New South Wales Supreme Court CITATION : Independent Transport Safety & Reliability Regulator v Australian Rail Track Corporation [2010] NSWSC 697 HEARING DATE(S) : 20 May 2010 JUDGMENT DATE : 6 July 2010 JUDGMENT OF : Price J at 1 DECISION : 1. The defendant is convicted and fined $200,000 with a moiety of one half of the fine, namely $100,000 to the plaintiff. 2. The defendant is to pay the plaintiff's costs as agreed or assessed. CATCHWORDS : CRIMINAL LAW - sentencing - breach of Rail Safety Act 2002 - whether causal link between death of railworkers and breach - whether offence objectively serious - whether offence involved grave risk of death - whether defendant remorseful - whether specific deterrence called for Crimes (Sentencing Procedure) Act 1999 s 21A, LEGISLATION CITED : s 21A(2)(ib), s 21A(3)(e)-(f), s 21A(3)(l)-(m), s 21A(3)(i)(i)-(ii), s 21A(3)(h) Rail Safety Act 2002 s 48A(1), s 91(2)(a) CATEGORY : Sentence Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 CASES CITED : R v Borkowski [2009] NSWCCA 102 R v Olbrich (1999) CLR 270 PARTIES : Independent Transport Safety and Reliability Regulator v Australian Rail Track Corporation FILE NUMBER(S) : SC 13556/2009 COUNSEL : Mr Agius SC + Ms W Thompson (Plaintiff) Mr Dixon + Ms K Dawson (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PRICE J 6 July 2010 13556/2009 Independent Transport Safety and Reliability Regulator v Australian Rail Track Corporation JUDGMENT 1 HIS HONOUR: Australian Rail Track Corporation, the defendant, pleads guilty to an offence contrary to s 91(2)(a) Rail Safety Act 2002, that; "being an accredited person to operate a railway in New South Wales, the Defendant did on 16 July 2007 contravene a condition attached to its accreditation being the condition to comply with the provisions of s 48A(1) of the Rail Safety Act 2002 in that it failed to: (a) have its safety management system ("SMS") audit "callout" work sites and audit associated "callout" worksite protection documentation; (b) ensure that its SMS in place on 16 July 2007 complied with the prescribed requirements in respect to its corporate risk register; and (c) ensure that its employees complied with the SMS by: (i) as a minimum, working as required by the Network Rule ANWT 310 'No Authority Required' ("NAR RULE"); and (ii) completing a worksite protection plan prior to commencing work." 2 The proceedings were instituted by the Independent Transport Safety and Reliability Regulator (the plaintiff) by the filing of a summons on 15 July 2009. An agreed amended summons was filed on 14 December 2009 and the defendant entered the plea before me on 20 May 2010. The proceedings may be disposed of in a summary manner before this court in its summary jurisdiction: s 103 Rail Safety Act. As the defendant is not a previous offender within the meaning of s 4 Rail Safety Act, the maximum penalty is $550,000. Particulars 3 The particulars to the amended summons include the following: " DEFENDANT'S RISK REGISTER 16X. At 16 July 2007, as a condition of the Defendant's accreditation, the Defendant was required to comply with the requirements provided for in the Act, Regulations and Guidelines made in respect of SMS's, which included the SMS Guideline. 16Y. Section 3.16.5 of the SMS Guideline sets out requirements in respect to the maintenance and establishment of a risk register, as part of the Defendant's SMS. 16Z. Section 3.16.5 of the SMS Guideline relevantly states: The SMS must provide for the establishment and maintenance of a risk register. The risk register must include the following: a comprehensive listing of hazards; risk associated with each hazard; the controls applicable to each hazard; nomination of the party responsible for each control; key standards applicable to each control (engineering, operational, maintenance); and cross-referencing to other relevant aspects of the SMS, such as operating rules/procedures, training/competency requirements, inspection/testing/audit regime, etc. 16AA. Under the SMS Guideline, it is a mandatory requirement to comply with section 3.16.5 of the SMS Guideline. … 18. At 16 July 2007, the Defendant had a corporate risk register established and maintained as parts of its SMS. At 16 July 2007, the Defendant's corporate risk register did not comply with section 3.16.5 of the SMS Guideline in that it did not: (a) identify the hazard of track workers being struck and injured by a train, (b) detail key standards applicable to the controls identified in the risk register; and (c) cross reference the controls to other relevant aspects of the SMS, such as the Network Rules. 18A. As it was a requirement under the SMS Guideline that a risk register include certain things outlined in section 3.16.5 of the SMS Guideline, the failure of the Defendant's corporate risk register to include all of the things set out in section 3.16.5 meant that the Defendant failed to ensure that its SMS at 16 July 2007 complied with the SMS Guideline with respect to its corporate risk register. Application Of The NAR Rule 18B. Under the SMS in place on 16 July 2007, the decision of what method of worksite protection should be applied to the track work being conducted was to be determined by the railway employees called out to perform the work. 18C. It was the responsibility of the Protection Officer to determine what method of worksite protection should be applied to the track work being conducted on the day. The lowest level of worksite protection that workers can work under is the NAR Rule. 18D. The NAR Rule specifies that lookouts are the only safety measure used in this method of working on track. At least one look out is required when working under the NAR Rule. The primary responsibility of a lookout is to keep watch for rail traffic approaching the worksite from any direction and warn workers immediately if rail traffic approaches the worksite. Lookouts must not do any other work other than perform lookout duties 18E. The NAR Rule also specifies that there must be a Protection Officer for the period of work completed under the NAR Rule, and that a Protection Officer must tell workers about the locations of safe places and the kinds and limits of safety measures in place, and be the only person to speak to Network Control Officers about safety arrangements. 18F. In the absence of a worksite protection plan being located for the work conducted by Mr Johnson and Mr Turner on 16 July 2007, no document demonstrates what procedure was being used when the work was being undertaken. Stop signal protection was applied by Mr Rose for Mr Johnson and Mr Turner when they commenced work at points 56b Singleton. That protection was not in place at the time of the incident. 