance officers arrived and took over. 15. Investigations have revealed that there was written procedure in the Job Safety Analysis (J.S.A.) for the re-gripping procedure (SFTY-FM-002) which listed the steps to be taken for the re-grip. Hazard Control Measures are: "watch re-grip area, ensure all clear." 16. Though statements obtained, it is evident that the procedure was not being implemented by personnel on site and the procedure for working under the machine or past the operators cabin was to communicate with the operator. Communication was by way of shouting, hand signals or use of helmet headlamps. Several witnesses revealed that this was the procedure used. 17. Investigations have also revealed that Nathan had obtained approximately one hour formal training a day for about 8 days. This was conducted by Andrew Biddle who was also a maintenance fitter on site. Further, Nathan had over three hundred (300) hours familiarisation and hands-on training over the six (6) weeks of his employment by the Machine supplier's technician or one (1) of the two (2) maintenance fitters involved with assembly and commissioning. 18. Prior to the Prosecutor undertaking a breach interview with the legally authorised officer of the Defendant, the Defendant approached the Prosecutor and advised the Prosecutor that the Defendant's own investigations had established a breach of the Occupational Health & Safety Act 1983 and further, the Defendant indicated that the Defendant would plead guilty to a breach of s.15 in the event that the Prosecutor decided to prosecute the matter. This Agreed Statement of Facts was drafted and agreed to by the parties prior to the commencement of any proceedings. 5 The prosecutor also relied upon an inspection report of Mr Ric Rech dated 4 November 1998, which report makes clear that the deceased was working on a pump under the machine beside a regrip leg of a Tunnel Boring Machine which operates continuously. In the regrip cycle a pair of legs is lowered to support the machine and then eight side wall grippers are retracted and moved forward then re-set against a wall to allow the boring machine to more forward. Then the support legs are retracted and the machine is ready to go again. 6 The pump concerned was a two inch diaphragm pump which is used to pump out water from the floor of the tunnel. Mr Nathan, the deceased, was conducting maintenance on the pump underneath the machine during its cutting process. When the machine had to move forward the operator of the machine called out to the deceased that the machine was about to regrip and the deceased answered with an assurance "okay you're right". The operator, presuming the deceased had moved away, began the regrip process. The deceased's answer reveals he was aware the regrip procedure was beginning but when the regrip leg was lowered he was however not clear and suffered fatal injuries. 7 The principles to be applied in assessing penalty under the Act have been reviewed in the matter of Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Insp James Swee Ch'ng) (1999) 90 IR 464 (at 474) where the Full Bench of the Commission in Court Session commented: . . ., in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH & S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence'.

and (at 474): It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence.

The Full Bench cited, with approval, the passage from the judgment of Fisher CJ in Haynes v James Glass & Aluminium Pty Ltd (unreported, CT91/772-775, 20 May 1994) where his Honour said (at 474): . . . While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce. The Full Bench noted (at 476): . . . the proper approach is to first consider the gravity of the offence viewed objectively.

