Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Belley v Freight Rail Corporation [2003] NSWIRComm 200 PROSECUTOR: Inspector Gabrielle Belley PARTIES : DEFENDANT: Freight Rail Corporation FILE NUMBER: IRC 5178 of of 2000 CORAM: Haylen J Occupational Health and Safety Act, 1983 - s 15(1) - plea of guilty after interlocutory proceedings - co-offenders - application of principle of parity - one significant feature distinguishes culpability of defendant in present case - modest discount for subjective elements - fine imposed CATCHWORDS : LEGISLATION CITED : Rail Safety Act 1993 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 at 56-58 Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 29) Doran (Chau Thi Bao) unreported NSWCCA 27 September 1996 Inspector Belley v Freight Rail Corporation [2002] NSWIRComm 281 Lawrenson Diecasting v WorkCover Authority of NSW (Inspector Ch'ng) 1999 90 IR 464 at 26 O'Brien (Edward Paul) unreported NSWCCA 7 April 1997 Postiglione v The Queen (1997) 189 CLR 295 Steele (Robert Ernest) unreported NSWCCA 17 April 1997 CASES CITED : Tyler v Sydney Electricity (1993) 47 IR 1 at 5 Watson v Southern Asphalters Pty Ltd (1998) 83 IR 446 at 456 WorkCover Authority of New South Wales (Inspector Belley) v Freight Rail Corporation (2002) 117 IR 99 WorkCover Authority of New South Wales (Inspector Belley) v Rail Infrastructure Corporation (2001) 111 IR 442 WorkCover Authority of New South Wales (Inspector Gregory Thomas Dawson) v Waugh & Thora Sawmilling Pty Ltd (1995) 59 IR 89 at 100 WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Ltd (25 February 1994 at 12 WorkCover Authority of New South Wales (Inspector Martin) v Transfield Pty Ltd t/as Transfield Maintenance (No 2) [2001] NSWIRComm 289 HEARING DATES: 05/22/2003 DATE OF JUDGMENT: 06/23/2003 PROSECUTOR: Ms L McManus of counsel SOLICITORS: Mr G McCann LEGAL REPRESENTATIVES: Legal Services Branch WorkCover Authority DEFENDANT: Mr D Cross, Solicitor Allens Arthur Robinson JUDGMENT: - 33 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HAYLEN J 23 June 2003 Matter No. IRC 5178 of 2000 Inspector Gabrielle Belley v Freight Rail Corporation Prosecution under s 15(1) of Occupational Health and Safety Act 1983. JUDGMENT [2003] NSWIRComm 200 1 This is the second prosecution relating to the same accident which occurred on 27 October 1998 when Mr Stephen Hockings was fatally injured at Trangie Rail Yard while carrying out shunting duties. The present matter concerns a charge under s 15(1) of the Occupational Health and Safety Act 1983: previous proceedings were brought against the Rail Infrastructure Corporation (the statutory successor to the Rail Access Corporation) pursuant to the provisions of s 17(1)(a) of the Act. In the prior proceedings, after a plea of guilty was received, the defendant was fined a total of $100,000 after receiving a discount for an early plea and for other relevant factors (see WorkCover Authority of New South Wales (Inspector Belley) v Rail Infrastructure Corporation (2001) 111 IR 442). The defendant in the present proceedings referred to the relevant factors taken into account in the previous proceedings in order to support a submission that the objective seriousness of its offence was of a lower order than that of the Rail Infrastructure Corporation. 2 A further issue which arose in the present proceedings was the effect of the sale of the Freight Rail Corporation under the provisions of special legislation and whether as a result, the purchaser, National Rail Consortium (SSL) Pty Ltd, was the proper defendant in the proceedings. This issue was dealt with in a separate judgment (see Inspector Belley v Freight Rail Corporation [2002] NSWIRComm 281). In that decision, it was held that the Freight Rail Corporation remained the proper defendant in the proceedings. Following the decision of the Court in relation to that matter, the defendant entered a plea of guilty to the offence as particularised under s 15(1) of the Act. 3 On the hearing of submissions on the plea of guilty, the parties tendered an Agreed Statement of Facts. For the purposes of this hearing, the relevant parts of the Agreed Statement of Facts are as follows: 3. At all material times up to February 2002, FREIGHT RAIL CORPORATION was a statutory corporation pursuant to the Transport Administration Act of 1988 with its head office located at 126 Church Street, Parramatta in the State of New South Wales ("the Defendant"). 4. In February 2002, the assets, rights and liabilities of the business undertaking of the Defendant were sold to National Rail Consortium (SSL) Pty Ltd (" NRC SSL "). The sale was mandated by Freight Rail Corporation (Sale) Act 2001 (NSW). The Defendant continues to exist as a corporation sole constituted by the Treasurer of New South Wales. Its continued existence is necessary in order that certain cross border leases remain extant. The existence of these cross border leases is necessary for the continued conduct of the undertaking by NRC SSL. 5. At all material times up to February 2002, the Defendant conducted rail freight operations throughout the State of New South Wales. 6. At all material times up to February 2002, the Defendant employed a number of personnel in its rail freight operations, including Stephen Hockings, 45 years of age, as an Assistant Locomotive Engine Driver and Ronald Simmons, 53 years of age, as a locomotive driver. 7. On 27 October 1998 Stephen Hockings was fatally injured at Trangie Rail Yard when he was crushed between a stationary and moving train as he was carrying out shunting duties. 8. Prior to the incident, Mr Hockings and Mr Simmons were given instructions by the Roster Clerk at Parkes to load containers of cottonseed onto a train at Trangie, take the train to Dubbo and then finish back at Parkes. 9. Mr Hockings worked with engine driver, Mr Simmons, to load the containers filled with cottonseed onto 29 empty wagons at the Trangie Rail Yard. The train they were working had three engines attached. The train movements at the Trangie Rail Yard are restricted because there is a highway crossing on the southern side of the yard. The container loading area is at the southern end of the yard. Only five wagons can be loaded at one time due to the length of the spur line. In addition with three engines on the train, the train would pass the points that set off the level crossing and disrupt traffic. As a result Mr Simmons and Mr Hockings had to bring the train backwards and forwards over the level crossing to load the train. 10. The former crew had already placed eight loaded wagons onto the loop line Mr Simmons and Mr Hockings had loaded another seven and were propelling (reversing) the train down the main line to pick up some more empty wagons to be loaded. Mr Hockings was carrying out shunting operations and riding on the steps of the last wagon to direct the train to the empty wagons at the northern end of the yard. Mr Hockings was communicating with Mr Simmons via radio and hand signals. 11. The distance from the front locomotive to the shunter was approximately 200 metres. As the engine driver, Mr Simmons, propelled backwards he noticed that there was only a small clearance between the wagons in the loop line and the train and he applied the brakes. At the same time he saw Mr Hockings spin between the wagons and drop to the ground. 12 Both men were experienced locomotive engine drivers. Mr Simmons had worked at Trangie on previous occasions but Mr Hockings had not. Mr Hockings' duties were to supervise and perform the shunting and loading. 13. Mr Hockings commenced employment with the former State Rail Authority in 1976 as a fettler. In 1981 he transferred to the Locomotive Division at Parkes. His training records indicate that he gained Assistant Train Driver level on 27 January 1998. He was last assessed and certified for Engineman Safeworking on 4 September 1998. 14. The Defendant's records indicate that Mr Hockings received the following training by his employer: (a) Engineman Safeworking on 4 September 1998; (b) shunting on 4 December 1981 and 10 April 1996; (c) shunting (modified) on 30 July 1991 and 6 May 1993. 15. The Defendant's records indicate that Mr Hockings was due to be reviewed on shunting on 10 April 1998. 16. Until July 1996, the NSW rail network was owned, managed and maintained entirely by the then State Rail Authority of NSW, a statutory body created pursuant to the Transport Administration Act 1988 (as it then was). 17. In July 1996, the New South Wales rail industry was restructured by the Transport Administration Amendment (Rail Corporation and Restructuring) Act 1996 (NSW) which amended the Transport Administration Act 1988. Under this legislation, the then State Rail Authority was broken up into 4 separate organisations: (a) Rail Access Corporation (" RAC ") - a new statutory State-owned corporation whose functions included: (i) holding, managing and establishing rail infrastructure facilities on behalf of the State; and (ii) providing rail operators with access to the NSW rail network. (b) State Rail Authority of NSW - a new statutory body, responsible for the operation of efficient, safe and reliable railway passenger services. (c) Railway Services Authority of NSW (renamed in 1998 to Rail Services Australia) - a new statutory State-owned corporation whose principal objectives included being an efficient, safe and reliable supplier of goods and services to the rail industry. (d) Freight Rail Corporation - a statutory State-owned corporation established to operate efficient, safe and reliable rail freight services. 