18A [sic] The Defendant did not ensure that Mr Johnson and Mr Turner performed their work on the date of the incident in accordance with the NAR Rule or any other method of worksite protection that was part of the SMS in place at the time. Worksite protection plan 20. At 16 July 2007, the Defendant's SMS had a requirement for Protection Officers to prepare a worksite protection plan prior to work being undertaken. 20A. A review of Mr Johnson's callout jobs against the worksite protection plans established that in the period 31 December and 2006 and 16 July 2007 Mr Johnson attended at least 28 callout jobs. Mr Johnson did not prepare worksite protection plans for any of the 28 callout jobs. Mr Johnson held a worksite protection plan book which contained worksite protection plans complied for daytime work with no corresponding worksite protection plans to cover the callout work in the period 31 December 2006 and 16 July 2007. 20B. The Defendant did not ensure that a worksite protection plan was prepared for the callout work undertaken on 16 July 2007. … Audits of callout work sites or associated work site protection documentation 23. The ITSRR investigation identified that no work site audits were undertaken for callout work irrespective of the type of worksite protection being implemented. Worksite audits were not scheduled by the Defendant for unplanned work. No after hours callout worksites were audited and no post work site inspections of callout worksite protection documentation were undertaken, or programmed to be undertaken, by the Defendant. 23A. By failing to ensure that a minimum number of call out work site audits or audits of associated callout worksite protection documentation were undertaken, the Defendant did on 16 July 2007 contravene a condition attached to its accreditation." 4 It is convenient to record here that the following paragraph was omitted from the amended summons: "28. As a result of the alleged contravention of the Defendant Mr Johnson and Mr Turner were placed at risk from being struck by a train and were struck by a train and killed. The Plaintiff pleads the circumstances as an aggravation of the offence." Agreed Facts 5 The material tendered by the plaintiff included a Statement of Agreed Facts and annexures (ex A). The agreed facts (omitting annexures) are as follows: "1. The Independent Transport Safety and Reliability Regulator ("ITSRR") (the "Plaintiff') is a corporation constituted pursuant to s42B (1) of the Transport Administration Act 1988 (NSW) whose address is Level 22, 201 Elizabeth Street, Sydney, New South Wales, [sic] At all relevant times ITSRR was empowered pursuant to s104 of the Rail Safety Act 2002 (NSW) (the "Act") to take proceedings for an offence against the Act. 2. The Australian Rail Track Corporation Limited ("ARTC"), ACN 081 455 754 (the "Defendant"), is a corporation incorporated under the Corporations Act 2001 (Cth) ACN 081 455 754 whose registered office is situated at Sir Donald Bradman Drive, Mile End, South Australia, 5031. A copy of a company search of ARTC dated 19 June 2009 is annexed hereto and marked with the letter "A". 3. At all material times the Defendant was an operator of a railway as defined under s. 5 (1) of the Act and an accredited person to operate a railway pursuant to sections 8 and 18 of the Act. At all relevant times, the Defendant was required to comply with the conditions of accreditation provided for in the Act. Section 48A(1) of the Act places the condition on a rail operator to have in place a safety management system ("SMS") for identifying, managing and controlling the risks of carrying out the railway operations for which it is accredited: ensuring that the safety management system complies with any requirements that may be prescribed under the Act; and ensuring that the said railway operations comply with the SMS. Defendant's operations 4. At 16 July 2007, the Defendant operated the Hunter Valley Region rail network. The Defendant was responsible at all material times for the provision of access to train operators, the management of the rail network, including the rail operations, and the management of infrastructure maintenance. 5. At 16 July 2007, the Defendant utilised the services of railway employees as defined under s.4 of the Act for its rail operations. 6. ITSRR had issued a Notice of Accreditation to the Defendant. The said accreditation commenced on 24 October 2004. Clause 6 of the Notice required among other things that the person so accredited in respect of its railway operations, comply with all applicable laws and the terms of the accreditation. A copy of the Defendant's accreditation is annexed hereto and marked with the letter "B". 7. At 16 July 2007, the Defendant was required to comply with the conditions of accreditation provided for in the Act, Regulations and Guidelines made in respect of SMS's. 8. At 16 July 2007, Mr Geoffrey Johnson was a railway employee as defined in section 4 of the Act and seconded from the Rail Infrastructure Corporation to the Defendant to work as a signal electrician. Mr Johnson was engaged to carry out maintenance and safety work in relation to the Defendant's railway operations. 9. On 16 July 2007, the Defendant had in place a contractual agreement with a labour hire company, MKB Contracting Pty Limited ("MKB Contracting"). Mr John Turner was an employee of MKB Contracting provided to the Defendant for work on its rail operations. Mr Turner was engaged to carry out maintenance and safety work in relation to the Defendant's railway operations. On 16 July 2007, Mr Turner had been deployed to Singleton for one week to replace one of the Defendant's employees who was on leave. 10. Both Mr Johnson and Mr Turner had been employed in the rail industry for over 30 years and were experienced in signal maintenance work. 11. On 16 July 2007, Mr Johnson was working in the position of Work Group Leader Signals, with supervisory responsibility for team members. 12. Mr Johnson was assessed as being a Protection Officer Class 3 on 13 December 2005. As a Protection Officer Level 3, Mr Johnson was able to apply, monitor and manage four of the five methods of worksite protection under which track work in NSW must be conducted, in accordance with the Network Rules. The five forms of worksite protection are No Authority Required, Local Protection Authority, Controlled Signal Blocking, Track Occupancy Authority and Track Work Authority. The only one that Mr Johnson was not qualified to apply, monitor and manage was Local Protection Authority. 