And (at 476): In the case of an offence under s 15(1) of the OH&S Act, there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: see Insp Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) (at 9). The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant; see Tyler v Sydney Electricity (1993) 47 IR 1 at 5. In Insp Hannah v Wonar Pty Ltd , the Full Bench indicated (at 9), properly in our view that 'a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences.' 8 In a consideration of the nature and quality of this offence, that is, the gravity of the offence, the Court notes the particulars of the breach relied upon by the prosecution refer to the failure to provide and maintain a safe system of work related to maintenance work on or around the boring machine and the failure to provide or maintain an adequate tag and lock out procedure for work around the gripper section of the machine. 9 There is a further element to this offence which must be given consideration and that is found in the Job Safety Analysis ("the JSA") revealed in company documents which were prepared on 28 September 1998, that is, before this tragic accident. Evidence reveals this safety analysis on the operation of the boring machine was conducted on site with the operators of the machine. The JSA identified some risk associated with the operation of the machine as follows: under the heading, "Potential Hazards", "Squash materials/people. Low gripper pressures" and then under the heading "Hazard Control Measures", is the comment "Watch regrip area. Ensure all clear. Ensure all four grippers have full pressure. Watch ground conditions." 10 The recommended Hazard Control Measure was reviewed, accepted and approved by company management. In its terms the warning contained under the heading "Potential Hazards" identifies the same terrible risk and danger at this site, two months before the accident, which risk caused the death of the employee. Therefore, I find this breach must be assessed as having the quality of a foreseeable risk. As Walton J, Vice President said in Department of Mineral Resources of New South Wales (Chief Inspector B R McKensey) v Kembla Coal and Coke Pty Ltd (unreported, IRC142 of 1998, 16 August 1999) (at 37): Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng , Matter No IRC 3064 of 1997, 12 August 1999 at 39), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence: see Camilleri's Stock Feeds (at 700); James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at 17) and The University of Sydney (at 16). 11 Further, the evidence reveals in October 1998, the company had introduced a tag out system which involved, before carrying out maintenance on machinery such as the boring machine, a tag would be placed on the machine operator's control panel to notify the operator of a worker's presence around moving parts. A lock out isolation or pendant control system worked in conjunction with the tag. The control pendant identified the place where a maintenance worker was working. The operator of the machine could not move into the next stage of the machine's operation therefore until the mechanic had re-claimed the tag. However, these procedures, while adopted in principle by the company in October 1998, one month before this accident, had not been refined for the operation on the site of the Tunnel Boring Machine. 12 Evidence revealed the employees on site had themselves developed a procedure arising out of their own safety awareness instincts. If any employee was working on or under the machine the employee informed the operator and, before the operation began to lower the leg of the boring machine, he climbed out of the operator's cabin and by a method of shouting, or hand signals, or the use of headlamps communicated with the maintenance workers what procedure he was about to enter with the machine. 13 In assessing the nature and quality of this offence the court finds the existing safety procedures being applied by the well intentioned operators reveal a complete neglect of task related safety procedures, as distinct from the site safety analysis, by this defendant company. Once more this court comments, not only must there be a general philosophical commitment by corporations to the principles of Occupational Health and Safety, but there is also the absolute necessity for each company to develop specific task-related safety procedures. The warning "Watch regrip area. Ensure all clear" while made available to the relevant employee was not a safety procedure at all and it put a most terrible obligation onto the workers at this site. To leave to operators the task of refining their own safe working procedures without corporate assistance is in itself an unsafe work practice and a complete avoidance of a company's obligation under the Act. 14 The employees instinctive self-imposed procedures for safe working by way of shouting and warning clearly failed in the circumstances. It is open to conjecture that the deceased, who had only been on this site for six weeks, although with some training, may well not have even understood what the regrip process involved. The deceased's reply "Okay, all right" clearly indicated he did not have any true concept about where to place his body to avoid the great weight of the regrip leg. The machine operator had been put in a most invidious position. The consequence which flows from this accident is a measure of the risk this unsafe work procedure created. 15 The following factors are accepted as indicative of the serious nature and quality of this offence. The court accepts the Tunnel Boring Machine is a machine which operates continuously and therefore maintenance has to be performed while it is operating. The defendant corporation was aware maintenance work would be carried out while the machine was operating. The fact that a worker who had been working for the company for only six weeks was required to place himself in what he assessed might be a safe position, rather than being required to come out from under the machine, in itself, identifies an inadequate system of work which exposed this worker to a most serious risk. Even taking into account the procedure added by the employees to ensure safety there is no evidence the defendant company designed a safe working procedure. Yet the appropriate safe system for such a task is the TAG system. This was known to the company. It was not being utilised in the performance of this task. 16 As a general principle neglect of well known precautions in circumstances where there is a major risk of injury is indicative of the serious nature of the offence and moves the offence towards the "worst case" category. From the facts before the court there was available an alternative procedure of tagging, known to the defendant corporation, and not implemented at this worksite. 