18. From 1 July 1996 until 1 July 2001, RAC was the owner of the majority of the NSW rail network. At the time of the accident, RAC was the owner of the majority of the NSW rail network. At the time of the accident, RAC was the owner of the main and loop lines at the Trangie Rail Yard. 19. Monitoring and maintenance of the rail network owned by RAC was contracted to maintenance contractors, mainly Rail Services Australia. Rail Services Australia was contracted by RAC to monitor and maintain the Trangie Yard. 20. Pursuant to the Transport Administration Amendment (Rail Management) Act 2000, which amended the Transport Administration Act 1988, as of 1 January 2001: (a) RAC and Rail Services Australia were amalgamated to form a new statutory corporation: Rail Infrastructure Corporation. (b) RAC and Rail Services Australia are dissolved as separate entities. (c) Rail Infrastructure Corporation is taken to be a continuation of, and the same legal entity as, RAC and Rail Services Australia. (d) The assets, rights and liabilities of RAC and Rail Services Australia are the assets, rights and liabilities of Rail Infrastructure Corporation. … 23. Investigation revealed that there was inadequate clearance between the stationary wagons in the loop line and the wagons passing on the main line to ensure safe passage of a person riding on the side of the wagon. 24. The main and loop lines at the Trangie Rail Yard were installed in approximately 1882. Some work was done at the Trangie Yard in approximately 1990 and 1996 but this did not affect the body of the siding. Therefore, the track clearances remained unchanged since 1882. Track clearance standards were revised in 1957, 1976, 1987 and 1994. 25. The 1957 and 1976 standards stated that the minimum track centre should be 3658mm and 3660mm respectively. The 1994 standard (Standard C2104-1994) states track centres for new track must be 4000mm. 26. Accordingly, the main and loop lines at Trangie failed to comply with the standard applying at the time by 350mm to 390mm for existing tracks and 690mm to 730mm for new tracks. 27. The non-compliant track clearances at Trangie were identified to the former State Rail Authority in 1995. 28. RAC produced various standards relating to track centre clearances and track examinations: (a) C2104 - Structure Gauge 1994 - sets out the safe profile for the passage of vehicles and loadings. It states that Structure Gauge 1994 applies to all infrastructure both new and existing) Minimum design track centres for new work are 4000mm. (b) C2106 - Infringement of Transit Space Standards - sets out the conditions under which reduced safety clearance margins are temporarily or permanently authorised. (c) C2107 - Base Operating Standards for Clearances - set out the minimum safety clearance margin to be maintained. (d) C2110 - Transit Space Handbook Commentary - sets out the assumptions made in the Handbook. It states "all track centres less than 4000mm are now non conforming and will need to be managed". (e) C2430 - Exceedent Control Policy - sets out the policy for the establishment, use and maintenance of an exceedent control system for track. The purpose of an exceedent control system is to provide an auditable trail for all actionable exceedents from detection/notification to investigation, assessment, repair programming, repair action and certification. (f) C2435 - Track Examination Handbook System Overview - outlines the procedure, recording and action for track patrol and examination. The system includes examinations of clearances and track centres on passenger lines and those carrying more than 10mgt every 12 months and other lines every 2 years. Tracks at Trangie Yard fall into the other category. (g) C2437 - Track Examination: Track Patrol and Front of Train Examination - details instruction for track patrol of RAC infrastructure. (h) C2445 - Track Examination: Examination of Track of Structure Clearances - details the policy for examination of lateral clearance to structures, vertical clearance to overhead structures and track centres between adjacent tracks. Point 6 states "track centre examination is required on multiple track main lines". Trangie Yard does not have multiple track main lines. 29. All work on railway lines and yards is carried out according to the State Rail Manual for Safeworking. The relevant sections pertaining to shunting and propelling a train within a yard are 116, 135, 136, 160, 161, 162, 163 and Circular 342 (Special). (a) SWU 116 - Yard working contains instructions about working in yards. (b) SWU 135 - Train Radio Procedures states that positive contact must be confirmed every 5 seconds between the driver and shunter. (c) SWU 136 - Train Radio Procedures states that if a radio is used the shunter should work, where possible, on the side of the train opposite the driver to provide safety by having both sides of the train under observation. (d) SWU 160 - Introduction to Shunting and Marshalling states that when shunting is done by hand signals the shunter must remain in the driver's view at all times. This Unit states that the basic Safeworking principles are accurate knowledge, effective precautions and safe operating practice. · Accurate knowledge contains instructions about learning the yard, local working, holding capacity and correct method of applying and releasing brakes. · Effective precautions contains instructions about: not leaving obstacles lying about; not standing, sitting or leaning close to point levers; not walking between couplings; injury from air hoses; not walking between moving vehicles; precautions for walking between stationary vehicles; precautions for using tail ropes or emergency towing chains; holding vehicles on grades; precautions for trains fouling another line. · Safe operating practice contains instructions about: handsignals; planning shunting work; points; precautions when a train has a red flag or red light; and precautions when moving a train. (e) SWU 161 contains instructions about Gravitation, loose and locomotive shunting. (f) SWU 162 - Propelling a train has been replaced by Circular No 342 (Special); however it was still in the Basic Safeworking manual WorkCover was given. (g) SWU 163 - Shunting under various conditions contains instructions for shunting over a level crossing. (h) Circular No 342 (Special) - Propelling a Train replaced SWU 162 on 8 December 1996. It contains instructions about propelling a train (when the driver is controlling the train from the opposite end). The Circular states that if a train is propelled within yard limits the shunter must ride in or on the leading vehicle in order to control the movement. The only exception is if the vehicle is not suitable, then the shunter must walk in advance of the leading vehicle. 30. Since 1998, evaluation of the Defendant's engine drivers was performed annually via a Progressive Assessment Report. Mr Hockings was assessed on 4 September 1998 and gained his Engineman Safeworking Qualification. There is no indication that shunting operations are assessed during the periodic assessment report. According to Mr Hockings' training records he received training in Shunting on 4 December 1981 and training in Shunting - modified on 30 July 1991. 31. The investigation revealed that there was no indication that training had been provided to the enginemen on how to plan their shunting work taking into account a risk assessment of the site. 32. Soon after the incident, the Defendant issued a reminder to all relevant employees that all locomotive shunting must be performed in accordance with Circular 342 (Special) which forms part of the Basic Safeworking Procedures. 33. RAC issued a Safeworking Telegram to the Defendant, which prohibited riding on wagons when the adjacent line at Trangie was occupied. The Defendant issued this telegram to all its employees. 34. After the incident RAC formally informed the Defendant's management that the main line and loop line at Trangie did not conform to the 1957 Structure Outline Standard. RAC also provided the Defendant with a list of other sites where track centres did not meet the 1957 Structure Outline Standard (" Other Sites "). Prior to this date, RAC had never informed the Defendant of the non-conformance. 35. The Defendant met with RAC following the accident to discuss action which RAC proposed to take in relation to Trangie and the Other Sites and to ensure that this action was consistent with action which the Defendant proposed to take. RAC indicated that it would include warning signage (" Signs ") at appropriate places at Trangie and each of the Other Sites together with specific information about track clearances. 36. The Defendant met with RAC and RSA representatives at Trangie on 26 March 1999 to discuss, amongst other things, the appropriate form, content and positioning of the Signs. 37. RAC issued C2111 in May 1999, which establishes the requirement for the provision of signs where track centres within yard limits are less than 3660mm. Trangie yard now has the Signs erected. 38. RAC issued Safeworking Circular 459 in June 1999 addressing shunting at locations with narrow track clearances. 39. In conjunction with RAC, the Defendant considered a possible long-term strategy for Trangie yard which involved relocating the container loading facility to another siding further down the main line. This would allow the train to be loaded in a more efficient and safe manner as the number of shunting movements would be greatly reduced and be completely independent of the wheat train movements at Trangie yard. 40. The incident was the subject of an investigation by WorkCover and an investigation by the Department of Transport. 41. The Defendant co-operated with WorkCover during the investigation of the incident. 42. Relevant to the contribution made by RAC to the accident, the WorkCover investigation concluded that there was inadequate clearance between the stationary wagons in the loop line and the wagons passing on the main line to ensure safe passage of a person riding on the side of the wagon. 