13. In addition to being accredited as a Protection Officer Level 3, Mr Johnson had received training and held qualifications in a number of trade-related disciplines and other areas, including Signals Electrical, Signalling Principles, Digital Electronics, Electrical Mechanic (Signals and Communication), Handsignalling, Safeworking, Occupational health and safety, Fatigue Management Awareness, Supervision and Management skills, and Senior First Aid. 14. On 16 July 2007, Mr Turner was performing the work of a Signalling Maintainer for the Defendant. Mr Turner was accredited as a Protection Officer Level 4. As a Protection Officer Level 4, Mr Turner was able to apply, monitor and manage the five different methods of worksite protection referred to in clause 12. 15. In addition to being an accredited Protection Officer Level 4 and having trade-related qualifications, Mr Turner also held a number of other competencies and was trained in regards to Occupational health and safety, Handsignalling and Safeworking. 16. Both Mr Johnson and Mr Turner had completed ARTC induction training. 17. At all material times, ITSRR had issued Guidelines entitled "Rail Safety (Safety Management Systems) Guideline 2006- No 1" dated 22 June 2006 ("SMS Guideline") and "Rail Safety (Network Rules) Guideline 2007 - No 1" dated 25 January 2007. The SMS Guideline was issued pursuant to s48A (4) of the Act. A copy of the SMS Guideline is annexed hereto and marked with the letter "C". The Incident 18. At all relevant times the Defendant conducted rail network operations in the Hunter Valley Region as part of its railway operations. The SMS the Defendant had in place applied to its railway operations in that region. 19. The movement of trains and the control of the rail lines for the Hunter corridor was managed and operated by The Defendant through its Network Control Centre North, located at Broadmeadow, New South Wales. A copy of the rail network diagram for the Hunter Valley corridor is annexed hereto and marked with the letter "D". 20. The Defendant employed a number of Network Controllers to direct and control the flow of trains through the corridor. The Network Train Controller responsible for the movement of trains on the rail track at Singleton on 15 and 16 July 2007 was Mr Marcus Rose. 21. Mr Rose's role on 16 July 2007 entailed monitoring and ensuring the safe movement of trains within the Middle Hunter network, by operating the Middle Hunter Control Board. Via the Middle Hunter Control Board, Mr Rose could operate the various signal points that controlled the movement of trains along the railway track in the Middle Hunter network area. This included being able to set signals by a computer to 'Stop' to prevent trains passing through certain sections of the track. This system was known as the Phoenix system. Annexed hereto and marked with the letter "E" are printouts from the Phoenix system between approximately 5:23:12am and 5:58:17am. 22. On 16 July 2007 at approximately 4 am the Singleton points 56 failed to operate. Mr Rose identified the fault with points 56 at Singleton. 23. The Singleton points comprise two points mechanisms, 56a points and 56b points. These points allow for rail traffic to: (a) Traverse the points in a straight direction (normal position) staying on one track (that is, 56a points on the Down Line and 56b points on the Up Line); and (b) Traverse from one line across to the other line (reverse position, that is, from the Down Line to the Up Line via 56a points to 56b points and vice versa). 24. The 56a points and 56b points are located approximately 77 metres apart. The 56a points, where the incident occurred, are located approximately 445 metres south of Singleton train station. Photographs depicting points 56a and 56b are annexed hereto and marked with the letter "F". 25. Down railway lines are those lines where the direction of normal railway traffic is away from Sydney Central Station. Up railway lines are those lines where the direction of normal railway traffic is towards Sydney Central Station. The incident occurred on the Down Line, though Mr Johnson and Mr Turner were attending to both the 56a points and 56b points prior to the incident. 26. Mr Rose contacted the on call signal electrician Mr Allen Beattie to attend the fault at points 56 Singleton but was informed he was unavailable as he was attending another fault. Mr Beattie contacted Mr Johnson and asked that he attend to the fault on his behalf. Mr Johnson contacted Mr Rose to advise he would be attending to the fault. At 5.22 am Mr Johnson advised Mr Rose he was at the site of the number 56 points together with Mr Turner. 27. At 16 July 2007, the Defendant's SMS required work on track to be performed in accordance with the Network Rules. Unless otherwise specified, the Network Rules referenced are the Network Rules in place as at 16 July 2007. Under the SMS in place at the relevant time, the decision of what worksite protection was to be applied was determined by the railway employees called out to perform the work. 28. The NAR rule allows limited work to be undertaken without a 'work on track' authority. The NAR rule allows trains to run without interruptions while the work is being performed, whereas a 'work on track' authority limits train movements. The NAR rule is the lowest level of worksite protection. Annexed hereto and marked with the letter "G" is a copy of the NAR Rule. The NAR Rule works in conjunction with other Network Rules. In particular, ARTC Network Procedure ANPR 711 - Lookouts (the "Lookouts Procedure") and ARTC Network Rule ANWT 300 - Planning work in the Rail Corridor. Annexed hereto and marked with the letter "H" is a copy of Lookouts Procedure and annexed hereto and marked with the letter "I" is a copy of Network Rule ANWT 300 - Planning work in the Rail Corridor. 29. The NAR Rule specifies that there must be a Protection Officer for the period of work completed under the NAR Rule, and that a Protection Officer must tell workers about the locations of safe places and the kinds and limits of safety measures in place, and be the only person to speak to Network Control Officers about safety arrangements. The NAR Rule further states that lookouts must not manage the passage of rail traffic or do any other work. In addition, the Lookouts Procedure requires lookouts to stand or walk in a safe place where they can see approaching rail traffic and to be within sight and hearing of workers. 