17 I find this a most serious offence. 18 However, in assessing penalty the court may also take into consideration subjective factors which mitigate the objective seriousness of an offence. Mr Hodgkinson of counsel, with great vigour, urges upon the Court there are substantial subjective factors relevant to an assessment of penalty for this breach. He refers in detail to the circumstances which brought about the defendant's plea of guilty namely the defendant's co-operation with the WorkCover Authority, the defendant's contrition and as an immediate expression of that contrition he draws attention to the assistance provided immediately by the company to the family of the deceased. There was follow up assistance also provided to the family. The Managing Director of the defendant corporation himself went to the family and ensured every assistance was provided. The family received speedily all entitlements. I accept sincere contrition has been expressed by the company. Information as to Compensation rights and Superannuation rights was given to the family. It is noted an ex gratia payment was made by the company to the deceased's family. Co-workers were also provided with counselling. The company's concern in the aftermath of this accident for the deceased's family members and its employees are matters the court takes into account. 19 The defendant also relies upon the affidavits of its workers, namely, Mr Brindle, Mr Riches, Mr Betts and Mr Cuttler to demonstrate both a pre-existing commitment to the obligations of this company under the Act and their sincere and significant industrial reaction to the accident to put in place a safe system of work. A complete review of all its safety procedures were conducted 20 The character of a defendant, including the character of a corporate defendant, can be given a consideration in the determination of penalty (see Alexander Stuart & Songs Ltd v Robinson (1921) 29 CLR 234; s110 of Evidence Act). Evidence reveals there was in this corporation, prior to this accident, a significant commitment to occupational health and safety awareness. As this Court has often determined, this commitment must not only be a general commitment to safe working but that commitment must be transposed to site related safety procedures, task specific. Unfortunately, generalised words like "Ensure all clear" cannot translate to a working procedure or be accepted as a task related safe working procedure. Such is acknowledged by implementation of better practice post the accident. 21 Further, the defendant corporation acknowledges there was a corporate culture on this site which put "production" ahead of "risk". Although company policy was always that risk controls had priority over production the defendant has ensured the pre-accident corporate culture at this work site has materially changed. There has been significant re-training of the workers on site. Engineering refinements to the continuous boring machine itself, especially directed to access for maintenance workers, have been requested of the designers of the machine. The weight of a corporate reputation, such as that held by Transfield, it is hoped will encourage support for engineering refinements to the machine. 22 There is before the court significant evidence this company is a corporate citizen who specifically and financially supports community based projects and events. The company in New South Wales has a fine corporate reputation as a contributing corporate citizen. 23 The court, as to the defendant company's industrial record notes a number of convictions for minor breaches of the Act, leading to the two serious convictions and this most dreadful of fatalities. Industrial citizenship must be weighed in the context this company has some 8000 workers throughout Australia, Asia and New Zealand. It operates in heavy industry building projects such as the Sydney Harbour Tunnel, the New South Wales Airport Railway Link and the site of this accident, the Northside Storage Tunnel. On this site there were 80 persons at the time and now 120 persons. As in this case, much work is performed in dangerous underground conditions (see WorkCover Authority of NSW (Insp Gordon) v State Rail Authority, Marks J, 27 March 1997 at 6-7). However, the imposition of a penalty cannot be disproportionate to the seriousness of the offence. 24 Further, there are particular circumstances leading to the defendant's early plea of guilty on which the defendant corporation relies as a subjective feature to be given consideration. The defendant corporation investigated this dreadful accident immediately. The WorkCover Authority had in accordance with its statutory obligations also commenced investigation, but prior to the prosecutor undertaking a breach interview with the defendant corporation, the defendant corporation approached the prosecutor and advised, from its own investigations, there had been a breach of s15 of the Occupational Health and Safety Act 1983, and further, in the event that the prosecutor decided to prosecute the matter, it would enter a plea of guilty to the charges. It then provided the prosecution with its factual investigation. An agreed statement of facts was drafted and agreed to prior to the prosecutor laying the charge (see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683). 25 The file indicates a summons against the defendant corporation was filed on 22 December 1999 and the matter was first listed before the Registrar on 28 February 2000. However, on 18 January 2000, Messrs Carrol & O'Dea, solicitors, representing the defendant company, wrote to the Registrar of the Industrial Relations Commission of New South Wales relevantly stating: We have now been served with the initiating process in the above-mentioned matter.