43. The Department of Transport's report of the investigation was annexed to WorkCover's report. The Department concluded that the primary causes of the accident were: (a) the propelling movement not being conducted in accordance with established safe working procedures, and (b) the track centres did not provide an adequate safe clearance for shunters to ride on wagons when the adjacent line was occupied. 44. The Department concluded that the secondary causes of the accident were: · Training and assessment of the train crew did not appear to adequately cover shunting operations involving reduced track centres; · The hazards associated with reduced track centres do not appear to have been properly identified and mitigated; · Evidence that an apparent lack of communication existed between the infrastructure owner and track maintainer in regards to the on-going maintenance and inspection of the site. 45. The alleged offence under Section 15(1) of the Occupational Health and safety Act 1983 is as follows: On 27 October 1998 at Trangie Rail Yard, Trangie, in the State of New South Wales, the Defendant, being an employer, DID FAIL to ensure the health, safety and welfare, at work, of all its employees, in particular, Stephen Hockings, in failing to provide or maintain systems of work in undertaking shunting duties that were safe and without risks to health contrary to Section 15(1) of the Occupational Health and Safety Act 1983. The particulars of the charge are: (a) The Defendant, at all material times, employed a number of personnel. (b) The Defendant, at all material times, conducted rail freight movements involving shunting duties at the Trangie Rail Yard. (c) The Defendant failed to provide or maintain systems of work in undertaking shunting duties within areas with reduced track clearances, that were safe and without risk to health. (d) The Defendant failed to provide or maintain systems of work to identify areas of reduced track clearances so as to ensure the health and safety of employees at work. (e) The Defendant failed to provide or maintain systems of work to ensure that track areas with reduced clearances are marked by signage to warn employees of the reduced clearance when undertaking shunting duties at that location. (e) As a result of the said failures, Stephen Hockings suffered fatal injuries . 4 A certificate of prior convictions tendered by the prosecutor confirmed that the defendant had no prior convictions. It was also common ground that the maximum penalty imposed by the Act was $550,000. PROSECUTOR'S SUBMISSIONS ON SENTENCE 5 The prosecutor submitted that the objective features in this particular case relevant to penalty were as follows: (i) the maximum penalty for a corporation prescribed by Parliament for the offence at the time it was committed was $550,000; (ii) the need for general deterrence; (iii) the defendant had an obligation to inform itself of safe working; (iv) the nature of the offence, in that it involved obvious risks, was readily foreseeable and there were simple steps to remedy the failure; (v) the nature of the offence in that the injuries manifested the degree of seriousness of the relevant detriment to health and safety. 6 It was emphasised by the prosecutor that, when the Court considers a statute giving expression as a matter of public policy to standards of safety, management has a positive obligation of informing itself of the circumstances of safe working (WorkCover Authority of New South Wales (Inspector Gregory Thomas Dawson) v Waugh & Thora Sawmilling Pty Ltd (1995) 59 IR 89 at 100). 7 Further, it was submitted that it would be a serious offence where there was an obvious risk or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible (Lawrenson Diecasting v WorkCover Authority of NSW (Inspector Ch'ng) 1999 90 IR 464 at 26?). 8 The prosecutor argued that the risk was readily foreseeable for the following reasons: (i) the work conducted by Mr Hockings and Mr Simmons (the driver) at Trangie Rail Yard involved propelling the train down the main line where the engine driver was driving the train from the opposite end to the direction in which the train was moving; (ii) eight loaded wagons were on the adjacent loop line; (iii) as Mr Simmons propelled the train, he noticed that there was only a small clearance between the wagons in the loop line and the train; (iv) Mr Hockings was riding on the steps of the last wagon of the train to direct the train to empty wagons at the northern end of the yard; (v) Mr Hockings' duties were to supervise and perform shunting and loading; (vi) although Mr Simmons had worked at Trangie previously, Mr Hockings had not; (vii) there was no indication that training had been provided to the engine men on how to plan their shunting work, taking into account risk assessment of the site; (viii) the SWUs did not adequately address shunting duties with reduced track clearances; (xix) there was inadequate clearance between the stationary wagons in the loop line and the wagons passing on the main line to ensure safe passage of a person riding on the side of the wagon; (x) the non-compliant track clearances at Trangie were able to be identified as they had been identified to the former State Rail Authority in 1995; and (xi) there was no warning of the danger of the narrow track. 9 The prosecutor also referred to the unreported judgment of Schmidt J in WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Ltd (25 February 1994 at 12) for the proposition that the availability of simple and straightforward steps to remedy the defects in the system was also relevant to the objective seriousness of the events. 10 Here, it was argued, appropriate measures were not taken, even though such measures were available and feasible. Those measures included: (i) systems to identify areas of reduced track clearances; (ii) signage to warn employees of reduced clearance when undertaking shunting; (iii) establishing safe working procedures in undertaking shunting duties within areas with reduced track clearances; (iv) ensuring compliance with safe working procedures in undertaking shunting duties within areas of reduced track clearances. 11 After the accident, it was relevant that the defendant took the following steps: (i) issued a reminder to all relevant employees that all locomotive shunting must be performed in accordance with Circular 342 (Special); (ii) issued to all its employees a Safe Working Telegram (issued by the RAC) which prohibited riding on wagons when the adjacent line at Trangie was occupied; (iii) met with RAC and RSA to discuss warning signage; and (iv) considered with RAC relocating the container loading facility to another siding. 12 The prosecutor accepted that the gravity of the injury actually resulting from the breach did not, of itself, dictate the amount of the penalty. However, the occurrence of death or serious injury manifested the degree of seriousness of the relevant detriment to safety (Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Watson v Southern Asphalters Pty Ltd (1998) 83 IR 446 at 456. Greater culpability generally attached to the neglect of the risk to safety which was likely to result in seriousness consequences (Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 29). Here, Mr Hockings suffered fatal injuries. 13 In dealing with the issue of parity, the prosecutor submitted that the defendant's culpability was equal to that of the Rail Infrastructure Corporation dealt with in the earlier proceedings. The defendant was responsible for the shunting operations being undertaken. The shunting operations were being undertaken by the defendant's employees. Although all work on railway lines was carried out in accordance with the State Rail Manual for Safe Working, that did not mean that the defendant was prevented from ensuring its specific work was carried out safely by its employees. 14 The SWUs provided by the Rail Infrastructure Corporation did not cover all aspects of safety. The SWUs were not comprehensive: for example, they did not address shunting at reduced track clearances. Further, the SWUs allowed for discretion without guidance: for example, the SWU 342 (Special) provided for the safe working employee controlling the movement to ride in or on the leading vehicle except "if the vehicle is not suitable", in which case the employee must walk ahead. Lastly, the SWUs provided general instructions as well as specific instructions. 15 In relation to subjective features, it was accepted that the defendant was entitled to have taken into account its plea of guilty as mitigating the objective seriousness of the offence. In assessing the appropriate level of discount, however, the Court should take into account the time at which the plea was entered. In this case, the plea of guilty was not entered at an early stage. The utilitarian value of the plea would therefore be at the lower end of the scale of discounts. 16 The prosecution accepted that the defendant co-operated with the WorkCover Authority during its investigation as was recognised in the Agreed Statement of Facts. DEFENDANT'S SUBMISSION ON SENTENCE 17 The defendant addressed, at length, the general principles applicable to the sentencing exercise as established by the general courts with some emphasis on the manner in which those principles had been applied by this Court under the Act. 18 The defendant drew particular attention to matters relevant to a proper assessment of the objective seriousness of the offence. They were said to include: (i) the existence of a settled system of work; (ii) the extent to which the risk to health and safety was foreseeable and might have been remedied by simple measures; (iii) considerations of parity between co-offenders, which involve having regard to the relative degrees of culpability of the co-defenders; and (iv) general and specific deterrence. 