30. In accordance with the Defendant's SMS, the Protection Officer is responsible for preparing the Worksite Protection Plan. 31. Both Mr Turner and Mr Johnson were accredited Protection Officers. There is no definitive evidence as to which of them was the Protection Officer on 16 July 2007. No documented worksite protection plan for the work undertaken by Mr Johnson and Mr Turner on 16 July 2007 was identified at the site. 32. Mr Johnson was the single point of contact with Mr Rose on the day. Mr Johnson was in communication with Mr Rose by way of a mobile telephone. A record of the conversations made by Mr Rose and Mr Johnson was made as part of the defendant's system. A copy of the conversations logged is annexed hereto and marked with the letter "J". 33. At the time that Mr Johnson notified Mr Rose that he and Mr Turner were at the site of number 56 points, Mr Johnson asked Mr Rose, "... hat trains have we got about?". Mr Rose told Mr Johnson, "... you've got Hunter Valley 388 approaching Camberwell, so he'll be probably another ten, fifteen minutes before he gets out of Singleton". Mr Rose also told Mr Johnson that on the Down line, there was a Hunter Valley train "just going through Greta ....". There were therefore trains approaching the site of number 56 points from opposite directions (the Up Line and the Down Line) on two parallel lines at Singleton. 34. Camberwell is located approximately 8 kilometres north of Singleton and Greta is located approximately 27 kilometres south of Singleton. Hunter Valley 388 was travelling on the Up Line approaching Camberwell, while Hunter Valley 161 was the train 'just going through Greta' on the Down Line. 35. At approximately 5:22am Mr Johnson said to Mr Rose, "All right then. Can we have 56 points in the reverse position, please". Mr Johnson also requested Mr Rose to give him "10 minutes" to look at the points. In response, at approximately 5:24:07, Mr Rose selected Signal 74 to Stop. Signal 74 (Up Main Line) at Stop allows 56 points to be manually selected from normal to reverse. The Stop meant that no trains were permitted to proceed past the red signal and into the location where Mr Johnson and Mr Turner were working. 36. At approximately 5:25:11am number 56 points were moved from reverse to normal an additional two times by Mr Rose. No point faults were identified during these point movements by Mr Johnson. 37. At approximately 5:26:04am Mr Johnson asked Mr Rose if they could have the 56 points to reverse "for around ten minutes or so" and to "give me a call when you've got trains please". Mr Rose replied, "No worries at all". Mr Johnson then requested Mr Rose to leave the points "in reverse until then" and "put a block on them for me, a lock on them". Mr Rose replied, "Yep, they're locked yep". Mr Johnson then replied, "Ok. Lock and reverse and give me a call when you want to run trains past me please". 38. A 'lock' is put on signals when the Network Controller places a sleeve (an electronic hold that requires one action to apply or remove) on the points which will lock them into position. This stops the points from swinging either way. This provides a lesser degree of security than a 'block', which is when the Network Controller places a facility or device (an electronic guard that requires two actions to apply or remove) on a signal or section of line to prevent the unintended entry of trains into the section of line, use of the points or signaling equipment. 39. The defendant's records confirm number 56 points were locked in the reverse position at approximately 5:26:21am. Annex hereto and marked with the letter "E" are printouts from the Phoenix system between approximately 5:23:12am and 5:58:17am. Also annexed hereto and marked with the letter "K" is an Excel spreadsheet containing ARTC field telemetry records for the 56 points between 3:28:49AM and 5:55:24AM on 16 July 2007. Between approximately 5:26am and 5:36am, Mr Johnson and Mr Turner conducted work on the 56 points and for the duration of this time, Signal 41 and 42 on the Down Line and Signal 73 and 74 on the Up Line were on 'Stop'. This meant that trains were required to stop at a red signal and could not proceed into the location in which Mr Johnson and Mr Turner were working. 40. At approximately 5:36:42am Mr Johnson then asked Mr Rose, "Where were your trains again? The other one from Camberwell where's he?". Mr Rose replied to Mr Johnson, "Oh from Camberwell he's approaching Singleton". Mr Johnson replied to Mr Rose, "OK right you can leave em normal" and "clear your roads for em". Mr Rose replied, "No worries at all". 41. Mr Johnson then asked Mr Rose, "The guy on the down where was he?". Mr Rose replied, "The guy on the down's ah Minimbah" Mr Johnson replied, "Minimbah. He's an empty so he'll be here fairly guick from there. Ok yeah clear your roads." Mr Rose replied "Yep no worries" Mr Johnson then replied, "and well keep a look out for them". Mr Rose replied, "Yep". Mr Johnson then said to Mr Rose, "...and I'll give you a call back when we've urn had a look at the other end". Mr Rose replied, "Thank you". 42. Minimbah is located approximately 11 kilometres south of Singleton train station. 43. Mr Rose changed the Stop Signals to Go and set the points to normal. ARTC field telemetry records confirm that number 56 points were locked in the normal position at approximately 5:37:05am, and Signal 42 (148.5) changed from a Stop (red) indication to a clear (green) indication at approximately 5:37:20am. As a result, train paths were set by Mr Rose on the Up and Down Main lines to allow the respective trains HV 388 and HV 161 to proceed through the Singleton location. 44. At approximately 5:44am Pacific National loaded coal train Hunter Valley 388 (HV 388) approached the number 56b points on the Up Line. HV 388 consisted of three main line locomotives and 80 loaded coal hopper wagons. The train measured approximately 1,350 metres in length and was hauling a 9,094 tonne load. At the time, the Driver of HV 388, Mr Leo McFadyen, and the Assistant Driver of HV 388, Mr Graham Beck, observed the following in the vicinity of number 56a points on the Down line: (a) a stationary motor vehicle; (b) a spot light mounted on the vehicle. The spot light was illuminated with the beam focused in a direction towards the driver's eyes; (c) two track workers located in the 'four foot' at a set of points. The "four foot' is the area between the rails of a railway track; (d) both track workers were wearing safety vests; (e) one of the track workers was holding a torch (turned on); (f) the track worker holding a torch was standing upright facing HV 388 and shining the torch towards a set of points; (g) the other person was bent over or squatting looking at the points, and (h) the location around the set of points was dark. 45. On sighting the two track workers, Mr McFadyen activated the train horn at approximately 5:44:09am. Mr McFadyen and Mr Beck then collectively observed the following: (a) one of the track workers acknowledged the horn; (b) one of the track workers flicked the torch towards the driver's face; (c) one of the track workers then stepped out of the 'four foot' and looked south (with Mr McFadyen assuming that the track workers were looking for a train approaching on the Down Line); and (d) the other worker did not move. 46. At approximately 5:45:09am HV 388 passed adjacent to number 56a points at a speed of approximately 19 km/h. HV 388 continued in the Up direction past the number 56 points on its onward journey. 