We have previously advised the WorkCover Authority that it is our client's intention to plead guilty to the charge herein.

We would be grateful if you could refer this matter to The President for allocation to a Judge at your earliest convenience. . . .

We enclose herewith for your attention our Notice of Appearance.

Should you have any questions regarding this matter, please do not hesitate to contact our Mr Gerard Phillips.

. . . 26 It is settled law, where appropriate, a plea of guilty should attract a discount for utilitarian considerations, sufficient to encourage defendants to enter a plea of guilty. In King v Winchester (1992) 58 ACrimR 350) (Hunt CJ at CL) the court opined the degree of leniency to be afforded based on an early plea of guilty depends on many factors such as whether it was a recognition of a strong Crown case and/or an indication of the defendant's contrition. 27 Mr Hodgkinson submits the circumstances as to the laying of this charge involving the absolute co-operation of the defendant corporation to the point of assisting the prosecution as to the facts and the early plea of guilty entered before the court reveals an unusual set of circumstances which must be given considerable weight in the assessment of penalty by this Court. The defendant company, after its own investigations determined there was a breach by it under the Act. It then took the unusual step of approaching the WorkCover Authority and making this admission. The Authority, it is agreed, had not completed its investigation and had not conducted its interview with the defendant company and therefore as a direct consequence of the approach by the defendant company the Authority was saved the considerable time and expense of further investigation. The preparation of the brief for the prosecutor gained much from the admission of guilt made by the company who also assisted with the preparation of an agreed statement of facts as to the circumstances of this breach. All this sequence of events occurred prior to the laying of the charge. Such facts, Mr Hodgkinson submits, go beyond the concept of pragmatism as referred to by Hunt CJ in Winchester where it was noted a plea might simply acknowledge the inevitable conclusion a breach of the Act had occurred. A plea in the circumstances before this court, he submits, demonstrates quite clearly the defendant company's sincere contrition. In volunteering guilt he submits the Court should grant "A significant added element of leniency," as held in King v Ellis (1996) 6 NSWLR 602 (at 604 (c) to (e)). 28 Recently the New South Wales Court of Criminal Appeal published a guideline judgment in R v Thomson; R v Houlton [2000] NSWCCA 309 in relation to a court's consideration as to pleas of guilty. The judgment (at paras 151-155) calls for a discount range in consideration of the utilitarian value of a plea of guilty. The defendant accordingly makes application for consideration as to a discount on penalty in consideration of the utilitarian value of its plea in accordance with the guidelines as enunciated by the Court of Criminal Appeal in Thomson's Case (at par 151- 155): . . . That utilitarian value will vary from time to time and from one criminal justice system to another. Obviously there are common elements but there are also differences. The task of this Court is to identify a discount range which is appropriate and which will serve the public interests sought to be attained in New South Wales from encouraging early pleas of guilty.

In my opinion, the appropriate range for a discount is from 10-25 percent.

The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge.

There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.

(ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, e.g. on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.