19 In relation to parity, it was submitted that the proper role for the consideration of parity and the distinction between the principles of parity and consistency in sentencing, were addressed comprehensively by a Full Bench of the Commission in Court Session in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 at 56-57: It is important to observe the distinction between, and the differing application of, the principles of parity and consistency. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes and to sentencing co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of offenders in the same crime … When sentencing or hearing appeals by different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence, (other than that of a co-offender) which merely forms part of that range. This approach was summarised as meaning that, where co-offenders were involved, firstly, the present offence was to be assessed in light of the culpability of the co-offender and secondly, the ultimate penalty handed down needed to bear appropriate comparison with the sentence handed down to the co-offender. 20 In relation to the objective seriousness of the offence, the defendant submitted that the risk to health and safety upon which the charge was based was the risk that a person undertaking shunting duties at the Trangie Rail Yard might come into contact with an adjacent object because of reduced track clearances. The conduct of the defendant which was said to be causally connected to the risk was recorded in the particulars, namely, the defendant had failed to provide or maintain systems of work in undertaking shunting duties within an area with reduced track clearances, that were safe and without risk to health; the defendant had failed to provide or maintain systems of work to identify areas of reduced track clearance so as to ensure health and safety of employees at work; and the defendant had failed to provide or maintain systems of work to ensure the track areas with reduced clearances were marked by signage to warn employees of the reduced clearance when undertaking shunting duties at that location. 21 The defendant made particular mention of the fact that the loop line and the main line at the Trangie Rail Yard were owned and vested in the former Rail Access Corporation which was now the Rail Infrastructure Corporation. Further, the defendant, at all relevant times, had an access agreement with RAC/RIC allowing it access to certain parts of the New South Wales rail network, including the Trangie Rail Yard. Under that access agreement, the defendant was required to: · observe and comply with operational rules. The rules included the safe working units (SWUs) and procedures developed and updated by RAC/RIC; · observe and comply with the conditions of its accreditation under the Rail Safety Act 1993; and · ensure that each of the employees and contractors responsible for the safe working of its trains held a certificate of competency pursuant to Division 2, Part 2 of the Rail Safety Act. 22 The defendant pointed to the specifics of the breach of s 17(1)(a) of the Act found to have been committed by the Rail Infrastructure Corporation in relation to this same incident. It was pointed out that the charge against the RIC in those proceedings contained the following relevant particulars: · the defendant failed to ensure that warning signs had been erected in all locations having narrow track clearances to advise users of the railway lines in the Trangie Rail Yard; · the defendant failed to advise the Freight Rail Corporation of railway lines with narrow track clearances in the Trangie Rail Yard; · the defendant failed to ensure that only persons who had been trained in undertaking shunting duties on the railway lines with narrow track clearances were allowed access to such railway tracks; · the defendant failed to ensure that a safe system of work was in place for persons undertaking shunting duties on railway lines with narrow track clearances. 23 The defendant submitted that its culpability in the matter was of modest proportions and, accordingly, the objective seriousness of the offence was in the lower range. The submission was advanced on the following grounds: · the defendant applied a detailed system of work (embodied in the SWUs) which was directed towards, among other things, the risk that arose in this matter. Ultimately, the system was insufficiently comprehensive to exclude the risk that materialised. However, the defendant ought to be given credit for the existence and detail of the system - particularly in light of the size and complexity of the defendant's undertaking; · although relatively simple measures could have been taken which would exclude the risk in this matter (ie the use of warning signs and the development of a system of work focused on narrow track clearances), the defendant did not have an unfettered power to effect any of these changes. RIC, as owner of the infrastructure and as the agency empowered to lay down safe working rules, bore primary responsibility; · RIC made a very substantial contribution to the operative risk in this matter. RIC is a co-offender and, accordingly, the principle of parity must be applied in determining the defendant's culpability. The defendant's culpability was markedly less than that of the RIC; · considerations of specific deterrence play no material role in this matter because the defendant has been reduced to a "shell". It carries out no activities of a kind to which the public policy objectives embodied in the legislation are directed. 24 The defendant argued that there was a detailed system of work: it had followed the SWUs which had been developed by the RAC/RIC. The SWUs were detailed and dealt with a number of matters relating to shunting operations, although it was accepted that none of the SWUs specifically addressed shunting at a site where there were narrow track clearances. To this extent, the defendant accepted the SWUs were imperfect. 25 It was submitted that the SWUs, however, addressed in detail, appropriate communication methods as between driver and shunter. It was said that the incident upon which the current proceedings was based would not have occurred if the shunter and driver had communicated with one another in relation to the position of the shunter on the wagons and the position of the stationary line of wagons in relation to the moving line of wagons. It was then said that it was difficult to see how any substantial improvement might have been made for communication protocols that could have led to a different result. 26 The present case was said to be not unlike the circumstances demonstrated to exist in the Department of Mineral Resources case, where the Vice-President, Walton J, noted (at 25) that the matter was not one where the employer had omitted to introduce any system to deal with known danger. It was a case where the system was insufficiently comprehensive. In that case, it was submitted there was one layer of safety but there were no other layers of safety introduced by the defendant. The system had operated for some period without incident. His Honour, on that basis, assessed the objective seriousness as being of a lower order. The same approach was open in the present matter. 27 Attention was drawn to the fact that the defendant's industrial undertaking was a large one, involving the use of heavy rail vehicles and the transportation of bulk items, and therefore characterised by a significant level of inherent risk to health and safety. In this context, it was relevant that the defendant employed 2,528 employees, operated 319 active locomotives and 6,212 wagons; delivered 85.5 million tonnes of freight per annum; operated trains over more than 7,000 kilometres of standard gauge track, and over 250 kilometres between Pt Augusta and Leigh Creek in South Australia and into Victoria. 28 In relation to the business operated by the defendant, the following submission was then made: · the defendant was clearly not unmindful of the risk associated with its enterprise, as can be judged from the defendant's involvement in the SWUs. The complexity of the defendant's undertaking must be borne in mind when considering the system of work which it adopted and when considering whether an alternative system of work ought to have been devised. In reality, there was a very large number of ways in which risk could arise as a result of the conduct of the defendant's activities. It had to keep its eye on many things. Clearly, it failed in the circumstances of this matter to have created additional safeguards so as to address the particular risk of narrow track clearances during shunting. When seen in the light of risks which the defendant had successfully managed from day to day for a considerable period of time, and the detail of the system of work actually applied by the defendant, these failings should sound at the lower end of seriousness. In this connection the defendant drew attention to those authorities (such as Tyler v Sydney Electricity) which have emphasised that the gravity of the injury actually resulting from the breach does not dictate the objective seriousness of the offence; · further, regard had to be had to the fact that RIC owned and controlled the relevant infrastructure and had the primary role (secured by legislative mandate as reflected in the terms of the access agreement with the defendant) for laying down the safe system of work; · the defendant ought not to be regarded as significantly culpable because it refrained from developing a detailed, parallel set of requirements to those represented in the SWUs. Given the size and volume of the SWUs (and the necessity for personnel to cross refer between them), the creation of a separate stream of requirements by the defendant might have led to confusion and a decline in safety. 