47. At approximately 5:46:00am the Driver of Pacific National empty coal train Hunter Valley 161 (HV 161), travelling on the Down Line at approximately 236.214km (2.2km from the site of the incident), switched the locomotive's headlight off. Train HV 161 's ditch/fog lights remained on at this point. This was done in accordance with the defendant's Network Rule ANTR 406 'Using Train Lights' which requires train drivers to extinguish their headlights on approaching another train. 48. While Mr Johnson and Mr Turner were working at points 56a Singleton in the 'four foot area' of the Down line, they were struck by train HV 161 travelling at approximately 81 km/h at about 5.48 am. Both workers sustained fatal injuries. 49 Immediately prior to the incident, the Drivers of HV 161, Mr Stephen O'Neill and Mr Wayne Banks, observed the following: (a) approximately five (5) seconds before the incident, Mr O'Neill stated he noticed person(s) on the track; (b) one person was standing upright in the area between the rails (commonly referred to as the 'four foot') of the Down Main line with his back towards train HV 161 approximately 2-3 seconds before the incident. The person standing turned around and faced the train immediately before being struck; and (c) the other person appeared to be on his haunches or kneeling in the 'four foot' of the Down Main line in the path of HV 161. 50. The 'four foot' was considered to be in the 'danger zone'. The danger zone is defined in Network Rule ANGE 200 'Walking in the Danger Zone' as all space within 3 metres horizontally from the nearest rail and any distance above or below this 3 metres, unless a 'safe place' exists or has been created. A 'safe place' is a place where employees and equipment cannot be struck by rail traffic. It was a requirement of Network Rule ANGE 200 'Walking in the Danger Zone' that workers must not walk in the danger zone unless an easily-reached safe place is available, and there is no practicable alternative. At the time of the incident, Mr Johnson and Mr Turner had an easily-reached safe place available. Annexed hereto and marked with the letter "L" is a copy of ARTC Network Rule ANGE 200 - Walking in the Danger Zone. Defendant's Risk Register 51. At 16 July 2007, as a condition of the Defendant's accreditation, the Defendant was required to comply with the requirements provided for in the Act, Regulations and Guidelines made in respect of SMS's, which included the SMS Guideline. 52. Section 3.16.5 of the SMS Guideline sets out requirements in respect to the maintenance and establishment of a risk register, as part of the Defendant's SMS. 53. Section 3.16.5 of the SMS Guideline relevantly states: The SMS must provide for the establishment and maintenance of a risk register. The risk register must include the following: a comprehensive listing of hazards; risk associated with each hazard; the controls applicable to each hazard; nomination of the party responsible for each control; key standards applicable to each control (engineering, operational, maintenance); and cross-referencing to other relevant aspects of the SMS, such as operating rules/procedures, training/competency requirements, inspection/testing/audit regime, etc. 54. Under the SMS Guideline, it is a mandatory requirement to comply with section 3.16.5 of the SMS Guideline. 55. At 16 July 2007, the Defendant had a corporate risk register established and maintained as part of its SMS. At 16 July 2007, the Defendant's corporate risk register did not comply with section 3.16.5 of the SMS Guideline in that it did not: (a) identify the hazard of track workers being struck and injured by a train; (b) detail key standards applicable to the controls identified in the risk register; and (c) cross reference the controls to other relevant aspects of the SMS, such as the Network Rules. 56. As it was a requirement under the SMS Guideline that a risk register include certain things outlined in section 3.16.5 of the SMS Guideline, the failure of the Defendant's corporate risk register to include all of the things set out in section 3.16.5 meant that the Defendant failed to ensure that its SMS at 16 July 2007 complied with the SMS Guideline with respect to its corporate risk register. Application of the NAR Rule 57. Under the SMS in place on 16 July 2007, the decision of what method of worksite protection should be applied to the track work being conducted was to be determined by the railway employees called out to perform the work. Any work to be carried out in the danger zone was to be carried out by using one of the five methods of worksite protection listed in the ARTC Network Rail Rule ANWT 300 - Planning work in the Rail Corridor. 58. It was the responsibility of the Protection Officer to determine what method of worksite protection should be applied to the track work being conducted on the day. The lowest level of worksite protection that workers can work under is the NAR Rule. 59. The NAR Rule specifies that lookouts are the only safety measure used in this method of working on track. At least one lookout is required when working under the NAR Rule. The primary responsibility of a lookout is to keep watch for rail traffic approaching the worksite from any direction and warn workers immediately if rail traffic approaches the worksite. Lookouts must not do any other work other than perform lookout duties. The Lookouts Procedure relevantly states, at page 2 that the lookout must: "2. Stand or walk in a safe place where you can stand and see approaching rail traffic and be within sight and hearing of the workers." 60. The NAR Rule also specifies that there must be a Protection Officer for the period of work completed under the NAR Rule, and that a Protection Officer must tell workers about the locations of safe places and the kinds and limits of safety measures in place, and be the only person to speak to Network Control Officers about safety arrangements. 