And as to the application of that reasoning under the heading "Guideline" at the beginning of the judgment, the Court of Criminal Appeal held: The following guideline is adopted: (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount. 29 The court has been provided with assistance from Mr Hodgkinson, as to three matters where Supreme Court Justices have applied these guidelines on sentence - R v Sutcliffe; R v McGoldrick; and R v McGoldrick [2000] NSWSC825 (Adams J, 18 August 2000); R v Neville [2000] NSWSC841 (Adams J, 24 August 2000) and R v Offer [2000] NSWSC839 (James J, 25 August 2000). 30 Before applying the guideline on penalty, Adams J enunciated the principles applied on sentencing saying in Sutcliffe's Case (at par 29): The purpose of these proceedings is, fundamentally, to apply the criminal law to the measurement of punishment to offenders. So far as is possible that process must be objective and dispassionate. But it is nonetheless appropriate that I should acknowledge in these proceedings the dreadful loss that Mark Evans' death has caused to his family and, indeed, to the wider community. . . .

and (at par 31): " . . . the Court . . . must act objectively and dispassionately. It must carefully weigh all the relevant facts. 31 In WorkCover Authority of NSW (Insp Sheppard) v The State Rail Authority of NSW [2000] NSWIRComm179 (6 October 2000) Wright J, President said (at 38): The guideline is to be considered with the relevant provision of the Crimes (Sentencing Procedure) Act 1999 which replaced s439 of the Crimes Act 1900 and which provides: 22(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court. 32 In this regard the court acknowledges the dreadful loss that Mr Nathan's death has caused to his family and to the wider community. When considering discount as to penalty arising from a plea of guilty and its utilitarian value, the timing of the plea is the primary consideration for "determining where in the range the particular case should fall." The determination as to what is an early plea is a matter related to the circumstances of the case. 33 The Court of Criminal Appeal commented there is a need for a greater degree of transparency in the sentencing process and there is also a need to alter a widespread perception in the community including both the legal profession and an accused that there is no benefit to an offender for pleading guilty at an early stage of criminal proceedings (see Thomson's Case at par 162). 34 In quantifying the effect of the plea, consideration is taken of the defendant's expression of contrition; the saving to witnesses of a traumatic experience; the strength of the prosecution's case; the advantages to the administration of justice as to matters such as costs, and court efficiency and the timing in which the plea was indicated. 35 From the facts before the court, the court finds the plea in this prosecution was entered at the earliest possible opportunity. This defendant corporation has served the public interest and adopted in full spirit the utilitarian principle referred to by the Chief Justice by its action in providing assistance to the prosecutor as to the facts related to the breach prior to the prosecutor laying the charge. There are some obligations on a corporation under the Occupational Health and Safety Act, 1983 to assist the WorkCover Authority in its investigations but such obligations do not involve the admission of facts which would lead to an admission of guilt. The actions of this defendant corporation provide to the court evidence of an expression of real contrition and a true acknowledgment of the public interest. This plea was entered at such an early stage so as to ensure no unnecessary stress was placed upon the judicial system by the requirements for a trial but more especially this court views the actions of the defendant to reveal a real commitment by the defendant to the principles of occupational health and safety. 36 Accordingly, in accordance with the guidelines enunciated in Thomson, the court reduces the penalty against the defendant, Transfield Pty Limited, by 25% to reflect the utilitarian policy considerations referred to in the matter of Thomson (par 160). The court also takes into account the other subjective factors placed before it related to this offence as referred to above and weighs them further into its consideration as to mitigation of penalty. The court notes the expression by the legislature under the provision of s51A, which is applicable to this charge and indicates a significant intention by the legislation to increase the maximum penalty where there are serious breaches. The court has found this was a serious breach of the Act reflected by the provision of an unsafe system of work and where there was also an element of foreseeability to the offence. However, it allows for a significant overall mitigation as to penalty in the circumstances. 37 The court accepts as appropriate the plea of guilty and enters a verdict against the defendant. The defendant is convicted of the charge. 38 The defendant is fined $130,000 with a moiety of that fine to the WorkCover Authority. 39 The defendant shall pay the prosecutor's costs of these proceedings as agreed or, in default of agreement, assessed. *********

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