29 Attention was again drawn to the Court's decision in WorkCover Authority of New South Wales (Inspector Belley) v Rail Infrastructure Corporation. In that case, the Court had found that the SWUs were imperfect in that certain matters were left to the discretion of the shunter (principally, whether to use hand or radio communication - which, in turn, influenced the position that the shunter should take on the lead wagon). The defendant did not resist that conclusion. However, it pointed to the rather unique position it was in which needed to be taken into account in determining the defendant's culpability. It was submitted that the defendant was obliged to follow the SWUs as laid down by the RIC. To have curtailed any feature of those rules (by, for example, excluding a discretion) might have had unpredictable consequences in terms of the defendant's relationship with RIC and, therefore, its ability to have access to the network. 30 The absence of warning signage at the Trangie Rail Yards was also identified as a further deficiency in the SWUs in the Court's judgment in the Rail Infrastructure Corporation case. It was submitted that there were two features which mitigated the defendant's culpability in this regard. Firstly, it was apparent that the defendant was unaware of the narrow track clearances. A particular of the charge against RIC was that it had failed to advise the current defendant of the existence of narrow track clearances at the Trangie Rail Yard, and RIC had pleaded guilty to that charge. The second relevant matter was that the defendant had no power to install warning signs. RIC was the owner of the infrastructure and had sole power to dictate signage on the network. If the defendant had adopted its own system of signage, its relationship with RIC might have been jeopardised. 31 The simplicity of alternative measures that might have prevented the risk was relevant to the assessment of the objective seriousness of the offence. In the Rail Infrastructure Corporation case, the Court concluded that there were simple and straightforward steps able to be implemented to remedy the offence. Those steps involved the placing of warning signs and the creation of information specifically addressing the system of work for narrow tracks. The defendant submitted that it had no power to place its own signposts in and around the infrastructure owned by RIC. In relation to the establishment of additional operating procedures, the SWUs were paramount in this field. The defendant did not have the power to unilaterally create new or alternative SWUs. Accordingly, the apparent simplicity of alternative measures ought not be regarded as increasing the culpability of the present defendant. 32 The defendant's submissions then concentrated on the principle of parity in sentencing and the relative culpability of co-offenders. It was submitted that it was clear that a very significant contribution to the operative risk in the present matter was made by the RIC through its predecessors RAC and RSA. The extent of that contribution was described in the Rail Infrastructure Corporation case: · it was part of the statutory responsibility of RAC to lay down safe working rules, which it failed to do (in the sense that those rules had the imperfections referred to earlier); · RAC bore substantial responsibility for the maintenance of the railway line - which was allowed to remain in a condition which was inconsistent with relevant standards. 33 In the Rail Infrastructure Corporation case the RIC had submitted that it had no control over the primary causal features of the relevant risk because of the conduct of the defendant in the current matter. RIC relied upon an approach derived through the decision of the Court in WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80, submitting that the present defendant should be regarded as bearing a higher level of culpability. The Atco case involved an assessment of the primary cause of the accident and a significant contributory cause being the actions of another person. This approach was rejected by the Court: It can be accepted that FRC failed to provide the training identified in the report of the Department of Transport, but I am not convinced that simply training FRC employees in the operation of the RAC Safe Working Units would have meant that this accident would not have occurred. There is every possibility that this accident would have occurred even with a thorough understanding and application of RAC's Safe Working Units. I am therefore not convinced that there was a significant contribution to the operative risk of the omissions of FRC. While I accept, on the evidence, that there were failures exposed in the approach and training provided by the FRC, I do not regard those failures as being of the same high level of contributing factors as was found by Hill J in the particular circumstances of Atco. While I am prepared to take into consideration the omissions of FRC, I am not able to accord the level of responsibility to FRC as submitted for the defendant. 34 This passage was relied upon by the present defendant to establish that the culpability of RIC was substantially greater than its own in relation to the present matter. If the factual circumstances of Atco were such that the passage could not be relied upon as sought by the present defendant, then there were other matters which led to the same result. 35 It was submitted for the defendant that the proper approach to weighing relevant culpability of co-offenders was exemplified in the decision of Hungerford J in WorkCover Authority of New South Wales (Inspector Martin) v Transfield Pty Ltd t/as Transfield Maintenance (No 2) [2001] NSWIRComm 289. In that matter, the defendant had argued that its culpability ought to be regarded as substantially less than the co-offender, BHP. Transfield argued that it was, in effect, bound to apply a system of work created by BHP and it was this system which gave rise to the risk upon which the proceedings were based. Hungerford J found at [33]: Nevertheless, and although the nature of the failure found to have been committed by BHP was to a similar effect, it is necessary in determining the objective seriousness of the offence against the present defendant to assess the quality of its error, that requires attention to the circumstances of what occurred by reference to the essential elements of the offences for which the defendant was charged. It is in this aspect of the quality of the offences which, I have concluded, places the defendant at a lower level of seriousness than BHP. It is true … that the system of work was essentially determined and directed by BHP, which had apparently utilised it uneventfully for some years, and the system … was well established. Even so, the defendant had input into the (process) and work could not proceed until the defendant's supervisor accepted the job ticket. Therefore, I agree with Ms McDonald that the defendant did not merely inherit a particular system from BHP but had the ability, depending upon the particular job concerned, to obtain BHP's concurrence to an amendment of the job ticket for proper cause, such as a safety issue. However, in the overall operation of the job ticket system I am satisfied the primary decision-maker was BHP and not the defendant. That finding must sound in a lesser degree of culpability of the defendant for what occurred. 36 Hungerford J continued his analysis at paragraph [40]: In this case, as I have indicated earlier, I accept Mr Hodgkinson's submission that the culpability of the defendant was at a lesser level than that of BHP. I reached that view in light of the quality of seriousness of the defendant's failures and, importantly, the fewer number of essential elements in the respective charges brought. I will, therefore, apply principle of parity with those views in mind to reflect the different degrees of culpability. And at [48], his Honour stated: I am satisfied, in application of the parity principle, that a fine at the levels so determined for each offence viewed separately properly relates in the comparative sense with the assessment earlier fixed for BHP is reflective of the defendant's degree of culpability as found - no adjustment is therefore necessary, in my view, for this aspect. In relation to these passages, the present defendant submitted that Hungerford J found that one of the co-offenders was the more dominant party in respect of the manner in which work could be conducted under the relevant system. This rendered the other party less culpable. It was submitted that the same pattern existed in the present proceedings - clearly the present defendant ought to have been more pro-active in seeking to overcome the deficiencies in the system of work mandated by RIC. Nevertheless, RIC was the final decision maker and its culpability must be regarded as substantially higher than that of the present defendant. 37 It was also part of the approach of Hungerford J to analyse the charges that had been brought in determining relative culpability. In this regard, his Honour found that there was a smaller number of essential elements in the charges brought against Transfield than those brought against BHP. This was described as the "most significant measure". The charges against BHP were particularised in terms of matters that lay predominantly within BHP's control in circumstances where the site was owned by BHP. 38 A parallel with the position of BHP was said to exist in the present proceedings. The particulars of the charge against RIC were said to be significantly different to those alleged against the present defendant. Two particulars did not relate to the present defendant, namely: · failure to advise the Freight Rail Corporation of railway lines with narrow track clearances in the Trangie Rail Yard - this is said to be a failure to have informed the defendant and, axiomatically, it is a matter beyond the defendant's control; · failure to ensure that only persons who had been trained in undertaking shunting duties at railway lines with narrow track clearances were allowed access to such railway tracks - adequacy of training was not a matter particularised against the defendant in the present proceedings. Further, the RIC charge contained a particular relating to the absence of warning signage. This particular appears in the charge against the present defendant: however, the installation of signage was a matter largely outside the power of the defendant. 