61. In the absence of a worksite protection plan being located for the work conducted by Mr Johnson and Mr Turner on 16 July 2007, no document demonstrates what procedure was being used when the work was being undertaken. Stop signal protection was applied by Mr Rose for Mr Johnson and Mr Turner when they commenced work at points 56b Singleton. That protection was not in place at the time of the incident. 62. The Defendant did not ensure that Mr Johnson and Mr Turner performed their work on the date of the incident in accordance with the NAR Rule or any other method of worksite protection that was part of the SMS in place at the time. Worksite Protection Plan 63. At 16 July 2007, the Defendant's SMS had a requirement for Protection Officers to prepare a worksite protection plan prior to work being undertaken. 64. A review of Mr Johnson's callout jobs against the worksite protection plans established that in the period 31 December 2006 and 16 July 2007 Mr Johnson attended at least 28 callout jobs. Mr Johnson did not prepare worksite protection plans for any of the 28 callout jobs. Mr Johnson held a worksite protection plan book which contained worksite protection plans compiled for day time work with no corresponding worksite protection plans to cover the callout work in the period 31 December 2006 and 16 July 2007. 65. The Defendant did not ensure that a worksite protection plan was prepared for the callout work undertaken on 16 July 2007 by Mr Johnson and Mr Turner. Audits of callout work sites or associated work site protection documentation 66. The ITSRR investigation identified that no work site audits were undertaken for callout work irrespective of the type of worksite protection being implemented. Worksite audits were not scheduled by the Defendant for unplanned work. No after hours callout worksites were audited and no post work site inspections of callout work site protection documentation were undertaken, or programmed to be undertaken, by the Defendant. 67. The Defendant failed to ensure that a minimum number of call out work site audits or audits of associated callout worksite protection documentation were undertaken. Previous Incidents 68. The Defendant had notified ITSRR in accordance with section 64 of the Act of five (5) worksite protection incidents involving track worker near misses whilst implementing the NAR Rule. These incidents were notified to ITSRR between the period 12 January 2005 to 16 July 2007. 69. On 15 July 2005 the Defendant issued a Safety Alert ARTC NSW No. 8 that highlighted an incident of employees establishing a worksite in the rail corridor without a risk assessment and implementing a worksite protection plan. Annexed hereto and marked with the letter "M" is a copy of the Safety Alert ARTC NSW No.8. 70. On 1 March 2006 the Defendant issued a further Safety Alert, ARTC NSW No. 12 entitled "Rail Safety - Near Miss while using NAR Protection". A copy of the Safety Alert is annexed hereto and marked with the letter "N". Actions taken post incident 71. The Defendant introduced a new procedure to its SMS - the "Operator Specific Procedure" that places conditions on the use of the NAR Rule. A copy of the ARTC Safety Notice dated 10 July 2008 is annexed hereto and marked with the letter "O". 72. The risk of a track worker being struck by a train is now included in the corporate risk register maintained by the Defendant. 73. The Defendant has reviewed the effectiveness and adequacy of worksite safe working protection, and it verifies the implementation of worksite safe working protection through its program of audits. 6 An affidavit of Tim Francis Ryan, General Manager of the defendant's Hunter Valley Division was read for the defendant and became exhibit 1. Mr Ryan, inter alia, details the Rail Safety Management Policies, Procedures, Guidelines, Forms and work instructions which were included in the defendant's SMS. The SMS was supported by a range of reporting functions which included monthly safety performance reports to the Executive Committee and biannual reviews of risk management with the Committee of the Board for Risk Management. Mr Ryan outlines the systems that the defendant had in place for the training of, and provision of safety information to, its workforce. 7 In approaching the task of sentencing the defendant I have regard to the purposes of sentencing which are stated in s 3A Crimes (Sentencing Procedure) Act 1999. I also pay due regard to the relevant aggravating and mitigating factors identified in s 21A Crimes (Sentencing Procedure) Act. 8 During submissions on sentence, it became apparent that the question whether there was a causal link between the defendant's admitted failures and the deaths of Mr Johnson and Mr Turner was in dispute. Mr Agius SC, for the plaintiff, submitted that completion of the worksite protection plan for the work to be undertaken on 16 July 2007 would have required the Protection Officer to turn his mind to those factors set out in ANWT 300. Furthermore, had auditing been undertaken by the defendant for callout work, the failure to assess the work and to prepare worksite protection plans by persons carrying callout work in accordance with ANWT 300 would have been identified prior to the incident. 9 Mr Agius told me that par 28 had been omitted from the amended summons and the plaintiff no longer relied on the deaths as an aggravating feature of the offence. Notwithstanding the omission of par 28, Mr Agius put to me that a causal link between the breaches and the deaths had been particularised in par 16U of the amended summons which is as follows: "While Mr Johnson and Mr Turner were working at points 56A Singleton in the 'four foot area' of the Down Line, they were struck by train HV 161 travelling at approximately 81 km/h at about 5.48am. Both workers sustained fatal injuries." The court, Mr Agius said, was entitled to look at what had occurred. 10 In written submissions, the plaintiff contended that although the injury caused by the breach does not of itself dictate the seriousness of the offence, a breach, as in the present case, where there was every prospect of serious consequences should be assessed on a different basis to a breach which was unlikely to have such a consequence. The plaintiff submitted that the consequent risk that arose as a result of the defendant's failure, made this contravention one that should be considered to be of a most serious nature and at the higher end of the scale of objective seriousness. 11 Mr Dixon SC, counsel for the defendant, submitted that there was no causal link pleaded between the deaths and the defendant's failures. Par 28 of the summons had been withdrawn as a particular and the defendant had entered its plea to the amended summons. It could not be concluded, Mr Dixon argued, that the defendant's failures causally contributed to or caused the deaths. Mr Dixon put to me that the court would not conclude that the deceased would have acted in any different way even if a worksite protection plan had been prepared. The defendant had in place an SMS, which, Mr Dixon contended, was a system with extensive measures for identifying, managing and controlling the relevant risks of carrying out the railway operations for the safe management of its workforce. The objective seriousness of the offence was submitted to be at the lower end of the spectrum. 12 I do not agree with the plaintiff's contention that a causal link has been pleaded notwithstanding the omission of par 28. Par 16U is confined to a factual statement of what occurred. In any event, facts may not be taken into account in a way that is adverse to the interests of the defendant unless those facts have been established by the plaintiff beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270. 13 Although not an agreed fact, the only rational inference to be drawn from conversations between Mr Rose and Mr Johnson is that Mr Johnson was the Protection Officer for the work to be completed under the NAR Rule. Under the defendant's SMS a Protection Officer was required to prepare a worksite protection plan prior to work being undertaken. No worksite protection plan was found for the work undertaken by Mr Johnson and Mr Turner and worksite protection plans for callout work were not located within Mr Johnson's protection plan book for a period of just over six months. The only rational inference to be drawn from these circumstances is that Mr Johnson did not prepare a worksite protection plan prior to commencing the work on 16 July 2007. Network Rail Rule ANWT 300 sets out the factors that a Protection Officer was required to consider when making a safety assessment of the work to be performed within the rail corridor. Completion by Mr Johnson of a worksite protection plan would have required his consideration of the ANWT 300 safety factors which included: (a) if the requirement for there to be an easily-reached safe place can be met; (b) if there will be rail on adjacent lines; (c) if there will be rail traffic between and/or within the worksite; 14 Nevertheless, I am not satisfied beyond reasonable doubt, that Mr Johnson's failure to prepare a worksite protection plan for the callout work undertaken on 16 July 2007 was a cause or the sole cause of the deaths. Such a finding is not the only rational inference to be drawn from all the circumstances. Both Mr Johnson and Mr Turner were experienced signal maintenance workers whose training included Handsignalling and Safeworking. Mr Johnson was an accredited Protection Officer Level 3 and Mr Turner was an accredited Protection Officer Level 4. Mr Johnson's completion of the re-certification checklist in December 2005 demonstrates his knowledge of undertaking work under the NAR Rule. He was familiar, inter alia, with the identification of the danger zone, of accessible safe places and the need to ensure that Lookouts had appropriate equipment and instructions to warn workers of approaching rail traffic. He had previously prepared worksite protection plans of which exhibit B is an example. The conversations between Mr Johnson and Mr Rose indicate that Mr Johnson was mindful of the need to keep a lookout for the trains which is re-enforced by the observations of Mr McFadyen and Mr Beck at approximately 5.44.09am that one of the track workers stepped out of the 'four foot' and looked south. The reasons for the deceaseds' inability to see train HV 161 at about 5.48am remain a matter of speculation. It seems, however, that the NAR Rule Lookout procedures were not being followed at the time. I am unable to determine on the available evidence whether Mr Johnson and Mr Turner would have acted in any different way had Mr Johnson prepared a worksite protection plan. 15 Notwithstanding not being satisfied to the requisite standard that the defendant's failures causally contributed to the deaths, I find that the offence is objectively serious. Worksite audits were not undertaken by the defendant for callout work irrespective of whether the NAR Rule or another type of worksite protection was being implemented. The defendant accepted that it had failed to ensure that a minimum number of callout work audits were carried out but submitted that an audit of unplanned after hours work was by its very nature hard to achieve. Mr Johnson's worksite protection plan book did not contain worksite protection plans for the 28 callout jobs that he had attended in the period 31 December 2006 and 16 July 2007. I do not accept that it would have been difficult for the defendant to examine Mr Johnson's callout documentation during that six months. The nature of callout work, sometimes undertaken at night in hazardous conditions, obliged the defendant to ensure that shortcuts were not taken, safety not compromised and relevant risks identified. The defendant was not entitled to rely on the experience and training of its workforce. 16 The defendant was aware of the safety issues that might confront members of its workforce by a failure to carry out a risk assessment and to implement a worksite protection plan. The risk to safety which was likely to result in serious injury or death when a worksite protection plan was not followed was recognised by Safety Alert ARTC No 8 issued on 15 July 2005. Five near misses to employees while the NAR Rule was being implemented alerted the defendant to the already obvious danger of members of its workforce being struck by a train. The defendant issued Safety Alert ARTC NSW No 12 Rail Safety – Near Miss while using NAR Protection on 1 March 2006. The obvious risk of serious injury or death required the defendant to ensure that a worksite protection plan was completed prior to its employees or contractors commencing callout work. The possibility that worksite protection plans were not being completed could have been ameliorated by the auditing of a minimum number of the callout work documentation. The obviousness of the risk increases the objective seriousness of the offence: Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610. The failure by the defendant to have a system in place which provided for the audit of a minimum number of callout documentation amounted, in my opinion, to a serious breach of its responsibility to provide for the safety of its workforce. 