39 The defendant accepted that deterrence was a consideration in forming an assessment of the objective seriousness of the offence having regard to general and specific deterrence. In relation to specific deterrence, it was submitted that exceptional circumstances existed in the present case because the defendant had ceased to carry on its former rail freight activities and would not undertake any such activities or any other activities involving the carrying on of work in the future. The defendant's rail business had been sold to a third party with effect from February 2002. All of the defendant's employees left to become employees of the third party. The defendant remained in existence as a "corporation sole" for the single purpose of ensuring that certain cross-border leases, which were necessary for the functioning of the rail freight business now in the hands of a third party, could continue to operate. It was a condition of the sale as between the defendant and the third party that the defendant remained in existence for that purpose. In the absence of that requirement, the defendant would have been dissolved shortly after February 2002. 40 In relation to subjective features, the defendant pointed out that it had pleaded guilty, although it had originally pleaded not guilty and the matter had been set down for hearing over five days in August 2002. That hearing had been vacated as a result of the emergence of circumstances which led the defendant to raise the issue of the statutory scheme and whether the present defendant or the purchaser was liable in relation to this alleged offence. That matter had been dealt with in the interlocutory judgment (WorkCover Authority of New South Wales (Inspector Belley) v Freight Rail Corporation (2002) 117 IR 99 and following the resolution of that interlocutory issue, the defendant announced its plea of guilty. 41 The defendant did not submit that this plea was entered "at the earliest reasonable opportunity": the defendant did not assert any entitlement to a maximum discount of approximately 25 per cent. The defendant's plea did have an utilitarian value to the system of justice: in the absence of the plea, the matter would have proceeded to hearing over at least five days. Those circumstances were such as to merit a discount in the middle of the available range. 42 The defendant had co-operated with the WorkCover Authority in the course of its investigation of the matter and also had co-operated with the investigation conducted by the Department of Transport. The defendant was entitled to have these matters taken into account in mitigation. 43 Remedial measures, detailed in paragraphs 35-39 of the Agreed Statement of Facts, were matters closely involving the defendant in the determination and implementation of the measures. DELIBERATION 44 The accepted starting point in the sentencing exercise is a consideration of the objective seriousness of the offence. In this case, that exercise in addition requires a consideration of the detailed submissions of the defendant as to its relatively low culpability bearing in mind the findings of the Court in dealing with the co-defendant, Rail Infrastructure Corporation. 45 One of the issues raised by the defendant was the existence of a settled system of work as being a relevant consideration. This is a curious submission from the defendant having regard to its submission that, in fact, it had no independent, established safe system of work but was contractually obliged to apply only the admittedly unsatisfactory Safe Working Units imposed by the Rail Infrastructure Corporation. Moreover, the defendant accepted the Court's finding in relation to the Rail Infrastructure Corporation regarding this same accident, that there were serious deficiencies in the system and a confusing collection of directives found in a number of places in the Safe Working Units. It is difficult in those circumstances to understand how the defendant obtains comfort from the fact that there was a settled system of working which was seriously flawed and which the defendant regarded as binding upon it without variation or independent assessment. It is of some interest that the Rail Infrastructure Corporation, in its plea, pointed to the fact that the Freight Rail Corporation (the present defendant) was at liberty to build upon the system of Safe Working Units imposed by RIC as part of the contractual arrangements giving FRC access to the New South Wales rail network. 46 The defendant also made particular mention of the fact that the loop line and the main line at Trangie Rail Yard was owned and vested in the former Rail Access Corporation prior to it becoming the Rail Infrastructure Corporation. In its plea, the Rail Infrastructure Corporation drew attention to the fact that the operation of the State's railways under the SRA had been disaggregated in 1996 and that, by legislation, the Rail Infrastructure Corporation was required to have a narrow focus on managing access to the network and was given limited resources which made it difficult to undertake other activities such as safety inspections. It was pointed out that the construction and maintenance of the network was to be undertaken by other bodies including the RSA. The legislative history, which is set out in some detail in the Rail Infrastructure Corporation case, makes it clear that the present defendant and its co-defendant (Rail Infrastructure Corporation) were bodies created from the previously existing SRA and that the employees who had previously worked under the umbrella of the SRA became employees of the new entities when they came into existence. While it was said that this disaggregation had led to some loss of knowledge amongst these new entities, it also meant that there was considerable accumulated knowledge among the employees of these new entities notwithstanding the fact that they were now employed by new entities. 47 The defendant pointed to the particulars of the breach of s 17(1)(a) of the Act to which the Rail Infrastructure Corporation pleaded in order to distinguish its position and its lower level of culpability. In short, the Rail Infrastructure Corporation pleaded to failing to ensure warning signs had been erected advising of the narrow clearances at the Trangie Yard; the failure to advise the Freight Rail Corporation of the narrow track at Trangie; the failure to ensure that only persons who were trained in undertaking shunting duties on the railway lines with narrow track clearances were allowed access to such railway tracks; and, a failure to ensure that a safe system of work was in place for persons undertaking shunting duties on railway lines with narrow track clearances. 48 In relation to the failure to erect warning signs of the narrow track clearances, the defendant asserted that it had no right to do so on the property owned by another entity. There was of course nothing to prevent the defendant from familiarising itself with the narrow track clearances at Trangie (as required by the SWUs) and consulting with the Rail Infrastructure Corporation to permit such warning signs to be erected. Following the accident involving Mr Hockings, there were discussions between the defendant and the Rail Infrastructure Corporation as to the appropriate means by which to handle shunting at the Trangie Yard. Indeed, the defendant seeks the benefit of its role in those discussions which brought about the changes designed to remedy the omissions which were demonstrated to exist in the system of work. In doing so, the defendant merely underlines the hollowness of its submission that contractually and practically it was in no position to influence the Rail Infrastructure Corporation in relation to matters of safety which impinged upon its operation of freight movements. There is no real distinction between the co-defendants in relation to this matter. 49 In relation to the failure of the Rail Infrastructure Corporation to train employees in a safe method of performing shunting duties at railway lines with narrow track clearances, the defendant points to the fact that the certificates of competency and the SWUs were in the hands of the Rail Infrastructure Corporation. I am unable to understand why that fact absolved, in any way, the defendant from ensuring that its employees were properly trained and instructed in relation to shunting at yards with narrow track clearances. In the Rail Infrastructure Corporation case, it was common ground that the present defendant had been operating its business since 1996, more than two years before this accident: it should, therefore, have been aware of defects such as narrow track clearances. In the Rail Infrastructure Corporation case, it was explained that because of variances in track width, codes had been adopted for classifying freight wagons to ensure that, when operated in unusual circumstances such as narrow track clearances, the possibility of wagons being unable to clear railway vehicles on the adjacent line was thus avoided. In taking over the operation of freight movements on the railway network, the existence and purpose of these codes must have been known to the defendant. Again, I am unable to draw any significant distinction between the omissions of the co-defendants. 