17 Mr Agius invited me to find as a factor of aggravation that the offence involved a grave risk of death to another person or persons: s 21A(2)(ib) Crimes (Sentencing Procedure) Act. A rail network is an inherently dangerous environment. The NAR Rule was the lowest level of worksite protection. I am satisfied beyond reasonable doubt that the defendant's failure to audit a minimum number of callout work documentation involved a grave risk of death to its workforce undertaking such work under the NAR Rule. I take this factor of aggravation into account in determining the appropriate sentence. 18 It is an agreed fact that the defendant's corporate risk register did not comply with s 3.16.5 of the SMS Guideline in the ways identified in par 18 of the amended summons. Remarkably, the risk register failed to identify the hazard of track workers being struck by a train. I have no doubt that the risk register should have identified such an obvious risk. In failing to identify the risk, the defendant contravened a condition of its accreditation. I take into account, however, that the risk was otherwise separately identified and recorded in the defendant's risk procedures which included the ANGE Network rules and Work Method Statement. 19 There are a number of mitigating factors, which are to be taken into account in determining the appropriate sentence. Mr Ryan, in his affidavit, discloses the size of the defendant's workforce and the extent of its operations. The defendant currently is responsible for the management of over 10,000 route kilometres of railway track in New South Wales, Victoria, Queensland and South Australia and commenced operations in July 1998. Despite the extent and inherent danger of its rail operations, the defendant has neither previously been prosecuted under rail safety legislation in Australia nor for any breaches of occupational health and safety legislation. I accept that the defendant's prior safety record was exemplary. Mr Ryan recounts the defendant's efforts to be a good corporate citizen, its focus having been to support local charitable and community events. Each year the defendant donates to a Level Crossing Awareness Program coordinated by Railcorp. The defendant does not have a record of prior convictions and has shown previous good character. I take into account these mitigating factors: s 21A(3)(e)-(f) Crimes (Sentencing Procedure) Act. 20 Another mitigating factor is the defendant's full co-operation with the authorities in relation to all investigations conducted into the incident. I also take into account the pre-trial disclosures which are embodied in the Agreed Facts: s 21A(3)(l)-(m) Crimes (Sentencing Procedure) Act. 21 The offender's guilty plea is a mitigating factor. The defendant submitted that the plea of guilty had been entered at the earliest opportunity. During the proceedings on sentence the plaintiff withdrew its submission that the plea was entered at a late stage and acknowledged that it had been notified of the defendant's intention to plead guilty when the amended summons was filed on 14 December 2009. The history of the proceedings prior to the notification of the plea reveals that the summons was first returnable on 24 August 2009. On that day the defendant applied for an eight week adjournment which was not opposed. On 26 October 2009, the defendant made a further application for a three week adjournment which was not opposed. On 19 November 2009, the proceedings were stood over to allow the amended summons to be filed. In assessing the utilitarian value of the plea, I bear in mind the principles set out in R v Borkowski [2009] NSWCCA 102 at [32]. The defendant is entitled to a utilitarian discount for the plea of 20 per cent. 22 Mr Dixon invited me to find as a mitigating factor that the defendant was remorseful. Remorse as a mitigating factor is qualified by s 21A(3)(i)(i)-(ii) Crimes (Sentencing Procedure) Act which requires the defendant to provide evidence that the defendant has accepted responsibility for its actions and has acknowledged any injury, loss or damage caused by them. Mr Agius submitted that the defendant's denial of causation represented a failure to understand the importance of audits for worksite protection plans. I agree with Mr Agius's contention only to the extent that the defendant's submissions during the proceedings on sentence failed to recognise the significance of its failure to audit callout worksite protection plans and the consequent gravity of the risk of safety to its workforce who were performing callout work under the NAR Rule. I find, however, that the defendant's remorse and acceptance of responsibility has been demonstrated in a number of other ways. It was manifested by the issue of SAFE/Notice 2/860 on 10 July 2008 restricting the use of the NAR Rule to daylight hours, the inclusion of the risk of track workers being struck by a train in the corporate risk register and the verification of the implementation of worksite safe protection through its program of audits. It has also been manifested by the financial and emotional support provided to Mr Johnson's family. I find that the defendant has shown remorse for the offence which I take into account as a matter of mitigation. 23 The defendant's prior exemplary safety record and the steps taken to prevent a recurrence of the offence encourage me to take the view that the risk of re-offending is low. I conclude that the defendant has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act. 24 Mr Dixon argued that in the defendant's circumstances the need for specific deterrence is limited. Whilst I agree with Mr Dixon's submission, I do not propose to give no weight to an element of specific deterrence in the sentence. The defendant has a continuing obligation to take all practicable precautions to ensure the safety of its large workforce. I give modest weight to the need to encourage the defendant to maintain a sufficient level of diligence in the future. I also give weight to the need for general deterrence to discourage serious breaches of the Rail Safety Act. 25 I conclude that the appropriate undiscounted starting point for the fine to be imposed is $250,000. The fine is reduced by 20 per cent for the plea. Orders 26 I make the following orders: 1. The defendant is convicted and fined $200,000 with a moiety of one half of the fine, namely $100,000, to the plaintiff. 2. The defendant is to pay the plaintiff's costs as agreed or assessed. ********** 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.