50 Curiously, it was also submitted by the defendant that a further point of distinction between the charges it faces and those particularised against the Rail Infrastructure Corporation is the fact that, in terms, there is no allegation of a failure to ensure that only persons who had been trained in undertaking shunting duties on railway lines with narrow track clearances were allowed access to such tracks. The failure of the defendant to train its employees in this respect was specifically acknowledged in the Agreed Statement of Facts and is, in any event, capable of coming within the terms of the particulars in the summons. 51 Of particular significance in the present case is the acceptance by Rail Infrastructure Corporation in relation to its plea that it had failed to advise the Freight Rail Corporation of railway lines with narrow track clearances in the Trangie Rail Yard. The defendant sought to make maximum use of this point, submitting that it was apparent that the defendant was unaware of the narrow track clearances. In the Agreed Statement of Facts it was put in terms of the defendant not being "formally" made aware of the narrow track clearances at the Trangie Yard by the Rail Infrastructure Corporation until after the accident. The defendant in the present matter (except for a short formal affidavit) did not go into evidence in relation to the specifics of its plea but, as earlier noted, submitted a detailed written submission. In those circumstances, there was no officer of the defendant for the prosecutor to cross-examine or for the Court to obtain clarification of matters raised in the submissions both written and oral. It is difficult to believe that this defendant was totally unaware of the fact that there were narrow clearances in the network on which it operated for over two years as a separate statutory corporation: as pointed out earlier, the careful coding of wagons and other railway vehicles using the network was introduced precisely because of the difficulty presented by narrow gauges in some parts of the network. Nevertheless, the state of the evidence is that, prior to the accident, the Rail Infrastructure Corporation did not inform the defendant of the narrow track clearances at the Trangie Yard. In those circumstances, this fact represents a difference of some significance between the co-defendants. 52 While accepting the finding in the Rail Infrastructure Corporation case that there were simple alternative methods that may have prevented the risk, the defendant submitted that such a conclusion could not be drawn in its case because its situation was different, repeating the fact that it was in no position to place warning signs on the land and in a network owned by the RIC and where the SWUs were paramount in this field and contractually binding. I have already expressed the view that the defendant was not as confined in relation to these matters as it submitted, and I have pointed out that in its plea the RIC had noted that the Freight Rail Corporation was able to introduce its own safety measures using the SWUs, effectively, as the basic rules to be observed. There was no prohibition on introducing a higher, possibly better or more comprehensive or understandable layer of safety rules by the defendant. I am therefore unable to accord the same weight to these matters as suggested by the submissions for the defendant. 53 In relation to the defendant's submission that it was difficult to see how any substantial improvement might have been made for communicating protocols that may have led to a different result at the Trangie Yard, the submission ignores the finding made by the Court in the Rail Infrastructure Corporation case that the SWUs dealing with shunting were numerous and found in various parts of a very large set of safety rules. Further, those rules allowed communication by radio or hand signalling or a combination of both methods (as occurred in this case) without indicating what considerations were to be taken into account in selecting the most appropriate form of communication for the task being undertaken. The submission also gives insufficient weight to the finding that none of the SWUs specifically addressed shunting at a site where there were narrow track clearances. That is precisely the circumstance in which it might be inappropriate for the person controlling the shunting to ride on the side of the end vehicle: the rules required riding in or on the last wagon. The view expressed by the defendant as to the adequacy of the communication protocols is of some concern, in light of the findings made in the Rail Infrastructure Corporation case. 54 Before concluding consideration of the relevant matters in determining the objective seriousness of the offence committed by the defendant, it is appropriate to give some consideration to the nature of the case put by the Rail Infrastructure Corporation in relation to its plea of guilty in relation to the same incident. The Agreed Statement of Facts included a statement, drawing on the Minister's Second Reading Speech, that the Rail Access Corporation (later the RIC) was to be a small organisation with a strict focus on negotiating access to the rail network. While having management responsibility for maintenance, train control, signalling communications and the like, it would arrange for the work to be carried out by other rail businesses and potentially the private sector. Its main task, and an important task, was " …administering the open access regime" and much of the work was not to be undertaken directly itself. 55 The Agreed Statement of Facts continued with the following points: · The monitoring and maintenance of the network owned by the RAC was contracted to maintenance contractors, mainly Rail Services Australia. · The main and the loop lines at Trangie were transferred to the RAC on 1 July 1996 and the RSA was contracted to monitor and maintain the Trangie Yard. · The line at Trangie dated from 1882 but work had been performed on the line in 1990 and 1996 which did not affect the siding. Track clearance standards were revised in 1957, 1976, 1987 and 1994. · The Trangie line had failed to comply with this standard: non-compliance was identified to the State Rail Authority in 1995. · Despite this knowledge, no step was taken in the 1997/1998 review to give priority to rectification of clearances at Trangie as it was not regarded as a special risk. · The FRC was not alerted to safety issues arising from narrow clearances at Trangie including hazards while shunting by either the RAC or RSA. · The FRC access to the rail network was subject to the terms of an access agreement which provided that the FRC observe and comply with the operational rules which included the Safe Working Units developed by RAC. · Eight SWUs dealt with shunting and propelling a train within a yard. SWU 160(c) required all qualified safe working employees to "learn the yard thoroughly". SWU 162 was replaced by No 342 (Special) and dealt with propelling a train. If a train was propelled within yard limits, the shunter must ride in or on the leading vehicle in order to control the movement, unless the vehicle was not suitable. Circular 342 provided that, when a train was propelling, the movement must be carried out safely and at a speed consistent with the … location of any stationary vehicle(s) … to eliminate the possibility of collision or other incidents. · Since it came into existence in 1996, the FRC had conducted numerous activities (including shunting) in the Trangie Rail Yard. · Investigations by the WorkCover Authority revealed no indication that training had been provided by the FRC to its employee shunters on how to plan their shunting work taking into account a risk assessment of the site. · Both Mr Hockings and the driver had worked at Trangie before, Mr Hockings only twice before in June 1998. The driver, Mr Simmons, had worked many times before at the Trangie Yard. · The Department of Transport's report on the incident identified the primary causes as being - (a) the propelling movement not being conducted in accordance with established safe working procedures; (b) the track centres not providing adequate clearance for shunters to ride on wagons when the adjacent line was occupied. The secondary causes of the accident were found to be - (a) the training and assessment of train crew was not accurate in covering shunting operations on reduced track centres; (b) the hazards associated with reduced track centres had not been properly identified and mitigated; (c) there was an apparent lack of communication between the infrastructure owner and the track maintainer in regard to ongoing maintenance and inspection of the site. 56 There was evidence from a senior officer that there had been a loss of knowledge within the various sections of these railway entities after legislation disaggregated the State Rail Authority in 1996. 57 Reference was also made to the Rail Safety Act 1993 and its objects to promote safe construction, operation and maintenance of railways. This was achieved by accrediting owners and operators of railway through the Department of Transport and the certification of competency of railway employees performing rail safety work. A provision was made for regular safety compliance inspections to be carried out. Both the FRC and the RAC had interim accreditation under this legislation. The FRC had to submit to the Director-General a comprehensive safety management plan that identified any significant potential risks that may arise from the operation of the rolling stock and specifically how those risks were being addressed. The safety management plan was to be revised annually. Further, the Rail Safety Act made it a condition of accreditation that each organisation, including the FRC, had to itself ensure all railway employees performing railway safety work were adequately trained to perform functions for which they were certified. 58 In this statutory scheme the Trangie accident was investigated by the Department of Transport which found no indication that training had been provided by FRC to its employees in shunting and how to plan shunting taking into account a risk assessment of the site. There was no indication in this finding that FRC's ability to train its own employees was inhibited in any way by being bound to the SWUs provided by the Rail Infrastructure Corporation. The provisions of the Rail Safety Act appear to operate to require positive and independent action by participants in the railway system. 59 The evidence then before the Court demonstrated the following: · Shunting operations were commonplace and a central part of railway operations; · There were approximately 400 locations of rail yards and sidings at which the FRC would have performed shunting duties from time to time; · The system of operations used sized wagons to be able to operate where narrow track centres existed. 60 The Rail Infrastructure Corporation, as defendant, submitted that it was relevant that the maintenance and repair of the Trangie Yard was the responsibility of the RSA and that the RAC/RIC was expressly prevented to carry out maintenance and was to remain a small organisation with a strict focus on negotiating access to the network and exercising only a management responsibility. 61 The RIC had administered the SWUs and these rules were known to the FRC. The FRC was contractually obliged to observe the rules and the rules were detailed and directed to shunting operations and the risk which was demonstrated to exist at the Trangie Yard. The FRC had failed to follow the provision of these SWUs. 62 To the extent that the RIC tried to bind the FRC to its safety rules in the SWUs, the RIC did not assume obligations cast on employers under the Occupational Health and Safety Act in respect of working procedures. This arrangement covered the whole rail network and it was impractical for the RIC to "look over the shoulder" of every rail operator. The RIC could only lay down the safe working rules, identifying risks and measures to avoid them. Rail operators had "direct and realisable" control over activities of their employees: it was their responsibility to monitor, enforce, "and where necessary", supplement the RIC's rules. 63 The RIC submitted that the primary causal factors of the accident related to the activities of the FRC and its employees. It was submitted that the RIC had no real control over the primary causal features and that there was a significant contribution to the operative risk by the FRC. The safety rules were settled, were sound and complete having regard to the defendant's role and scope of its responsibility. This was a case where there was no absence of rules, but a lack of comprehensive rules. 64 The judgment highlighted the defendant's knowledge of the narrow track and the coded use of wagons to meet the risk and the fact that no action on clearances below the standard had been taken and no warning signs had been erected until after the accident. It was found that the SWUs gave a discretion in performing the shunting operation but no guidance as to how to exercise the discretion, especially where there were narrow clearances. The SWUs requiring "knowledge of the yard" did not refer to narrow clearances in terms. The Court rejected the submission concerning the narrow responsibility of the RIC, that it could only lay down the safe working rules and that the maintenance of the lines was with another body, the RSA. In these circumstances, it was held that the RIC had a paper system whereby it promulgated rules and did nothing about ensuring that users complied with the rules. The RIC, in addition, had been responsible for monitoring narrow clearances in breach of its own standards. 65 It was held that, while the FRC had failed to train employees adequately in the SWUs, the SWUs were deficient and, alone, this training may not have avoided the risk. It was also found that the SWUs were confusing. The drafting and promulgation of SWUs remained an essential obligation of RAC/RIC. 66 At paragraph [83] the Court stated: I am therefore not convinced that there was a significant contribution to the operative risk by the omission of the FRC. While the FRC had failed to train its employees, these failures were not of the "same high level of contributing factors" as found in the Atco case. The Court took into account the omissions of the FRC but was unable to record the level of responsibility to FRC as was submitted for the defendant. 67 Bearing in mind the detailed submissions made for the defendant in this case and the manner in which the Court dealt with the co-defendant in the Rail Infrastructure Corporation case, I am firmly of the view that the offence involving the present defendant is serious in relation to its nature and quality and that there were, in its case, relatively simple steps which could have been taken to avoid the risk that was demonstrated to exist. Considering all of the material, I am however unable to accept the prosecutor's submission that the culpability of the co-defendants is equal: the most significant factor distinguishing the position of this defendant appears to be the failure to be officially warned and informed of the existence of narrow track clearances including the specific circumstances of the Trangie Yard. This was an incident where each of the statutory bodies was anxious to lay the substantial blame and responsibility for the risk exposed at the door of another or other statutory corporations involved in the rail system. Ultimately, on a consideration of all the material, I am satisfied that, although the present defendant has committed a serious offence, its level of culpability is less than that of its co-defendant. Having said that, I am not convinced that there is a large measure of difference in the culpability of the present defendant and certainly not to the lower level suggested by the defendant's submissions. 68 In considering the principle of parity I have been guided by the decision of the High Court in Postiglione v The Queen (1997) 189 CLR 295 where it was pointed out that disparity was not simply the imposition of different sentences for the same offence but a question of proportion between them. The circumstances of co-defendants and their respective degrees of culpability had to be considered: different criminal histories and custodial patterns may justify a real difference in the time each would serve in prison. Like had to be compared with like. In a separate judgment Kirby J stated that the principles of "parity" and "totality" were in the nature of checks required "out of recognition that the task of sentencing is not a mechanical due". Adjustments to sentence involves subtle considerations which defy precision either of description or implementation. It is also to be understood that the principle of parity does not require that co-offenders receive the same sentence: it applies if all other things are equal ( Doran (Chau Thi Bao), unreported NSWCCA 27 September 1996; Steele (Robert Ernest) unreported, NSWCCA, 17 April 1997; O'Brien (Edward Paul) unreported, NSWCCA, 7 April 1997). 69 I also take into account the large undertaking carried on by the defendant, the inherent danger in operating such an undertaking and the fact that at the time of this accident it had been able to operate that system without serious incident. 70 I also take into consideration the need for general deterrence, but I accept the defendant's submissions that there is no role for specific deterrence to form a part of the sentencing exercise in this case. The evidence and submissions indicated that the defendant no longer carries out freight operations and that, by special legislation, its business in this regard had been sold to private interests. The defendant has only remained in existence to facilitate the new purchaser's access under various leases. I was assured by the defendant's legal representatives that there was no known plan or possibility whereby the defendant would again operate a rail freight undertaking. 71 Having regard to these factors, I would set a primary penalty of $110,000 before considering subjective factors that may lead to a discount of that sum. 72 It was common ground that the defendant could not receive the maximum discount available for an early plea, having regard to the nature of the interlocutory argument raised and the time taken to decide the argument that the purchaser and not the defendant was liable in relation to this offence. Nevertheless, once that issue was dealt with, the plea had the result that a contested hearing of some technicality and likely to take some days of court time was thereby avoided. In those circumstances, it is appropriate that the defendant receive the benefit of a discount of 10 per cent. 73 Bearing in mind the nature and size of the defendant's operations, its record of no prior convictions, the steps that were subsequently taken following this incident, and the defendant's co-operation with the WorkCover Authority, I determine that a further discount of 5 per cent is appropriate, bringing the total discount to 15 per cent. ORDERS 74 The Court makes the following orders: (i) the defendant is found guilty of the offence to which it has pleaded guilty; (ii) the defendant is fined the sum of $93,500 with moiety thereof to the prosecutor; (iii) the defendant is to pay the costs of the prosecutor as agreed or, in the absence of agreement, as ordered by the Court. Should there be no agreement between the parties in relation to costs, the Court is to be notified within 21 days of the date of judgment. oo00oo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.